Hoeft v. Ballon

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/8/2017 ORDERING the order filed 2/7/2017 is VACATED and this case is REOPENED. The Clerk of Court is directed to list on the court's docket Al Ballon as defendant. The Commissioner of Soci al Security is DISMISSED pursuant to plaintiff's amended complaint. Within 28 days from the date of this order, all information needed by the Marshal to effect service of process, including all information required for proper service of summons under Fed. R. of Civ. P. 4(i) and shall file a statement with the court that said documents have been submitted to the USM, along with a copy of the information provided to the Marshal. The USM is DIRECTED to serve all process without prepayment of c osts not later than 90 days from the date of this order. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, and a copy of the 16 amended complaint. In the event the USM is unable, for any reason whatsoever, to effectuate service on defendant Ballon within 90 days from the date of this order, the Marshal is DIRECTED to report that fact, and the reasons for it, to the undersigned. (cc: USM) (Washington, S) Modified on 2/9/2017 (Washington, S).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MONICA HOEFT,

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No. 2:16-cv-2615 CKD PS

Plaintiff,
v.

ORDER AND ORDER DIRECTING
SERVICE BY THE UNITED STATES
MARSHAL WITHOUT PREPAYMENT OF
COSTS

AL BALLON,
Defendant.

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Plaintiff is proceeding in this action pro se and in forma pauperis. On February 7, 2017,

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this action was dismissed without prejudice because plaintiff failed to timely file an amended

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complaint. ECF No. 15. After that order was filed, the Clerk’s office docketed an amended

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complaint that had been received the day prior to entry of the order. ECF No. 16. The court will

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therefore vacate the order dismissing the action.

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The amended complaint names only Al Ballon as a defendant. Pursuant to plaintiff’s
amended complaint, the Commissioner of Social Security will be dismissed as a defendant.
Although plaintiff has been granted leave to proceed in forma pauperis, that determination

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does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed

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to dismiss the case at any time if it determines the allegation of poverty is untrue, or the action is

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

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relief against an immune defendant. The court cannot make this determination on the present
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record. Therefore, the court reserves decision on these issues until the record is sufficiently

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developed.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The order filed February 7, 2017 (ECF No. 15) is vacated. The Clerk of Court is

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directed to reopen this case.
2. The Clerk of Court is directed to list on the court’s docket Al Ballon as defendant. The

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Commissioner of Social Security is dismissed pursuant to plaintiff’s amended complaint.

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3. The United States Marshal is directed to serve within ninety days of the date of this
order, all process pursuant to Fed. R. Civ. P. 4(i), including a copy of this order, without
prepayment of costs.

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4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, and a
copy of the amended complaint (ECF No. 16).

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5. Plaintiff is directed to provide to the United States Marshal, within twenty-eight days

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from the date this order is filed, all information needed by the Marshal to effect service of

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process, including all information required for proper service of summons under Federal Rule of

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Civil Procedure 4(i) and shall file a statement with the court that said documents have been

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submitted to the United States Marshal, along with a copy of the information provided to the

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

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a. One completed summons for defendant Ballon;

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

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c. One copy of the endorsed filed first amended complaint for service on

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defendant Ballon plus any extra copies of the complaint required for proper service under Rule

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4(i), with an extra copy for the U.S. Marshal; and

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d. One copy of the instant order for service on defendant Ballon.

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6. In the event the U.S. Marshal is unable, for any reason whatsoever, to effectuate

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service on defendant Ballon 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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7. The Clerk of the Court is directed to serve a copy of this order on the United States

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

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Dated: February 8, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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