Scott v. California Department of Corrections and Rehabilitation ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DONNIE SCOTT, Case No. 19-cv-06046-HSG 8 Plaintiff, ORDER DENYING MOTION FOR COURT TO ORDER UNITED STATES 9 v. MARSHAL TO COMPLETE SERVICE ON DEFENDANTS KUMAR AND 10 ERIC GOLDING, et al., GOLDING VIA WAIVER OF SERVICE 11 Defendants. Re: Dkt. No. 25 12 Petitioner has requested that the Court order the United States Marshal to complete service 13 on defendants Kumar and Golding. Dkt. No. 25. Petitioner states that California Deputy Attorney 14 General (“DAG”) Wilfred Fong has filed a waiver of reply indicating that the defendants waive 15 any deficiencies in service of the summons and complaint. Petitioner therefore requests that the 16 United States Marshal serve defendants’ counsel, DAG Fong, with a waiver of service. Petitioner 17 further states that he has reason to believe that defendants Golding and Kumar have previously 18 accepted service of summons and complaint at Pelican Bay State Prison in C No. 19-cv-01613 19 WHA, Robinson v. Robertson, et al. Petitioner’s request is DENIED for the following reasons. 20 First, petitioner misunderstands the record. The only defendant that has appeared in this 21 action is defendant Golding. On January 29, 2020, DAG Fong appeared on behalf of defendant 22 Golding and filed a waiver of reply and a demand for jury trial. Dkt. No. 14. By filing this waiver 23 of reply and demand for jury trial, defendant Golding has acknowledged that he has accepted 24 service of the summons and complaint, even though the executed summons has not yet been filed 25 in the record. Nothing in the record indicates that defendant Kumar has been served. No executed 26 summons has been filed by the United States Marshal; defendant Kumar has not made any filings 27 1 in this action; and DAG Fong does not yet represent defendant Kumar.1 Plaintiff is incorrect that 2 DAG Fong has waived any defects in service with respect to both defendants. Dkt. No. 23 at 3; 3 Dkt. No. 25 at 2. As explained supra, DAG Fong currently only represents defendant Golding, 4 and has only filed a waiver of reply on defendant Golding. Dkt. No. 14; Dkt. No. 15 at 2. The 5 waiver of reply only waives deficiencies in service of the summons and complaint with respect to 6 defendant Golding.2 Dkt. No. 14. 7 Second, plaintiff misunderstands the service requirement, the procedure for waiving 8 service, and the United States Marshal’s role in effecting service. To commence an action against 9 a party, the plaintiff must serve a copy of the complaint with a summons in accordance with Rule 10 4 of the Federal Rules of Civil Procedure. See generally Fed. R. Civ. P. 4. The defendant having 11 accepted service in a separate action, whether or not the other action makes similar allegations, 12 does not constitute effecting service in this particular action.3 While a Court must order that the 13 United States Marshal serve the summons and complaint for plaintiffs proceeding in forma 14 pauperis, as is the case with plaintiff, the Federal Rules of Civil Procedure do not require that the 15 United States Marshal assist a plaintiff proceeding in forma pauperis in requesting that a 16 defendant waive service of summons. Compare Fed. R. Civ P. 4(c) with Fed. R. Civ. P. 4(d). If 17 plaintiff wishes to request that defendant Kumar waive service, he may do so pursuant to Rule 18 4(d) of the Federal Rules of Civil Procedure. Nor is the United States Marshal responsible for 19 ensuring (or completing) service of process. Although a plaintiff who is incarcerated and 20 proceeding in forma pauperis may rely on service by the United States Marshal, “[a]t a minimum, 21 a plaintiff should request service upon the appropriate defendant and attempt to remedy any 22 apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 23 1987). Here, it is not yet clear why the United States Marshal has so far been unable to effect 24 1 DAG Fong has indicated that the California Office of the Attorney General will represent 25 defendant Kumar when defendant Kumar is served or when defendant Kumar accepts service. Dkt. No. 15 at 2. 26 2 42 U.S.C. § 1997e(g) provides that any defendant to a lawsuit brought by an incarcerated person may waive the right to answer the complaint without admitting the allegations set forth in the 27 complaint. 42 U.S.C. § 1997e(g). 1 service upon defendant Kumar and if there are any defects which plaintiff may need to remedy. 2 Accordingly, the Court orders as follows. The Court DENIES as moot plaintiffs request 3 || that defendant Golding be served. Defendant Golding has been served and has appeared in this 4 || action. The Court DENIES plaintiffs request that the United States Marshal serve defendant 5 Kumar with a request for a waiver of service Plaintiff may request that defendant Kumar waive 6 service pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The Court DENIES 7 || plaintiff's request that the United States Marshal effect service on defendant Kumar. The Court 8 || has already ordered the United States Marshal to serve the summons and complaint on defendant 9 Kumar. Until the United States Marshal files the summons in the record, the Court cannot 10 || determine why service has not yet been effected. 11 This order terminates Dkt. No. 25. 12 IT IS SO ORDERED. 5 13 || Dated: 3/19/2020 Alay 3 □□□ 5 HAYWOOD S. GILLIAM, JR. United States District Judge 16 18 19 20 21 22 23 24 25 26 27 28