Opinion
CAUSE NO.: 1:12-CV-126
05-21-2012
ADAM-WESLEY: POWELL, Plaintiff, v. PORTLAND CITY COURT, et al., Defendants.
OPINION AND ORDER
This matter is before the Court on the various motions filed by pro se Plaintiff Adam-Wesley: Powell on May 18, 2012. (Docket # 7, 8, 9, 10.) Liberally construed, the Court deems Powell's Motion to Adjust Relief Sought (Docket # 8) and Motion to Add Defendants (Docket # 9) in conjunction to be a motion to amend his complaint. As the Defendants have not yet filed a responsive pleading, pursuant to Federal Rule of Civil Procedure 15(a), Powell is entitled to amend his complaint once as a matter of course and does not need leave from this Court to do so. See FED. R. CIV. P. 15(a)(1)(B) (noting that, if a pleading is one to which a responsive pleading is required, a party may amend its pleading once as a matter of course within 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier). Therefore, because Powell can amend as a matter of course, his motion (Docket # 8, 9) is DENIED AS MOOT. Powell is now to file a new amended complaint that incorporates all his claims against all of the various defendants as one document as called for in Local Rule 15-1(b)(1)-(2). See N.D. IND. L.R. 15-1(b)(1)-(2) ("Amendments to a pleading (1) must reproduce the entire pleading as amended, unless the court allows otherwise; and (2) must not incorporate another pleading by reference.").
In Docket # 7, Powell asks the Court to refer to him as Adam-Wesley: Powell. Since the Court, at this point, does not have any basis to refer to him in any other way, that motion is also DENIED AS MOOT.
Lastly, in his Motion to Summon Defendants, Powell moves the Court to order the U.S. Marshal's service to serve summons on the Defendants. (Docket # 10.) Under Federal Rule of Civil Procedure 4(c)(3), "[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed to do so by the court." FED. R. CIV. P. 4(c)(3). The Court is further required to order service by the United States marshal if the plaintiff is proceeding in forma pauperis or is a seaman. Id. In other cases, the decision falls within the court's discretion. Henry v. Wisconsin, No. 08-696-DRH, 2008 WL 4975930, at *1 (S.D. Ill. Nov. 19, 2008); see Koger v. Bryan, 523 F.3d 789, 803 (7th Cir. 2008); FED. R. CIV. P. 4 advisory committee's note (1993) ("The court also retains discretion to appoint a process server on motion of a party."). Rather than simply denying service to those plaintiffs who are not filing in forma pauperis (or who are not seamen), the Court should exercise its discretion in determining whether service should be made under Rule 4(c)(3). Henry, 2008 WL 4975930, at *1; see Koger, 523 F.3d at 803.
Here, Powell is neither a seaman nor has he petitioned for in forma pauperis status. Therefore, this Court has discretion in deciding whether to order the U.S. Marshal to perfect service or to keep the expense of serving the Defendants on Powell. Powell, however, has not provided any reason why he needs the U.S. Marshal to serve the Defendants. Henry, 2008 WL 4975930, at *1. He paid the entire $350 filing fee (see Docket # 1) and does not allege in his motion that his financial circumstances have changed or that he is otherwise unable to bear the expense of service. Accordingly, Powell's Motion to Summon Defendants (Docket #10) is DENIED. Powell must serve the Defendants with summons in accordance with Rule 4(c)(1). If Powell can no longer afford to bear the expense of prosecuting this case, he may file an in forma pauperis petition. The Clerk is directed to send a copy of Federal Rule of Civil Procedure 4 and an in forma pauperis petition to the Plaintiff along with a copy of this Order.
SO ORDERED.
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Roger B. Cosbey
United States Magistrate Judge