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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY BELLOTTI,

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No. 2:17-cv-01981-KJN PS

Plaintiff,

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v.

ORDER

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RICHARD WILLIAMS, et al.,

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Defendants.

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Plaintiff Gary Vincent Bellotti, who proceeds in this action without counsel, has requested

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Plaintiff’s

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application in support of his request to proceed in forma pauperis makes the showing required by

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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

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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, plaintiff brings a claim under 42 U.S.C. § 1983 for violation of his rights

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under the Eighth Amendment to the United States Constitution. (ECF No. 1 at 3.) Specifically,

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plaintiff alleges that defendant Deputy Probation Officer Richard Williams placed an ankle

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bracelet on plaintiff, even though plaintiff warned Officer Williams that this ankle bracelet would

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injure him due to his diabetes, and which did injure plaintiff, causing him to visit the hospital on

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three separate occasions. (Id.)

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Based on the limited record before the court, the court cannot conclude that plaintiff’s

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action is frivolous, that the complaint fails to state a claim upon which relief can be granted, or

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that plaintiff seeks monetary relief from an immune defendant. The court reserves decision as to

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

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defendant from challenging plaintiff’s complaint through a timely motion pursuant to Federal

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

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Accordingly, the court orders service of the complaint on defendant.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

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2.

Service of the complaint is appropriate for defendants Richard Williams, Placer

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County Probation Department, and Placer County.
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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 plaintiff 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.

Plaintiff is 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.

A copy of this court’s scheduling order and related documents for each
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defendant to be served.
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Plaintiff 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 plaintiff,

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without prepayment of costs.

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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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9.

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

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10.

Failure to comply with this order may result in any appropriate sanctions,

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including monetary sanctions and/or dismissal of the action pursuant to Federal Rule of Civil

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Procedure 41(b).

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IT IS SO ORDERED.
Dated: October 20, 2017

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