Wilson v. Umass Correctional Health et al

Filing 10

Magistrate Judge Judith G. Dein: ORDER entered granting in part and denying in part 9 Motion for Corrective Summonses, as well as Other Material Connected to Said Summonses, and Additional Time to Serve all Defendants in this Case. To the extent Wilson seeks additional copies of the summons or forms for waiver of service, the motion is DENIED but Wilson may make his own copies as needed. Wilsons request to have service completed by the USMS is DENIED WITHOUT PREJUDICE. Wilson may renew hi s request provided that he submits a prison account statement showing all account activity for the last six months and a completed Application to Proceed in District Court Without Prepaying Fees or Costs. The Clerk shall provide Wilson with an Appli cation to Proceed in District Court Without Prepaying Fees or Costs. Wilson shall have 90 days from the date of this order to serve the summonses or to procure a waiver of service of summons from the defendants. (Copy of order sent to plaintiff on 2/2/17 with Application to Proceed in District Court Without Prepaying Fees or Costs.) (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBERT WILSON,
Plaintiff,
v.
UMASS CORRECTIONAL HEALTH, et
al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION
NO. 16-12242-JGD

ORDER
February 1, 2017
DEIN, U.S.M.J.
For the reasons stated below, the Court allows in part and denies in part the plaintiff’s
motion concerning service of summons.
I. BACKGROUND
On November 2, 2016, pro se litigant Robert Wilson (“Wilson”), who is incarcerated at
MCI Norfolk, filed a civil rights action in which he alleges that, for the past two decades, he has
not received adequate medical treatment from prison medical providers. The complaint was
filed without payment of the filing fee or a motion for leave to proceed in forma pauperis.
Wilson later paid the $400 filing fee.
In an memorandum and order dated January 4, 2017 (Dkt. Entry No. 7), the Court
ordered the Clerk to issue summonses as to all defendants. The Court also explained that Wilson
could ask the defendants to waive service of the summonses.
The Clerk issued a single summons which contained the case caption, electronic
signature of a deputy clerk, and seal of the Court. The notation made on the docket for the
issuance of the summonses directed the plaintiff to “copy this summons, complete one for each
defendant and serve it in accordance with Fed. R. Civ. P. 4 and LR 4.1” (Dkt. Entry No. 8). The

Clerk also provided the plaintiff with one copy of the forms needed to seek a waiver of service of
summons.
On January 25, 2017, Wilson filed a “Motion for Corrective Summonses, as well as
Other Material Connected to Said Summonses, and Additional Time to Serve all Defendants in
this Case” (Dkt. Entry No. 9). He asks therein for (1) a copy of the summons for each defendant
or permission to make a copy of the summons that he received; (2) a copy of the forms to seek a
waiver of service of the summons for each defendant or permission to make a copy of the forms
he received; (3) forms for service by the United States Marshals Service (“USMS”);
(4) permission to have the USMS complete service; and (5) additional time to complete service.
Wilson also represents that he paid the filing fee through a friend.
II. DISCUSSION
A.

Number of Forms Received
The Clerk provided one summons and one set of paperwork for seeking a waiver of

summons with the intent that Wilson make copies of the documents and then complete them for
each defendant. Wilson does not need permission from the Court to make copies of these forms.
B.

Service by the USMS
Where a plaintiff is authorized to proceed in forma pauperis, the Court must order that

the USMS complete service at the plaintiff’s direction with all costs to be advanced by the
United States. See Fed. R. Civ. P. 4(c)(3).1 Although Wilson represents that he is indigent, he
has not submitted an application to proceed in forma pauperis, a prison account statement
showing all transactions for the most recent six-month period, or any other proof of his
indigency. While prisoners are often allowed to proceed in forma pauperis, the Court must
review Wilson’s financial information before ordering that the USMS complete service.
Therefore, the Court will deny without prejudice his request to have service completed by the
1

Even where the Court orders that service be completed by the USMS, the plaintiff
remains responsible for completing all necessary forms for service and providing the USMS with
enough copies of all documents for service.
2

USMS. Wilson may renew his request provided that he submits a prison account statement
showing all account activity for the last six months and a completed Application to Proceed in
District Court Without Prepaying Fees or Costs.
C.

Requesting a Waiver for the Service of Summons
As an alternative to having the USMS (or another adult not a party to the case) serve the

individual defendants and Massachusetts Partnership for Correctional Health (“MPCH”) in
person, Wilson may procure waivers of service of summons from them.2 See Fed. R. Civ. P.
4(d)(1). The gist of this process is that the plaintiff mails to a defendant a notice of the lawsuit, a
request that the defendant waive service of the summons, and a copy of the complaint. If the
defendant agrees, he or she signs a waiver form and returns it to the plaintiff. The plaintiff then
files the waiver with the Court. This process may be conducted by regular mail. If a defendant
fails, without good cause, to sign and return the waiver, he or she may be liable for the costs of
service. See Fed. R. Civ. P. 4(d)(2). If Wilson timely procures a waiver of service of summons
from the individual defendants and MPCH, he does not have to formally serve them.
III. CONCLUSION
Accordingly:
1.

To the extent Wilson seeks additional copies of the summons or forms for waiver

of service, the motion is DENIED but Wilson may make his own copies as needed.
2.

Wilson’s request to have service completed by the USMS is DENIED WITHOUT

PREJUDICE. Wilson may renew his request provided that he submits a prison account
statement showing all account activity for the last six months and a completed Application to
Proceed in District Court Without Prepaying Fees or Costs. The Clerk shall provide Wilson with
an Application to Proceed in District Court Without Prepaying Fees or Costs.
2

Unlike corporations and individuals, governments are not required to waive service. See
Fed. R. Civ. P. 4(d)(1) (requiring individuals, corporations, partnerships, and associations to
waive service, but not the state or federal government). UMass Correctional Health, as an arm
of the state, should be served in accordance with Rule 4(j) of the Federal Rules of Civil
Procedure.
3

3.

Wilson shall have 90 days from the date of this order to serve the summonses or

to procure a waiver of service of summons from the defendants.

SO ORDERED.
/s/ Judith Gail Dein
Judith Gail Dein
United States District Judge

4