Endsley v. Mayberg et al

Filing 7

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/26/09 ORDERING that pltf's 2 request to proceed IFP is GRANTED; service is appropriate for dfts Stephen Mayberg, Joseph Malancharuvil, Octavio Luna, Jon DeMorales, and Cynthia Radavsky; the clerk to send pltf forms for service to be completed and returned w/in 30 days, along w/ the Notice of Submission.(Yin, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. STEPHEN MAYBERG, et al, Defendants. / Plaintiff was committed to a state mental hospital following a verdict of not guilty by reason of insanity in a criminal matter. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). As plaintiff is not confined pursuant to a criminal conviction, the court finds, under Page v. Torrey, 201 F.3d 1136, (9th Cir. 2000), he is not required to provide a copy of a prisoner trust fund account statement or to exhaust available administrative remedies. Accordingly, the request to proceed in forma pauperis will be granted. The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MARC ANTHONY LOWELL ENDSLEY, Plaintiff, No. CIV S- 09-2311 WBS GGH P

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at any time if it determines the allegation of poverty is untrue, or the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. The court cannot make this determination on the present record. Therefore, the court reserves decision on these issues until the record is sufficiently developed. Good cause appearing, IT IS ORDERED that: 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 2. Service is appropriate for the following defendants: Stephen Mayberg,1 Joseph Malancharuvil, Octavio Luna, Jon DeMorales, Cynthia Radavsky. 3. The Clerk of the Court shall send plaintiff five (5) USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed August 20, 2009. 4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court: a. The completed Notice of Submission of Documents; b. One completed summons; c. One completed USM-285 form for each defendant listed in number 2 above; and d. Six (6) copies of the endorsed complaint filed August 20, 2009. ///// ///// ///// ///// /////

Although plaintiff has expressly stated that he sues the defendants each in his/her individual capacity, he adds that he seeks to name in an official capacity whomever is the Director of the California Department of Mental Health. As plaintiff identifies defendant Mayberg as the Director of the Cal. Dept. of Mental Health, therefore, the court will find that this defendant is sued both in his individual and official capacities. 2

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5. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs. DATED: October 26, 2009 /s/ Gregory G. Hollows

7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

1 2 3 4 5 6 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 MARC ANTHONY LOWELL ENDSLEY, 9 Plaintiff, 10 vs. 11 STEPHEN MAYBERG, et al. 12 Defendants. 13 OF DOCUMENTS 14 ____________________________________/ 15 Plaintiff hereby submits the following documents in compliance with the court's 16 order filed 17 1 18 5 19 6 20 Complaint 21 22 23 24 25 26 4 copies of the August 20, 2009 completed USM-285 forms completed summons form : NOTICE OF SUBMISSION No. CIV S- 09-2311 WBS GGH P