United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
20, 2016, the court entered an order on its on motion
directing Plaintiff to show cause why this case should not be
dismissed for failure to serve summonses (Filing No.
25). On May 31, 2016, Plaintiff filed a response
stating that he "mailed a summons of the complaint to
Defendants Foxall et al, by ... certified mail ... [and] on
February 23, 2016 the Defendants received a copy of the
complaint ... signed for [by] Susan Larsen at the Douglas
County Dept. of Corrections" (Filing No. 26 at
CM/ECF p. 1). Attached to Plaintiff’s response are
copies of six certified mail return receipts for mailings
that were sent to Sargeant Bobby Hyek, Sargeant Barbee,
Captain M. Earley, Deputy Director John Hubbard, Sargeant
Walker, and Director Foxall, at 710 S. 17th
Street, Omaha, Ne 68107 (Filing No. 26 at CM/ECF pp. 3-6).
court’s Memorandum and Order of January 20, 2016, the
clerk of the court was "directed to send to [Plaintiff]
Paulsen a copy of the Complaint and Amended Complaint, a copy
of this Memorandum and Order, and two summons forms and two
USM 285 Forms for service on Bobby Hyek and Sergeant Barbee
in their individual capacities" (Filing No. 22 at p.
2). Claims against Hyek and Barbee in the
official capacities and against the other named Defendants
(Earley, Hubbard, Walker, and Foxall) were dismissed without
prejudice (Filing No. 22 at p. 2).
receiving the summons forms, Plaintiff was required to
complete the forms and return them to the clerk of the court
to sign, seal, and issue the summonses for service upon
Defendants Hyek and Barbee. See Fed. R. Civ. P. 4(b)
("[T]he plaintiff may present a summons to the clerk for
signature and seal. If the summons is properly completed, the
clerk must sign, seal, and issue it to the plaintiff for
service on the defendant."). The court’s docket
sheet does not reflect that any summonses were ever issued by
the clerk for service upon Defendants, and Plaintiff’s
unsworn response fails to establish that proper service was
accomplished. See Fed. R. Civ. P. 4(l)(1)
("Unless service is waived, proof of service must be
made to the court. Except for service by a United States
marshal or deputy marshal, proof must be by the
there appears to have been a misunderstanding, the court will
allow Plaintiff additional time to complete service and will
again direct the clerk of the court to send Plaintiff and two
summons forms and two USM 285 Forms for service on Bobby Hyek
and Sergeant Barbee in their individual capacities. Plaintiff
should complete those forms and return them to the clerk of
the court as soon as possible so that service can be
accomplished and the case can proceed. If proof of service is
not filed within 60 days, this case may be dismissed without
2, 2016, Plaintiff filed a motion requesting permission to
proceed with discovery (Filing No. 24). That motion
will be denied. As explained in General Order No. 2016-02,
which was sent to Plaintiff on February 18, 1016, a
progression order will be issued approximately 30 days after
the last defendant has answered, and "[n]o discovery ...
may take place until a progression order is entered unless
the court’s [sic] orders otherwise" (Filing No.
23, ¶ 18). Plaintiff has provided no reason why
pre-service discovery ought to be allowed in this case.
Plaintiff’s motion for discovery (Filing No.
24) is denied.
clerk of the court is directed to send to Plaintiff a copy of
this Memorandum and Order along with two summons forms and
two USM 285 Forms for service on Bobby Hyek and Sergeant
Barbee in their individual capacities.
requested to do so, the United States Marshal will serve all
process in this case without prepayment of fees from
Plaintiff. In making such a request, Plaintiff must complete
the USM 285 forms to be submitted to the clerk of the court
with the completed summons forms. Without these documents,
the United States Marshal will not serve process. Upon
receipt of the completed forms, the clerk of the court will
sign the summons forms and forward them to the United States
Marshal for service on Hyek and Barbee, together with a copy
of the Complaint and the Amended Complaint.
proof of service is not filed within 60 days, this case may
be dismissed without further notice.
clerk of the court is directed to reset the pro se case
management deadline to: August 8, 2016, check for completion
of service of process.