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Smith v. Crones

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 4, 2009

JARMAAL LARONDE SMITH, PLAINTIFF,
v.
LEANN CRONES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Arthur Alarcón United States Circuit Judge Sitting by Designation

ORDER

Plaintiff Jarmaal Smith ("Plaintiff") is a state prisoner who proceeds pro se in this civil rights actions pursuant to 42 U.S.C. § 1983. He also proceeds in forma pauperis pursuant to 28 U.S.C. § 1915.

On October 14, 2008, Plaintiff filed the requisite service documents with this Court.

(Doc. 16). On October 28, 2008, this Court ordered the United States Marshal to notify Defendants Scott Norton and Edward Simmerson ("Defendants") of this action. (Doc. 16).

Specifically, the Court ordered, in relevant part, as follows:

1. The Clerk of the Court is directed to forward the following documents to the United States Marshal:

(1) One completed and issued summons for each defendant to be served;

(2) One completed USM-285 form for each defendant to be served;

(3) One copy of the complaint filed on May 23, 2007 for each defendant to be served, plus an extra copy for the Marshal;

(4) One copy of this order for each defendant to be served, plus an extra copy for the Marshal; and,

(5) One copy of the court's consent form for each defendant to be served.

2. Within ten days from the date of this order, the United States Marshal is directed to notify the following defendants of the commencement of this action and to request a waiver of service in accordance with the provisions of Fed. R. Civ. P. 4(d) and 28 U.S.C. § 566(c): Defendants Edward Simmerson and Scott Norton pursuant to Rule 4 of the Federal Rules of Civil Procedure, without pre-payment of costs.

3. The U.S. Marshal is directed to retain the summons and a copy of the complaint in their file for future use.

4. The United States Marshal shall file returned waivers of service as well as any requests for waivers of service that are returned as undelivered as soon as they are received.

5. If a waiver of service is not returned by a defendant within sixty days of the date of mailing the request for waiver, the United States Marshal shall:

a. Personally serve process and a copy of this order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c) and shall command all necessary assistance from the California Department of Corrections (CDC) to execute this order. The United States Marshal shall maintain the confidentiality of all information provided by the CDC pursuant to this order.

b. Within ten days after personal service is effected, the United States Marshal shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served defendant in accordance with the provisions of Fed. R. Civ. P.4(d)(2).

6. In the event that defendants make an appearance in this action by filing an answer, dispositive motion, or other pleading, the U.S. Marshals Service need not personally serve those defendants.

(Id.).

On November 10, 2008, the United States Marshal Office mailed the service documents to Defendants. Defendants, however, did not return their waivers of service within the prescribed sixty-day period as set forth by this Court's order, dated October 27, 2008, which required the waivers to be executed by January 8, 2009. This Court then issued a supplemental order that directed the United States Marshal to personally serve process on Defendants on or before January 14, 2009. (Doc. 17). Further, the United States Marshal was directed to file the return of service for Defendants, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on Defendants within ten (10) days after personal service was effected. (Id.). To date, the United States Marshal has failed to provide this Court with the ordered information.*fn1

Accordingly, IT IS HEREBY ORDERED that the United States Marshal shall personally serve Defendants on or before February 11, 2009, or show cause why Defendants have not been personally served in accordance with this Court's orders. Failure to comply with this order may result in sanctions.


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