Bellotti v. Williams et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 10/20/17 ORDERING that the 2 Motion to Proceed IFP is GRANTED. Service is appropriate Richard Williams, Placer County Probation Department, and Placer County; Clerk to issue process and send pl aintiff 1 USM-285 form for each defendant, 1 summons, copy of 1 complaint, consent form and court's status order. Plaintiff shall complete and submit service documents to the USM within 30 days and file a statement 10 days thereafter, with the court regarding the submission of documents. USM is directed to serve process within 90 days.(Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY BELLOTTI, 12 No. 2:17-cv-01981-KJN PS Plaintiff, 13 v. ORDER 14 RICHARD WILLIAMS, et al., 15 Defendants. 16 17 Plaintiff Gary Vincent Bellotti, who proceeds in this action without counsel, has requested 18 19 leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Plaintiff’s 20 application in support of his request to proceed in forma pauperis makes the showing required by 21 28 U.S.C. § 1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis. The determination that a plaintiff may proceed in forma pauperis does not complete the 22 23 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 24 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 27 28 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 In this case, plaintiff brings a claim under 42 U.S.C. § 1983 for violation of his rights 2 under the Eighth Amendment to the United States Constitution. (ECF No. 1 at 3.) Specifically, 3 plaintiff alleges that defendant Deputy Probation Officer Richard Williams placed an ankle 4 bracelet on plaintiff, even though plaintiff warned Officer Williams that this ankle bracelet would 5 injure him due to his diabetes, and which did injure plaintiff, causing him to visit the hospital on 6 three separate occasions. (Id.) 7 Based on the limited record before the court, the court cannot conclude that plaintiff’s 8 action is frivolous, that the complaint fails to state a claim upon which relief can be granted, or 9 that plaintiff seeks monetary relief from an immune defendant. The court reserves decision as to 10 plaintiff’s claims until the record is sufficiently developed, and this order does not preclude 11 defendant from challenging plaintiff’s complaint through a timely motion pursuant to Federal 12 Rule of Civil Procedure 12 or other appropriate method of challenging plaintiff’s pleading. 13 Accordingly, the court orders service of the complaint on defendant. 14 For the foregoing reasons, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 16 2. Service of the complaint is appropriate for defendants Richard Williams, Placer 17 18 19 20 County Probation Department, and Placer County. 3. The Clerk of Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4. 4. The Clerk of Court shall send plaintiff one USM-285 form, one summons, this 21 court’s scheduling order, and the forms providing notice of the magistrate judge’s availability to 22 exercise jurisdiction for all purposes. 23 5. Plaintiff is advised that to effectuate service, the U.S. Marshal will require: 24 a. One completed summons; 25 b. One completed USM-285 form for each defendant to be served; 26 c. A copy of the complaint for each defendant to be served, with an extra 27 copy for the U.S. Marshal; and 28 d. A copy of this court’s scheduling order and related documents for each 2 1 2 defendant to be served. 6. Plaintiff shall supply the U.S. Marshal, within 30 days from the date this order is 3 filed, with all information needed by the U.S. Marshal to effectuate service of process, and shall, 4 within 10 days thereafter, file a statement with the court that such documents have been submitted 5 to the U.S. Marshal. 6 7. The U.S. Marshal shall serve process, with copies of this court’s scheduling order 7 and related documents, within 90 days of receipt of the required information from plaintiff, 8 without prepayment of costs. 9 8. If a defendant waives service, the defendant is required to return the signed waiver 10 to the U.S. Marshal. The filing of an answer or a responsive motion does not relieve a defendant 11 of this requirement, and the failure to return the signed waiver may subject a defendant to an 12 order to pay the costs of service by the U.S. Marshal. 13 9. The Clerk of Court shall serve a copy of this order on the U.S. Marshal. 14 10. Failure to comply with this order may result in any appropriate sanctions, 15 including monetary sanctions and/or dismissal of the action pursuant to Federal Rule of Civil 16 Procedure 41(b). 17 18 IT IS SO ORDERED. Dated: October 20, 2017 19 20 21 22 23 24 25 26 27 28 3

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