McClure v. Colvin
Filing
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ORDER Directing United States Marshal Service re 5 Amended Complaint filed by Christopher Joseph McClure. It is ordered that Plaintiff's Amended Complaint survives the sua sponte screening required by 28 U.S.C. § 1915(e)(2). Signed by Judge Janis L. Sammartino on 3/20/2017. (USM notified via NEF)(dxj)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CHRISTOPER JOSEPH MCCLURE,
Case No.: 16cv2515-JLS (JLB)
Plaintiff,
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ORDER DIRECTING UNITED
STATES MARSHAL SERVICE
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
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(ECF No. 5)
Defendant.
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Presently before the Court is Plaintiff Christopher Joseph McClure’s Amended
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Complaint (“Am. Compl.”). (ECF No. 5.) Plaintiff filed his Amended Complaint in
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response to the Court’s Order Granting Motion to Proceed in Forma Pauperis (“IFP”) and
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Dismissing Without Prejudice Plaintiff’s Complaint (“IFP Order”). (ECF No. 4.)
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Specifically, the Court granted Plaintiff leave to proceed IFP because he “demonstrate[d]
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he [wa]s unable to pay the requisite fees and costs[,]” (id. at 2), but determined that
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Plaintiff’s “bare recitations” of the cause of action were “not enough to survive the sua
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sponte screening required by 28 U.S.C. § 1915(e)(2)[,]” (id. at 4).
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But Plaintiff’s Amended Complaint fares better—it now specifically alleges the
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reasons the Administrative Law Judge (“ALJ”) below denied Plaintiff’s application for
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benefits, as well as Plaintiff contentions as to why the ALJ’s decision was erroneous. (Am.
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16cv2515-JLS (JLB)
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Compl. ¶¶ 13(a)–(h).) Accordingly, Plaintiff is entitled to U.S. Marshal service on his
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behalf. 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process,
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and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order
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that service be made by a United States marshal or deputy marshal . . . if the plaintiff is
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authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).
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CONCLUSION
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Good cause appearing, IT IS ORDERED that:
Plaintiff’s Amended Complaint survives the sua sponte screening required by 28
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U.S.C. § 1915(e)(2).
The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint (ECF No.
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5) upon Defendant Carolyn W. Colvin and forward it to Plaintiff along with a blank U.S.
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Marshal Form 285 for the Defendant. In addition, the Clerk is DIRECTED to provide
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Plaintiff with a certified copy of this Order and a certified copy of his Complaint (ECF
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No. 5) and the summons so that he may serve Defendant. Upon receipt of this “IFP
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Package,” Plaintiff is directed to complete the Form 285 as completely and accurately as
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possible, and to return it to the United States Marshal according to the instructions provided
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by the Clerk in the letter accompanying the IFP package.
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3.
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summons upon Defendant Carolyn W. Colvin as directed by Plaintiff on the USM Form
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285. All costs of service will be advanced by the United States. See 28 U.S.C. § 1915(d);
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Fed. R. Civ. P. 4(c)(3).
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Complaint within the time provided by the applicable provisions of Federal Rule of Civil
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Procedure 12(a). See 42 U.S.C. § 1997e(g) (noting that once the Court has conducted its
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sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has
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made a preliminary determination based on the face on the pleading alone that Plaintiff has
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a “reasonable opportunity to prevail on the merits,” the defendant is required to respond).
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///
Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the Complaint and
Defendant Carolyn W. Colvin is thereafter ORDERED to reply to Plaintiff’s
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16cv2515-JLS (JLB)
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5.
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counsel, upon Defendant’s counsel, a copy of every further pleading or other document
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submitted for consideration by the Court. Plaintiff must include with the original paper to
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be filed with the Clerk, a certificate stating the manner in which a true and correct copy of
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the document was served on Defendant, or counsel for Defendant, and the date of that
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service. Any paper received by the Court which has not been properly filed with the Clerk,
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or which fails to include a Certificate of Service, may be disregarded.
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Plaintiff SHALL serve upon Defendant or, if appearance has been entered by
IT IS SO ORDERED.
Dated: March 20, 2017
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16cv2515-JLS (JLB)
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