Opinion
Civil File No. 05-1055 (JMR/JSM).
July 14, 2005
ORDER
Plaintiff, a federal prison inmate, commenced this action by filing a complaint seeking relief for alleged violations of his federally protected legal rights. Plaintiff did not tender the requisite filing fee with his Complaint, but instead filed an application seeking leave to proceed in forma pauperis, ("IFP"). (Docket No. 2.) By Order dated June 8, 2005, (Docket No. 4), the Court advised plaintiff that his IFP application would not be addressed, and his action could not proceed, unless he paid the initial partial filing fee required by 28 U.S.C. § 1915(b)(1). Plaintiff has now paid his initial partial filing fee, (Docket No. 7), and the matter is therefore properly before the Court at this time for the purpose of determining whether plaintiff should be allowed to prosecute his claims as an IFP litigant.
The Court finds that plaintiff is eligible for IFP status, and that his IFP application should be granted. This means that he will be allowed to bring the present action without pre-paying the full filing fee. He will, however, be required to pay the unpaid balance of the filing fee, (in this case $234.81), in installments pursuant to 28 U.S.C. § 1915(b)(2). The Clerk of Court shall provide notice of this requirement to the prison authorities at the institution where plaintiff is confined.
Because IFP status is being granted, plaintiff is entitled to have the defendants served by the U.S. Marshal. 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(2). Marshal service will therefore be ordered for the named defendants. However, marshal service cannot be accomplished at this time, because plaintiff has not yet submitted the documents needed for such service. To cure this deficiency, plaintiff must submit one properly completed marshal service form, Form USM-285, and one copy of the Complaint, for each defendant to be served. See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir.) (per curiam) (it is the IFP plaintiff's "responsibility to provide proper addresses for service on [defendants]"), cert. denied, 510 U.S. 875 (1993). If plaintiff does not satisfy this requirement within thirty (30) days, he will be deemed to have abandoned his action, and it will be recommended that the case be dismissed, without prejudice, for lack of prosecution. Fed.R.Civ.P. 41(b). If plaintiff does satisfy this requirement in a timely manner, then a Summons shall be issued, and service of process shall be performed by the U.S. Marshal.
Form USM-285 will be provided by the Clerk's office upon request.
Plaintiff has submitted three extra copies of the Complaint, but there are five named defendants in this action, so two more copies of the Complaint are still needed.
The Court will defer any ruling on the adequacy of plaintiff's pleading. (See 28 U.S.C. § 1915A.) Those defendants upon whom service of process is effected will be required to file an answer or other responsive pleading, notwithstanding the provisions of 42 U.S.C. § 1997e(g). A copy of this Order shall be served with the Summons and Complaint, so that defendants will be apprised of their obligation to file a responsive pleading.
Finally, plaintiff recently filed a document entitled "Motion To Consolidate Court Filing Fees On Related Cases 04-cv-4025 (JMR/JSM) and 05-cv-1055 (JMR/JSM) To Head Off Clerk Filing Errors." (Docket No. 7.) Plaintiff's motion points out that his initial partial filing fee for this case may have been erroneously credited to the wrong file, (i.e., to Civil No. 04-4025, rather than Civil No. 05-1055), but that issue has been addressed and resolved by the Clerk's Office. The initial partial filing fee of $15.19 that plaintiff tendered for this case, has been credited to this case. Plaintiff's motion also seeks to "consolidate" this case with a prior case — namely, Civil No. 04-4025 (JMR/JSM). However, that prior case has already been dismissed and remains closed, so it is no longer subject to "consolidation" with another case. Plaintiff's motion to consolidate will therefore be denied.
Based upon the above, and upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis, (Docket No. 2), is GRANTED;
2. Plaintiff shall pay the unpaid balance of the filing fee for this action, ($234.81), in the manner prescribed by 28 U.S.C. § 1915(b)(2), and the Clerk of Court shall provide notice of this requirement to prison authorities at the institution where plaintiff is confined;
3. Within thirty (30) days after the date of this order, plaintiff shall submit one completed Form USM-285, and one copy of his Complaint, for each defendant to be served, failing which it will be recommended that the action be dismissed pursuant to Fed.R.Civ.P. 41(b);
4. If plaintiff complies with the requirements of this Order in a timely manner, a Summons shall be issued and the U.S. Marshal shall effect service of process on those defendants for whom plaintiff has submitted a properly completed marshal service form and a copy of the Complaint;
5. A copy of this Order shall be served by the Marshal with the Summons and Complaint;
6. Those defendants on whom service of process is effected shall be required to file a timely written response to plaintiff's Complaint; and
7. Plaintiff's "Motion To Consolidate Court Filing Fees On Related Cases 04-cv-4025 (JMR/JSM) and 05-cv-1055 (JMR/JSM) To Head Off Clerk Filing Errors," (Docket No. 7), is DENIED.