Stringfellow v. McGinness et al

Filing 43

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/19/2011 ORDERING that w/in 14 days dft McGinness shall pay to the USM the sum of $56.02, unless w/in that time dft files a written statement showing good cause for his failure to waive service; and the clerk to serve a copy of this order on the USM. (cc: USM)(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT LEE STRINGFELLOW,
Plaintiff,

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No. CIV S-10-2988 GEB GGH P

vs.

13 JOHN McGINNESS, et al.,
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Defendants.
/

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ORDER

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

17 seeking relief pursuant to 42 U.S.C. § 1983.
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On May 3, 2011, the court ordered the United States Marshal to serve process upon

19 the defendants in this case. The Marshal was directed to attempt to secure a waiver of service
20 before attempting personal service on defendants. If a waiver of service was not returned within
21 sixty days, the Marshal was directed to effect personal service on the defendants in accordance
22 with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c),
23 without prepayment of costs, and to file the return of service with evidence of any attempt to
24 secure a waiver of service and with evidence of all costs subsequently incurred in effecting
25 personal service.
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On September 2, 2011, the United States Marshal filed a return of service with a

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2 USM-285 form showing total charges of $56.02 for effecting personal service on defendant
3 McGinness. The form shows that a waiver of service form was mailed to the defendant on May 6,
4 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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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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13 Fed. R. Civ. P. 4(d)(2).
The court finds that defendant McGinness was given the opportunity required by

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15 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 McGinness shall pay

18 to the United States Marshal the sum of $56.02, unless within that time defendant files a written
19 statement showing good cause for his failure to waive service. The court does not intend to
20 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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22 Marshal.

23 DATED: October 19, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:ab

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stri2988.taxcost

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