Bell v. Heberling et al

Filing 50

ORDER Vacating October 1, 2014, Service Order 43 , Directing Defendants Heberling and Scheer to File Response to First Amended Complaint 34 within Thirty Days, Denying Plaintiff's Request to Proceed in Forma Pauperis in this Action 48 , and Granting Plaintiff's Motion to Appointment of U.S. Marshal to Serve Complaint, signed by District Judge Anthony W. Ishii on 12/16/14. Service is appropriate for E. Nesmith. (Attachments: # 1 USM Forms and Instructions)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HORACE BELL,

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Plaintiff,

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v.
S HEBERLING, et al.,

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Defendants.

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Case No.: 1:12-cv-01248-AWI-SAB (PC)
ORDER VACATING OCTOBER 1, 2014,
SERVICE ORDER, DIRECTING DEFENDANTS
HEBERLING AND SCHEER TO FILE RESPONSE
TO FIRST AMENDED COMPLAINT WITHIN
THIRTY DAYS, DENYING PLAINTIFF’S
REQUEST TO PROCEED IN FORMA PAUPERIS
IN THIS ACTION, AND GRANTING
PLAINTIFF’S MOTION FOR APPOINTMENT OF
U.S.MARSHAL TO SERVE COMPLAINT
[ECF Nos. 43, 47, 48]

Plaintiff Horace Bell is appearing pro se in this civil rights action pursuant to 42 U.S.C. §
1983.
On October 1, 2014, the Court issued an order directing Plaintiff to serve the first amended

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complaint on Defendants Heberling, Scheer, and Nesmith. (ECF No. 43.) However, Defendants

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Heberling and Scheer have already made an appearance in the action by way of removal from the

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Kings County Superior Court on July 27, 2012. Accordingly, the Court will vacate the service order

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as to Defendants Heberling and Scheer. Because Defendant Nesmith has not been served, the service

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order as to him remains in full force and effect.

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On October 20, 2014, Plaintiff filed a motion to rescind the order directing him to serve
Defendants and instead grant him in forma pauperis status allowing the U.S. Marshal to serve

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Defendants. (ECF No. 47.) On December 1, 2014, Plaintiff filed a motion to proceed in forma

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pauperis. (ECF No. 48.)

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As Plaintiff was advised in the Court’s September 25, 2013, order, he is not entitled to proceed

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in forma pauperis in this action as he has suffered three or more strikes under 28 U.S.C. § 1915(g).

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(ECF No. 30, at 2, citing 1:10-cv-01762-SKO, Bell v. Lopez, et. al. (E.D. Cal.) (dismissed August 26,

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2011, for failure to state a claim); 2:10-cv-00421-UA-RC, Bell v. Harrington, et. al. (C.D. Cal)

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(dismissed February 4, 2010, as frivolous, malicious, or failure to state a claim); 2:09-cv-08808-UA-

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RC, Bell v. K. Harrington, et. al., (C.D. Cal.) (dismissed December 30, 2009, as frivolous/malicious).

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Accordingly, Plaintiff is not authorized to proceed in forma pauperis and his motion for such status

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must be denied.
However, the Court will construe Plaintiff’s motion as a request pursuant to Rule 4(c) of the

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Federal Rules of Civil Procedure to appoint the United States Marshal to serve the complaint on

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Defendant Nesmith. See Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s request, the court may order that

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service be made by a United States marshal or deputy marshal . . . .) In the interest of justice and

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efficient administration of this case, the Court will grant Plaintiff’s request to appoint and order the

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United States Marshal to serve the complaint on Defendant Nesmith.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Heberling and Scheer;

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The Court’s October 1, 2014, is VACATED as to service of process upon Defendants

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Within thirty (30) days from the date of service of this order, Defendants Heberling and

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Scheer shall file a response to Plaintiff’s first amended complaint, filed November 20,

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2013;

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3.

Plaintiff’s motion to proceed in forma pauperis is DENIED;

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4.

Plaintiff’s request for the Court to order service on Defendant Nesmith by the United
States Marshal is GRANTED;

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5.

The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1) summons, a

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Notice of Submission of Documents form, an instruction sheet and a copy of the First

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Amended Complaint filed November 20, 2013;
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6.

Within thirty (30) days from the date of this order, Plaintiff shall complete the attached

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Notice of Submission of Documents and submit the completed Notice to the Court with

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the following documents:

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a.

One completed summons for Defendant Nesmsith;

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b.

One completed USM-285 form for Defendant Nesmith;

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c.

Two (2) copies of the endorsed First Amended Complaint filed November 20,
2013; and

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Plaintiff need not attempt service on the defendants and need not request waiver of
service. Upon receipt of the above-described documents, the Court will direct the

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United States Marshal to serve Defendant Nesmith pursuant to Federal Rule of Civil

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Procedure 4 without payment of costs.

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IT IS SO ORDERED.

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Dated: December 16, 2014

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SENIOR DISTRICT JUDGE

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