Opinion
ORDER DISMISSING COMPLAINT (ECF No. 1); AND ORDER DENYING MOTION TO APPOINT COUNSEL (ECF No. 4) FIRST AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is proceeding pro se and in forma pauperis in this action brought pursuant to 42 U.S.C. § 1983. Plaintiff's complaint is before the Court for screening.
I. SCREENING REQUIREMENT
The in forma pauperis statute provides, "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... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
II. PLEADING STANDARD
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id . Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
III. PLAINTIFF'S ALLEGATIONS
As best as the Court can determine, Plaintiff alleges as follows:
He dropped his vehicle off at Schoettler Tire on April 30, 2013, to replace four tires and wrote a check for $1,063.89. When Plaintiff returned later that day to pick up his vehicle, the work was not completed, so he put a stop payment on his check. Defendant Kenny Schoettler, the store manager at Schoettler Tire, filed a police report accusing Plaintiff of writing a fraudulent check. Plaintiff seeks damages for false arrest, humiliation, and intentional infliction of emotional distress. Plaintiff also alleges that his Eighth Amendment rights to be free from cruel and unusual punishment were violated.
IV. ANALYSIS
To state a claim pursuant to Section 1983, the vehicle for bringing a claim for constitutional violations, a plaintiff must plead facts indicating that the defendants acted under color of state law at the time the act complained of was committed and that the defendants deprived the plaintiff of the rights, privileges, or immunities secured by the Constitution or laws of the United States. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). Generally, private parties are not acting under color of state law, and their conduct does not constitute state action. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.1991).
Plaintiff cannot maintain a civil rights claim against this named Defendant because Defendant has not acted under color of state law and he is not a government official. For the conduct of a private person or entity to constitute state action, there must generally be two elements, including the exercise of a state-created right, privilege, or rule of conduct (state policy), and an actor who is either a state official, one who has acted together with a state official or has obtained significant aid therefrom, or one whose conduct is otherwise chargeable to the state (state actor). Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1983).
"[S]tate action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n., 531 U.S. 288, 295 (2001) (citation and quotation marks omitted). Private entities have been treated as state actors only when they are controlled by a state agency, when they have "been delegated a public function by the State, " when they are "entwined with governmental policies, " and when the "government is entwined in [their] management or control." Id. at 296 (citations omitted).
Plaintiff is hereby informed that absent a viable federal claim, any state law claims arising from the conduct described in the complaint would need to be filed in state court. See 28 U.S.C. §1367. This is because federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). In the absence of a claim based on original jurisdiction, the Court may decline to exercise supplemental jurisdiction over all other state law claims. See 28 U.S.C. § 1367(a).
V. MOTION TO APPOINT COUNSEL
Plaintiff has also filed a motion for appointed counsel. (ECF No. 4.) Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Id . (internal quotation marks and citations omitted).
Plaintiff's "motion" is simply a blank form that provides only enough details to identify the case and the request. It contains no argument as to why he seeks appointment of counsel.
In the present case, the Court does not find the required exceptional circumstances. At this early stage in the proceedings, the Court cannot make a determination that plaintiff is likely to succeed on the merits, and based on a review of the pleading, it appears Plaintiff may not be able to bring a claim within the jurisdiction of this Court. Accordingly, this request will be denied.
VI. CONCLUSION AND ORDER
The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must address the deficiencies noted in this Screening Order. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth "sufficient factual matter... to state a claim that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 555).
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George, 507 F.3d at 607. Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint, " refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555 (citations omitted).
Accordingly, it is HEREBY ORDERED that:
1. Within thirty (30) days from the service of this order, Plaintiff shall file a first amended complaint curing the deficiencies identified by the Court in this Screening Order;
2. The Clerk of Court is directed to send Plaintiff a copy of his complaint filed on October 14, 2015, and a copy of the Pro Se Packet;
3. If Plaintiff fails to file a first amended complaint or otherwise respond to this Order, the Court will dismiss this action, with prejudice, for failure to comply with a court order and failure to prosecute; and
4. Plaintiff's motion to appoint counsel (ECF No. 4) is DENIED.
IT IS SO ORDERED.
