Hughes v. California Department of Corrections and Rehabilitation et al

Filing 50

ORDER signed by Magistrate Judge Dale A. Drozd on 12/3/2013 ORDERING that, within 14 days, defedant Dr. Malet shall pay to the USM the sum of $241.28, unless within that time defendant files a written statement showing good cause for his failure to waive service; the court does not intend to extend this fourteen day period; and the Clerk shall serve a copy of this order on the USM. (cc: USM)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARD C. HUGHES,

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Plaintiff,

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No. 2:11-cv-00530 GEB DAD P

v.

ORDER

STATE OF CALIFORNIA DEP’T OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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

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relief pursuant to 42 U.S.C. § 1983.
On July 3, 2013, the court ordered the United States Marshal to serve process upon the

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defendants in this case. The Marshal was directed to attempt to secure a waiver of service before

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

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days, the Marshal was directed to effect personal service on the defendant in accordance with the

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provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without

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prepayment of costs, and to file the return of service with evidence of any attempt to secure a

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waiver of service and with evidence of all costs subsequently incurred in effecting personal

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service.

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On October 23, 2013, the United States Marshal filed a return of service with a USM-285

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form showing total charges of $241.28 for effecting personal service on defendant Dr. Malet.

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The form shows that a waiver of service form was mailed to defendant Dr. Malet on July 19,

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2013, and that no response thereto was received.

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Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

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An individual, corporation, or association that is subject to service
under Rule 4(e), (f), or (h) has a duty to avoid unnecessary
expenses of serving the summons. . . .

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If a defendant located within the United States fails, without good
cause, to sign and return a waiver requested by a plaintiff located
within the United States, the court must impose on the defendant:

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(A) the expenses later incurred in making service; and

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(B) the reasonable expenses, including attorney’s fees, of any
motion required to collect those service expenses.

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Fed. R. Civ. P. 4(d)(1), (2)(A), (B).
The court finds that defendant Dr. Malet was given the opportunity required by Rule 4(d)

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to waive service and 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 Dr. Malet shall pay to the

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United States Marshal the sum of $241.28 unless within that time defendant files a written

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statement showing good cause for his failure to waive service. The court does not intend to

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extend this fourteen day period.

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2. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.
Dated: December 3, 2013

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DAD:4
hugh530.taxcost

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