Dacumos v. World Savings

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 6/28/10 ORDERING that Plaintiff's Request to proceed in forma pauperis 5 is GRANTED. Service of Plaintiff's Complaint is appropriate for the following defendant: World Savins. The Cler k is directed to issue forthwith all process pursuant to FRCP 4. The Clerk shall send Plaintiff one UMS-285 form, one summons, an endorsed copy of the Complaint filed 4/12/10 1 , this Court's scheduling order, and the forms providing notice of the Magistrate Judge's availability to exercise jurisdiction for all purposes. Plaintiff shall supply the USM, within 30 days from the date this order is filed, all information needed by the USM to effectuate service process, and shall, within 1 0 days thereafter, file a statement with the Court that said documents have been submitted to the USM. The Clerk shall serve a copy of this order on the USM. Plaintiff's failure to comply with this order may result in a recommendation that this action be dismissed. (cc: USM) (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 / 16 17 18 19 20 21 22 23 24 25 26 Although the caption in plaintiff's complaint includes the term "et al." in reference to the defendants in this action, no other defendant is specifically named in the complaint or the Civil Cover Sheet. 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA EDUARDO DACUMOS, Plaintiff, v. WORLD SAVINGS, et al., and DOES 1 through 100, inclusive, ORDER No. 2:10-cv-00854 FCD KJN PS Plaintiff, who is proceeding without counsel, filed his complaint on April 12, 2010.1 (Dkt. No. 1.) Presently before the court is plaintiff's application to proceed without prepayment of fees, or in forma pauperis. (Dkt. No. 5.) Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and his application and declaration make the showing required by 28 U.S.C. § 1915(a)(1). (See Dkt. No. 5.) Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis. 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 The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, or if 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. See also Lopez, 203 F.3d at 1126-27 ("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."). The undersigned cannot conclude on the present record that plaintiff's complaint fails to state claims on which relief can be granted. The undersigned reserves decision as to plaintiff's claims until the record is sufficiently developed, and this order in no way precludes defendants from challenging plaintiff's complaint through a timely motion pursuant to Federal Rule of Civil Procedure 12 or other appropriate method of challenging plaintiff's pleading. Accordingly, the undersigned will order service of the complaint on defendant "World Savings." For the foregoing reasons, IT IS HEREBY ORDERED that: 1. 2. "World Savings." 3. The Clerk of the Court is directed to issue forthwith all process pursuant to Plaintiff's request to proceed in forma pauperis is granted. Service of plaintiff's complaint is appropriate for the following defendant: Federal Rule of Civil Procedure 4. 4. The Clerk of Court shall send plaintiff one USM-285 form, one summons, an endorsed copy of the complaint filed April 12, 2010 (Dkt. No. 1), this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise 2 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 jurisdiction for all purposes. 5. Plaintiff is advised that to effectuate service, the U.S. Marshal will require: a. b. c. One completed summons; One completed USM-285 form for each defendant to be served; A copy of the complaint for each defendant to be served, with an extra copy for the U.S. Marshal; and d. A copy of this court's scheduling order and related documents for each defendant to be served; and 6. Plaintiff shall supply the United States Marshal, within 30 days from the date this order is filed, all information needed by the Marshal to effectuate service of process, and shall, within 10 days thereafter, file a statement with the court that said documents have been submitted to the United States Marshal. 7. The U.S. Marshal shall serve process, with copies of this court's scheduling order and related documents, within 90 days of receipt of the required information from plaintiff, without prepayment of costs. The United States Marshal shall, within 10 days thereafter, file a statement with the court that such documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on any defendant, the Marshal shall promptly report that fact, and the reasons for it, to the undersigned. 8. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030). 9. Plaintiff's failure to comply with this order may result in a recommendation that this action be dismissed. IT IS SO ORDERED. DATED: June 28, 2010 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 3

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