Opinion
21-cv-162-MMA (RBM)
08-24-2021
HENRY A. JONES, JR. CDCR #P-69574, Plaintiff, v. MARCUS POLLARD, Warden, KATHLEEN ALLISON, Secretary, Defendants.
ORDER DENYING MOTION TO
DIRECT U.S. MARSHAL SERVICE
TO EFFECT SERVICE OF THE
SUMMONS AND COMPLAINT
[Doc. No. 21]
Michael M. Anello United States District Judge
On January 27, 2021, Plaintiff Henry A. Jones, Jr., a state prisoner proceeding pro se, filed a civil rights complaint pursuant 42 U.S.C. § 1983. Doc. No. 1. On February 4, 2021, the Court denied his motion to proceed in forma pauperis on the basis he has had at least three prior prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Doc. No. 5. Plaintiff subsequently paid the filing fee. Doc. No. 9.
On June 16, 2021, the Court screened the Complaint pursuant to the provisions of 28 U.S.C. § 1915A, which requires the Court to sua sponte dismiss a prisoner's complaint, or any portion of it, found to be frivolous, malicious, failing to state a claim, or seeking damages from defendants who are immune. Doc. No. 10. The Court found the Complaint contains a plausible claim sufficient to survive the “low threshold” set for sua sponte screening under 28 U.S.C. § 1915A as to Defendants Warden Pollard and Secretary Allison. Doc. No. 10 at 3. The Court directed the Clerk of Court to issue the Summons and informed Plaintiff of the requirements for service of the Summons and Complaint. Id. at 4-5. Plaintiff was notified that the 90-day period in which to timely serve the Summons and Complaint had been tolled while his Complaint was in screening and that it began to run on the date the screening Order issued, June 16, 2021, which was also the date the Summons issued. Id. at 5, n.1. Accordingly, the 90-day service period was set to expire on September 14, 2021. See Fed. R. Civ. P. 4(m).
On July 22, 2012, Plaintiff filed a Motion to proceed in forma pauperis and a Motion requesting an extension of time to serve Defendants. Doc. Nos. 16, 18. The Motion to proceed in forma pauperis was denied for the reasons set forth in the Court's February 4, 2021, Order denying the original in forma pauperis application, namely, that under 28 U.S.C. § 1915(g) Plaintiff is ineligible to proceed in forma pauperis because he has had at least three prior prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Doc. No. 19. The Court granted Plaintiff's Motion for an extension of time to serve the Summons and Complaint and extended that deadline to October 29, 2021.
On August 20, 2021, Plaintiff filed the instant Motion to Direct the U.S. Marshal Service to effect service of the Summons and Complaint on the Defendants. See Doc. No. 21. Because Plaintiff is not authorized to proceed in forma pauperis in this action, he is not entitled to service of process by the United States Marshal. See 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3).
Conclusion and Order
The Court DENIES Plaintiff's Motion to Direct the U.S. Marshal Service to effect service of the summons and Complaint on the Defendants. See Doc. No. 21. Plaintiff is reminded that he must effect service of the Summons and Complaint upon Defendants Warden Pollard and Secretary Allison on or before October 29, 2021 and file proof of that service pursuant to Fed.R.Civ.P. 4(1), or file a waiver pursuant to Fed.R.Civ.P. 4(d) within that time, or face dismissal for failure to prosecute pursuant to Fed.R.Civ.P. 4(m).
IT IS SO ORDERED .