Opinion
2:22-cv-827-KJM-KJN PS
06-09-2022
MATTHEW J. HUBERTY, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
ORDER GRANTING IFP REQUEST AND DIRECTING SERVICE (ECF NO. 2.)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff, who proceeds in this action without counsel, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Plaintiff's application in support of his request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiff's request to proceed in forma pauperis.
Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72.
The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if 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.
The court finds that plaintiff's complaint states claims that are sufficiently cognizable to survive this initial screening inquiry. Accordingly, the court orders service of process on all named defendants by the U.S. Marshal. See 28 U.S.C. § 1915(d). However, plaintiff must assist in providing the necessary information and materials for the Marshal to effect service on plaintiff's behalf (see paragraphs 5 and 6 below for plaintiff's required next steps).
The court reserves decision on the merits of plaintiff's claims until the record is sufficiently developed. This order does not preclude any defendant from challenging plaintiff's complaint through a timely motion under Rule 12 or other appropriate method.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED;
2. Service of the complaint is appropriate for the named defendant;
3. The Clerk of Court shall issue forthwith all process pursuant to Federal Rule of Civil Procedure 4 without prepayment of costs. The Clerk shall send to plaintiff:
(i) one copy of this order;
(ii) one copy of the court's forthcoming order setting status conference;
(iii) one copy of the Magistrate Judge Consent/Decline form; and
(iv) one summons and USM-285 form (with related documents);
4. The Clerk of Court is directed to serve a copy of this order on the U.S. Marshal;
Plaintiff's Required Submission of Documents to U.S. Marshal
5. Within 30 days from the date of this order, plaintiff shall submit to the U.S. Marshal (501 I Street, 5th Floor, Sacramento, CA 95814) the following:
(i) 1 copy of this order;
(ii) 1 copy of the court's order setting status conference;
(iii) 1 copy of the Magistrate Judge Consent/Decline form;
(iv) A completed summons and completed USM-285 form for the defendant; and
(v) 2 copies of the complaint;
6. Within 10 days of submitting these documents to the U.S. Marshal, plaintiff shall file with the court a statement indicating that the documents have been submitted;
Marshal's Service of Process
7. The U.S. Marshal shall:
a. Within 90 days, personally serve process-along with a copy of this court's order setting status conference, a Magistrate Judge Consent/Decline form, and a copy of this order-on each of the named defendants in accordance with Federal Rule of Civil Procedure 4 and 28 U.S.C. § 566(c). The U.S. Marshal shall maintain the confidentiality of all information so provided pursuant to this order; and
b. Within 14 days after personal service is effected, file a return of service.
8. In the event the U.S. Marshal is unable, for any reason, to effect service on any defendant within this time frame, the Marshal shall report that fact, and the reasons for it, to the undersigned.