McClure v. Colvin

Filing 6

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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPER JOSEPH MCCLURE, Case No.: 16cv2515-JLS (JLB) Plaintiff, 12 13 14 ORDER DIRECTING UNITED STATES MARSHAL SERVICE v. CAROLYN W. COLVIN, Commissioner of Social Security, 15 16 (ECF No. 5) Defendant. 17 18 Presently before the Court is Plaintiff Christopher Joseph McClure’s Amended 19 Complaint (“Am. Compl.”). (ECF No. 5.) Plaintiff filed his Amended Complaint in 20 response to the Court’s Order Granting Motion to Proceed in Forma Pauperis (“IFP”) and 21 Dismissing Without Prejudice Plaintiff’s Complaint (“IFP Order”). (ECF No. 4.) 22 Specifically, the Court granted Plaintiff leave to proceed IFP because he “demonstrate[d] 23 he [wa]s unable to pay the requisite fees and costs[,]” (id. at 2), but determined that 24 Plaintiff’s “bare recitations” of the cause of action were “not enough to survive the sua 25 sponte screening required by 28 U.S.C. § 1915(e)(2)[,]” (id. at 4). 26 But Plaintiff’s Amended Complaint fares better—it now specifically alleges the 27 reasons the Administrative Law Judge (“ALJ”) below denied Plaintiff’s application for 28 benefits, as well as Plaintiff contentions as to why the ALJ’s decision was erroneous. (Am. 1 16cv2515-JLS (JLB) 1 Compl. ¶¶ 13(a)–(h).) Accordingly, Plaintiff is entitled to U.S. Marshal service on his 2 behalf. 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, 3 and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order 4 that service be made by a United States marshal or deputy marshal . . . if the plaintiff is 5 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 6 CONCLUSION 7 Good cause appearing, IT IS ORDERED that: Plaintiff’s Amended Complaint survives the sua sponte screening required by 28 8 1. 9 U.S.C. § 1915(e)(2). The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint (ECF No. 10 2. 11 5) upon Defendant Carolyn W. Colvin and forward it to Plaintiff along with a blank U.S. 12 Marshal Form 285 for the Defendant. In addition, the Clerk is DIRECTED to provide 13 Plaintiff with a certified copy of this Order and a certified copy of his Complaint (ECF 14 No. 5) and the summons so that he may serve Defendant. Upon receipt of this “IFP 15 Package,” Plaintiff is directed to complete the Form 285 as completely and accurately as 16 possible, and to return it to the United States Marshal according to the instructions provided 17 by the Clerk in the letter accompanying the IFP package. 18 3. 19 summons upon Defendant Carolyn W. Colvin as directed by Plaintiff on the USM Form 20 285. All costs of service will be advanced by the United States. See 28 U.S.C. § 1915(d); 21 Fed. R. Civ. P. 4(c)(3). 22 4. 23 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 24 Procedure 12(a). See 42 U.S.C. § 1997e(g) (noting that once the Court has conducted its 25 sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 26 made a preliminary determination based on the face on the pleading alone that Plaintiff has 27 a “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 28 /// 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 2 16cv2515-JLS (JLB) 1 5. 2 counsel, upon Defendant’s counsel, a copy of every further pleading or other document 3 submitted for consideration by the Court. Plaintiff must include with the original paper to 4 be filed with the Clerk, a certificate stating the manner in which a true and correct copy of 5 the document was served on Defendant, or counsel for Defendant, and the date of that 6 service. Any paper received by the Court which has not been properly filed with the Clerk, 7 or which fails to include a Certificate of Service, may be disregarded. 8 9 Plaintiff SHALL serve upon Defendant or, if appearance has been entered by IT IS SO ORDERED. Dated: March 20, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16cv2515-JLS (JLB)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?