The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action seeking relief pursuant to 42 U.S.C. § 1983.
On May 4, 2011, I ordered the United States Marshal to serve process upon the defendants in this case. The Marshal was directed to attempt to secure a waiver of service before attempting personal service on defendants. If a waiver of service was not returned within sixty days, the Marshal was directed to effect personal service on the defendant 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 with evidence of all costs subsequently incurred in effecting personal service.
On September 14, 2011, the United States Marshal filed a return of service with a USM-285 form showing total charges of $819.20 for effecting personal service on defendant S. Rivas. The form shows that a waiver of service form was mailed to the defendant on May 6, 2011, and that no response was received.
Rule 4 of the Federal Rules of Civil Procedure provides, in part, as follows:
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.
I find that defendant S. Rivas was given the opportunity required by Rule 4(d)(2) to waive service and has failed to comply with the request.
Accordingly, IT IS HEREBY ORDERED that: 1. Within fourteen days from the date of this order defendant S. Rivas shall pay to the United States Marshal the sum of $819.20, unless within that time defendant files a written statement showing good cause for his failure to waive service. I do not intend to extend this fourteen day period.
2. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.
© 1992-2011 VersusLaw ...