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Tury Dominguez v. Darrel G. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 26, 2012

TURY DOMINGUEZ,
PLAINTIFF,
v.
DARREL G. ADAMS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER REQUIRING DEFENDANT JONES TO FILE A RESPONSE TO THE MARSHAL'S REQUEST FOR REIMBURSEMENT OF COSTS OF SERVICE (ECF No. 26) TWENTY-DAY DEADLINE

Plaintiff Tury Dominguez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 18, 2011, the court issued an order for this action to proceed on the first amended complaint against Defendants Fischer, Jones, and Ruff. (ECF No. 13.) On November 16, 2011, an order issued directing the United States Marshal ("Marshal") to serve process upon the defendants in this action. (ECF No. 16.) 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 Defendants in accordance with the provisions of Rule 4 of the Federal Rule of Civil Procedure, 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 April 24, 2012, the Marshal filed a request for a court order requiring Defendant Jones to reimburse the costs incurred by the Marshal for personal service ("Marshal's Request"), pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. (ECF No. 26.) The United States Marshal also filed a return of service with a USM-285 form showing total charges of $493.20 for effecting personal service on Defendant Jones. The form shows that a waiver of service was mailed to Defendant Jones on December 1, 2011. On December 27, 2011, the waiver was forwarded to California Correctional Institution. Having received no response, personal service was assigned on March 1, 2012. Personal service was effected on March 27, 2012. (ECF No. 27.)

Rule 4(d)(1) of the Federal Rules of Civil Procedure provides in part that 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:

(A) the expenses later incurred in making service. . . . Fed. R. Civ. P. 4(d)(2).

Accordingly, IT IS HEREBY ORDERED that:

1. The Office of the Clerk shall serve a copy of this order on Defendant P. R. Jones at California Correctional Institution, 24900 Highway 202, P. O. Box 1031, Tehachapi, California 93581;

2. Within twenty days from the date of service of this order, Defendant Jones shall file a written response to the Marshal's Request, filed on April 24, 2012; and

3. Defendant's failure to comply with this order shall result in an order requiring Defendant Jones to reimburse the Marshal for costs of personal service.

IT IS SO ORDERED.

20120426

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