Shaw v. Young et al

Filing 101

ORDER granting plaintiff James Elmer Shaw's 75 Motion for service. Signed by US Magistrate Judge Veronica L. Duffy on 06/16/17. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,

4:15-CV-04121-KES

Plaintiff,

ORDER

vs.
TROY PONTO, ASSOCIATE WARDEN,
INDIVIDUAL AND OFFICIAL
CAPACITY; AL MADSON, UNIT
MANAGER, INDIVIDUAL AND
OFFICIAL CAPACITY; SAM BADURE,
UNIT MANAGER, INDIVIDUAL AND
OFFICIAL CAPACITY; DERICK
BIEBER, UNIT MANAGER,
INDIVIDUAL AND OFFICIAL
CAPACITY; JACOB GLASIER, UNIT
COORDINATOR, INDIVIDUAL AND
OFFICIAL CAPACITY; DR. MARY
CARPENTER, M.D. (HEALTH
SERVICES), INDIVIDUAL AND
OFFICIAL CAPACITY; DR. EUGENE
REGIER, MD, INDIVIDUAL AND
OFFICIAL CAPACITY; HEATHER
BOWERS, RN (HEATH SERVICES),
INDIVIDUAL AND OFFICIAL
CAPACITY; AUDREY SHEDD, HEAD
REGISTERED NURSE, INDIVIDUAL
AND OFFICIAL CAPACITY;
Defendants.

MOTION FOR SERVICE
[DOCKET 75]

INTRODUCTION
This matter is before the court on plaintiff James Elmer Shaw’s pro se
fourth amended complaint pursuant to 42 U.S.C. § 1983, filed September 12,
2016. See Docket No. 41. Mr. Shaw has been granted in forma pauperis status
and has been allowed to proceed without payment of the partial filing fee.
Docket 13.

The pending matter was referred to this magistrate judge pursuant to 28
U.S.C. ' 636(b)(1)(A) and (B) and the March 31, 2017, order of the Honorable
Karen E. Schreier, district judge.
INTRODUCTION
Mr. Shaw requests permission to be allowed to “merely notice” the
defendants of his filings, rather than be required to serve paper copies upon them
through their attorney as required by the Federal Rules of Civil Procedure and
Local Rule 5.1. Mr. Shaw explains in his motion that he “once before” moved the
court to allow him to serve documents upon the defendants in this fashion, but
the court denied his motion “without explanation.” See Docket 75, p. 1.
Mr. Shaw’s previous motion (Docket 21) was filed with the court before any
version of his complaint had been served upon any of the defendants. See Docket
sheet. When the district court previously denied Mr. Shaw’s motion regarding
service (Docket 24) the court interpreted Mr. Shaw’s motion as requesting waiver
of the requirement that physical copies of the complaint be served upon the
individual defendants. See Docket 24, p. 30. According to Local Rule 5.1.A.2,
service of the summons and complaint may not be made electronically, but must
be made pursuant to Fed. R. Civ. P. 4.
Additionally, the district court explained to Mr. Shaw that that because he
had been granted in forma pauperis status, he needed only to complete and return
the summons forms, and officers of the court would serve copies of his second
amended complaint for him—there was no need for Mr. Shaw to provide copies.
Id.

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ANALYSIS
The defendants indicated to the court they do not resist Mr. Shaw’s pending
motion. Docket 82, p. 12. Nor could they. Local Rule 5.1.A.2 states:

2.

What constitutes service.
Receipt of Notice of Electronic Filing (NEF) that is generated
by the Case Management/Electronic Case filing (CM/ECF)
system constitutes service of pleadings or other papers on
any person who has consented to electronic service. Parties
who have not consented to electronic service including
exempt attorneys and pro se parties must be served in
accordance with these rules and the Federal Rules of Civil
Procedure.
Service of the summons and complaint must not be made
electronically, but should proceed according to FED. R. CIV. P.
4.

As noted by Mr. Shaw, counsel for the defendants are registered CM/ECF
users. Pursuant to Local Rule 5.1.A.1, “[r]egistration constitutes written consent
to electronic service of all documents filed in accordance with these rules and the
Federal Rules of Civil Procedure.” Counsel for the defendants, therefore, because
they are registered CM/ECF users, have consented to electronic service.
THEREFORE, it is ORDERED that Mr. Shaw’s motion for service [Docket 75]
is GRANTED.
DATED this 16th day of June, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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