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Tucker v. California Department of Corrections

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


July 26, 2010

WILLIAM TERRELL TUCKER, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on the amended complaint filed September 29, 2009. The United States Marshal ("Marshal") has requested reimbursement of expenses incurred in personally serving defendant Nangalama. Dckt. No. 24.

This court previously ordered the Marshal to serve process upon defendant Nangalama. Dckt. No. 17. The Marshal was directed to attempt to secure a waiver of service before personally serving the defendant. Id. However, if a waiver of service was not returned within 60 days, the Marshal was directed to (1) personally serve defendant without prepayment of costs under Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c); and (2) file the return of service with evidence of attempts to secure a waiver and costs subsequently incurred in effecting personal service. Id.

The form USM-285/Process Receipt and Return filed by the Marshal on June 25, 2010, shows that the Marshal mailed Nangalama a waiver of service form on March 23, 2010, but defendant did not respond. The Marshal was therefore required to complete personal service. The form shows total charges for personally serving defendant Nangalama of $135. The Marshal is entitled to the costs sought. Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part:

An individual . . . that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. . . .

If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant the expenses later incurred in making service . . . .

Fed. R. Civ. P. 4(d)(1)-(2). It appears as though defendant Nangalama was given the opportunity required by Rule 4(d)(2) to waive service but failed to do so.

Accordingly, the court hereby ORDERS that:

1. Within 14 days from the date of service of this order, defendant Nangalama shall pay to the United States Marshal the sum of $135, unless within that time defendant files a written statement showing good cause for failing to waive service.

2. The Clerk of the Court shall serve a copy of this order on the U.S. Marshal.

20100726

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