UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 12, 2010
STEVEN DEXTER BROOKS, PLAINTIFF,
T. FELKER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this action seeking relief pursuant to 42 U.S.C. § 1983.
On June 24, 2009, the court ordered the United States Marshal ("Marshal") to serve process upon defendant Felker in this case. The Marshal was directed to attempt to secure a waiver of service before attempting personal service on defendant Felker. If a waiver of service was not returned within sixty days, the Marshal was directed to effect personal service on defendant Felker 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 evidence of all costs subsequently incurred in effecting personal service.
On December 8, 2009, the Marshal filed a return of service with a USM-285 form showing total charges of $103.62 for effecting personal service on defendant Felker. The form shows that a waiver of service form was mailed to defendant Felker on July 31, 2009, and that no response was received.
Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part: An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons . . . .
If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
Fed. R. Civ. P. 4(d)(2).
The court finds that defendant T. Felker was given the opportunity required by Rule 4(d)(2) to waive service and failed to comply with the request.
Accordingly, IT IS HEREBY ORDERED that:
1. Within fourteen days from the date of this order defendant Felker shall pay to the Marshal the sum of $103.62, unless within that time he files a written statement showing good cause for his failure to waive service. The court will not grant an extension of this fourteen-day period absent a showing of extraordinary circumstances.
2. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.
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