KENNY SCHOETTLER THE STORE MANAGER OF SCHOETTLER TIRE OF MADERA CA 93637 VIOLATED CIVIL RIGHTS OF DAYID TOWNS 15 CONSTITUTION OF EIGHTH AMMEND MENT FREEDOM FROM CRUEL AND UNUSAL PUNISHMENT FAISE ARREST OF HUMILIATION AND INTENTION INFLICTION OF EMOTIONAL DISTRESS KENNY SCHOETTIER OF DATE MAY-28-2013 A FALSE PURCHASE ORDER PURCHASE OF AMOUNT $1063, 89 NO FRAUD LENT CHECK-514 FOR AMOUNT $1063, 89 OF KENNY SCHOETTLER STATED MAY-28-2013 TO OFFICER JOCEHN BECK OF MADERA POLICE DEPT FAISE POLICE REPORT NO PURCHASE ORDER SIGN ARE PURCHASE OF DATE APRIL-30-13 FOR DAVID TOWNSEL NOT OWNING A YELLOW LICOLN TOWN CAR NO LICENCE PLATE 4YME678 AND NO SERVICE DEPT IN SCHOETTLER TIRE FOR AMOUNT OF $1063-89 FOR FOUR TIRES DAVID TOWNSEL LICENSE PLATE 4YME678 TO SILVER 2001 LS LICOLN IN APRIL-30-2013 TIRE STORS KENNY SCHOETTLER APRIL-30-2013 IN SERVICE DEPT OF LARRY SAGE EMPLOYEE OF SCHOETTIER TIRE WORK ORDER FOR ALIGNMENT FRONT END UPPER AIRMS AND LOWER CONTROL ARMS OF DATE APRIL-30-2013 WORK WAS NOT COMPLETED WHEN PICKUP CAR FROM SCHOETTLER TIRE AND KENNH SHOTTLER WAS DONE DAVID TOWNSEL PUT STOP PAYMENT ON CHECK NUMBER 514 GOLDEN ONE CREDIT UNION OF MADERA THE AMOUNT $1063, 89 KENNY SCHOETTIER STATED MAY-28-2013 476 FRAUD CHECK 514 FOR $1063, 89 SEEKING DAMAGES FAISE ARRES OF HUMILIATION AND INTENTIONAL INTLICTION OF EMOTIONAL DISTRESS DARID TOWNEL MAY-29-2015
PRO SE PACKAGE
A SIMPLE GUIDE TO FILING A CIVIL ACTION
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Office of the Clerk of Court
Office Hours are 9:00 to 4:00 p.m., Monday through Friday
The following instructions have been compiled to assist any person wishing to file a complaint in this court. We have attempted to simplify procedures; however, we cannot and will not act as lawyers nor give advice as counsel. We do not anticipate that these simple procedures will satisfy all needs, and the Local Rules of Practice for the U.S. District Court are available for more specific guidance. You should use the Local Rules along with the Federal Rules of Civil Procedures. The Federal Rules are available at a public library and the Local Rules are available on our web site at www.caed.uscourts.gov.
* * * * * * *
If you believe that you have been injured or wronged by someone, some individual, corporation or government agency and you also believe you should be compensated for the harm you have suffered, you may decide to file a civil suit in the United States District Court, without the help of an attorney.
FUNDAMENTAL INFORMATION
First, there are a few simple concepts you must get to know and understand.
The PLAINTIFF is the person who files the lawsuit.
The DEFENDANT is the person who is being sued.
If you are representing yourself without the benefit of an attorney, you are known as a PRO SE LITIGANT. "Pro Se" is a Latin term meaning "for yourself."
