Bailey v. Clarke et al

Filing 3

ORDER Granting 2 Motion to Proceed in forma pauperis; Ordering US Marshal service. The Clerk shall issue a summons as to Plaintiffs Complaint and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. Signed by Judge Irma E. Gonzalez on 6/4/12. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUSSO BAILEY,

CASE NO. 12cv1100-IEG(BLM)
Plaintiff,

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Order Granting Motion to Proceed
In Forma Pauperis; Ordering U.S.
Marshals Service

vs.
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STEVEN CLARKE; MARILU MARCQ;
SAN DIEGO COUNTY SHERIFF
WILLIAM GORE; and CLANCY’S
TOWING, INC.,
Defendants.
Plaintiff Russo Bailey has filed a complaint as well as a motion to proceed in forma

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pauperis (IFP). Upon review, the Court GRANTS Plaintiff’s motion to proceed IFP, and

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DISMISSES the Complaint with leave to amend.

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Motion to Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1915(a)(1), the court may authorize the commencement of any

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action without prepayment of fees upon a showing “that the person is unable to pay such fees or

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give security therefor.” Here, Plaintiff’s application demonstrates he is unable to pay the filing

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fees to initiate this action. Therefore, his motion to proceed IFP is GRANTED.

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Initial Screening

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After granting IFP status, the Court must dismiss the case if the complaint “fails to state a

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claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203

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F.3d 1222, 1226-29 (9th Cir. 2006) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits

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but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a

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claim). In order to properly state a claim for relief, “a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face’.” Ashcroft v. Iqbal,

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556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In addition, the Court has a duty

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to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d

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621, 623 (9th Cir. 1988), which is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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Here, the Court finds Plaintiff’s Complaint survives the sua sponte screening required by

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28 U.S.C. §§ 1915(e)(2) and 1915A(b). Accordingly, Plaintiff is entitled to U.S. Marshal service

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on his behalf pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(3).

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Conclusion

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For the reasons set forth herein, the Court orders as follows:

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1.

Plaintiff’s motion to proceed in forma pauperis is GRANTED;

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2.

The Clerk shall issue a summons as to Plaintiff’s Complaint and shall and forward

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it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In addition, the

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Clerk shall provide Plaintiff with a certified copy of this Order and a certified copy of his

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Complaint and the summons for purposes of serving the Defendants. Upon receipt of this “IFP

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Package,” Plaintiff is directed to complete the Form 285 as completely and accurately as possible,

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and to return it to the United States Marshal according to the instructions provided by the Clerk in

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the letter accompanying his IFP Package. Thereafter, the U.S. Marshal shall serve a copy of the

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Complaint and summons upon the Defendants as directed by Plaintiff on the USM Form 285. All

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costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P.

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4(c)(3).

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3.

Plaintiff shall serve upon the Defendants or, if appearance has been entered by

counsel, upon Defendants’ counsel, a copy of every further pleading or other document submitted
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for consideration of the Court. Plaintiff shall include with the original paper to be filed with the

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Clerk of the Court a certificate stating the manner in which a true and correct copy of any

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document was served on the Defendants, or counsel for Defendants, and the date of service. Any

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paper received by the Court which has not been filed with the Clerk or which fails to include a

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Certificate of Service will be disregarded.

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IT IS SO ORDERED.
DATED: June 4, 2012

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IRMA E. GONZALEZ, Chief Judge
United States District Court

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