Cooley v. City of Vallejo et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 3/10/14 ORDERING Plaintiff's motion to proceed in forma pauperis 3 is granted; Service of plaintiff's complaint is appropriate for defendants City of Vallejo, Brett Clark, and Dus tin Joseph; The Clerk shall send plaintiff one USM-285 form, one summons, this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes; Within 30 days Plaintiff shall submit service documents to the USM and within 10 days thereafter, file a statement with the court that said documents have been submitted. (cc: USM) (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK MARCELES COOLEY,

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Plaintiff,

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No. 2:14-cv-0620-TLN-KJN PS

v.

ORDER

CITY OF VALLEJO et al.,

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Defendants.

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Plaintiff Frederick Marceles Cooley, who proceeds in this action without counsel, has

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requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 3.)1

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Plaintiff’s application in support of his request to proceed in forma pauperis makes the showing

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required by 28 U.S.C. § 1915(a)(1). Accordingly, the undersigned grants plaintiff’s request to

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proceed in forma pauperis.
The determination that a 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 that the allegation of poverty is untrue, or if the action is frivolous or

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

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an immune defendant.

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C.
§ 636(b)(1).
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Based on the limited record before the court, the court cannot conclude that plaintiff’s

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action is frivolous, that the complaint fails to state claims on which relief can be granted, or that

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plaintiff seeks monetary relief from an immune defendant. The undersigned reserves decision as

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to plaintiff’s claims until the record is sufficiently developed, and this order does not preclude

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defendants from challenging plaintiff’s complaint through a timely motion pursuant to Federal

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Rule of Civil Procedure 12 or other appropriate method of challenging plaintiff’s pleading.

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Accordingly, the undersigned orders service of the complaint on defendants.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to proceed in forma pauperis (ECF No. 3) is granted.

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2.

Service of plaintiff’s complaint is appropriate for defendants City of Vallejo, Brett

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Clark, and Dustin Joseph.

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3.

The Clerk of the Court is directed to issue forthwith all process pursuant to Federal

Rule of Civil Procedure 4.

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4.

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

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court’s scheduling order, and the forms providing notice of the magistrate judge’s availability to

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exercise jurisdiction for all purposes.

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5.

Plaintiff is advised that to effectuate service, the U.S. Marshal will require:

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a.

One completed summons;

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b.

One completed USM-285 form for each defendant to be served;

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c.

A copy of the complaint for each defendant to be served, with an extra

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copy for the U.S. Marshal; and

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d.

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A copy of this court’s scheduling order and related documents for each

defendant to be served.

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6.

Plaintiff shall supply the U.S. Marshal, within 30 days from the date this order is

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filed, with all information needed by the Marshal to effectuate service of process, and shall,

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within 10 days thereafter, file a statement with the court that such documents have been submitted

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to the U.S. Marshal.

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The U.S. Marshal shall serve process, with copies of this court’s scheduling order

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and related documents, within 90 days of receipt of the required information from plaintiff,

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without prepayment of costs. The U.S. Marshal shall, within 10 days thereafter, file a statement

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with the court that such documents have been served. If the U.S. Marshal is unable, for any

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reason, to effectuate service of process on any defendant, the Marshal shall promptly report that

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

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If a defendant waives service, the defendant is required to return the signed waiver

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to the U.S. Marshal. The filing of an answer or a responsive motion does not relieve a defendant

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of this requirement, and the failure to return the signed waiver may subject a defendant to an

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order to pay the costs of service by the U.S. Marshal.

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9.

The Clerk of Court shall serve a copy of this order on the U.S. Marshal.

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10.

Plaintiff’s failure to comply with this order may result in any appropriate

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sanctions, including monetary sanctions and/or a recommendation that this action be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: March 10, 2014

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