Puckett v. Agboli et al

Filing 43

ORDER signed by Magistrate Judge Craig M. Kellison on 4/26/2018 ORDERING defendant Lynch to pay the U.S. Marshal $235.40 within 14 days from the date of this order, unless within that time defendant files a written statement showing good cause for his failure to waive service. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DURRELL ANTHONY PUCKETT,

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No. 2:14-cv-2776 CMK P

Plaintiff,
v.

ORDER

A. AGBOLI, 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
relief pursuant to 42 U.S.C. § 1983.
On December 9, 2016, the court ordered the United States Marshal to serve process upon

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the defendant in this case. The Marshal was directed to attempt to secure a waiver of service

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before attempting personal service on defendant. If a waiver of service was not returned within

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

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with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c),

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without prepayment of costs, and to file the return of service with evidence of any attempt to

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

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personal service.

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On May 30, 2017, the United States Marshal filed a return of service with a USM-285
form showing total charges of $235.40 for effecting personal service on defendant Lynch. The
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form shows that a waiver of service form was mailed to the defendant on January 24, 2017, and

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that no response was received.

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Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
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 Lynch was given the opportunity required by Rule 4(d) 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 Lynch shall pay to the

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United States Marshal the sum of $235.40, 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.

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Dated: April 26, 2018

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