Khan v. City of Pinole Police Department ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 DAVID KHAN, ET. AL., CASE NO. 19-cv-06316-YGR 5 Plaintiffs, ORDER DENYING WITHOUT PREJUDICE 6 vs. MOTION TO ISSUE SUMMONS 7 CITY OF PINOLE POLICE DEPARTMENT, ET. Re: Dkt. No. 31 AL., 8 Defendants. 9 On January 2, 2020, pro se plaintiffs David Kahn, Nay Zar Tun Kyaw, and AK filed a 10 motion captioned “Motion to issue summon.” (Dkt. No. 31.) In the filing, plaintiffs state that they 11 have had difficulty serving certain defendants in this matter, and request that the Court order 12 service on these defendants. (Id. at 2-3.) 13 If a plaintiff has been granted leave to proceed in forma pauperis, the Court has the 14 authority to order the United States Marshals Service to serve the complaint. However, the Court 15 must also conduct an initial review of the complaint to determine whether it states a cognizable 16 claim. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not 17 only permits but requires a district court to dismiss an in forma pauperis complaint that fails to 18 state a claim.” (emphasis supplied)). 19 Here, Magistrate Judge Thomas S. Hixson granted plaintiffs’ in forma pauperis 20 application, but expressly reserved screening of the complaint until plaintiffs could obtain 21 assistance from the Federal Pro Bono Project. (Dkt. No. 5 at 1-2.) Magistrate Judge Hixson also 22 stayed the matter. (Id.) It was during this stay that the case was reassigned to the Court. (Dkt. 23 No. 10.) The Court, in response to plaintiff’s filings, (Dkt. Nos. 7, 12) modified the stay until 24 December 3, 2019. (Dkt. No. 14 at 1.) 25 Before the Court could screen the operative complaint, the defendants who had accepted 26 service from plaintiffs filed several now pending motions to dismiss. (See Dkt. Nos. 16, 18, 19.) 27 These motions are currently being briefed. (See Dkt. No. 32 (plaintiffs’ response to these motions 1 due January 21, 2020, and any reply from defendants due 7 days thereafter).) 2 Because the Court has not yet screened the operative complaint, the Court cannot, at this 3 time, grant plaintiffs’ request to order service of the complaint on the remaining unserved 4 defendants. Thus, the motion is DENIED WITHOUT PREJUDICE. The Court intends to screen the 5 complaint at the same time it addresses defendants’ motions to dismiss. Should the Court 6 || determine that plaintiffs have stated a cognizable claim, the Court will extend the date on which to 7 serve the remaining defendants and order service be made on the unserved defendants through the 8 United States Marshals Service. 9 This Order terminates the motion at Docket Number 31. 10 IT Is SO ORDERED. 11 || Dated: January 7, 2020 é 4 a 4 be 3 YVONNE GONZALEZ ROGERS = UNITED STATES DISTRICT JUDGE © 15 16 & 17 Z 18 19 20 21 22 23 24 25 26 27 28