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Johnson v. Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 18, 2010

TYRONE JOHNSON, PLAINTIFF,
v.
KEN CLARK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER FINDING SERVICE OF AMENDED COMPLAINT APPROPRIATE, AND REQUIRING PLAINTIFF TO COMPLETE SERVICE WITHIN ONE-HUNDRED TWENTY DAYS (Doc. 1)

Plaintiff Tyrone Johnson ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California ("CSATF-CSP"). Plaintiff is suing under section 1983 for the violation of his rights under the First Amendment. Plaintiff also claims Defendants violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Plaintiff names Ken Clark (warden) and Does 1-3 as defendants.

The Court has screened Plaintiff's complaint pursuant 28 U.S.C. § 1915A and finds that it states cognizable claims against Defendant Clark*fn1 for the violation of Plaintiff's rights under the Free Exercise Clause of the First Amendment and for violation of the RLUIPA. See Fed. R. Civ. P. 8(a); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008).

Plaintiff paid the filing fee 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 Defendant Clark. The Clerk of the Court will be directed to issue a summons 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 Defendant Clark together with a summons and a copy of the 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 Defendant Clark of the commencement of this action and request that he waive service of the summons. Fed. R. Civ. P. 4(d)(2). If Plaintiff wishes to do this, he must mail to 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 complaint. The documents must be addressed directly to 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 Defendant at least thirty (30) days in which to return the waiver to Plaintiff. If Defendant signs and returns 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 Defendant. Fed. R. Civ. P. 4(d)(4).

B. Personal Service

If either (1) Plaintiff does not wish to request Defendant to waive service or (2) Defendant fails to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must have personal service effected on Defendant. Defendant must be personally served with a summons and a copy of the complaint, along with a copy of this order. Plaintiff may not effect personal service himself. 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 one (1) summons;

2. The Clerk is further directed to send Plaintiff:

a) One (1) copy of the complaint filed on March 17, 2008;

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

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

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

e) 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 Defendant at the time of service of the summons and complaint;

4. Plaintiff shall complete service of process on Defendants Clark 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 complaint on the Defendant Clark may result in dismissal of this action. Fed. R. Civ. P. 4(m).

IT IS SO ORDERED.


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