Miller v. Department of Veterans Affairs

Filing 15

ORDER signed by Magistrate Judge Dennis M. Cota on 3/26/19. The Clerk of the Court shall issue a summons in a civil case, the New case documents, and an order setting this matter for an initial scheduling conference; The Clerk of the Court shall send Plaintiff the summons, 1 USM-285 forms, and a copy of the second amended complaint. The Clerk of the Court is directed to serve a copy of this order on the USM at 501 I Street, Sacramento, CA, 95814.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE FRANCIS MILLER, SR.,

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Plaintiff,

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No. 2:17-CV-0759-KJM-DMC

v.

ORDER

DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the

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court is plaintiff’s second amended complaint (Doc. 13).1
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and

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Plaintiff filed his second amended complaint as of right following the court’s order
determining service of the first amended complaint was appropriate.
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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this court

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must dismiss an action if the court determines that it lacks subject matter jurisdiction. Because

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plaintiff, who is not a prisoner, has been granted leave to proceed in forma pauperis, the court will

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screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h), the court will also

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consider as a threshold matter whether it has subject-matter jurisdiction.

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Plaintiff claims George W. Chiu, M.D., a doctor with defendant Department of

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Veterans Affairs, showed “absolute disregard in performing prostate surgery. . . .” The court

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concludes that it has subject matter jurisdiction and that the complaint is appropriate for service

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by the United States Marshal without pre-payment of costs. If plaintiff desires service of process

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by the United States Marshal without pre-payment of costs, plaintiff must comply with the

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requirements outlined below. Plaintiff is warned that failure to comply with this order, or

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otherwise effect service pursuant to Federal Rule of Civil Procedure 4, may result in dismissal of

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the action for lack of prosecution and failure to comply with court rules and orders. See Local

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Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Clerk of the Court shall issue a summons in a civil case, the

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undersigned’s new case documents, and an order setting this matter for an initial scheduling

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conference;

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2.

The Clerk of the Court shall send plaintiff the summons, 1 USM-285

forms, and a copy of the second amended complaint;
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Within 15 days from the date of this order, plaintiff shall complete the

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summons by indicating the addresses of the named defendants and shall submit to the United

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States Marshal at the address indicated below the following documents:

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a.

The completed summons;

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b.

One completed USM-285 form for each named defendant;

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c.

Two copies of the second amended complaint; and

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d.

One copy of the court’s initial scheduling conference order issued
herewith;

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4.

Within 20 days of the date of this order, plaintiff shall file a notice

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indicating that the documents described above have been submitted to the United States Marshal,

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or a notice that plaintiff intends to serve the summons and complaint without assistance from the

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United States Marshal;

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5.

If plaintiff seeks the assistance of the United States Marshal, the United

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States Marshal is directed to serve all process without pre-payment of costs not later than 60 days

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from the date of this order, such service of process to be completed by serving a copy of the

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summons, complaint, and initial scheduling conference order on the defendants at the addresses

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provided by plaintiff; and

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6.

The Clerk of the Court is directed to serve a copy of this order on the

United States Marshal at 501 “I” Street, Sacramento, CA, 95814.

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Dated: March 26, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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