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Daniel v. Oaks

January 14, 2010

MELVIN DE VAN DANIEL, PLAINTIFF,
v.
B. OAKS, ET AL., DEFENDANTS.



ORDER

Plaintiff is proceeding pro se and in forma pauperis in this action seeking relief pursuant to 42 U.S.C. § 1983. On December 11, 2009, Lt. Montes was ordered to pay the United States Marshal the sum of $104.50 or show good cause for his failure to waive service.

On December 22, 2009, defendants filed a response. Defendants point out that Montes is not a defendant herein, although he later accepted personal service on behalf of defendant Molthen. Defendants Oaks and Garcia returned their waivers, and the City Attorney for the City of Stockton filed an answer on their behalf and included Mr. Molthen assuming he would also receive a request for waiver of service. Defendant Molthen has provided a declaration stating that he did not receive a waiver of service from the U.S. Marshal with a summons and complaint in this action. Thus, the order to show cause will be discharged and the court will not order defendant Molthen or Lt. Montes to pay the costs of service of process.

On December 29, 2009, plaintiff filed a document entitled "Plea for Justice/Explanation," in which plaintiff claims he submitted the required USM-285 forms. Plaintiff is correct; he provided the necessary paperwork and no further paperwork concerning service of process is required. This case is proceeding to trial pursuant to the October 27, 2009 scheduling order.

Accordingly, IT IS HEREBY ORDERED that the court's December 11, 2009 order to show cause is discharged; the court will not order defendant Molthen or Lt. Montes to pay the costs of service of process.

20100114

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