Cathy v. Moltzen, et al.

Filing 22

ORDER signed by Magistrate Judge Allison Claire on 5/1/2017 DENYING 21 Motion requesting the assistance of the USM without prejudice. Plaintiff may submit, within 21 days after service of this order, an application to proceed in forma pauperis. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES RAY CATHY,

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Plaintiff,

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v.

No. 2:15-cv-01646 MCE AC P

ORDER

E. MOLTZEN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action filed pursuant to

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42 U.S.C. § 1983 against four defendants. Because plaintiff paid the filing fee, he is responsible

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for serving process on defendants. By order filed March 21, 2017, the court directed plaintiff to

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seek waivers of service of process from each defendant, and provided guidance regarding how to

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proceed. See ECF No. 17. The court informed plaintiff that if he was unable to obtain a waiver

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from a defendant and knew that defendant’s physical address, he could file a supported motion

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requesting the assistance of the United States Marshall to effect personal service. Id. at 5 (citing

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Fed. R. Civ. P. 4(c)(3)).

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On April 27, 2017, plaintiff filed a motion requesting the court’s assistance to personally

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serve all defendants. See ECF No. 21. Plaintiff is informed that it is the practice of the United

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States Marshal to seek waivers of service before attempting to effect personal service. Plaintiff

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must also attempt to obtain waivers from defendants before requesting the assistance of the
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Marshal. Alternatively, plaintiff may submit an application to proceed in forma pauperis. If the

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court determines that plaintiff meets the requirements set forth in 28 U.S.C. § 1915, then it will

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direct the Marshal to seek waivers from defendants in the first instance, after plaintiff provides

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the necessary information. Otherwise, plaintiff remains responsible for attempting to obtain

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waivers from each defendant and, if necessary, to document his efforts in a supported motion for

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assistance from the court and the United States Marshal to effect personal service.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the assistance of the United States Marshal to effect service of

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process on defendants, ECF No. 21, is denied without prejudice.
2. Plaintiff may, within twenty-one days after service of this order, submit an application

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to proceed in forma pauperis on the form provided herewith. The application includes a section

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that must be completed by a prison official, and the form must be accompanied by a certified

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copy of plaintiff’s prison trust account statement for the six-month period preceding the filing of

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this action or, alternatively, for the preceding six months.

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3. If plaintiff chooses not to submit an application to proceed in forma pauperis, or if his

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application is denied, plaintiff must continue to attempt to obtain waivers of service from the

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defendants before filing a supported motion requesting the further assistance of the court and the

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United States Marshal.

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4. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a

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blank form used by prisoners in this district for requesting to proceed in forma pauperis.

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DATED: May 1, 2017

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