Opinion
ORDER GRANTING PLAINTIFF'S REQUEST FOR ORDER DIRECTING SERVICE BY U.S. MARSHAL (Doc. 25) ORDER FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS
BARBARA A. McAULIFFE, Magistrate Judge.
Presently before the Court is Plaintiff James Mozingo's ("Plaintiff") request for an order directing service of the summons and Second Amended Complaint on Defendants I. Singh, M.D., Barbara Woodward, PA, and K. Phana, PA by the United States Marshal. (Doc. 25.)
Plaintiff, represented by counsel, is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 4.) On November 13, 2015, the Court granted Plaintiff's unopposed motion for leave to file a second amended complaint to add three named individuals (I. Singh, M.D., Barbara Woodward, PA, and K. Phana, PA) in place of doe defendants and to accommodate the previous stipulation of the parties to strike certain language from the First Amended Complaint. The Court directed Plaintiff to file his Second Amended Complaint within ten days and, upon its filing, the Clerk of the Court was to issue summons as to I. Singh, M.D., Barbara Woodward, PA, and K. Phana, PA. (Doc. 22.)
Plaintiff filed the Second Amended Complaint on November 13, 2015, and the Clerk of the Court issued summonses for I. Singh, M.D., Barbara Woodward, PA, and K. Phana, PA on November 16, 2015. (Docs. 23, 24.)
On November 18, 2015, Plaintiff filed the instant request, based on his in forma pauperis status, for an order directing the United States Marshal to effect service on Defendants I. Singh, M.D., Barbara Woodward, PA, and K. Phana, PA. (Doc. 25.)
Pursuant to Federal Rule of Civil Procedure 4(c)(3), at plaintiff's request, the court must order that service of the summons and complaint be made by a United States marshal or deputy marshal if the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Fed.R.Civ.P. 4(c)(3). As Plaintiff is proceeding in forma pauperis pursuant to section 1915, the Court shall direct service by the United States Marshal's service in this action. Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiff's request for an order directing service of summons and the Second Amended Complaint on Defendants I. Singh, M.D., Barbara Woodward, PA, and K. Phana, PA is GRANTED.
2. The Clerk of the Court shall send Plaintiff three (3) USM-285 forms, a Notice of Submission of Documents form, an instruction sheet and a copy of the Second Amended Complaint filed November 13, 2015.
3. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
a. Completed summonses;
b. One completed USM-285 form for each defendant listed above; and
c. Four (4) copies of the endorsed Second Amended Complaint filed November 13, 2015.
4. Plaintiff need not attempt service on Defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. The failure to comply with this order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.
INSTRUCTIONS FOR COMPLETING FORM USM-285
After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action.
1. PLAINTIFF: Print your name.
2. COURT CASE NUMBER: Print the complete case number listed on your complaint.
3. DEFENDANT: Print the name of one defendant on each separate form.
4. TYPE OF PROCESS: Print "Summons and Complaint."
5. SERVE AT: Enter the name and address for service of one defendant on each individual USM-285 form.
6. SEND NOTICE OF SERVICE TO REQUESTER AT: Enter your name and mailing address.
7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM - 285: 1.
8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: Enter the number of defendants you have named in your suit.
9. CHECK FOR SERVICE ON U.S.A.: Check ONLY if the defendant listed on the form is an entity of the U.S. Government.
10. Sign and date the form, check the box marked "PLAINTIFF" and enter your telephone number (if one is available).
[] If you are the plaintiff and are currently incarcerated, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:
1. An original Summons for each defendant to be served;
2. A file-endorsed copy of the complaint to be served on each individual defendant;
3. A copy of the order directing service by the U.S. Marshal to be served on each individual defendant;
4. One copy of the complaint and one copy of the order directing service for the U.S. Marshal's file.
5. The completed "Notice of Submission of Documents" form enclosed herewith. PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served.
[] If you are the plaintiff in pro per, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:
1. An original Summons for each defendant to be served;
2. A copy of each summons to be served on each individual defendant;
3. A copy of the complaint to be served on each individual defendant;
4. A copy of the order directing service by the U.S. Marshal to be served on each individual defendant;
5. One copy of each summons, one copy of the complaint and one copy of the order directing service for the U.S. Marshal's file.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTREN DISTRICT OF CALIFORNIA
Plaintiff hereby submits the following documents in compliance with the court's order filed __________________.
TO BE COMPLETED BY THE CLERK:
The above documents were forwarded to U.S. Marshal
INSTRUCTIONS FOR SERVICE OF PROCESS BY U.S. MARSHAL
Please type or print legibly, insuring readability of all copies. DO NOT DETACH ANY COPIES. Submit one complete set of this form (USM-285) and one copy of each writ for each individual, company, corporation, etc., to be served or property to be seized or condemned. The applicable fees for such service(s) (T28, USC Sec. 1921 establishes the fees for service of process by the U.S. Marshal) may be required prior to said service.
For service of any process upon an officer or agent of the United States Government, submit a copy of the writ and a set of Form USM-285 for each officer or agent upon whom service is desired. Submit three (3) additional copies of the writs for service upon the Government of the United States. The U.S. Marshal will serve one (1) upon the U.S. Attorney and will forward two (2) to the Attorney General of the United States. (When the applicable box is checked, completion of the final signature block by the U.S. Marshal or his Deputy always certifies service on the U.S. Attorney and the Attorney General, regardless of whether other defendants on the writ were served.) Failure to provide any of the copies will delay service of the writ.
Complete all entries above the double line. Mark all applicable check boxes and use the 'Special Instructions" to advise of any information that will assist the U.S. Marshal in expediting service.
If more than one writ and USM-285 is submitted on a single case, the U.S. Marshal will receipt for all of them on the first USM-285. You will receive for your records the last (No. 5) "Acknowledgment of Receipt" copy for all the USM-285 forms you submit. When the writ is served, you will receive the No. 3 Notice of Service copy. This copy will be identical to the return to the Clerk of the Court.
Upon completion of all services (if the Marshals fees were not requested or tendered in advance or if additional fees are indicated), you will receive a 'Billing Statement'' (copy 4 of USM-285) from the United States Marshal. (NOTE: Copy 4 should be returned, by you, to the U.S. Marshal, together with your payment of the amount owed.
Additional supplies of the USM-285 may be obtained from the Clerk of the U.S. District Court or U.S. Marshal, without cost.