Opinion
1:09-cv-01476-AWI-GSA PC
10-04-2011
EDDIE ORTEGA, Plaintiff, v. WARDEN JAMES A. YATES, et al., Defendants.
ORDER FINDING SERVICE OF FIRST
AMENDED COMPLAINT APPROPRIATE,
AND REQUIRING PLAINTIFF TO
COMPLETE SERVICE UPON DEFENDANT
DR. DUENAS WITHIN ONE-HUNDRED TWENTY DAYS
(Doc. 14.)
Plaintiff Eddie Ortega ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 22, 2009, at the Fresno County Superior Court, against defendants James A. Yates and Dr. Felix Igbinosa. On August 20, 2009, defendants Yates and Igbinosa removed the case to the federal court under 28 U.S.C. § 1915A(a). (Docs. 1, 2.) On August 26, 2010, Plaintiff filed the First Amended Complaint against defendants Dr. Felix Igbinosa, Dr. Duenas, Nurse Kratts, and Nurse Adonis.(Doc. 14.) The Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it states a cognizable claim for relief under section 1983 against Defendant Dr. Duenas for acting with deliberate indifference to Plaintiff's medical needs, in violation of the Eighth Amendment, but it failed to state any other cognizable claims against any of the defendants. Fed. R. Civ. P. 8(a); Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007); Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008). (Doc. 20.)
Because James A. Yates was not named in the First Amended Complaint, he is no longer a defendant in this action.
In a Findings and Recommendations issued concurrently with this order, the Court recommended that Plaintiff's Valley Fever claim be dismissed for failure to state a claim upon which relief may be granted under section 1983. In addition, the Findings and Recommendations recommended dismissal of defendants Dr. Felix Igbinosa, Nurse Kratts, and Nurse Adonis for failure to state any claims upon which relief can be granted against them under section 1983.
On September 16, 2011, the Court issued an order requiring Plaintiff to either (1) file a Second Amended Complaint, or (2) notify the Court of his willingness to proceed only on the cognizable claim against Dr. Duenas. (Doc. 20.) On September 29, 2011, Plaintiff filed a notice informing the Court that he is willing to proceed only on the claim found to be cognizable, against Defendant Duenas for deliberate indifference to his medical condition. (Doc. 21.)
Defendants Yates and Igbinosa paid the filing fee in full for removing this action. (Court Record.) Because Plaintiff is not proceeding in forma pauperis, it is Plaintiff's responsibility to effect service of the summons and First Amended Complaint on Defendant Dr. Duenas, who has not been served in this action. The Clerk of the Court will be directed to issue a summons to Plaintiff for the purpose of service of process. Fed. R. Civ. P. 4.
Plaintiff shall complete service of process in accordance with Federal Rule of Civil Procedure 4 within one-hundred twenty (120) days from the date of service of this order. Plaintiff shall serve a copy of this order on Defendant Dr. Duenas together with a copy of the summons and First Amended Complaint. The following two sections contain instructions on how to serve Defendant Dr. Duenas.
I. Waiver of Service
Pursuant to Rule 4(d)(2), Plaintiff may (but is not required to) notify Defendant Dr. Duenas of the commencement of this action and request that he waive service of the summons. Fed. R. Civ. P. 4(d)(2). If Plaintiff wishes to do this, he must mail Defendant Dr. Duenas (1) the form entitled "Notice of Lawsuit and Request for Waiver of Service for Summons," (2) the form entitled "Waiver of Service of Summons," and (3) a copy of the First Amended Complaint. The documents must be addressed directly to Dr. Duenas (not the Attorney General's Office) and must be dispatched (mailed) through first-class mail. The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow Defendant Dr. Duenas at least thirty (30) days in which to return the waiver to Plaintiff. If Defendant Dr. Duenas signs and returns the waiver forms to Plaintiff, Plaintiff must then file the forms with the Court. After filing the forms with the Court, Plaintiff need not take any further steps to serve the Defendant. Fed. R. Civ. P. 4(d)(4).
II. Personal Service
If either (1) Plaintiff does not wish to request Defendant Dr. Duenas to waive service or (2) the Defendant fails to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must have personal service effected on Defendant Dr. Duenas. The Defendant must be personally served with a summons and copy of the First Amended Complaint, along with a copy of this order. Plaintiff may not effect personal service himself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a copy of Rule 4 along with this order. Plaintiff should review Rule 4(e)(2), which addresses how personal service may be effected.
III. Conclusion and Order
In accordance with the above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to issue and send Plaintiff one (1) summons to serve Defendant Dr. Duenas;IT IS SO ORDERED.
2. The Clerk is further directed to send Plaintiff:
a) One (1) copy of the First Amended Complaint filed August 26, 2010 (Doc. 14.);3. Plaintiff shall complete service of process on Defendants Dr. Duenas within one-hundred twenty (120) days from the date of service of this order. Plaintiff shall serve a copy of this order and a copy of the form "Consent to Proceed Before United States Magistrate Judge" on Defendant Dr. Duenas at the time of service of the summons and First Amended Complaint; and
b) One (1) copy of the form entitled "Notice of Lawsuit and Request for Waiver of Service of Summons;"
c) One (1) copy of the form entitled "Waiver of Service;"
d) One (1) copy of the form entitled "Consent to Proceed Before United States Magistrate Judge" with instructions; and
e) One (1) copy of Rule 4 of the Federal Rules of Civil Procedure;
4. Plaintiff's failure to timely complete service of the First Amended Complaint on Defendant Dr. Duenas may result in dismissal of this action. Fed. R. Civ. P. 4(m).
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE