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Garrison S. Johnson v. Mathew Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 25, 2012

GARRISON S. JOHNSON,
PLAINTIFF,
v.
MATHEW CATE, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER INSTRUCTING PLAINTIFF ON SERVICE OF PROCESS AND REQUIRING PLAINTIFF TO SERVE DEFENDANT WITHIN ONE-HUNDRED TWENTY DAYS (ECF No. 20)

Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On May 25, 2012, the Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it stated cognizable claims against Warden K. Harrington for the violation of Plaintiff's Eighth Amendment rights and negligence under state law. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Screening Order (ECF No. 20) found that Plaintiff stated no other cognizable claims. On August 21, 2012, the Court's order (ECF No. 20) was adopted. (ECF No. 23.)

Plaintiff paid the filing fee in full for initiating this action. Because Plaintiff is not proceeding in forma pauperis, it is Plaintiff's responsibility to effect service of the summons and First Amended Complaint on Defendant Harrington. The Clerk of the Court will be directed to issue one summonses to Plaintiff for purposes of service of process. See Fed. R. Civ. P. 4.

Plaintiff shall complete service of process in accordance with Federal Rule of Civil Procedure 4 within one-hundred twenty (120) days from the date of service of this order. Plaintiff shall serve a copy of this order on the Defendant together with a summons and a copy of the First Amended Complaint. The following two sections contain instructions on how to serve Defendants.

A. Waiver of Service

Pursuant to Rule 4(d)(1), Plaintiff may, but is not required to, notify Defendant Harrington of the commencement of this action and request that he waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to do this, he must mail the Defendant (1) the form entitled "Notice of Lawsuit and Request for Waiver of Service for Summons," (2) the form entitled "Waiver of Service of Summons," and (3) a copy of the First Amended Complaint. The documents must be addressed directly to the Defendant (not the Attorney General's Office) and must be dispatched (mailed) through first-class mail. The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow the Defendant at least thirty (30) days in which to return the waiver to Plaintiff. If Defendant signs and returns the waiver forms to Plaintiff, Plaintiff must then file the forms with the Court. After filing the forms with the Court, Plaintiff need not take any further steps to serve Defendant. Fed. R. Civ. P. 4(d)(4).

B. Personal Service

If either (1) Plaintiff does not wish to request Defendant to waive service or (2) the Defendant fails to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must have personal service effected on Defendant. The Defendant must be personally served with a summons and a copy of the First Amended Complaint, along with a copy of this order. Plaintiff may not effect personal service himself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a copy of Rule 4 along with this order. Plaintiff should review Rule 4(e), which addresses how personal service may be effected.

C. Conclusion

In accordance with the above, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to issue and send Plaintiff one (1) summonses;

2. The Clerk is further directed to send Plaintiff:

a) One (1) copy of the form entitled "Notice of Lawsuit and Request for Waiver of Service of Summons;"

b) One (1) copy of the form entitled "Waiver of Service;" c) One (1) copy of the form entitled "Consent to Proceed Before United States Magistrate Judge" with instructions; and

d) One (1) copy of Rule 4 of the Federal Rules of Civil Procedure;

3. Plaintiff shall serve a copy of this order and a copy of the form "Consent to Proceed Before United States Magistrate Judge" on Defendant at the time of service of the summons and First Amended Complaint;

4. Plaintiff shall complete service of process on Defendant Harrington within one-hundred twenty (120) days from the date of service of this order; and

5. Plaintiff's failure to timely complete service of the First Amended Complaint on Defendant Harrington may result in dismissal of this action against him. Fed. R. Civ. P. 4(m).

IT IS SO ORDERED.

20120825

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