Opinion
No. 2:15-cv-2372 KJM AC P
07-16-2018
NATHANIEL DIXON, Plaintiff, v. D. OLEACHEA, et al., Defendants.
ORDER
I. Overview
Plaintiff is a state prisoner at California State Prison Corcoran, under the authority of the California Department of Corrections and Rehabilitation (CDCR), proceeding pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff paid the filing fee. However, following the court's screening of the First Amended Complaint filed August 3, 2016, ECF No. 9, pursuant to 28 U.S.C. § 1915A, and issuance of an order directing plaintiff to serve process on defendants Oleachea, Sandoval and Hall, ECF No. 12, plaintiff sought the assistance of the United States Marshal to effect service, ECF Nos. 13, 15. The court informed plaintiff that he could obtain the assistance of the Marshal only after demonstrating due diligence in attempting to effect service on his own, or if he was proceeding in forma pauperis. ECF No. 14. Plaintiff has now filed a motion to proceed in forma pauperis. ECF No. 17. For the following reasons, the court grants plaintiff's motion to proceed in forma pauperis and, by separate order, directs CDCR to commence periodic withdrawals from plaintiff's prison trust account. The court also directs the Clerk of Court to refund plaintiff's prior full payment of the filing fee. Finally, the court directs plaintiff to submit the information necessary for the Marshal to serve process on defendants.
II. In Forma Pauperis Application
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 17. Accordingly, his request to proceed in forma pauperis is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
III. Refund of Previously Paid Full Filing Fee
In accordance the above, the Clerk of Court is directed to refund the full filing fee paid on plaintiff's behalf on November 19, 2015.
The Notice of Electronic Filing attendant to this docket entry indicates that the fee was paid on plaintiff's behalf by Delia Dixon. The Clerk of Court and this court's financial department shall rely on routine procedures in determining to whom the refund should be made.
IV. Directions to Plaintiff for Service of Process
As set forth in more detail below, plaintiff shall submit to the court, within thirty (30) days after the filing date of this order, three (3) completed USM-285 forms, one (1) summons, and four (4) copies of the First Amended Complaint filed August 3, 2016. //// ////
V. Conclusion
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis, ECF No. 17, is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. The Clerk of the Court is directed to send plaintiff an instruction sheet, three (3) USM-285 forms, one (1) summons form, and one (1) copy of the endorsed First Amended Complaint filed August 3, 2016, ECF No. 9.
4. Within thirty (30) days after the filing date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to this court:
a. The completed Notice of Submission of Documents;
b. One (1) completed summons;
c. Three (3) completed USM-285 forms (one for each defendant); and
d. Four (4) copies of the endorsed First Amended Complaint filed August 3, 2016 (the Marshal retains one copy).
5. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
6. The Clerk of Court is directed to refund the full filing fee ($400.00) paid on plaintiff's behalf on November 19, 2015. //// //// //// ////
7. The Clerk of Court is directed to serve a copy of this order on the Financial Department of this court.
IT IS SO ORDERED. DATED: July 16, 2018
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE
NOTICE OF SUBMISSION
Plaintiff submits the following documents in compliance with the court's order filed __________:
___ one (1) completed summons
___ three (3) completed USM-285 forms
___ Four (4) copies of the endorsed First Amended Complaint __________
Date
/s/_________
Plaintiff