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William J. Whitsitt v. City of Tracy

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


January 29, 2013

WILLIAM J. WHITSITT, PLAINTIFF,
v.
CITY OF TRACY, DEFENDANT.

The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

By an order filed October 22, 2012, this court ordered plaintiff to complete and submit to the United States Marshal, within thirty days, the USM-285 forms which are required to effect service on the defendant. Plaintiff was also directed to submit to the court, within ten days after submitting the required documents to the United States Marshal, a declaration stating the date on which he submitted the required documents. Plaintiff did not file a declaration. Due to plaintiff's failure to comply with the court order, the undersigned issues findings and recommendations on January 14, 2013 recommending that this action be dismissed.

Plaintiff has now filed objections to the findings and recommendations. He asserts that he submitted the required documents to the United States Marshal on December 21, 2012. Plaintiff requests additional time to re-serve the documents. Plaintiff does not address his failure to file a declaration with the court reflecting service on the United States Marshal, as required by the October 22, 2012 order. Nonetheless, in light of plaintiff's objection and request for additional time, the undersigned will vacate the January 14, 2013 findings and recommendations and direct plaintiff to re-submit the documents to the United States Marshal necessary to effect service on defendant. Plaintiff will again be directed to file a declaration stating the date on which he submitted the required documents to the United States Marshal.

Accordingly, IT IS HEREBY ORDERED that:

1. The January 14, 2013 findings and recommendations are vacated;

2. The Clerk of the Court is directed to issue process and to send plaintiff an instruction sheet for service of process by the United States Marshal, one USM-285 form, one summons form, and an endorsed copy of plaintiff's amended complaint filed June 20, 2012. ECF No. 28.

3. Within thirty (30) days after this order is served, plaintiff shall submit to the United States Marshal a properly completed USM-285 form, a properly completed summons form, and the number of copies of the endorsed amended complaint and of this order required by the United States Marshal; the required documents shall be submitted directly to the United States Marshal either by personal delivery or by mail to: United States Marshals Service, 501 I Street, Suite 5600, Sacramento, CA 95814 (tel. 916-930-2030).

4. Within ten (10) days after submitting the required materials to the United States Marshals Service, plaintiff shall file with this court a declaration stating the date on which he submitted the required documents to the United States Marshal. Failure to file the declaration in a timely manner may result in an order imposing appropriate sanctions, up to and including dismissal of this action.

5. Within thirty (30) days after receiving the necessary materials from plaintiff, the United States Marshal is directed to serve process on defendant City of Tracy, without prepayment of costs.

6. The Clerk of the Court is directed to serve a copy of this order on the United States Marshal.

7. Plaintiff is again cautioned that failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed.

20130129

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