As a pro se litigant, you enjoy every right entitled to you under the law. You need not worry if you have had little or no experience with the courts before. However, pro se litigants are expected to follow/abide by the rules that govern the practice of law in the Federal Courts. Pro Se Litigants should be familiar with the Federal Rules of Civil Procedure and the Local Rules of this court.
FEDERAL COURT vs STATE COURT
There is a difference between State Court and Federal Court. The difference being in what types of cases (law suits) they can decide. This is called JURISDICTION. State Court has general/broad jurisdiction and Federal Court has limited/specific jurisdiction. Under Federal Court jurisdiction, the two main types of cases are Federal Question Cases and Diversity Cases.
FEDERAL QUESTION CASES: are cases where the issue involves violation of Federal Law.
DIVERSITY CASES: are cases where the Plaintiff and Defendant are citizens of different states and the amount in controversy exceeds the sum or value of $75,000. exclusive of interest and costs.
STEP ONE: WRITE YOUR COMPLAINT
All cases are comprised of documents prepared and filed by litigants. The most common documents are the complaint, answer and motions. The first document that you must write/file is called a COMPLAINT (see Attachment No.1).
The function of the COMPLAINT is to tell the Court and the defendant the reason for filing the lawsuit and what relief you desire. You must provide an original and one of the complaint, if you would like a copy for your records. The COMPLAINT must state:
1. The NAME AND ADDRESS of the plaintiff in the upper left hand corner of the complaint. The names of all the plaintiffs and defendants must be stated in the caption. The Court will provide the case number.
2. The JURISDICTION or reason your case is being filed in Federal Court. See 28 U.S.C. § 1331 et seq.
3. The ALLEGATIONS or claims that you are making against the defendant(s). Place each allegation in a short clearly-written paragraph. See Rule 10 Federal Rules of Civil Procedure.
4. The RELIEF you are seeking from the court. This can be money or something you want the Judge to make the defendant do or stop doing. This information is usually written in the last paragraph of the COMPLAINT.
If you believe that you are entitled to a trial by jury, you must indicate in a paragraph following the relief requested that you claim trial by jury. See Rule 38(b) of the Federal Rules of Civil Procedure.
Do not worry that your COMPLAINT is not professionally written. It should be typed if possible. The Court will take into consideration that you are a PRO SE litigant and untrained in drafting legal documents. You should, however, make every effort to state your case in clear, concise terms. See Rules 8 and 10 of the Federal Rules of Civil Procedure. YOU MUST SIGN YOUR COMPLAINT.
Forms for filing a petition under Title 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody or a motion under Title 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in Federal custody are available from the Clerk's Office.
All pleadings submitted to this Court must be on 8½ × 11" paper. See Rule 130 of the Local Rules.
STEP TWO: FILE YOUR COMPLAINT
Your next step is to file the COMPLAINT with the Court. In addition to filing the COMPLAINT the following forms will have to be completed and submitted with the complaint:
1. A Civil Cover Sheet - (Attachment 2)
2. A $400.00 file fee for a civil case (the filing fee for a petition for writ of habeas corpus is $5.00)
The filing fee may be waived if you cannot afford to pay it. For more information, see below. All checks or money orders should be made payable to: "CLERK, UNITED STATES DISTRICT COURT".
IF YOU CANNOT AFFORD TO PAY THE FILING FEE you may be allowed to have the filing fee waived if you fill out an APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS - (Attachment 3) and send it to the Court with the COMPLAINT and Cover Sheet. The Financial Affidavit is required to be completed so that the selected Judge can make a determination of your inability to pay the filing fee.
When you file the COMPLAINT, Cover Sheet and Application for Leave to Proceed in Forma Pauperis, each of these will be reviewed and forwarded to a Judge for consideration. If your Application is approved, the filing fee will be waived and your case will proceed. If your Application is not approved, you must pay the filing fee to have your case proceed.
