Wilson v. Wever et al

Filing 77

ORDER signed by Magistrate Judge Craig M. Kellison on 5/20/2013 DENYING the United States Marshal's 75 request; the United States Marshal shall (a) personally serve process and a copy of this order; and (b) file, whithin 14 days after personal service is effected, the return of service. (See Order for Details) (cc: USM)(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE WILSON,

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No. 12:09-CV-2191-LKK-CMK-P

Plaintiff,

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vs.

ORDER

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SANDRA LEE WEVER,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is the United States Marshal’s request (Doc. 75) for

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costs of service on defendant Wever.

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On March 14, 2013, the United States Marshal filed a return of service purporting

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to show proper service on defendant Wever. The remarks included on the return of service

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indicate that the summons and complaint were personally given to Mary Wever, defendant’s

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sister, who said she would in turn give the papers to defendant.

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The court finds that the manner of service employed by the United States Marshal

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is insufficient under the Federal Rules of Civil Procedure. Rule 4(e) specifies that service may

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be accomplished by complying with state law, delivering a copy of the summons and complaint

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to the defendant individually, leaving a copy of the summons and complaint at the defendant’s

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dwelling or usual place of abode with someone of suitable age and discretion who resides there,

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or delivering a copy of the summons and complaint to the defendant’s legally authorized agent.

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In this case, California law for substituted service requires that the summons and complaint be

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mailed to the defendant. There is no indication this occurred here. Further, there is no indication

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that Mary Wever is of suitable age or that she resides with defendant Wever. Finally, there is no

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indication that Mary Wever is defendant’s lawful agent for service of process.

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Because the United States Marshal has not submitted evidence showing service of

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process in compliance with the rules, the request for reimbursement will be denied and the

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United States Marshal will be directed to re-serve defendant Wever.1

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In a prior order, the United States Marshal was directed to retain the sealed
summons and a copy of the complaint in their file for future use.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

The United States Marshal’s request (Doc. 75) is denied;

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2.

The United States Marshal shall:

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a. Personally serve process and a copy of this order on the
defendant in accordance with Fed. R. Civ. P. 4 and 28 U.S.C. § 566(c) and
shall command all necessary assistance to execute this order. The United
States Marshal shall maintain the confidentiality of all information so
provided pursuant to this order; and

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b. File, within fourteen days after personal service is effected, the
return of service, along with evidence of any attempts to secure a waiver of
service of summons and of the costs subsequently incurred in effecting
service on the defendant. Such costs shall be enumerated on the USM-285
form and shall include the costs incurred by the United States Marshal’s
office for photocopying additional copies of the summons and complaint
and for preparing new USM-285 forms, if required. Costs of service will
be taxed against the personally served defendant in accordance with the
provisions of Fed. R. Civ. P. 4(d)(2).

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DATED: May 20, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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