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Rittner v. Huggins

December 3, 2008

DANIEL L. RITTNER, SR., PLAINTIFF,
v.
GEORGE HUGGINS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge King

Judge Graham

OPINION AND ORDER

Plaintiff, a state inmate proceeding without the assistance of counsel, has been granted until January 15, 2009, to provide the documents necessary to permit the United States Marshal Service to effect service of process in this case. Opinion and Order, Doc. No. 39. Plaintiff has also asked that, as an alternative to the costs associated with service of summonses on the 26 named defendants, he be granted leave to submit one request for waiver of service to counsel for all defendants. Doc. No. 21.

A proper request for waiver requires that the request for waiver be submitted to each individual defendant, accompanied by a copy of the complaint, two copies of the waiver form and a prepaid means for returning the form; the request must be sent by first-class mail or other reliable means. F.R. Civ. P. 4(d)(1). The procedure proposed by plaintiff does not conform to Rule 4. Accordingly, plaintiff's motion for leave to request waiver of service of summons in lieu of service of process, Doc. No. 21, is DENIED.

Moreover, plaintiff's motion for the imposition of costs in connection with service of process on any defendant who fails to waive service of process in response to plaintiff's proposed procedure, Doc. No. 23, is likewise DENIED.

Plaintiff has also asked for an extension of time in which to effect service of process, in order to permit him to request waiver of service. Doc. No. 22. Plaintiff has been granted an extension of time, until January 15, 2009, to effect service of process on each defendant. Plaintiff's motion to enlarge time for effecting service of process, Doc. No. 22, is therefore DENIED as moot.

Plaintiff has also filed a motion for sanctions, Doc. No. 29, and a motion to strike, Doc. No. 32. Both motions relate to certain filings, Doc. Nos. 24, 25,*fn1 that were not served on plaintiff until one (1) week after filing. See Doc. No. 28. Plaintiff has not demonstrated that the lapse in effecting service of those filings has resulted in any prejudice to him. Although the filings should have been more promptly served on plaintiff, see F.R. Civ. P. 5(d)(1)("any paper after the complaint that is required to be served ... must be filed within a reasonable time after service. ..."), in the absence of demonstrated prejudice, the Court declines to assess sanctions or to strike those filings. Plaintiff's motions, Doc. Nos. 29, 32, are therefore DENIED.

On July 23, 2008, plaintiff filed a motion to stay the action indefinitely and to order prison officials to report on plaintiff's medical condition. Doc. No. 30. On August 12, 2008, plaintiff indicated that he had returned to the institution after treatment at an outside hospital. See Doc. No. 37. Under these circumstances, it appears that plaintiff's motion to stay this action during the course of medical treatment is now moot. That motion, Doc. No. 30, is therefore DENIED.

IT IS SO ORDERED.

Norah McCann King United States ...


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