Clay v. Walker et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/1/11 ORDERING that within 14 days from the date of this order defendant McIntyre shall pay to the United States Marshal the sum of $55.00, 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) (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DEANGELO CLAY,
Plaintiff,
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vs.
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J. WALKER, et al.,
Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action
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No. CIV S-09-2899 CKD P
seeking relief pursuant to 42 U.S.C. § 1983.
On August 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 the defendants. If a waiver of service was not
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returned within sixty days, the Marshal was directed to effect personal service on the defendants
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in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28
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U.S.C. § 566(c), without prepayment of costs, and to file the return of service with evidence of
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any 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 November 21, 2011, the United States Marshal filed a return of service with a
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USM-285 form showing total charges of $55.00 for effecting personal service on defendant
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McIntyre. The form shows that a waiver of service form was mailed to the defendant on August
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8, 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 McIntyre 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 McIntyre shall pay
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to the United States Marshal the sum of $55.00, unless within that time defendant files a written
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statement showing good cause for his failure to waive service.
2. The Clerk of the Court is directed to serve a copy of this order on the U.S.
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Marshal.
Dated: December 1, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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/mp
clay2899.taxcost(3)
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