Lopez v. M.V. Transportation, Incorporated

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 07/15/10 GRANTING 2 Motion to Proceed IFP; service by USM is appropriate fot M.V. Transportation, Inc.; (Williams, D)

(PS) Lopez v. M.V. Transportation, Incorporated

Doc. 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendant. 15 / 16 17 18 19 20 21 22 23 24 25 26 This case was referred to the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA BECKY LOPEZ, Plaintiff, v. M.V. TRANSPORTATION, INCORPORATED, ORDER No. 2:10-cv-01822 GEB KJN PS

Plaintiff, who is proceeding without counsel, filed her complaint on July 14, 2010. (Dkt. No. 1.) Presently before the court is plaintiff's application to proceed without prepayment of fees, or in forma pauperis.1 (Dkt. No. 2.) Plaintiff's application in support of her request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915(a)(1). (See Dkt. No. 2.) Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis. 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

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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 action is frivolous, that her complaint fails to state claims on which relief can be granted, or that she seeks monetary relief from an immune defendant. The undersigned reserves decision as to plaintiff's claims until the record is sufficiently developed, and this order does not preclude defendant 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 M.V. Transportation, Incorporated. For the foregoing reasons, IT IS HEREBY ORDERED that: 1. 2. Plaintiff's application to proceed in forma pauperis is granted. Service of plaintiff's complaint is appropriate for the following defendant:

M.V. Transportation, Incorporated. 3. The Clerk of the Court is directed to issue forthwith all process pursuant to

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 and plaintiff's "right to sue" letter filed July 14, 2010 (Dkt. Nos. 1, 3), this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes. 2

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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 such 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. [phone]). 9. Plaintiff's failure to comply with this order may result in a

recommendation that this action be dismissed. IT IS SO ORDERED. DATED: July 15, 2010 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 3