Blaine v. California Health Care Facility et al

Filing 38

ORDER signed by Magistrate Judge Allison Claire on 03/31/15 granting 37 Motion for reimbursement filed by the U.S. Marshal. Within 14 days from the filing date of this order defendant Sabin shall pay the U.S. Marshal the sum of $140.08, unl ess that time defendant files a written statement with the court showing good cause for his failure to waive service. The court does not intend to extend this 14 day period. The clerk of the court is directed to serve a copy of this order on the U.S. Marshal and defendant Sabin. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VANCE BLAINE,

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Plaintiff,

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No. 2:13-cv-2163 KJM AC P

v.

ORDER

CALIFORNIA HEALTH CARE
FACILITY, et al.,
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 October 21, 2014, the court ordered the United States Marshal to serve process upon

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the defendants in this case. ECF No. 21. The Marshal was directed to attempt to secure a waiver

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of service by mail before attempting personal service on any defendant. If a waiver of service

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was not returned within sixty days, the Marshal was directed to effect personal service in

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accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. §

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566(c), without prepayment of costs. The Marshal was also directed to file the return of service

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with evidence of any attempt to secure a waiver of service and with evidence of all costs

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subsequently incurred in effecting personal service. See generally ECF No. 21.

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On March 25, 2015, the Marshal filed a return of service with a USM-285 form showing

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total charges of $140.08 for effecting personal service on defendant Sabin. See ECF No. 36. The

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return shows that a waiver of service form was mailed to the defendant on October 24, 2014, and

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that no response was received. On February 13, 12015, the Marshal designated this matter

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appropriate for personal service. A notation on the return indicates that defendant Sabin was no

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longer employed at “CDC” as of March 20, 2105; however, personal service was effected on

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Sabin on March 24, 2015, apparently at the California Medical Facility. See ECF No. 36.

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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).

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Pursuant to this authority, and the information provided by the Marshal, the court finds

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that defendant Sabin was given the opportunity required by Rule 4(d) to waive service and failed

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to comply with the request.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The request for reimbursement filed by the U.S. Marshal, ECF No. 37, is granted.

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2. Within fourteen days from the filing date of this order defendant Sabin shall pay the

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U.S. Marshal the sum of $140.08, unless within that time defendant files a written statement with

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

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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 and

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defendant Sabin.

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DATED: March 31, 2015

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