Rodriguez v. Hubbard et al

Filing 46

ORDER Denying Plaintiff's 45 Motion Requesting In Forma Pauperis Status and Service by United States Marshal; ORDER Granting in Part Plaintiff's Second Motion for Extension of Time to Effect Service signed by Magistrate Judge Dennis L. Beck on 02/11/2013. Service of Process due by by 5/17/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LUIS VALENZUELA RODRIGUEZ,
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Plaintiff,
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v.
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Case No. 1:10-cv-00858-DLB PC
ORDER DENYING PLAINTIFF’S
MOTION REQUESTING IN FORMA
PAUPERIS STATUS AND SERVICE BY
UNITED STATES MARSHAL

SUSAN HUBBARD, et al.,
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Defendants.
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ORDER GRANTING IN PART
PLAINTIFF’S SECOND MOTION FOR
EXTENSION OF TIME TO EFFECT
SERVICE

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ECF No. 45
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SERVICE DEADLINE: MAY 17, 2013
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Plaintiff Luis Valenzuela Rodriguez (“Plaintiff”) is a California state prisoner proceeding pro

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se in a civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his third amended complaint on

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February 29, 2012. By separate order, the Court has screened Plaintiff’s third amended complaint

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pursuant to 28 U.S.C. § 1915A(a) and finds that it states cognizable claims for relief against

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Defendants Hubbard, Cate, Harrington, Biter, Soto, Phillips, Da Veiga, Ozaeta, Betzinger, Gregory,

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Garza, Wegman, Alic, Grissom, Speidell, Davis, Foster, Freir, and Rankin. On November 16, 2012,

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the Court granted Plaintiff 120 days by which to effect service of process. Pending before the Court

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is Plaintiff’s motion, filed February 6, 2013, requesting 1) to proceed in forma pauperis in all further

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proceedings and to have the United States Marshal effect service of process and 2) in the alternative,

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be granted an additional 120 days to complete service. ECF No. 45.

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As to Plaintiff’s first request, the Court will again explain that Plaintiff is not proceeding in

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forma pauperis because the filing fee was paid in full. Plaintiff was presented the option of either

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filing the correct in forma pauperis application or paying the full filing fee, and Plaintiff opted for
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the latter. Plaintiff is not proceeding in forma pauperis in this action. Plaintiff is not entitled to have

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the United States Marshal effect service of process. See Fed. R. Civ. P. 4(c)(3) (service by the

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United States Marshal required only when party is proceeding in forma pauperis). Plaintiff cites to

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the Court’s May 14, 2010 Order, which suggested that the United States Marshal would serve

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process after the Court screened Plaintiff’s complaint. To the extent that the order suggested that

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Plaintiff would always have the benefit of the United States Marshal effecting service of process, the

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order is incorrect.
As to Plaintiff’s second request, the Court will grant Plaintiff a limited extension of time to

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complete service of process. No further extensions of time will be granted. If Plaintiff does not

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effect service of process in a timely manner, the Court will dismiss the action without prejudice as to

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each Defendant.

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s motion, filed February 6, 2013, requesting to proceed in forma pauperis in all

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further proceedings and to have the United States Marshal effect service of process, is

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denied;
2. Plaintiff’s motion, filed February 6, 2013, requesting an extension of time to complete

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service of process is granted in part;

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3. Plaintiff is granted up to May 17, 2013 by which to complete service of process on

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Defendants;

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4. Failure to effect service of process by the deadline will result in dismissal of the action

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without prejudice as to each Defendant on whom Plaintiff fails to serve process.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

February 11, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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