If your In Forma Pauperis application is granted, the Court will direct the U.S. Marshal to serve your summons and complaint upon the defendants. In order for the Marshal to effectuate service on all defendants, you will be ordered to provide service copies of the complaint for each defendant and complete a Marshal's 285 form for each defendant. You are responsible for the movement of your case once it is filed.
CONSENT FORMS
When you file your complaint you will be given forms called: NOTICE OF RIGHT TO CONSENT TO THE EXERCISE OF CIVIL JURISDICTION BY A MAGISTRATE JUDGE AND APPEAL OPTION and CONSENT TO PROCEED BEFORE UNITED MAGISTRATE JUDGE, which you will need to serve on the parties in your case. Upon the voluntary consent of ALL parties (who must file the consent form with the Court), a Magistrate Judge may conduct any and all proceedings in your civil case, including a jury or non-jury trial, and the entry of final judgment, in accordance with the provisions of Title 28, U.S.C. § 636(c) and Local Rule 305.
STEP THREE: SERVICE OF PROCESS
If you are NOT proceeding In Forma Pauperis, your next step is to SERVE (inform) each of the defendants that he or she is being sued. This may be done in two ways:
1. NOTICE AND REQUEST FOR WAIVER OF SERVICE
If you are suing the United States (and its agencies, corporations, or officers) or a state, local or foreign government, you CANNOT use this method and you MUST arrange for Service of Process (described below at number 2).
You may notify non-government defendant(s) of the commencement of the lawsuit by sending a "NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS" - Form AO 398 (Attachment 4) along with a copy of the complaint by first-class mail or other reliable means. You must also include a copy of the WAIVER OF SERVICE OF SUMMONS- Form AO 399 (Attachment 5) and a self addressed return envelope. See Rule 4(d) of the Federal Rules of Civil Procedure. If service is waived by the defendant the Waiver of Service form is returned to the plaintiff for filing with the court and the action shall proceed. If the defendant does not waive service, the plaintiff must proceed with service of process.
2. SERVICE OF PROCESS
Making "service of process" involves serving a copy of the complaint upon each of the defendants.
A SUMMONS is a writ used to notify the person named as the defendant of the commencement of the civil action and the requirement to appear and answer.
If a defendant has not "waived service of summons" OR you are suing a government (federal, state, local, foreign) you MUST arrange to have a copy of an original Summons and a copy of the complaint served upon each defendant.
The court will issue a summons for all defendants and a copy of the summons must be served upon each defendant with a copy of the complaint. The original summons is for the use of the person making service.
You can make service of process by having a "disinterested" (non-party) person who is over the age of eighteen deliver copies of the SUMMONS and COMPLAINT to each of the defendants. When using this method of making service of process, have the server fill out the back of the original SUMMONS and send it to the Court. See Rule 4, Federal Rules of Civil Procedure.
NOTE: Service of the COMPLAINT on the defendant must be made within 120 days from the date the complaint was filed or the case will be subject to dismissal. See Rule 4(m), Federal Rules of Civil Procedure.
THINGS YOU SHOULD KNOW ABOUT
The ANSWER is the formal written statement by the defendant responding to a complaint setting forth any defenses and objections to the claims by the plaintiff.
A MOTION is an application or request made to the court for the purpose of obtaining a ruling or order directing some act to be done in favor of the applicant. See Rule 7(b), Federal Rules of Civil Procedure and Local Rule 7.1.
AFTER THE ANSWER
In most cases the Court will issue a SCHEDULING ORDER which sets forth a timetable with deadlines the litigants must follow.
The DISCOVERY PERIOD is the time frame allowed by the Court for both plaintiff and defendant to discover facts, research the law, and gather evidence to be presented at trial to prove the litigant's position/case. The discovery period always comes after the filing of the answer by the defendant and before the first day of the trial.
COMPLAINT/ANSWER/DISCOVERY PERIOD/TRIAL
Whenever you file any document with the Court, you must always:
1. Send a copy to each of the parties who are involved in the case, or their lawyers, and indicate on a Proof of Service form (see attachment 6) at the end of the document that you have done so in accordance with Federal Rule of Civil Procedure 5.
2. Provide the correct civil action number of your case on ALL documents and correspondence and have it readily available whenever you call the Court for information.
3. Sign all documents you file with the Court. Place the words "PRO SE" after your name. Place your address and telephone number on all documents and inform the Court of any changes, in accordance with Local Rule 182(d), as soon as possible to ensure proper service of Court issued orders. It is very important that you provide a telephone number in the event it is necessary to obtain further information or clarification or advise you of any changes in hearing schedules. In addition, you must comply with the Local Rule 131, regarding counsel identification.
If you do not know an attorney, perhaps you should contact the Lawyer Referral Service of your local county Bar Association.
If you cannot afford an attorney, perhaps you should contact the Neighborhood Legal Services or Legal Aid in your area.
Attachment 1
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
A civil complaint can be typed or printed by hand. Your complaint must be legible and clearly stated, so that it is easily understood. Clearly set out your grievance, against whom and what you would like the court to do to correct the situation. The format of a civil complaint is clearly outlined in the Federal Rules of Civil Procedure. You may add additional pages on numbered pleading paper as necessary. Please refer to Federal Rule of Civil Procedure 10. You must sign your complaint.
Sample Format for Pro Se Litigants
Attachment 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) Plaintiffs-Defendants. Enter names (last, first middle initial) of plaintiff and defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff of defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, nothing in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes, If these is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff: (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of United States are include here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suit under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below: Note: federal question actions take precedence over deversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed diversity of citizens was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
Origin. Place an "X" in one of the six boxes.
Original Proceedings. (1) Case which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Repoened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is trasnsferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being damanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Attachment 3
UNITED STATES DISTRICT COURT
Plaintiff/Petitioner Defendant/RespondentAPPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
(Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of perjury:
1. If incarcerated. I am being held at:.
If employed there, or have an account in the institution, I have attached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name. I am also submitting a similar statement from any other institution where I was incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer's name and address are:
My gross pay or wages are: $ ___________________, and my take-home pay or wages are: $_________________ per (specify pay period) _________________.
3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
If you answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
4. Amount of money that I have in cash or in a checking or savings account: $.
5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and its approximate value):
6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amount of the monthly expense):
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support:
8. Any debts or financial obligations (describe the amounts owed and to whom they are payable):
Declaration: I declare under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims.
Applicant's signature Printed nameAttachment 4
UNITED STATES DISTRICT COURT
Plaintiff DefendantNOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS
To: ____________________________________________________________________________ (Name of the defendant or - if the defendant is a corporation, partnership, or association - an officer or agent authorized to receive service)
Why are you getting this?
A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.
This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within days (give at least 30 days, or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.
What happens next?
If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States).
If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.
Please read the enclosed statement about the duty to avoid unnecessary expenses.
I certify that this request is being sent to you on the date below.
Signature of the attorney or unrepresented party Printed name Address E-mail address Telephone numberAttachment 5
UNITED STATES DISTRICT COURT
Plaintiff DefendantWAIVER OF THE SERVICE OF SUMMONS
To: ___________________________________________________ (Name of the plaintiff's attorney or unrepresented plaintiff)
I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from_________________________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.
Signature of the attorney or unrepresented party Printed name of party waiving service of summons Address E-mail address Telephone numberDuty to Avoid Unnecessary Expenses of Serving a Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.
"Good cause" does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant's property.
If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service.
If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.
Attachment 6
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
I, the undersigned, hereby certify that I am over the age of eighteen years and on __________________, 20 ______________, I served a copy of ____________________________________________________________________, by placing a copy in a postage paid envelope addressed to the person hereinafter listed by depositing said envelope in the United States Mail:
(List All Defendants and Addresses Served)
I declare under penalty of perjury that the foregoing is true and correct.