Barton v. Heineman et al

Filing 11

MEMORANDUM AND ORDER - To obtain service of process on Defendants, Plaintiff must complete and return the summons forms that the Clerk of the court will provide. The Clerk of the court shall send SIX summons forms and SIX USM-285 forms to Plaintiff, together with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur; Upon receipt of the completed forms, the Clerk of the court will sign the summons forms, to be forwarded with a copy of the Amended Complaint to the U.S. Marshal for service of process. The Marshal shall serve summons and the Amended 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 discretion of the Marshal. The Clerk of the court will copy the Amended Complaint, and Plaintiff does not need to do so; Plaintiff is gr anted, on the court's own motion, an extension of time until 120 days from the date of this order to complete service of process; Plaintiff is hereby notified that failure to obtain service of process on a defendant within 120 days of the date o f this order may 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; 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. Ordered by Judge Laurie Smith Camp. (Copy mailed to pro se party) (6 Summons Forms and 6 USM-285 forms mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BERNARD BARTON,
Plaintiff,
v.
DAVE HEINEMAN, et al.,
Defendants.

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CASE NO. 7:11CV5000

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On April 15, 2011, the court
entered a Memorandum and Order allowing Plaintiff to amend his Complaint in order to
clearly state a claim upon which relief may be granted against Defendants. (Filing No. 6.)
Plaintiff filed an Amended Complaint on May 31, 2011. (Filing No. 9.) After reviewing the
Amended Complaint, the court finds that Plaintiff’s claims may proceed and that service
on Defendants is now warranted. Although the court finds that Plaintiff’s claims may
proceed against Defendants, the court cautions Plaintiff that this is only a preliminary
determination based solely on the allegations of the Amended Complaint and is not a
determination of the merits of Plaintiff’s claims or potential defenses thereto.
IT IS THEREFORE ORDERED that:
1.
To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms that the Clerk of the court will provide. The Clerk of the
court shall send SIX summons forms and SIX USM-285 forms to Plaintiff, together
with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible,
complete the forms and send the completed forms back to the Clerk of the court.
In the absence of the forms, service of process cannot occur;
2.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Amended Complaint to the U.S.
Marshal for service of process. The Marshal shall serve summons and the
Amended 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

discretion of the Marshal. The Clerk of the court will copy the Amended Complaint,
and Plaintiff does not need to do so;
3.
Federal Rule of Civil Procedure 4 requires service of the complaint on a
defendant within 120 days of filing the complaint. However, because in this order
Plaintiff is informed for the first time of these requirements, Plaintiff is granted, on
the court’s own motion, an extension of time until 120 days from the date of this
order to complete service of process;
4.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may 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;
5.
The Clerk of court is directed to set a pro se case management deadline in
this case with the following text: “November 4, 2011: Check for completion of
service of summons”; and
6.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local 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 8th day of July, 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
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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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