Opinion
No. 2:15-cv-1057-JAM-EFB P
06-07-2016
JOHN W. WILLIAMS, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se in this civil action. He commenced this action on May 15, 2015 by filing a complaint and paying the filing fee. ECF No. 1. On June 9, 2015, the court screened plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found service appropriate for all defendants. ECF No. 5. However, plaintiff has not completed service of process notwithstanding having been warned of the requirement to timely complete service. See ECF Nos. 12, 18.
On December 7, 2015, the court ordered plaintiff to show cause why this action should not be dismissed for his failure to serve defendants in accordance with Rule 4(m) of the Federal Rules of Civil Procedure. ECF No. 18; see also Fed. R. Civ. P. 4(m) (service of process must be ///// ///// effected within 120 days of the filing of the complaint unless plaintiff demonstrates good cause). Plaintiff has responded to the order to show cause and renews his previous requests for service of process by the United States Marshal. ECF Nos. 19, 20. He also seeks leave to proceed in forma pauperis. ECF No. 22.
The court notes that Rule 4(m) has since been amended to allow for only 90 days to effect service of process.
Plaintiff's request for leave to proceed in forma paupers is denied because plaintiff has been designated a "three-strikes" litigant pursuant to 28 U.S.C. § 1915(g) and his allegations (see ECF No. 1) do not demonstrate that he suffered from an ongoing or imminent danger of serious physical injury at the time he filed his complaint. See Williams v. Soto, No. C 12-3583 YGR (PR), 2014 U.S. Dist. LEXIS 29967 (N.D. Cal. Mar. 7, 2014).
Pursuant to 28 U.S.C. § 1915(g), a prisoner may not proceed in forma pauperis "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."
However, in an abundance of caution, the court will grant plaintiff another 60 days within which to complete service of process. Plaintiff is reminded that because he is not proceeding in forma pauperis and there is no apparent need for law enforcement to effect service of process in order to keep the peace, see ECF Nos. 12, 16, the court cannot direct the United States Marshal to effect service of process on defendants. See Fed. R. Civ. P 4(c)(3).
Accordingly, plaintiff's requests for leave to proceed in forma pauperis and for the United States Marshal to effect service of process (ECF Nos. 20, 22) are denied. Plaintiff is again cautioned that failure to timely accomplish service will result in a recommendation that this action be dismissed.
So ordered. DATED: June 7, 2016.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE