Boyer v. Rajagopol et al

Filing 19

MEMORANDUM AND ORDER that Boyer will be given an additional 45 days to serve Defendants with summons in this matter. The Clerk shall send 9 summons forms and 9 USM-285 forms to Plaintiff together with a copy of this Memorandum and Order. The Clerk is directed to set a Pro Se Case Management Deadline for 6/30/2011: Check for completion of service of summons. Ordered by Judge Laurie Smith Camp. (Copies mailed as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM ROBERT BOYER,
Plaintiff,
v.
DR. SUBRAMANYAM RAJAGOPOL,
et al.,
Defendants.

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CASE NO. 4:10CV3100

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On March 16, 2011, the court
ordered Plaintiff William Robert Boyer (“Boyer”) to show cause why this case should not
be dismissed for his failure to complete timely service of process on Defendants. (Filing
No. 17.) In Boyer’s Reply to the court’s order, Boyer stated, liberally construed, that this
court must not dismiss this case because state officials are abusing him and forcing him
to take medication. (Filing No. 18 at CM/ECF pp. 1-4.) In previous filings, Boyer stated
that he is unable to complete the summons forms without assistance from the court, and
also that he is unable to complete the summons forms because he fears retribution from
state officials. (See Filing Nos. 11, 13, and 16.)
The court has carefully reviewed Boyer’s Reply to this court’s March 16, 2011, order,
and also his previous filings in this matter, and finds that Boyer will be given one final
opportunity to serve Defendants. In order to complete service of process, Boyer must
complete the summons forms that the Clerk of the court will provide. Each summons
form must include Boyer’s name and address, and also the name and address of a
defendant. It appears from the face of Boyer’s Complaint that (1) all Defendants are being

sued in their official capacities only,1 and (2) they are all employees of the Lincoln
Correctional Center. If true, Boyer may serve Defendants by addressing summons to the
Office of the Attorney General at “Jon Bruning / Office of the Attorney General / 2115 State
Capitol / Lincoln, NE 68509. See Federal Rule of Civil Procedure 4(j) and Neb. Rev. Stat.
§ 25-510.02(1) (“The State of Nebraska, any state agency as defined in section 81-8,210,
and any employee of the state as defined in section 81-8,210 sued in an official capacity
may be served by leaving the summons at the office of the Attorney General with the
Attorney General, deputy attorney general, or someone designated in writing by the
Attorney General, or by certified mail service addressed to the office of the Attorney
General.”).
IT IS THEREFORE ORDERED that:
1.

Boyer will be given an additional 45 days in which to serve Defendants with
summons in this matter;

2.

The Clerk of the court shall send NINE summons forms and NINE USM-285
forms to Plaintiff together with a copy of this Memorandum and Order;

3.

Plaintiff must, as soon as possible, complete and return the summons forms
back to the Clerk of the court. In the absence of the forms, service of
process cannot occur;

4.

Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint to the U.S.
Marshal for service of process. The Marshal shall serve the summons and
Complaint without payment of costs or fees. Service may be by certified mail
pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the

1

Boyer did not specify whether Defendants were being sued in their official or
personal capacities and so the court construes Boyer’s suit as being against
Defendants in their official capacities only. See Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999) (holding that absent an express statement that defendant
public servants are being sued in their individual capacities, § 1983 suits will be
construed as being against defendants in their official capacities).
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discretion of the Marshal. The Clerk of the court will copy the Complaint, and
Plaintiff does not need to do so;
5.

Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 45 days from the date of this Memorandum and Order will
result in dismissal of this matter without further notice as to such defendant.
A defendant has 21 days after receipt of the summons to answer or
otherwise respond to a complaint;

6.

The Clerk of the court is directed to set a pro se case management deadline
in this case with the following text: “June 30, 2011: Check for completion of
service of summons”; and

7.

The parties are bound by the Federal Rules of Civil Procedure and by
theLocal Rules of this court. Plaintiff shall keep the court informed of his
current address at all times while this case is pending. Failure to do so may
result in dismissal.

Dated this 17th day of May, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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