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Doe v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 9, 2009

J. DOE, PLAINTIFF,
v.
J. YATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER INSTRUCTING PLAINTIFF ON SERVICE OF PROCESS, AND REQUIRING PLAINTIFF TO SERVE DEFENDANTS WITHIN ONE-HUNDRED TWENTY DAYS

I. Order Directing Plaintiff to Initiate Service of Process

Plaintiff J. Doe ("Plaintiff") is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 30, 2002. The court has screened plaintiff's second amended complaint pursuant to 28 U.S.C. § 1915A and finds that plaintiff's complaint appears to state cognizable claims for relief against (1) defendants K. Scott, J. D. Bennett, S. Gonzales, J. Melendez, Griffin, W. Brumbaugh, John Doe 2, John Doe 3, H. Martinez, and S. Kern for failure to protect in violation of the Eighth Amendment; (2) defendants B. Diaz, P. Soares, E. Wolford, D. J. Hatten, J. Yates, N. Green, and D. Huckabay for retaliation in violation of the First Amendment; and (3) defendants Cate and Yates for violation of the Equal Protection Clause of the Fourteenth Amendment.*fn1

The filing fee was paid in full for initiating this action. Because plaintiff is not proceeding in forma pauperis, it is plaintiff's responsibility to effect service of the summons and complaint on defendants K. Scott, J. D. Bennett, S. Gonzales, J. Melendez, Griffin, W. Brumbaugh, John Doe 2, John Doe 3, H. Martinez, S. Kern, B. Diaz, P. Soares, E. Wolford, D. J. Hatten, J. Yates, N. Green, D. Huckabay, and Cate. The Clerk of the Court will be directed to issue eighteen summonses to plaintiff for purposes of service of process. See Fed. R. Civ. P. 4.

Plaintiff shall complete service of process in accordance with Federal Rule of Civil Procedure 4 within one-hundred twenty (120) days from the date of service of this order. Plaintiff shall serve a copy of this order on each defendant together with a summons and a copy of the second amended complaint. The following two sections contain instructions on how to serve defendants.

A. Waiver of Service

Pursuant to Rule 4(d)(2), plaintiff may (but is not required to) notify defendants K. Scott, J. D. Bennett, S. Gonzales, J. Melendez, Griffin, W. Brumbaugh, John Doe 2, John Doe 3, H. Martinez, S. Kern, B. Diaz, P. Soares, E. Wolford, D. J. Hatten, J. Yates, N. Green, D. Huckabay, and Cate of the commencement of this action and request that they waive service of the summons. Fed. R. Civ. P. 4(d)(2). If plaintiff wishes to do this, she must mail each defendant (1) the form entitled "Notice of Lawsuit and Request for Waiver of Service for Summons," (2) the form entitled "Waiver of Service of Summons," and (3) a copy of the second amended complaint. The documents must be addressed directly to each defendant (not the Attorney General's Office) and must be dispatched (mailed) through first-class mail. The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow each defendant at least thirty (30) days in which to return the waiver to plaintiff. If defendants sign and return the waiver forms to plaintiff, plaintiff must then file the forms with the court. After filing the forms with the court, plaintiff need not take any further steps to serve defendants. Fed. R. Civ. P. 4(d)(4).

B. Personal Service

If either (1) plaintiff does not wish to request defendants to waive service or (2) one or more of the defendants fail to return the Waiver of Service of Summons form to plaintiff, plaintiff must have personal service effected on defendants. Each defendant must be personally served with a summons and a copy of the second amended complaint, along with a copy of this order. Plaintiff may not effect personal service herself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id. The court will provide plaintiff with a copy of Rule 4 along with this order. Plaintiff should review Rule 4(e)(2), which addresses how personal service may be effected.

C. Conclusion

In accordance with the above, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to issue and send plaintiff eighteen (18) summonses;

2. The Clerk is further directed to send plaintiff:

a) One (1) copy of the form entitled "Notice of Lawsuit and Request for Waiver of Service of Summons;"

b) One (1) copy of the form entitled "Waiver of Service;"

c) One (1) copy of the form entitled "Consent to Proceed Before United States Magistrate Judge" with instructions; and

d) One (1) copy of Rule 4 of the Federal Rules of Civil Procedure;

3. Plaintiff shall serve a copy of this order and a copy of the form "Consent to Proceed Before United States Magistrate Judge" on defendants at the time of service of the summons and second amended complaint;

4. Plaintiff shall complete service of process on defendants K. Scott, J. D. Bennett, S. Gonzales, J. Melendez, Griffin, W. Brumbaugh, John Doe 2, John Doe 3, H. Martinez, S. Kern, B. Diaz, P. Soares, E. Wolford, D. J. Hatten, J. Yates, N. Green,

D. Huckabay, and Cate within one-hundred twenty (120) days from the date of service of this order; and

5. Plaintiff's failure to timely complete service of the second amended complaint on defendants K. Scott, J. D. Bennett, S. Gonzales, J. Melendez, Griffin, W. Brumbaugh, John Doe 2, John Doe 3, H. Martinez, S. Kern, B. Diaz, P. Soares, E. Wolford, D. J. Hatten, J. Yates, N. Green, D. Huckabay, and Cate may result in dismissal of this action against them. Fed. R. Civ. P. 4(m).

IT IS SO ORDERED.


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