United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LEON EUGENE MORRIS,

Plaintiff,

v.

J. WOODFORD, Former Director;

et al.,

Defendants. /

No. C 08-3435 SI (pr)

ORDER REGARDING SERVICE OF

PROCESS

Several months ago, the court issued an Order Of Service And Partial Dismissal in which

it explained that plaintiff, rather than the U.S. Marshal, had to tend to serving the summons and

amended complaint on the defendants because he was not proceeding as a pauper. (As a

frequent filer subject to 28 U.S.C. §1915(g), plaintiff had paid the full filing fee.) The court

ordered plaintiff to "(1) file proofs of service showing that he has served the summons and

amended complaint on each of the three defendants in the religious freedom claims or (2) show

cause why this action should not be dismissed for failure to serve process within 120 days of the

filing of the complaint. See Fed. R. Civ. P. 4(l)-(m).” Order Of Service And Partial Dismissal,

p. 5.

On February 2, 2010, proofs of service were filed that stated that someone in Kansas City,

Missouri had mailed to each of the three defendants a “court summons” and a “complaint.”

Docket # 9. Defendants never responded. Their non-response is not surprising, as the effort to

serve process was defective.

Under Federal Rule of Civil Procedure 4(e), an individual defendant may be served with

process by “(1) following state law for serving a summons in an action brought in courts of

general jurisdiction in the state where the district court is located or where service is made,” or

Case 3:08-cv-03435-SI Document 10 Filed 04/28/10 Page 1 of 3
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“(2) doing any of the following: (A) delivering a copy of the summons and of the complaint to

the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place

of abode with someone of suitable age and discretion who resides there; or (c) delivering a copy

of each to an agent authorized by appointment or by law to receive service of process.” Fed. R.

Civ. P. 4(e). Service by mail is not allowed under the federal rule. Although the federal rule

allows a plaintiff to utilize methods allowed by state law, California law does not allow for

service of process by simply mailing a copy of the summons and complaint to a defendant.

Instead, if one wants to try to use the mail for service in California, he must use the specific

notice and acknowledgment of receipt procedure described in California Code of Civil Procedure

§ 415.30. Under that method, the following must be mailed first class to each defendant by

someone other than the plaintiff: (a) a copy of the summons and amended complaint, (b) two

copies of the notice and acknowledgment form, and (3) a return envelope, postage prepaid,

addressed to the sender. If a defendant mails back the form, service is deemed complete upon

his execution of the written acknowledgment of receipt of summons. Cal. Code Civ. Proc. §

415.30(c). If a defendant does not mail back the form within 20 days, the plaintiff must serve

him by some other means, id. at at § 415.30(d), such as one of those methods permitted by

Federal Rule of Civil Procedure 4(e).

The method employed by plaintiff to accomplish service of process was defective.

Defendants have not been served properly. Plaintiff will be given one more chance to

accomplish service of process. No later than July 7, 2010, plaintiff must file proofs of service

showing that the summons and amended complaint were successfully served on each of the three

defendants. If he attempts to use the notice and acknowledgment of receipt procedure, and one

or more defendants do not mail back the forms, he must show that he has used another method

to accomplish service of process by the deadline. Failure to file proof by the deadline that

service of process was successfully accomplished will result in the dismissal of this action or any

unserved defendant. 

The clerk shall issue a replacement summons for each of the three defendants (i.e.,

sergeant Mercado, correctional officer G. Bailey, and correctional officer T. Robinson), all of

Case 3:08-cv-03435-SI Document 10 Filed 04/28/10 Page 2 of 3
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whom apparently work at Salinas Valley State Prison, and shall send those summonses to

plaintiff for his use in service of process. 

IT IS SO ORDERED.

Dated: April 27, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

Case 3:08-cv-03435-SI Document 10 Filed 04/28/10 Page 3 of 3