Gonzales v. N.M. Corr. Dep't

Full title: NICHOLAS JAMES GONZALES, Plaintiff, v. NEW MEXICO CORRECTIONS DEPARTMENT…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date published: Aug 6, 2018

Civ. No. 18-107 JCH/GBW (D.N.M. Aug. 6, 2018)

Opinion

Civ. No. 18-107 JCH/GBW

08-06-2018

NICHOLAS JAMES GONZALES, Plaintiff, v. NEW MEXICO CORRECTIONS DEPARTMENT, et al., Defendants.

GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

ORDER DENYING MOTION TO HAVE DEFENDANTS SERVED

This matter is before the Court on Plaintiff's Motion/Application to Have Defendants Served with Summons (and) Complaint. Doc. 11. In his Motion, Plaintiff seeks to effectuate service of process on the Defendants. Because Plaintiff is a prisoner proceeding pro se and in forma pauperis, and his action is brought against prison officials, the Court is obligated to conduct a preliminary screening of the Complaint. See 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). Section 1915A states:

The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. . . . On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint—

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(a) and (b). The Court has a similar obligation to screen the complaint when a pro se plaintiff is proceeding without prepayment of fees and costs under 28 U.S.C. § 1915(e)(2):

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—

(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

Requests for service of process are premature prior to the Court's completion of its screening obligation. See Jones v. Bock, 549 U.S. 199, 213-214 (2007). The Court has not completed screening of Plaintiff's Complaint and will deny Defendant's Motion as premature at this time. If Plaintiff's Complaint is not dismissed on initial screening, the Court will enter further orders governing service of process. See 28 U.S.C. § 1915(d) (when plaintiff is granted leave to proceed in forma pauperis, the Court is responsible for issuance and service of process).

Wherefore, IT IS ORDERED that Plaintiff's Motion/Application to Have Defendants Served with Summons (and) Complaint (doc. 11) is DENIED as premature.

/s/_________

GREGORY B. WORMUTH

UNITED STATES MAGISTRATE JUDGE