Opinion
No. 2:10-cv-3156 MCE KJN PS.
January 21, 2011
ORDER
Presently before the court is an application to proceed without prepayment of fees, or in forma pauperis, filed by plaintiff, who is proceeding without counsel. (Dkt. No. 2.) Plaintiff has submitted an affidavit which demonstrates that plaintiff is unable, even if only barely so, to prepay fees and costs or give security thereof. (Id.) Although it is unclear whether plaintiff seeks leave to proceed in forma pauperis pursuant to 42 U.S.C. § 2000e-5(f)(1) or pursuant to 28 U.S.C. § 1915, plaintiff's application is granted, plaintiff will not be required to pay the filing fee, and the U.S. Marshal will be directed to effectuate service of process in this action. See 42 U.S.C. § 2000e-5(f)(1) ("Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security."); 28 U.S.C. § 1915(a)(1) ("[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor."); see also Fed.R.Civ.P. 4(c)(3).
This case was referred to the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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 that 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. To the extent plaintiff seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, the undersigned cannot conclude on the present record that plaintiff's action is frivolous, that his complaint fails to state claims on which relief can be granted, or that he seeks monetary relief from an immune defendant. The undersigned reserves decision as to plaintiff's claims until the record is sufficiently developed, and this order does not preclude defendant from challenging plaintiff's complaint through a timely motion pursuant to Federal Rule of Civil Procedure 12 or other appropriate method of challenging plaintiff's pleading.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Service of plaintiff's complaint is appropriate for the following defendants: Hillary Random Clinton and James Steinberg.
2. The Clerk of the Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4.
3. The Clerk of Court shall send plaintiff two USM-285 forms, one summons, an endorsed copy of the complaint (Dkt. No. 1), this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes.
4. Plaintiff is advised that to effectuate service, the U.S. Marshal will require:
a. One completed summons;
b. One completed USM-285 form for each defendant to be served;
c. A copy of the complaint for each defendant to be served, with an extra copy for the U.S. Marshal; and
d. A copy of this court's scheduling order and related documents for each defendant to be served; and
5. Plaintiff shall supply the U.S. Marshal, within 30 days from the date this order is filed, all information needed by the U.S. Marshal to effectuate service of process, and shall, within 10 days thereafter, file a statement with the court that such documents have been submitted to the U.S. Marshal.
6. The U.S. Marshal shall serve process, with copies of this court's scheduling order and related documents, within 90 days of receipt of the required information from plaintiff, without prepayment of costs. The U.S. Marshal shall, within 10 days thereafter, file a statement with the court that such documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on any defendant, the U.S. Marshal shall promptly report that fact, and the reasons for it, to the undersigned.
7. The Clerk of Court shall serve a copy of this order on the U.S. Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030).
8. Plaintiff's failure to comply with this order may result in a recommendation that this action be dismissed.
IT IS SO ORDERED.
DATED: January 20, 2011