(PS) Howard v. City of Sacramento

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA STANLEY HOWARD, No. 2:19-cv-2136 TLN AC 12 Plaintiff, 13 v. ORDER CITY OF SACRAMENTO, 15 Defendant.

17 Plaintiff, who is proceeding in pro se but paid the filing fee, has moved the court to order the U.S. Marshal Service to effect service of process in his case. ECF No. 4. This matter is before the undersigned pursuant to Local Rule 302(c)(21). Plaintiff asserts that he is entitled to the “seaman’s exemption” pursuant to 28 U.S.C. § 1916. ECF No. 4 at 1. The undersigned finds that plaintiff does not qualify under § 1916, and service by the Marshals will not be ordered.

22 Federal Rule of Civil Procedure 4 states that “[a]t the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.” Section 1916 states that “[i]n all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws //// || enacted for their health or safety without prepaying fees or costs or furnishing security therefor.”

2 | 28U.S.C.A. § 1916.

3 Plaintiff's suit does not qualify for service by the U.S. Marshals Service under the plain | language of § 1916, because plaintiff is not suing “for wages or salvage or the enforcement of || laws enacted for [seamen’s] health and safety[.]” 28 U.S.C. § 1916. Plaintiff's complaint against || the City of Sacramento contains no indication that plaintiff is a seaman, that he is suing for wages | or salvage, or that his lawsuit is at all related to seamen’s legal protections or benefits. ECF No. | 1. The complaint contains no indication that it is an action in admiralty. Id. Thus, plaintiff does || not qualify for automatic Marshals’ service under Rule 4 and 28 U.S.C. § 1916.

10 The court does not find Marshals service otherwise appropriate under Rule 4’s | discretionary language. The U.S. Marshals Service is heavily impacted, and the court will not | lightly add to its burden by discretionarily requiring it to serve civil case documents. See, e.g., | Austin v. Winett, 1:04-cv-05104-DLB PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12, 2008) | C‘[d]irecting the Marshal’s Office to expend its resources personally serving a subpoena is not || taken lightly by the court.”). After a full review of plaintiff’s complaint and motion, the || undersigned finds no cause to order the Marshals to effect service.

17 The motion for Marshals service at ECF No. 4 is DENIED and plaintiff must submit proof || of service on defendants no later than January 20, 2020.! Failure to submit proof of service by | that date will result in a recommendation that this action be dismissed for failure to prosecute.

20 | DATED: November 6, 2019 ~ 21 Chthien—Chare ALLISON CLAIRE 22 UNITED STATES MAGISTRATE JUDGE |—§_ ' This date is calculated pursuant to the directive in the order setting status conference at ECF | No. 3, requiring service within 90 days of the filing date, October 20, 2019.