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Ronald W. Singson v. E. Marrero; W. Suglich

August 22, 2011

RONALD W. SINGSON,
PLAINTIFF,
v.
E. MARRERO; W. SUGLICH, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the motion for confirmation of proof of service. (ECF No. 12).

BACKGROUND

On November 15, 2010, Plaintiff, a state inmate currently incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California, and proceeding pro se, initiated this action by filing a Complaint in this Court and paying the full $350 filing fee. (ECF No. 1).

On January 12, 2011, the Court issued an Order dismissing the Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A. (ECF No. 4).

On March 3, 2011, Plaintiff filed a First Amended Complaint, which is the operative pleading in this action. (ECF No. 6). The First Amended Complaint alleges claims pursuant to 42 U.S.C. § 1983 against two employees of the Richard J. Donovan Correctional Facility.

On April 11, 2011, the Court issued an Order directing the Clerk to issue a summons as to the First Amended Complaint. (ECF No. 7). The Court stated:

[B]ecause Plaintiff is not proceeding in forma pauperis, he is not entitled to U.S. Marshal service on his behalf. Plaintiff is responsible for effecting proper service on Defendants Marrero and Suglich. If Plaintiff fails to properly serve these Defendants within 120 days from the date this Order is filed, the Court will dismiss this action pursuant to FED. R. CIV. P. 4(m).

Id. at 2.

On May 19, 2011, Plaintiff filed two documents entitled, "Proof of Service by Mail." (ECF Nos. 9, 10). The documents each state: "The summons and copy of the complaint was sent to the above named defendant via the United States Postal Service by way of certified/registered mail pursuant to the Federal Code of Civil Procedure, Rule 5(c)." (ECF No. 9 at 3; ECF No. 10 at 3).

On July 20, 2011, Plaintiff filed a document addressed to the Clerk of the Court, which states:

I served both defendants, E. Marrero and W. Suglich via the United States mail, registered and return receipt requested and received, and served upon this Court.

To date I have not received any type of confirmation as to this issue. If there is some sort of discrepancy I will take further action and rectify the matter. (ECF No. 12 at 1). The Court construes this filing as a motion for confirmation of proof of service.

DISCUSSION "A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 4." Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (quotation omitted). Rule 4 provides that "[a] summons shall be served together with a copy of the [amended] complaint," Fed. R. Civ. P. 4(c)(1), and that service may be effected either through the waiver procedures outlined ...


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