Opinion
No. CIV S-07-0170 GEB KJM P.
October 22, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
This case was originally filed as a habeas petition; plaintiff paid the filing fee of $5.00 for such a petition. The court dismissed the petition but allowed plaintiff to file a complaint for a civil rights action. The filing fee of $350 for this civil rights action has been paid by someone on plaintiff's behalf. In addition, plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted as well. Although the filing fee will not be withdrawn from plaintiff's trust account, plaintiff will be allowed to proceed in forma pauperis during the course of this action.
The complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of his Eighth Amendment claim.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Service is appropriate for the following defendants: Traquina and Thor.
3. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed June 13, 2007.
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 3 above; and
d. Three copies of the endorsed complaint filed June 13, 2007.
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 the Court is directed to refund to plaintiff the $5.00 filing fee originally paid when the case was filed as a habeas action.
7. The Clerk of the Court is directed to change the designation of this case from a habeas to a civil rights action.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed _____________:
_____ completed summons form _____ completed USM-285 forms _____ copies of the _______________ Complaint/Amended Complaint DATED: ____________________________ Plaintiff