Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on the complaint filed March 3, 2010. The United States Marshal ("Marshal") has requested reimbursement of expenses incurred in personally serving defendant Roberts. Dckt. Nos. 44, 45.
On January 25, 2011, the court ordered the Marshal to serve process upon defendant Roberts. Dckt. No. 40. The Marshal was directed to attempt to secure a waiver of service before personally serving any defendant. Id. However, if a waiver of service was not returned within 60 days as to any defendant, the Marshal was directed to (1) personally serve that 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 July 11, 2011, shows that the Marshal mailed Roberts a waiver of service on February 28, 2011. Dckt. No. 42, 44. The form also includes a notation that the waiver of service was not returned. Id. The Marshal was therefore required to complete personal service on defendant Roberts. The form shows total charges for personally serving defendant Roberts of $1,084.00. Id.
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). Thus, the Marshal may be entitled to the costs sought, as it appears that defendant Roberts 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 Roberts shall pay to the United States Marshal the sum of $1,084.00, unless within that time Roberts 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.
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