Free Order (PLRA) Service Order (no 285's) - District Court of Delaware - Delaware


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Pages: 3
Date: November 15, 2005
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State: Delaware
Category: District Court of Delaware
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Preview Order (PLRA) Service Order (no 285's) - District Court of Delaware
Case 1:05-cv-00066-JJF Document 12 Filed 11/14/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANTHONY MICHAEL SMITH, :
Plaintiff, E
v. ; Civil Action No. 05-66-JJF
DELAWARE DEPARTMENT OF 5
CORRECTION, DR. ROBERTA :
BURNS, FIRST CORRECTIONAL :
MEDICAL, WARDEN RICK KEARNEY, :
and SUSSEX CORRECTIONAL :
INSTITUTION, :
Defendants. Q
QBQEB
At Wilmington this _i5L_ day of November 2005, for the
reasons discussed in the Memorandum Opinion issued this date;
IT IS HEREBY ORDERED that:
l. Plaintiff’s claims against the Delaware Department of
Correction and the Sussex Correctional Institution are i
DISMISSED because they are barred by sovereign immunity _
under the Eleventh Amendment.
2. Plaintiff’s claims against Dr. Burns, First Correctional I
Medical, and Warden Kearney for breach of confidentiality i
are DISMISSED due to lack of subject matter jurisdiction. i
3. Plaintiff’s claims for failure to provide adequate medical
treatment against Dr. Burns, First Correctional Medical, and
Warden Kearney are not frivolous within the meaning of 28
U.S.C. §§ l9l5(e)(2)(B) and 1915A(b)(l). E
4. The Clerk shall mail a copy of this Order and the Memorandum {
I
1

Case 1:05-cv-00066-JJF Document 12 Filed 11/14/2005 Page 2 of 3
Opinion to Plaintiff.
5. Pursuant to Fed. R. Civ.mP. 4(c)(2) and (d)(2), Plaintiff
shall complete and return to the Clerk of the Court an
original "U.S. Marshal 285" form for each Defendant as well
as for the Attorney General of the State of Delaware, 820 N.
FRENCH STREET, WILMINGTON, DELAWARE, l980l, pursuant to Del.
Code Ann. tit. lO § 3lO3(c). Additionally, Plaintiff shall
provide the Court with three copies of the Complaint (D.I.
2) for service upon Defendants. Further, Plaintiff is
notified that the United States Marshal will not serve the
li
Complaint until all "U.Si&Marshal 285" forms have been
received by the Clerk of the Court. Failure to provide the
"U.S. Marshal 285" forms for each Defendant within 120 days
of this order may result in the Complaint being dismissed or
Defendants being dismissel pursuant to Federal Rule of Civil
Procedure 4(m). y
6. Upon receipt of the form(T) required by paragraph 5 above,
the United States Marshalishall forthwith serve a copy of
the Complaint (D.I. 2), this Memorandum Opinion and Order, a
"Notice of Lawsuit" form, the filing fee orderis), and a
"Return of Waiver" form upon each of the Defendants so
identified in each 285 form.
7. Within thirty (30) days from the date that the "Notice of
Lawsuit" and "Return of Waiver" forms are sent, if an
l

Case 1:05-cv-00066-JJF Document 12 Filed 11/14/2005 Page 3 of 3
executed "Waiver of Service of Summons" form has not been
received from a Defendant, the United States Marshal shall
personally serve said Defendant(s) pursuant to Fed. R. Civ.
P. 4(c)(2) and said Defendant(s) shall be required to bear
the costs related to such service, unless good cause is
shown for failure to sign and return the waiver.
8. Pursuant to Fed. R. Civ. P. 4(d)(3), a Defendant, who before
being served with process, timely returns a waiver as
requested, is required to answer or otherwise respond to the
Complaint within sixty (60) days from the date upon which
the Complaint, this Order, the "Notice of Lawsuit" form, and
the "Return of Waiver" form are sent. If a Defendant
responds by way of a motion, said motion shall be
accompanied by a brief or a memorandum of points and
authorities and any supporting affidavits.
9. No communication, including pleadings, briefs, statements of
position, etc., will be considered by the Court in this
civil action unless the documents reflect proof of service
upon the parties or their counsel. The Clerk is instructed
not to accept any such document unless accompanied by proof Q
of service.
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