Little v. Marciano et al

Filing 19

ORDER signed by Magistrate Judge Dale A. Drozd on 07/25/11 ordering the United States Marshal is relieved on any further obligation to serve defendant Nurse Murphy. Within 10 days from the date of this order the United States Marshal shall file an appropriate return of service for said defendant. The clerk of the court is directed to serve a copy of this order on the U.S. Marshal. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

DEMETRIC LITTLE,

11
12
13
14
15
16

Plaintiff,

No. 2:10-cv-2490 JAM DAD (PC)

vs.
C. MARCIANO, et al.,
Defendants.

ORDER
/

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

17

rights action pursuant to 42 U.S.C. § 1983. By order filed February 14, 2011, this court directed

18

the United States Marshal to request a waiver of service from three defendants, P.A. C.

19

Marciano, Nurse Murphy, and Nurse Story. The order further directed the United States Marshal

20

to personally serve process on any defendant who did not return a waiver of service of summons

21

within sixty days from the date the request for waiver was mailed.

22

On April 18, 2011, the United States Marshal returned waivers from defendants

23

Marciano and Story. On April 25, 2011, defendants Marciano, Story and Murphy answered the

24

complaint. The United States Marshal has not returned service for defendant Murphy, and has

25

reported to the court that an attempt to personally serve defendant Murphy at High Desert State

26

Prison was unsuccessful because the deputy marshal sent to serve process was, inexplicably,
1

1

denied entry to the prison. The United States Marshal has requested guidance concerning further

2

service in view of the fact that the docket in this action reflects that defendant Murphy has

3

answered the complaint.

4

This is not the first time that an answer has been filed on behalf of state

5

defendants prior to completion of service and without notification by defendants or their counsel

6

to the United States Marshal’s office that personal service was being waived. In those instances,

7

the United States Marshal’s office has wasted time and valuable resources in an unnecessary

8

effort to complete service of process. In the instant case, the court will relieve the United States

9

Marshal of any further obligation to serve defendant Murphy. Counsel for defendants is

10

requested to take note, and to take all steps necessary to notify her defense colleagues, that this

11

court will in the future order reimbursement of costs associated with personal service even if

12

such service is accomplished after a defendant has answered a complaint where the defendant or

13

his or her counsel have failed to contact the U.S. Marshal’s office. The issue at hand can be

14

completely avoided by counsel through review of the docket in an action and communication

15

with the United States Marshal when an answer is tendered on behalf of one or more unserved

16

defendants. Nothing in this order should be construed to discourage counsel from, as

17

appropriate, filing one answer on behalf of all defendants to an action, even if service is

18

incomplete for one or more of the defendants. In such circumstances, counsel should

19

communicate directly with the United States Marshal’s office as soon as the decision to answer

20

the complaint for an unserved defendant is reached.

21

In accordance with the above, IT IS HEREBY ORDERED that:

22

1. The United States Marshal is relieved of any further obligation to serve

23

defendant Nurse Murphy;

24

2. Within ten days from the date of this order the United States Marshal shall file

25

an appropriate return of service for said defendant; and

26

/////
2

1

3. The Clerk of the Court is directed to serve a copy of this order on the United

2

States Marshal’s Office.

3

DATED: July 25, 2011.

4
5
6
7
8

DAD:12
litt2490.svc

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3