Burns v. Dage et al

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 4/30/2012 ORDERING 1 The Clerk of the Court shall issue a summons in a civil case, the undersigned's new case documents, and an order setting this matter for an initial scheduling conferenc e; the Clerk of the Court shall send plaintiff the summons, one USM-285 form, and a copy of the complaint; Within 15 days from the date of this order, plaintiff shall complete the summons by indicating the addresses of the named defendants and shall submit to the United States Marshal; Within 20 days of the date of this order, plaintiff shall file a notice indicating that the documents described above have been submitted to the USM; the Clerk of the Court is directed to serve a copy of this order on the USM, Sacramento, CA. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DWAYNE B. BURNS,

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Plaintiff,

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vs.

ORDER

WILLIAMS,
Defendant.

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No. CIV S-11-0217-KJM-CMK

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Plaintiff, who is proceeding pro se, brings this civil action alleging, among other

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things, violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., as

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well as violations of his civil rights under 42 U.S.C. § 1983. Pending before the court is

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plaintiff’s complaint (Doc. 1).

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

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and

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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must

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dismiss an action “[w]henever it appears . . . that the court lacks jurisdiction of the subject

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matter . . . .” Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma

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pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h),

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the court will also consider as a threshold matter whether it has subject-matter jurisdiction.

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As outlined in the court’s August 15, 2011, findings and recommendations and

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March 26, 2012, order, the complaint states a cognizable § 1983 claim against defendant

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Williams based on retaliation. The court concludes that it has subject matter jurisdiction and that

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the complaint is appropriate for service by the United States Marshal without pre-payment of

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costs. If plaintiff desires service of process by the United States Marshal without pre-payment of

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costs, plaintiff must comply with the requirements outlined below. Plaintiff is warned that

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failure to comply with this order, or otherwise effect service pursuant to Federal Rule of Civil

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Procedure 4, may result in dismissal of the action for lack of prosecution and failure to comply

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with court rules and orders. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Clerk of the Court shall issue a summons in a civil case, the

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undersigned’s new case documents, and an order setting this matter for an initial scheduling

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conference;

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2.

The Clerk of the Court shall send plaintiff the summons, one USM-285

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form, and a copy of the complaint;

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3.

Within 15 days from the date of this order, plaintiff shall complete the

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summons by indicating the addresses of the named defendants and shall submit to the United

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States Marshal at the address indicated below the following documents:

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a.

The completed summons;

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b.

One completed USM-285 form for each named defendant;

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c.

Two copies of the complaint; and

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d.

One copy of the court’s initial scheduling conference order issued

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herewith;
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Within 20 days of the date of this order, plaintiff shall file a notice

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indicating that the documents described above have been submitted to the United States Marshal,

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or a notice that plaintiff intends to serve the summons and complaint without assistance from the

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United States Marshal;

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5.

If plaintiff seeks the assistance of the United States Marshal, the United

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States Marshal is directed to serve all process without pre-payment of costs not later than 60 days

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from the date of this order, such service of process to be completed by serving a copy of the

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summons, complaint, and initial scheduling conference order on the defendants at the addresses

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provided by plaintiff; and

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6.

The Clerk of the Court is directed to serve a copy of this order on the

United States Marshal at 501 “I” Street, Sacramento, CA, 95814.

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DATED: April 30, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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