Larson v. Bailiff et al

Filing 10

ORDER Regarding Case Status and Directing Clerk to Re-Issue Summons and IFP Package. Signed by Judge Marilyn L. Huff on 1/27/2014.(All non-registered users served via U.S. Mail Service)(knb) (Main Document 10 replaced on 1/28/2014) (knb).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCHA BUCK LARSON,
CDCR #AH-6147,

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13cv2790 H (KSC)

Plaintiff,

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Civil
No.

vs.
RICHARD BAILIFF; ANDRES RUIZ;
RICHARD WIDNER; JHON CURRAN;
JHON CUMMINGS,
Defendants.

ORDER REGARDING CASE
STATUS AND DIRECTING
CLERK TO RE-ISSUE SUMMONS
AND IFP PACKAGE

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Scha Buck Larson is currently incarcerated at the California Institution for Men
in Chino, California. (Doc. No. 6.) Mr. Larson is proceeding pro se and has filed a
civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Mr. Larson
alleges violations of his constitutional rights during his arrest by San Diego police
officers in November 2011. (Id. at 1-2.)
On December 12, 2013, the Court granted Mr. Larson leave to proceed in
forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. No. 4 at 2.) Finding
his Complaint sufficient to survive the initial screening provisions of 28 U.S.C.
§ 1915(e)(2) and § 1915A, the Court directed the Clerk to issue a summons upon

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Defendants and ordered the U.S. Marshal to effect service of Mr. Larson’s Complaint

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pursuant to FED.R.CIV.P. 4(c)(2) and 28 U.S.C. § 1915(d). (Id. at 2-4.)

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On the same day, the Clerk issued the summons on Mr. Larson’s Complaint,

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prepared an “IFP package,” including certified copies of Mr. Larson’s Complaint, a

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U.S. Marshal Form 285 (“USM Form 285”) for each Defendant named in the

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Complaint, and a copy of the Court’s Order granting Mr. Larson leave to proceed IFP,

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and mailed them to Mr. Larson for completion. (Doc. No. 5.)

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On December 26, 2013, Mr. Larson filed a Notice of Change of Address,
indicating he had been transferred from Kern Valley State Prison to Richard J.

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Donovan State Prison (Doc. No. 6). Mr. Larson’s change of address did not indicate

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the date of his transfer, but it stated that Mr. Larson had not received summons forms.

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On January 17, 2014, Mr. Larson filed another letter stating that he had not received

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summons forms. (Doc. No. 7.)

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Based on these filings, the Court concludes that the IFP package mailed to Mr.
Larson on December 12, 2013 never reached him.

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I.

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FED.R.CIV.P. 4 Service Rules

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Rule 4 of the Federal Rules of Civil Procedure provides that “if a defendant is

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not served within 120 days after the complaint is filed, the court–on motion or on its

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own after notice to the plaintiff–must dismiss the action without prejudice against that

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defendant or order than service be made within a specific time.” FED.R.CIV.P. 4(m).

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In cases like this one, involving a plaintiff who has been granted leave to

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proceed IFP pursuant to 28 U.S.C. § 1915(a)(1), a United States Marshal, upon order

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of the court, serves the summons and the complaint. FED.R.CIV.P. 4(c)(3); 28 U.S.C.

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§ 1915(d) (in IFP proceedings, “[t]he officers of the court shall issue and serve all

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process, and perform all duties in such cases.”). “‘[A]n incarcerated pro se plaintiff

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proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the

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summons and complaint.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994)
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(quoting Puett, 912 F.2d at 275), abrogated on other grounds by Sandin v. Conner,

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515 U.S. 472 (1995).

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Thus, in the interests of justice and in order to facilitate the completion of U.S.

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Marshal service in this matter, the Court finds good cause to re-issue the materials

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necessary to serve Defendants. See In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001).

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II.

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Conclusion and Order

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Accordingly, the Court hereby:

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1)

DIRECTS the Clerk to provide Mr. Larson with an additional “IFP

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Package” consisting of: (a) this Order; (b) the Court’s December 12, 2013 Order

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Granting IFP and Directing U.S. Marshal Service [Doc. No. 4]; (c) certified copies of

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Mr. Larson’s Complaint [Doc. No. 1]; (d) an alias summons as to Mr. Larson’s

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Complaint [Doc. No. 5]; and (e) five blank USM Form 285s for purposes of re-

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attempting service as to each Defendant.

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2)

IT IS FURTHER ORDERED that pursuant to FED.R.CIV.P. 4(c)(3),

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(m) and 28 U.S.C. § 1915(d), the U.S. Marshal shall, within 30 days of receiving Mr.

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Larson’s USM Form 285s, effect service of Mr. Larson’s Complaint and summons

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upon Defendants as directed by Mr. Larson. All costs of service shall be advanced

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by the United States pursuant to the Court’s December 12, 2013 Order granting Mr.

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Larson leave to proceed IFP and directing service pursuant to 28 U.S.C. § 1915(d)

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and FED.R.CIV.P. 4(c)(3). (Doc. No. 4.)

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IT IS SO ORDERED.

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DATED: January 27, 2014

_______________________________
HON. MARILYN L. HUFF
United States District Judge

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