Opinion
No. CIV S-10-2970 WBS EFB PS.
November 23, 2010
ORDER
This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). Plaintiff requests authority to proceed in forma pauperis, and has submitted an affidavit which demonstrates that plaintiff is unable to prepay fees and costs or give security thereof. Dckt. No. 2. 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, because plaintiff has demonstrated that he is unable to prepay fees and costs, the application will be granted, plaintiff will not be required to pay the filing fee, and the U.S. Marshal will be directed to effect 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).
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 court cannot make this determination on the present record. Therefore, the court reserves decision on these issues until the record is sufficiently developed.
Accordingly, good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis, Dckt. No. 2, is granted.
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, a copy of the complaint, this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes and the court's voluntary dispute resolution program.
4. Plaintiff is advised that the U.S. Marshal will require:
a. One completed summons;
b. One completed USM-285 form for each defendant;
c. A copy of the complaint for each defendant, 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.
5. Plaintiff shall supply the United States Marshal, within 14 days from the date this order is filed, all information needed by the Marshal to effect service of process, and shall, within 14 days thereafter, file a statement with the court that said documents have been submitted to the United States 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 United States Marshal shall, within 14 days thereafter, file a statement with the court that said documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on any defendant, the 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 United States Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030).
DATED: November 23, 2010.