Burke v. North Dakota Department of Corrections and Rehabilitation et al

Filing 27

ORDER by Magistrate Judge Charles S. Miller, Jr. granting in part plaintiff's 26 Motion to Order United States Marshall Service to Serve Defendants. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Dale Joseph Burke,
Plaintiff,
vs.
North Dakota Dept of Correction and
Rehabilitation, et. al.,
Defendants.

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ORDER

Case No. 1:12-cv-131

Plaintiff filed an amended complaint with the court on March 28, 2013. Upon reviewing the
amended complaint as mandated by 28 U.S.C. 1915A, the court ordered defendants to answer
insofar as they are properly served or otherwise waive serve. (Docket No. 24). In so doing, the
court was careful to note that, because plaintiff had not sought leave to proceed in forma pauperis,
he was responsible for serving defendants. (Id.). It further advised that, “[i]f plaintiff encounters
difficulties in effectuating service, he may renew his motion for service by the United States Marshal
since the court has some discretion to order service in this situation–particularly if defendants do not
want plaintiff to have access to their home addresses.” (Id.).
On June 6, 2013, plaintiff filed a “Motion to Order United States Marshall [sic] Service to
Serve Defendants at There [sic] Cost.” He complains that defendants have failed to waive formal
service of process and answer or otherwise acknowledge receipt of his complaint. He asks the court
to order the United States Marshal to serve defendants on his behalf.
Defendants are not required to waive service of process. Nevertheless, given plaintiff’s
custodial status and the difficulties he has encountered when attempting to effectuate service of

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process, the court, in its discretion, is inclined to assist him. That being said, the court will not
assess any costs.
The GRANTS plaintiff’s motion (Docket No. 26) in part and ORDERS that the Clerk's
office effectuate service of the summons and complaint upon the Defendants in accordance with
Rule 4 of the Federal Rules of Civil Procedure and, if necessary, that the service be made by the
United States Marshals Service.
Dated this 19th day of June, 2013.

/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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