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Mendez v. Win

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


December 30, 2009

NEFTAN MENDEZ, PLAINTIFF,
v.
K. WIN, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983.

On June 9, 2009, the court ordered the United States Marshal to serve process upon the defendants in this case. The Marshal was directed to attempt to secure waivers of service before attempting personal service on defendants. If a waiver of service was not returned within sixty days, the Marshal was directed to effect personal service on the defendant in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without prepayment of costs, and to file the return of service with evidence of any attempt to secure a waiver of service and with evidence of all costs subsequently incurred in effecting personal service.

On October 27, 2009, the United States Marshal filed a return of service with a USM-285 form showing total charges of $140.98 for effecting personal service on defendant Basi. The form shows that a waiver of service form was mailed to the defendant on July 7, 2009, and that no response was received. On November 3, 2009, the court ordered defendant Basi to pay the United States Marshal the sum of $140.98 within fourteen days from the date of service of the order, unless within that time defendant filed a written statement showing good cause for his failure to waive service. Defendant Basi has not responded to the court's order in any way. However, defendant Basi filed an answer in this action on November 10, 2009. It appears possible that the court's November 3, 2009, order was not served on defendant Basi. Therefore, the court will direct the Clerk of the Court to serve this order on defendant Basi's counsel, and provide defendant Basi an opportunity to either pay the United States Marshal or to otherwise respond to that order in writing.

Accordingly, IT IS HEREBY ORDERED that: 1. Within fourteen days from the service of this order, defendant Basi shall either pay to the United States Marshal the sum of $140.98, unless within that time defendant files a written statement demonstrating good cause for his failure to waive service.

2. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal and defendant Basi's counsel, Ann H. Larson of McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Bothers L.L.P.

20091230

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