UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 6, 2007
ENRIQUE MIRANDA, PLAINTIFF,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge
ORDER RE PLAINTIFF'S MOTION FOR RE-SERVICE OF DEFENDANTS [Doc. # 81]
This case was brought by a detainee of the United States Department of Homeland Security Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff Enrique Miranda ("Plaintiff" or "Miranda") is proceeding pro se. Plaintiff is moving to have Defendants served for a second time according to "Plaintiff's special instructions." Plaintiff's motion is GRANTED to the extent that he seeks to have Defendants served in their individual capacities.
The First Amended Complaint ("FAC") names six Defendants in their individual capacities. (FAC, p. 1). Plaintiff has made several unsuccessful attempts to effect service. On May 17, 2007, the Court afforded Plaintiff one more opportunity to serve Defendants. Plaintiff was ordered to submit to the United States Marshals' Service, for each Defendant, a properly completed summons, a Form 285, a copy of the First Amended Complaint, and a copy of the Court's May 17, 2007 Order. The United States Marshal was ordered to serve each Defendant as directed by Plaintiff on Form 285. Plaintiff was also ordered to file a declaration stating what materials he submitted to the United States Marshals' Service ("the Marshals").
On June 4, Plaintiff filed the declaration and described the instructions he gave to the Marshals. The instructions stated, "Please serve each defendant INDIVIDUALLY in person, in their individual capacity." (Pl.'s Decl. in Compl. with Court's Order, Ex. 1, p. 1). On June 8, 2007, the United States Marshals served the six named Defendants by certified mail. [Doc. ## 74-79]. The Form 285 for each Defendant is accompanied by the return receipts from the Office of General Counsel for the United States Department of Homeland Security. The return receipt is stamped "service accepted in official capacity only." Id. Plaintiff argues that the Marshals failed to follow his instructions, did not effect proper service, and seeks sanctions.
It appears that Defendants have only been served in their official capacities. The First Amended Complaint indicates that Plaintiff sued Defendants in their individual capacity. (See FAC, p. 1). His instructions directed the Marshals to serve Defendants in their individual capacities. It also appears that the failure to serve Defendants in their individual capacities was not due to any fault of Plaintiff's. The Court, however, finds no cause for imposing sanctions on the United States Marshals' Service.
Plaintiff must be afforded another opportunity for complete and proper service. Plaintiff may, no later than August 6, 2007, submit to the United States Marshals' Service the following for each individual Defendant: a properly completed summons, a Form 285, a copy of the First Amended Complaint, and a copy of this Order. If Plaintiff desires to have Defendants served in their individual capacities, he shall so directly state on Form 285. The United States Marshal is ordered to serve each Defendant as directed by Plaintiff on Form 285, within 14 calendar days of the receipt of Plaintiff's papers. In the interests of judicial efficiency, the Court notes that should Plaintiff's instructions regarding service again indicate that Defendants are to be served in their individual capacities, the United States Marshal shall follow those instructions. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2).
IT IS SO ORDERED.
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