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King v. Medina

United States District Court, Ninth Circuit

April 29, 2013

ALFRED H. KING, Plaintiff,
v.
CORRECTIONAL OFFICER P. MEDINA, et al., Defendants.

ORDER

CAROLYN K. DELANEY, Magistrate Judge.

Plaintiff is proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has paid the filing fee for this action. By order filed November 14, 2012, plaintiff was ordered to complete service of process on defendants J. Guillory and P. Medina within sixty days. On December 26, 2012, plaintiff filed a document in which he represents that he served summons on both defendants by certified mail. (ECF No. 10.) The document includes copies of two certified mail receipts. Nothing has been filed in this action since that date. Specifically, no signed waiver or acknowledgment of service has been filed, nor is there evidence in the record of precisely what documents were mailed to defendants Guillory and Medina. Cf. Fed.R.Civ.P. 4; Cal. Code Civ. P. 415.30. Thus, the record does not reflect that defendants have been properly served with process in this action. For that reason, on April 17, 2013, plaintiff was ordered to show cause in writing why this action should not be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m). Plaintiff has now filed a response to the order to show cause.

In his response, plaintiff states that he mailed a civil summons, the complaint, and a form Consent to Proceed Before a United States Magistrate Judge by certified mail to each defendant. Pursuant to Fed.R.Civ.P. 4, a plaintiff may notify a defendant by mail "that an action has been commenced and request that the defendant waive service of a summons." Fed.R.Civ.P. 4(d). Such a request must comply with the requirements of Rule 4(d) and include two copies of a form for waiving service and a "prepaid means for returning the form." Id . These requirements are substantially similar to the requirements of California Code of Civil Procedure § 415.30(b) for service by mail. Plaintiff did not include forms requesting waiver of service in his certified mail to defendants.[1] Plaintiff opposes dismissal of this action.

Good cause appearing, plaintiff will be granted a period of twenty days in which to either complete service of process or properly request that defendants waive service of process in accordance with Fed.R.Civ.P. 4, or to file a request for service of process by the United States Marshal. Should plaintiff choose the latter option he will be required to pay the full costs of such service.

In accordance with the above, I T IS HEREBY ORDERED that:

1. The April 17, 2013 order to show cause is discharged; and

2. Plaintiff is granted twenty days from the date of this order to either complete service of process or properly request that defendants waive service of process in accordance with Fed.R.Civ.P. 4, or to file a request for service of process by the United States Marshal. Should plaintiff choose the latter option he will be required to pay the full costs of such service.


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