Heredia v. Lawrence et al

Filing 24

Renewed ORDER for Service by Marshal. The Court directs the Clerk to issue a new summons as to Plaintiff's Complaint (ECF No. 1 ). In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified copy of the Court& #039;s previous order (ECF No. 22 ), a certified copy of his Complaint, and the summons so that he may serve them upon Defendants. The Court orders the U.S. Marshal to serve a copy of the Amended Complaint and summons upon Defendants. If service is not effected on at least one Defendant by 1/31/2019, the Court may dismiss Heredia's complaint in its entirety. Signed by Judge Larry Alan Burns on 12/10/2018. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMANDO VILLARREAL HEREDIA,
Plaintiff,

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vs.

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CASE NO. 17cv1560-LAB (JMA)
RENEWED ORDER FOR SERVICE BY
MARSHAL

LAWRENCE, et al.,
Defendants.

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This Court previously granted Plaintiff Amando Heredia’s request for service by

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the U.S. Marshal Service. (ECF No. 22). Since that time, nearly 45 days have passed

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and there is no indication service has been attempted or completed. To eliminate any

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doubt as to what Plaintiff’s next steps are, the Court:

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1.

DIRECTS the Clerk to issue a new summons as to Plaintiff’s Complaint

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(ECF No. 1) upon Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E.

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LEDERMAN and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each

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Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order,

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a certified copy of the Court’s previous order (ECF No. 22), a certified copy of his

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Complaint, and the summons so that he may serve them upon Defendants C. BURNS,

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LAWRENCE, J. WILLIAMS, and E. LEDERMAN. Upon receipt of this “IFP Package,”

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Plaintiff must complete the Form 285s as completely and accurately as possible, include

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an address where each Defendant may be served, see S.D. CAL. CIVLR 4.1.c, and return

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them to the United States Marshal according to the instructions the Clerk provides in the

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letter accompanying his IFP package.

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2.

ORDERS the U.S. Marshal to serve a copy of the Amended Complaint and

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summons upon Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E. LEDERMAN

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as directed by Plaintiff on the USM Form 285s provided to him. All costs of that service

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will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3).

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3.

ORDERS Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E.

LEDERMAN, once served, to reply to Plaintiff’s Complaint within the time provided by the

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applicable provisions of Federal Rule of Civil Procedure 12(a).

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§ 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply

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to any action brought by a prisoner confined in any jail, prison, or other correctional facility

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under section 1983,” once the Court has conducted its sua sponte screening pursuant to

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28 U.S.C. § 1915A(b), and thus, has made a preliminary determination based on the face

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on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,”

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Defendants are required to respond).

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4.

See 42 U.S.C.

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E. LEDERMAN, or,

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if appearance has been entered by counsel, upon Defendants’ counsel, a copy of every

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further pleading, motion, or other document submitted for the Court’s consideration

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pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every original document he

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seeks to file with the Clerk of the Court, a certificate stating the manner in which a true

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and correct copy of that document has been was served on Defendants or their counsel,

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and the date of that service. See S.D. CAL. CIVLR 5.2. Any document received by the

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Court which has not been properly filed with the Clerk, or which fails to include a

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Certificate of Service upon the Defendants, may be disregarded.

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The Court reiterates that the underlying responsibility to serve his complaint still

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lies with Heredia, not the Marshal. It is Heredia’s responsibility to properly identify the

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names and locations of the defendants so the Marshal has the information necessary to

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properly serve the defendants. If service is not effected on at least one Defendant by

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January 31, 2019, the Court may dismiss Heredia’s complaint in its entirety.

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IT IS SO ORDERED.
Dated: December 10, 2018
HONORABLE LARRY ALAN BURNS
United States District Judge

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