(PS) Van den Heuvel v. El Dorado County Transit ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HUEVEL, No. 2:22–cv–1734–DAD–KJN PS 12 Plaintiff, ORDER DIRECTING SERVICE (AND REQUEST FOR WAIVER OF SERVICE) BY 13 v. THE UNITED STATES MARSHAL 14 EL DORADO COUNTY TRANSIT, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, previously requested leave to 18 proceed in forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the 19 commencement of an action “without prepayment of fees or security” by a person who is unable 20 to pay such fees). The court granted plaintiff’s IFP request, screened the complaint under Section 21 1915(e), found a failure to state a viable claim under Title VI of the Civil Rights Act of 1964, but 22 found that given plaintiff’s pro se status, it was possible plaintiff could state more facts giving rise 23 to a plausible claim. (ECF No. 3.) 24 Plaintiff submitted a “notice of proof of injuries,” which appears to be a response to the 25 court’s order. Construing this filing as a first amended complaint, the court screens the 26 allegations under Section 1915(e). 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 Briefly, plaintiff’s filing alleges El Dorado County Transit failed to provide him with a 2 drop off at specific locations despite disabilities caused by a stroke. Plaintiff cites to the 3 Americans with Disabilities Act and requests “accountabilities.” (See ECF No. 6.) Liberally 4 construed, the court finds a claim under the ADA against El Dorado County Transit that is 5 sufficiently cognizable to survive the initial screening inquiry.2 Cf., e.g., Storman v. Sacramento 6 Regional Transit Dist., 70 Fed. Appx. 438 (2003) (finding pro se plaintiff adequately stated claim 7 under the ADA against public entity for failure to provide paratransit services to an eligible 8 person with a disability); with, e.g., Boose v. Tri-County Metrpolitan Transp. Dist. of Oregon, 9 2008 WL 4559790 *8 (D. Or. Oct 8, 2008) (“Because no statute or regulation requires TriMet to 10 modify its FTA-approved paratransit program in response to user requests for disability 11 accommodation, Boose’s claim necessarily fails as a matter of law.”). 12 Given this determination, service of process on this defendant by the U.S. Marshal is 13 appropriate. See 28 U.S.C. § 1915(d). However, plaintiff must assist in providing the necessary 14 information and materials for the Marshal to effect service on plaintiff’s behalf (plaintiff should 15 see paragraphs 4 and 5 below for his required next steps). 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Service of the complaint is appropriate for El Dorado County Transit; 19 2. The Clerk of Court shall issue forthwith all process pursuant to Federal Rule of 20 Civil Procedure 4 without prepayment of costs. The Clerk shall send to plaintiff: 21 (i) one copy of this order; 22 (ii) one copy of the court’s forthcoming order setting status conference; 23 (iii) a copy of the Magistrate Judge Consent/Decline form; and 24 2 This order does not preclude defendant from challenging plaintiff’s complaint through a timely 25 motion under Rule 12 or other appropriate method. Further, the court finds service on defendant “Alisha” is not proper at this time, as the liberally-construed ADA claim is to be asserted against 26 the public entity. See 42 U.S.C. § 12131(1) (defining public entity). Plaintiff’s filings indicate 27 “Alisha” and other individuals were rude to him, but even construing plaintiff’s claim liberally, these details are not relevant. Similarly, there are many details in plaintiff’s filings concerning 28 other cases, other events in plaintiff’s life, etc. that do not appear to be relevant to an ADA claim. 1 (iv) one summons and a USM-285 form (with related documents); 2 3. The Clerk of Court is directed to serve a copy of this order on the U.S. Marshal; 3 Plaintiff’s Required Submission of Documents to U.S. Marshal 4 4. Within 30 days from the date of this order, plaintiff shall submit to the U.S. 5 Marshal (501 I Street, 5th Floor, Sacramento, CA 95814) the following: 6 (i) 1 copy of this order; 7 (ii) 1 copy of the court’s order setting status conference; 8 (iii) 1 copy of the Magistrate Judge Consent/Decline form; 9 (iv) A completed summons and completed USM-285 form for defendant El 10 Dorado Transit Services; and 11 (v) 2 copies of the complaint; 12 5. Within 10 days of submitting these documents to the U.S. Marshal, plaintiff shall 13 file with the court a statement indicating that the documents have been submitted; 14 Marshal’s Request for Waiver of Service 15 6. Within 14 days of receipt of plaintiff’s submitted documents, the U.S. Marshal 16 shall notify each defendant of the commencement of this action and request a 17 waiver of service of summons in accordance with the provisions of Federal Rule of 18 Civil Procedure 4(d) and 28 U.S.C. § 566(c); 19 7. If a defendant waives service, the defendant is required to return the signed waiver 20 to the U.S. Marshal within 30 days from the date the request was sent; 21 a. Failure to return the signed waiver may subject a defendant to an order to 22 pay service costs under Federal Rule of Civil Procedure 4(d)(2); and 23 b. The filing of an answer or a responsive motion does not relieve a defendant 24 of this requirement; 25 8. The U.S. Marshal shall file returned waivers of service of summons, as well as any 26 requests for waivers that are returned as undelivered, as soon as they are received; 27 //// 28 //// 1 Marshal’s Service of Process 2 9. If defendant does not return a signed waiver of service of summons within 30 days 3 from the date the waiver request was sent, the U.S. Marshal shall: 4 a. Within 60 days of the expiration of the waiver deadline, personally serve 5 process—along with a copy of this court’s order setting status conference, 6 a Magistrate Judge Consent/Decline form, and a copy of this order—on 7 defendant in accordance with Federal Rule of Civil Procedure 4 and 8 28 U.S.C. § 566(c). The U.S. Marshal shall maintain the confidentiality of 9 all information so provided pursuant to this order; and 10 b. Within 14 days after personal service is effected, file the return of service, 11 along with evidence of any attempts to secure a waiver of service of 12 summons and of the costs subsequently incurred in effecting service on the 13 defendant. Such costs shall be enumerated on the USM-285 form and shall 14 include the costs incurred by the U.S. Marshal’s office for photocopying 15 additional copies of the summons and complaint and for preparing new 16 USM-285 forms, if required. Costs of service will be taxed against the 17 personally served defendant in accordance with the provisions of Federal 18 Rule of Civil Procedure 4(d)(2). 19 10. —_ In the event the Marshal is unable to effect service on defendant within this time 20 frame, the Marshal shall report that fact, and the reasons for it, to the undersigned; 21 Miscellaneous Orders 22 11. —_ Following service, or waiver of service, defendant shall reply to the complaint 23 within the time provided in Federal Rule of Civil Procedure 12(a); and 24 12. Failure to comply with this order may result in sanctions, including dismissal of 25 the action pursuant to Rule 41(b). 26 | Dated: November 28, 2022 vand.1734 Ae ¥ L Notrrmann— 28 KENDALL J. NE 4 UNITED STATES MAGISTRATE JUDGE