Wood v. County of Stanislaus ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARSHAD WOOD, No. 2:21–cv–1572–TLN–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST; ORDER DIRECTING SERVICE (AND 13 v. REQUEST FOR WAIVER OF SERVICE) BY THE UNITED STATES MARSHAL 14 COUNTY OF STANISLAUS, et al., (ECF No. 2) 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction over the case. See 26 United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 The court finds that plaintiff’s complaint states claims that are sufficiently cognizable to 2 survive this initial screening inquiry.2 Accordingly, the court orders service of process on all 3 named defendants by the U.S. Marshal. See 28 U.S.C. § 1915(d). However, plaintiff must assist 4 in providing the necessary information and materials for the Marshal to effect service on 5 plaintiff’s behalf (see paragraphs 5 and 6 below for plaintiff’s required next steps). 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED; 8 2. Service of the complaint is appropriate for the following named defendants: 9 (i) The County of Stanislaus; 10 (ii) Stanislaus County Sheriff’s Department; 11 (iii) Bret Babbitt; and 12 (iv) Vukancic Bozidar; 13 3. The Clerk of Court shall issue forthwith all process pursuant to Federal Rule of 14 Civil Procedure 4 without prepayment of costs. The Clerk shall send to plaintiff: 15 (i) one copy of this order; 16 (ii) one copy of the court’s forthcoming order setting status conference; 17 (iii) a copy of the Magistrate Judge Consent/Decline form for each named 18 defendant; and 19 (iv) a summons and a USM-285 form (with related documents) for each named 20 defendant; 21 4. The Clerk of Court is directed to serve a copy of this order on the U.S. Marshal; 22 /// 23 /// 24 /// 25 /// 26 27 2 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 28 through a timely motion under Rule 12 or other appropriate method. 1 Plaintiff’s Required Submission of Documents to U.S. Marshal 2 5. Within 30 days from the date of this order, plaintiff shall submit to the U.S. 3 Marshal (501 I Street, 5th Floor, Sacramento, CA 95814) the following: 4 (i) Four copies of this order; 5 (ii) Four copies of the court’s order setting status conference; 6 (iii) Four copies of the Magistrate Judge Consent/Decline form; 7 (iv) A completed summons and completed USM-285 form for each defendant; 8 and 9 (v) Five copies of the complaint; 10 6. Within 10 days of submitting these documents to the U.S. Marshal, plaintiff shall 11 file with the court a statement indicating that the documents have been submitted; 12 Marshal’s Request for Waiver of Service 13 7. Within 14 days of receipt of plaintiff’s submitted documents, the U.S. Marshal 14 shall notify each defendant of the commencement of this action and request a 15 waiver of service of summons in accordance with the provisions of Federal Rule of 16 Civil Procedure 4(d) and 28 U.S.C. § 566(c); 17 8. If a defendant waives service, the defendant is required to return the signed waiver 18 to the U.S. Marshal within 30 days from the date the request was sent; 19 a. Failure to return the signed waiver may subject a defendant to an order to 20 pay service costs under Federal Rule of Civil Procedure 4(d)(2); and 21 b. The filing of an answer or a responsive motion does not relieve a defendant 22 of this requirement; 23 9. The U.S. Marshal shall file returned waivers of service of summons, as well as any 24 requests for waivers that are returned as undelivered, as soon as they are received; 25 Marshal’s Service of Process 26 10. If a defendant does not return a signed waiver of service of summons within 30 27 days from the date the waiver request was sent, the U.S. Marshal shall: 28 a. Within 60 days of the expiration of the waiver deadline, personally serve ] process—along with a copy of this court’s order setting status conference, 2 a Magistrate Judge Consent/Decline form, and a copy of this order—on 3 each of the named defendants in accordance with Federal Rule of Civil 4 Procedure 4 and 28 U.S.C. § 566(c), and shall command all necessary 5 assistance from any last known employer of a defendant to execute this 6 order. The U.S. Marshal shall maintain the confidentiality of all 7 information so provided pursuant to this order; and 8 b. Within 14 days after personal service is effected, file the return of service, 9 along with evidence of any attempts to secure a waiver of service of 10 summons and of the costs subsequently incurred in effecting service on the 11 defendant. Such costs shall be enumerated on the USM-285 form and shall 12 include the costs incurred by the U.S. Marshal’s office for photocopying 13 additional copies of the summons and complaint and for preparing new 14 USM-285 forms, if required. Costs of service will be taxed against the 15 personally served defendant in accordance with the provisions of Federal 16 Rule of Civil Procedure 4(d)(2). 17 11. —_In the event the U.S. Marshal is unable, for any reason, to effect service on any 18 defendant within this time frame, the Marshal shall report that fact, and the reasons 19 for it, to the undersigned; 20 Miscellaneous Orders 21 12. Following service, or waiver of service, defendants shall reply to the complaint 22 within the time provided in Federal Rule of Civil Procedure 12(a); and 23 13. Failure to comply with this order may result in any appropriate sanctions, 24 including monetary sanctions and/or dismissal of the action pursuant to Federal 25 Rule of Civil Procedure 41(b). 26 || Dated: September 10, 2021 wood.1572 Ae ¥ L Notrrmann— 28 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE