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Henry M. Hayes v. Gipson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 2, 2013

HENRY M. HAYES, PLAINTIFF,
v.
GIPSON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO SERVE COMPLAINT ON DEFENDANTS WITHIN ONE-HUNDRED TWENTY DAYS

Plaintiff Henry M. Mitchell ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 28 U.S.C. § 1983. He paid the filing fee and is therefore not proceeding in forma pauperis. Plaintiff filed his complaint on March 12, 2012.*fn1 The Court has ordered that this action go forward against Defendants Bolen and Seifert for violation of the First Amendment.

Plaintiff is not proceeding in forma pauperis and is therefore responsible for serving Defendants Bolen and Seifert in accordance with Rule 4 of the Federal Rules of Civil Procedure. Included with this order are the appropriate service forms and a copy of Rule 4. Unless good cause for an extension of time is shown, Plaintiff must complete service of process and file proof thereof with the Court within one-hundred twenty days. Fed. R. Civ. P. 4(m). The following two sections contain instructions on how to serve Defendants.

A. Instructions on Completing Service

1. Waiver of Service

Plaintiff has the option of notifying Defendants of the commencement of this action and requesting that they waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to do this, he must mail each 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," (3) a copy of the Complaint, and (4) a copy of this order. The documents must be addressed directly to each Defendant (not the Attorney General's Office or any other governmental entity), and the documents must be sent by first-class mail or other reliable means. Id. The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow each Defendant at least thirty days to return the waiver to Plaintiff. If Defendants sign and return the waiver forms to Plaintiff, Plaintiff must then file the forms with the Court. After filing the forms with the Court, Plaintiff does not need to do anything further to serve Defendants. Fed. R. Civ. P. 4(d)(4).

2. Personal Service

Plaintiff must effect personal service on any Defendants whom Plaintiff does not request to waive service and on any Defendants who are requested to waive service but fail to return the Waiver of Service of Summons form to Plaintiff. In either situation, the summons, a copy of the Complaint, and a copy of this order must be personally served on each Defendant (not the Attorney General's Office or any other governmental entity). Plaintiff may not effect personal service himself. Fed. R. Civ. P. 4(c)(2). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id. Plaintiff should review Rule 4(e), provided with this order, as it more fully addresses how personal service is effected.

B. Order

In accordance with the above, it is HEREBY ORDERED that:

1. The Clerk of the Court shall issue and send Plaintiff 2 summonses, and shall send Plaintiff one copy of the following documents:

a) Complaint filed on March 12, 2012;

b) "Notice of Lawsuit and Request for Waiver of Service of Summons;"

c) "Waiver of Service;" and

d) Rule 4 of the Federal Rules of Civil Procedure;

2. Plaintiff shall complete service of process on Defendants Bolen and Seifert within one-hundred twenty (120) days from the date of service of this order; and

3. Unless good cause is shown, Plaintiff's failure to complete service of process on Defendants Bolen and Seifert and to file proof thereof with the Court within one-hundred twenty days will result in dismissal of this action.

IT IS SO ORDERED.


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