Shirah v. Falcon et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAMS CHILDS SHIRAH
VERSUS
LELAND FALCON, ET AL.
*
*
*
CIVIL ACTION
NO. 26-173
SECTION “I” (2)
ORDER AND REASONS
Pending before me is Plaintiff Williams Childs Shirah’s Motion for Service by United
States Marshal. ECF No. 10. Having considered the record, the submissions and arguments of
Plaintiff, and the applicable law, Plaintiff’s Motion is DENIED WITHOUT PREJUDICE for the
reasons stated herein.
I. 	BACKGROUND
Plaintiff Williams Childs Shirah filed this action pursuant to 42 U.S.C. § 1983 for
violations of the First, Fourth, and Fourteenth Amendments to the U.S. Constitution against
Defendants Assumption Parish Sheriff Deputy Adam Mayon and Assumption Parish Sheriff
Leland Falcon. ECF No. 1. The record reflects that Plaintiff paid the $405 filing fee and thus is
not 	proceeding 	in 	forma 	pauperis. 	Although 	Plaintiff’s 	motion 	indicates 	that 	he 	is
contemporaneously filing a request to proceed in forma pauperis, that request has been marked
deficient for failure to provide the necessary information. ECF No. 9.
II. 	APPLICABLE LAW AND ANALYSIS
Rule 4(c)(3) of the Federal Rules of Civil Procedure provides that a court must order the
United States Marshal Service (“USMS”) to serve a civil complaint if, among other things, a
plaintiff has been authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. But if a
plaintiff has not been authorized to proceed in forma pauperis, the court is not required to order
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the USMS to serve the summons and complaint. See FED. R. C IV. P. 4(c)(3). Rather, the court has
the discretion to, and “may,” order service by the USMS, at the plaintiff's request. Id.
Congress amended Rule 4 in 1983 “to relieve [the USMS] of the burden of serving
summonses and complaints in private civil actions.” 1 	For that reason, courts should not order
service by the USMS unless absolutely necessary, and then only after plaintiff first exhausts
service by private means. 2
Plaintiff requests service by USMS for financial reasons. ECF No. 10 at 1. However, even
when USMS service is ordered, when the plaintiff is not authorized to proceed in forma pauperis,
the plaintiff remains responsible to pay the USMS’s fees to effect service. 3 Moreover, contrary to
Plaintiff’s assertion, Rule 4 does not require him to pay a private process server to serve
Defendants. Rather, service may be effected by anyone at least 18 years old and not a party to the
suit. 	FED. R. C IV. P. 4(c)(2). 	Further, in lieu of formal service, pursuant to Rule 4(d), Plaintiff
may seek to obtain a waiver. Specifically, Rule 4(d) provides that a party subject to service and
that receives notice of the action in the manner provided in Rule 4(d) has a duty to avoid
unnecessary costs of serving the summons. 	See FED. R. C IV. P. 4(d)(2). 	Any defendant who,
absent good cause, fails to comply with a request for waiver is subject to imposition of costs
subsequently incurred to effect service. Id.
The request for waiver must include a copy of the complaint; two copies of a waiver form;
and a self-addressed, postage pre-paid envelope to return the waiver. FED. R. C IV. P. 4(d)(1)(C).
A summons is not required. Id. Attached to this Order is a blank WAIVER OF THE SERVICE
1 Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987) (quoting 128 CONG. REC . H9848–49 (daily ed. Dec.
15, 1982)); see also Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (noting that the legislative history of Rule
4 shows congressional intent “to relieve the marshal of the duty of routine[ ] servi[ce]” in private civil actions); see
also Suarez v. Walker, No. 23-2806, 2024 WL 4193963, *2-3 (N.D. Tex. Aug. 16, 2024).
2 See Suarez, 2024 WL 4193963, at *2-3(citations omitted).
3 See, e.g., Hernandez v. United States, No. 23-362, 2023 WL 9317428 (S.D. Tex. Dec. 20, 2023) (citing Williams v.
Lane, 2014 WL 2559197, at *2 (N.D.N.Y. June 6, 2014); 28 U.S.C. § 1921(a)(1)(A); 28 C.F.R. § 0.114).
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OF SUMMONS Form (AO399) and a blank NOTICE OF A LAWSUIT AND REQUEST TO
WAIVE SERVICE OF A SUMMONS Form (AO398). Plaintiff may complete the sections of the
forms that pertain to him, and then send one copy of Form AO398 and two copies of Form AO399
to each defendant, together with a copy of the complaint. 	Plaintiff must promptly file with the
Clerk of Court any waiver of service that he receives from a defendant. See generally F ED. R. C IV.
P. 4(d)(4).
Should Plaintiff be authorized to proceed in forma pauperis, he may at that time request
service by the USMS. 	Of course, even if the USMS becomes responsible to effect service, the
obligation to locate defendants’ addresses and provide same to the court for issuance of the
summons remains with plaintiff. 4 And once a plaintiff has been notified that service attempts have
been unsuccessful, the plaintiff must present a new or updated address for service. 5
III. 	CONCLUSION
Unless Plaintiff is authorized to proceed in forma pauperis, he is not entitled to have the
USMS serve the summons and complaint in this case. Although the Court has the discretion to
require the USMS serve summons, Plaintiff’s request that the USMS serve defendants is not
warranted at this time. Plaintiff mistakenly assumes he would not be obligated to pay the USMS
fees for service and overlooks other alternatives available to him.
4 See ECF Nos. 9-2; 9-3; see also Wright v. TDCJ-CID Dir., No. 21-280, 2023 WL 3589777, at *2 (E.D. Tex. Mar.
21, 2023) (noting that plaintiff retains the obligation to find and provide the court with the proper address for service),
R.&R. adopted, 2023 WL 3586416 (E.D. Tex. May 22, 2023); Clark v. ASC Mortg., No. 14-4236. 2015 WL 3632562,
at *1 (N.D. Tex. June 10, 2015) (quoting Shelton v. Mich. Turkey Producers Co-op., Inc., No. 13-441, 2014 WL
4388366, at *6 (W.D. Mich. Sept. 5, 2014) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996))); Boyer v. Taylor,
No. 06-694, 2009 WL 2338173, at *11 (D. Del. July 30, 2009) (“[A] district court has no duty to assist a plaintiff in
locating a defendant's address for the purpose of service of process.” (citing Barmes v. Nolan, 123 F. App'x 238, 249
(7th Cir. 2005))).
5 Wright, 2023 WL 3589777, at *2 (quoting Kaufman v. Corizon Health, No. 12-10162, 2012 WL 5830229, *1 (E.D.
Mich. 2012); see also Hall v. Tilton, No. 07-3233, 2008 WL 4614520, *2 (N.D. Cal. 2008) (noting that, if the USM
is unable to effectuate service through no fault of his own, e.g., because plaintiff failed to provide sufficient
information or the defendant is not where plaintiff claims, and plaintiff is informed, plaintiff must seek to remedy the
situation or face dismissal).
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Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiff Williams Childs Shirah’s Motion for Service by the U.S.
Marshal (ECF No. 10) is DENIED WITHOUT PREJUDICE.
New Orleans, Louisiana, this ________ day of February, 2026.
___________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
27th
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