Johnson v. Sisto et al

Filing 111

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LACEDRIC JOHNSON,
Plaintiff,

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vs.

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No. 2:08-cv-1609 KJM KJN P

D.K. SISTO, et al.,
Defendants.

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/

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, in this action

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ORDER

seeking relief pursuant to 42 U.S.C. § 1983.
On April 5, 2011, the court ordered the United States Marshal to serve process

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upon the defendants in this case. The Marshal was directed to attempt to secure a waiver of

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service before attempting personal service on defendants. If a waiver of service was not returned

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within sixty days, the Marshal was directed to effect personal service on the defendant in

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accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C.

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§ 566(c), without prepayment of costs, and to file the return of service with evidence of any

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attempt to secure a waiver of service and with evidence of all costs subsequently incurred in

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effecting personal service.

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On July 11, 2011, the United States Marshal filed a return of service with a USM-

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285 form showing total charges of $129.38 for effecting personal service on defendant D.K.

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Sisto. The form shows that a waiver of service form was mailed to the defendant on April 8,

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2011, and that no response was received.
Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part, as

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follows:
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 . . . .

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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
be shown.

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Fed. R. Civ. P. 4(d)(2).
The court finds that defendant D.K. Sisto was given the opportunity required by

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Rule 4(d)(2) to waive service and has failed to comply with the request.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days from the date of this order defendant D.K. Sisto shall pay

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to the United States Marshal the sum of $129.38, unless within that time defendant files a written

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statement showing good cause for his failure to waive service. The court is not inclined to

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extend this fourteen day period.
2. The Clerk of the Court is directed to serve a copy of this order on the U.S.

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Marshal.

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DATED: July 28, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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john1609.tax

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