Whitsitt v. Patricio Enterprises et al

Filing 9

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/30/13 ORDERING that service is appropriate for defendants Patricio Enterprises, Gabe Patricio, New Breed Logistics, Cindy Sasse, Mike Sansome, and San Joaquin County Work Net. The Clerk is di rected to issue forthwith, and the U.S. Marshal (USM) is directed to serve within 90 days of the date of this order, all process, including a copy of this court's status order, without prepayment of costs. The Clerk shall send plaintiff one U SM-285 form for each defendant, one summons, a copy of the amended complaint, an appropriate form for consent to trial by a magistrate judge, and this court's status order. Plaintiff is directed to supply the USM, within 14 days from the date t his order is filed, all information needed by the Marshal to effect service of process, and shall file a statement with the court that said documents have been submitted to the USM. The Clerk is directed to serve a copy of this order on the USM. (cc: USM) (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. WHITSITT,

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Plaintiff,

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No. 2:13-cv-0118 KJM GGH PS

v.

ORDER

PATRICIO ENTERPRISES, et al.,

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Defendants.

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This proceeding was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and

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28 U.S.C. § 636(b)(1). Plaintiff is proceeding pro se and in forma pauperis. Plaintiff seeks

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damages for alleged violations of his civil rights and the ADEA, as well as other federal and state

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laws.

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By order filed April 16, 2013, the court dismissed the complaint with leave to amend. On
May 17, 2013, plaintiff filed an amended complaint.
The determination that plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at

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any time if it determines the allegation of poverty is untrue, or the action is frivolous or malicious,

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fails to state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. The court cannot make this determination on the present record. Therefore, the court

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reserves decision on these issues until the record is sufficiently developed. On the present record,
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plaintiff has stated a colorable claim for relief against defendants Patricio Enterprises, Gabe

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Patricio, New Breed Logistics, Cindy Sasse, Mike Sansome, and San Joaquin County Work Net.1

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In the previous order, the court advised plaintiff that if he continued to name the United

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States as a defendant without setting forth the allegations as required by law, this defendant

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would be dismissed. As plaintiff has continued to deficiently set forth any allegations against this

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defendant, the United States will be dismissed by separately issued findings and

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recommendations.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Service is appropriate for the following defendants: Patricio Enterprises, Gabe Patricio,

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New Breed Logistics, Cindy Sasse, Mike Sansome, and San Joaquin County Work Net.

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2. The Clerk of the Court is directed to issue forthwith, and the U.S. Marshal is directed

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to serve within ninety days of the date of this order, all process pursuant to Fed. R. Civ. P. 4,

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including a copy of this court’s status order, without prepayment of costs.

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3. The Clerk of the Court shall send plaintiff one USM-285 form for each defendant, one

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summons, a copy of the amended complaint, an appropriate form for consent to trial by a

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magistrate judge, and this court’s status order.

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4. Plaintiff is directed to supply the U.S. Marshal, within 14 days from the date this order

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is filed, all information needed by the Marshal to effect service of process, and shall file a

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statement with the court that said documents have been submitted to the United States Marshal.

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The court anticipates that, to effect service, the U.S. Marshal will require at least:

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a. One completed summons for each defendant;

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b. One completed USM-285 form for each defendant;

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c. One copy of the endorsed filed amended complaint for each defendant, with an

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extra copy for the U.S. Marshal;
d. One copy of this court’s status order for each defendant; and

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Plaintiff continues to refer to numerous doe defendants and is informed that doe pleading in the
federal courts is not favored as a general rule. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980). Therefore, these defendants shall not be served.
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e. One copy of the instant order for each defendant.
5. In the event the U.S. Marshal is unable, for any reason whatsoever, to effectuate

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service on any defendant within 90 days from the date of this order, the Marshal is directed to

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report that fact, and the reasons for it, to the undersigned.

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6. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal,

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501 “I” Street, Sacramento, Ca., 95814, Tel. No. [phone].

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Dated: September 30, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Whitsitt0118.srv

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