Gillam et al v. City of Vallejo, et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 10/14/2014 GRANTING plaintiffs' 2 3 Motions to Proceed In Forma Pauperis. Service is appropriate for all defendants. Clerk directed to issue all process and send plaintiffs the following: 3 USM-285 forms, an instruction sheet, 1 Summons, Judge Newman's Scheduling Order/Consent forms. Within 30 days from date Order is filed, plaintiffs shall supply U.S. Marshal with all information/documents needed to effectuate served of process. Clerk directed to serve copy of Order on U.S. Marshal. Plaintiffs failure to comply with Order may result in appropriate sanctions. [cc: U.S. Marshal Services](Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN GILLAM & PAMALA
GILLAM,
Plaintiffs,

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ORDER
v.

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No. 2:14-cv-2217-KJM-KJN PS

CITY OF VALLEJO, et al.,
Defendants.

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Plaintiffs Marvin Gillam and Pamala Gillam, who proceed in this action without counsel,

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have requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 2,

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3.)1 Plaintiffs’ applications in support of their requests to proceed in forma pauperis make the

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showing required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiffs’ requests 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, the court is directed to dismiss the case at any

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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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In this case, plaintiffs essentially allege that the police officer defendants unlawfully

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tasered and beat plaintiff Marvin Gillam with a flashlight, and unlawfully placed plaintiff Pamala

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Gillam in too tight handcuffs for an extended period of time despite her numerous complaints of

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pain. Plaintiffs assert 42 U.S.C. § 1983 claims based on use of excessive force in violation of the

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Fourth Amendment against the police officer defendants, as well as a corresponding Monell claim

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against defendant City of Vallejo.
Based on the limited record before the court, the court cannot conclude that plaintiffs’

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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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plaintiffs seek monetary relief from an immune defendant. The court reserves decision as to

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plaintiffs’ claims until the record is sufficiently developed, and this order does not preclude

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

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

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Accordingly, the court orders service of the complaint on defendants.
Additionally, the court notes that plaintiffs’ complaint makes several references to the fact

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that their “legal assistant,” Frederick Marc Cooley, who is not a licensed attorney, is providing

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them with various types of assistance in this action. Plaintiffs are cautioned that non-attorneys

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are not permitted to represent litigants other than themselves in federal court. Thus, although Mr.

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Cooley may accompany plaintiffs to court hearings and conferences for moral support, and may

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provide plaintiffs with whatever other assistance is permissible under applicable law, plaintiffs

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must sign their own pleadings and filings, must make their own appearances at court-ordered

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hearings and conferences, and must present their own oral argument. Importantly, plaintiffs

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themselves, and not Mr. Cooley or some other non-party, are ultimately responsible for the

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contents of their briefs and filings with the court, as well as their compliance with the court’s

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Local Rules, the Federal Rules of Civil Procedure, and the court’s orders.2 Failure to comply

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with such rules and orders may result in the imposition of sanctions against plaintiffs or any

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other violating party.

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A copy of the court’s Local Rules may be obtained from the Clerk’s Office or on the court’s
website at http://www.caed.uscourts.gov/caednew/index.cfm/rules/local-rules/.
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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

Plaintiffs’ motions to proceed in forma pauperis (ECF Nos. 2, 3) are granted.

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2.

Service of the complaint is appropriate for defendants City of Vallejo, Joe

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McCarthy, and Jerome Bautista.
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The Clerk of Court is directed to issue forthwith all process pursuant to Federal

Rule of Civil Procedure 4.
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The Clerk of Court shall send plaintiffs 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.

Plaintiffs are 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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Plaintiffs 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 U.S. 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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7.

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 plaintiffs,

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without prepayment of costs. If the U.S. Marshal is unable, for any reason, to effectuate service

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of process on any defendant, the U.S. Marshal shall promptly report that fact, and the reasons for

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it, to the court.

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8.

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

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Plaintiffs’ 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: October 14, 2014

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