Johnson v. Sisto et al
ORDER signed by Magistrate Judge Kendall J. Newman on 7/28/11: Within fourteen days from the date of this order defendant D.K. Sisto shall pay to the United States Marshal the sum of $129.38, unless within that time defendant files a written statement showing good cause for his failure to waive service. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal. (cc:USM)(Kaminski, H)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:08-cv-1609 KJM KJN P
D.K. SISTO, et al.,
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, in this action
seeking relief pursuant to 42 U.S.C. § 1983.
On April 5, 2011, the court ordered the United States Marshal to serve process
upon the defendants in this case. The Marshal was directed to attempt to secure a waiver of
service before attempting personal service on defendants. If a waiver of service was not returned
within sixty days, the Marshal was directed to effect personal service on the defendant in
accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C.
§ 566(c), without prepayment of costs, and to file the return of service with evidence of any
attempt to secure a waiver of service and with evidence of all costs subsequently incurred in
effecting personal service.
On July 11, 2011, the United States Marshal filed a return of service with a USM-
285 form showing total charges of $129.38 for effecting personal service on defendant D.K.
Sisto. The form shows that a waiver of service form was mailed to the defendant on April 8,
2011, and that no response was received.
Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part, as
An individual, corporation, or association that is subject to service
under subdivision (e), (f), or (h) and that receives notice of an
action in the manner provided in this paragraph has a duty to avoid
unnecessary costs of serving the summons . . . .
If a defendant located within the United States fails to comply with
a request for waiver made by a plaintiff located within the United
States, the court shall impose the costs subsequently incurred in
effecting service on the defendant unless good cause for the failure
Fed. R. Civ. P. 4(d)(2).
The court finds that defendant D.K. Sisto was given the opportunity required by
Rule 4(d)(2) to waive service and has failed to comply with the request.
Accordingly, IT IS HEREBY ORDERED that:
1. Within fourteen days from the date of this order defendant D.K. Sisto shall pay
to the United States Marshal the sum of $129.38, unless within that time defendant files a written
statement showing good cause for his failure to waive service. The court is not inclined to
extend this fourteen day period.
2. The Clerk of the Court is directed to serve a copy of this order on the U.S.
DATED: July 28, 2011
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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