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David S. Mowatt v. Mike Mcdonald

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 10, 2012

DAVID S. MOWATT, PLAINTIFF,
v.
MIKE MCDONALD, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff, who has paid the filing fee, requests assistance from the United States Marshal in effecting service of process on defendants pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure. He also requests a 120-day extension of time to serve defendants. Dckt. Nos. 22, 23.

Rule 4(c)(3) states that "[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." The Advisory Notes to the Rule indicate that the court retains this discretion in the event that "a law enforcement presence appears to be necessary or advisable to keep the peace . . . ." Rule 4, Advisory Committee Notes, 1993 Amendments. Here, there is no apparent need for law enforcement to effect service of process in order to keep the peace, and plaintiff's request must therefore be denied. The court is mindful that plaintiff's incarceration presents obstacles in retaining a process server, but as plaintiff is aware, it remains his responsibility to arrange for service of process. The court will grant plaintiff one extension of time to serve defendants.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request for assistance from the United States Marshal (Dckt. No. 22) is denied.

2. Plaintiff's request for an extension of time (Dckt. No. 23) is granted. Plaintiff is granted a final extension of time to serve defendants. Failure to accomplish service within 120 days from the date of this order may result in a this action being dismissed for failure to follow court orders, for failure to effect service of process within the time prescribed by Rule 4(m), and/or for lack of prosecution under Rule 41(b) of the Federal Rules of Civil Procedure.

20121010

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