Opinion
No. CIV S-08-2892 MCE EFB PS.
May 29, 2009
ORDER
On April 29, 2009, this court recommended denial of plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff timely filed objections, demonstrating a change in his financial circumstances, and a request for extension of time within which to pay the filing fee. Plaintiff's objections, and his earlier submitted affidavit, taken together demonstrate that plaintiff is unable to prepay fees and costs or give security thereof. Accordingly, plaintiff's request to proceed in forma pauperis will be granted, 28 U.S.C. § 1915(a), and his request for extension of time within which to pay the filing fee will be denied as moot.
The inquiry into plaintiff's financial status does not, however, end the matter. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. Plaintiff's Title VII action appears at this time to be appropriately pled, but the court will reserve decision on these matters until the record is more fully developed.
Accordingly, good cause appearing, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed April 29, 2009, are VACATED.
2. Plaintiff's request to proceed in forma pauperis is GRANTED.
3. Plaintiff's request for an extension of time within which to pay his filing fee is DENIED AS MOOT.
4. The Clerk of Court is directed to issue summons forthwith pursuant to Fed.R.Civ.P. 4, which shall include the named defendant.
5. The U.S. Marshal is directed to serve within 90 days from the date this order is filed, all process pursuant to Fed.R.Civ.P. 4, including a copy of this court's status order, without prepayment of costs.
6. The Clerk of the Court shall send plaintiff one USM-285 forms, one summons, a copy of the filed endorsed complaint, an appropriate form for consent to trial by a magistrate judge, and this order.
7. Plaintiff shall supply the U.S. Marshal, within 15 days from the date this order is filed, all information needed by the Marshal to effect service of process, and shall, within 10 days thereafter, file a statement with the court that said documents have been submitted to the United States Marshal. The court anticipates that, to effect service, the U.S. Marshal will require at least:
a. One completed summons;
b. One completed USM-285 form for the defendant;
c. A copy of the endorsed filed complaint for the defendant, with an extra copy for the U.S. Marshal; and
d. A copy of this court's status order for the defendant.
8. The United States Marshal shall file a statement with the court that said documents have been served. In the event the U.S. Marshal is unable to serve process on any defendant within 90 days from the date of this order, the Marshal shall report that fact, and the reasons for it, to the undersigned.
9. The Clerk of the Court is directed to serve a copy of this order on the United States Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030).
IT IS SO ORDERED.