Opinion
No. 4:07CV125-RH/AK.
January 17, 2008
ORDER
Plaintiff, proceeding pro se, has filed a third amended civil rights action pursuant to 42 U.S.C. § 1983 seeking damages for time spent in prison on an illegal sentence. (Doc. 18). He is suing the judge who sentenced him claiming he was without jurisdiction to sentence him and the prosecuting attorney, whom he claims failed to investigate the charge and gave false information to the court. The third amended complaint is deemed sufficient to apprise defendants of the claims against them, and as such, this order directs service upon them. Plaintiff has provided service copies. (See Doc. 18, text notes).
Although Plaintiff was advised to delete the circuit court and the county as defendants, Plaintiff has named them again in the third amended complaint. Since Plaintiff has not named persons who may be served, the Court will not direct that these entities be served and will instead recommend their dismissal later.
Accordingly, it is
ORDERED:
1. The docket shall reflect that there are two Defendants in this action: Saul Sanders and Jack Poitnger, whose addresses have been listed as 301 South Monroe St., Tallahassee, FL 32301.
2. The Clerk of Court is directed to send two copies of this order to the United States Marshal along with service copies of the complaint. Pursuant to FED. R. CIV. P. 4(c)(2), all costs of service shall be advanced by the United States.
3. The Marshal shall transmit one Form 1A (revised) to Plaintiff for each Defendant along with instructions. The instructions shall require Plaintiff to complete and return the forms to the United States Marshal's office in Tallahassee within twenty (20) days from the date of receipt thereof. Failure by Plaintiff to return the completed forms within this time period may result in dismissal of this case.
4. Pursuant to FED. R. CIV. P. 4(d), the United States Marshal shall then send the copy of the complaint, the completed Form 1A (revised), two copies of Form 1B (revised), and a prepaid means of compliance to each Defendant through first class mail. The Marshal shall mail the forms to Defendants as soon as possible so that service or waiver of service can be completed within 120 days from the date of entry of this order on the docket as contemplated by FED. R. CIV. P. 4(m).
5. If, after thirty (30) days from the mailing of the waiver of service forms and the complaint, Defendants have not returned the waiver of service forms (Form 1B (revised)), the Marshal shall obtain summons from the Clerk and personally serve Defendants pursuant to FED. R. CIV. P. 4(e), (h). Upon completion of service, the Marshal shall file with the Clerk the return and a written statement of all costs incurred in making such personal service.
6. The Clerk shall refer this file to the undersigned if the waiver form is returned for insufficient address or for similar reason, if service on a Defendant is returned unexecuted, or if the Marshal has filed a statement of costs incurred for making personal service.
7. In accordance with 28 U.S.C. § 636(c)(2), the Clerk shall forward to Plaintiff the form for consenting to trial by the magistrate judge, with the case number written on it. If Plaintiff wishes to consent, he shall sign the form and send it to counsel for Defendants. If Defendants wish to consent, the form shall be signed and returned to the Clerk.
8. After a response to the complaint has been filed by Defendants, Plaintiff shall be required to mail to the attorney for each Defendant a copy of every pleading or other paper, including letters, submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the date a correct copy of the paper was mailed to each Defendant or to the attorney representing each Defendant. Any paper so submitted for filing that does not contain a certificate of service shall be returned by the Clerk and disregarded by the Court.