Perez v. Padilla

Filing 19

ORDER DENYING 17 Motion for Immediate Initiation of Service signed by Magistrate Judge Gary S. Austin on 10/5/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH PEREZ,

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Plaintiff,

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vs.

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1:14-cv-01730-GSA (PC)
ORDER DENYING MOTION FOR
IMMEDIATE INITIATION OF
SERVICE
(ECF No. 17.)

R. PADILLA,

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Defendant.

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I.

BACKGROUND

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Joseph Perez (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on November 6, 2014. (ECF No. 1.) On November 6, 2014, Plaintiff

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consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no

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other parties have made an appearance. (ECF No. 3.) Therefore, pursuant to Appendix A(k)(4)

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of the Local Rules of the Eastern District of California, the undersigned shall conduct any and

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all proceedings in the case until such time as reassignment to a District Judge is required.

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Local Rule Appendix A(k)(3).

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The court screened Plaintiff’s Complaint and issued an order on February 5, 2015,

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dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 9.) On
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April 15, 2015, Plaintiff filed the First Amended Complaint, which awaits the court’s requisite

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screening. (ECF No. 12.)

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On September 18, 2015, Plaintiff filed a motion for the court to initiate service of
process upon defendant R. Padilla. (ECF No. 17.)
Plaintiff’s motion for initiation of service is now before the court.

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II.

SCREENING AND SERVICE OF PROCESS

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The court is required by law to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity, such as the

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instant action brought pursuant to 42 U.S.C. ' 1983. 28 U.S.C. ' 1915A(a). The court must

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dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief.

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' 1915A(b)(1),(2).

28 U.S.C.

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With respect to service, the court will, sua sponte, direct the United States Marshal to

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serve the complaint only after the court has screened the complaint and determined that it

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contains cognizable claims for relief against the named defendant.

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Plaintiff requests the court to initiate service of process upon defendant R. Padilla in

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this action. Plaintiff’s First Amended Complaint awaits the court’s screening. Therefore, it is

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not yet time for service in this action.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s motion for

immediate initiation of service of process, filed on September 18, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

October 5, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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