Mills v. Virga et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 2/21/13 ORDERING that Plaintiff is directed to complete service as necessary, and, if not necessary, to file with the court any appropriate affidavits or motions.(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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JOSHUA DANIEL MILLS,
Plaintiff,
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No. 2:12-cv-0166 KJM AC P
Defendants.
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ORDER
vs.
VIRGA, et al.,
/
Plaintiff is a state prisoner proceeding with counsel on his first amended
complaint filed pursuant to 42 U.S.C. § 1983.
On June 14, 2012, the magistrate judge previously assigned to this action found
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that the first amended complaint may state a cognizable claim for relief against defendants
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Murray and Holloway, and directed the Clerk to issue summonses to plaintiff for the purpose of
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service of process. ECF No. 12 at 2. The court’s June 14, 2012 order instructed plaintiff to
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complete service of process in accordance with Federal Rule of Civil Procedure 4 within 60 days
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from the date of the court’s order. Id. The court further ordered that, within 120 days, plaintiff
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and defendants should each submit a status report to the court, and that plaintiff’s status report
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include the date and manner of service of process. Id. at 2-3.
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On October 3, 2012, the court directed plaintiff to show cause why the action
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should not be dismissed for failure to prosecute, as plaintiff had failed to communicate with the
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court regarding whether he had completed service. ECF No. 16.
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Counsel for the plaintiff has now responded. ECF No. 17. In her response,
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counsel declares that: (1) she served both defendants by certified mail at their work address; (2)
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she has no way to enter the institution in order to locate and to serve defendants personally; (3)
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she has received a letter from the Attorney General advising that her service on defendant
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Murray was deficient; and (4) she has not received any communication from the Attorney
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General regarding her service of defendant Holloway. Counsel concludes that
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[u]nless the Court orders service on these defendants through the
United States Marshall’s Office, I have no way to personally serve
either of these defendants since I do not know where they live and
I have no way to enter the prison grounds and serve them
personally. . . . I do not have the ability to wander around the
prison grounds in an attempt to locate someone to personally serve
him or her with a Summons and Complaint.
ECF No. 17 at 3-4.
Counsel does not advise the court why she did not file a proof of service, pursuant
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to Federal Rule of Civil Procedure 4(l), nor does counsel cite any authority for her apparent
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contention that service by certified mail on defendants at their place of employment complies
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with Federal Rule of Civil Procedure 4(e). Counsel does not indicate whether she has contacted
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the Litigation Coordinator at the prison regarding logistics for effecting service, which would be
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the proper way to proceed.
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It is also unclear to the court if counsel for the plaintiff is moving the court for an
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order for service by the U.S. Marshall, pursuant to Federal Rule of Civil Procedure 4(c), or for
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default by defendant Holloway. Neither request is appropriate.
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The court is accordingly unable to discharge the order to show cause, as it cannot
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determine whether service of process has in fact been effected on both defendants, and, if so,
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when. The court shall therefore sua sponte extend the time for service of process, pursuant to
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Federal Rule of Civil Procedure 4(m), for sixty days from the date of this order. Plaintiff is
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directed to complete service as necessary, and, if not necessary, to file with the court any
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appropriate affidavits or motions. Failure to comply with the terms of this order shall result in a
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recommendation that the action be dismissed for failure to prosecute, as outlined in the court’s
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October 3, 2012 order to show cause.
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IT IS SO ORDERED.
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DATED: February 21, 2013.
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE
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mill0166.osc(2)
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