Foley v. Arostegui et al

Filing 36

ORDER Denying as moot Plaintiff's 15 and 16 Objections. Signed by Judge Richard F. Boulware, II on 3/31/2015. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL FOLEY,

Case No. 2:14-cv-00094-RFB-NJK

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Plaintiff,

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ORDER DENYING OBJECTIONS

v.
LOREA AROSTEGUI, et al.,

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Defendants.

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I.

Background

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On January 1, 2014, Plaintiff Michael Foley filed an application to proceed in forma

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pauperis and an attached complaint. ECF No 1. On March 10, Magistrate Judge Koppe granted

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Foley’s application to proceed in forma pauperis and screened Foley’s complaint, dismissing all

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but one of Foley’s claims. ECF No. 4. Foley was given leave to amend. Id. On April 10, Foley

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filed an amended complaint. ECF No. 6.

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On July 7, 2014, Foley moved to be granted access to the case management and

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electronic case filing system (“CM/ECF”) and for an order directing the U.S. Marshalls to serve

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summons. ECF No. 8.

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complaint had not yet been screened. ECF No. 10.

On July 8, Judge Koppe denied Foley’s motion because Foley’s

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On July 8, 2014, Foley filed summons issued. ECF No. 11. On July 8, Judge Koppe

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struck the filing of the summons because no summons could be issued until Foley’s complaint

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had been screened. ECF No. 13.

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On July 23, Foley filed objections to Judge Koppe’s order striking the summons issued,

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ECF No. 15, and to Judge Koppe’s order denying access to CM/ECF and service by the U.S.

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Marshalls, ECF No. 16.

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On December 9, 2014, Judge Koppe screened Foley’s amended complaint and found

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Foley had sufficiently alleged a claim. ECF No. 20. Judge Koppe ordered the Clerk of Court to

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issues Summons, Foley to furnish the U.S. Marshalls with the necessary USM-285 forms, and

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the U.S. Marshalls to attempt service. Id. Summons were issued and several defendants were

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served. ECF Nos. 21–27.

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II.

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Discussion
Plaintiff objects to the screening process delaying the issuance of summons and service

of process because he is not a prisoner and is not subject to screening. For example,

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The Plaintiff objects to the Magistrate's high scrutiny and prolonged delay
of the commencement of this action as inappropriate, given the fact that
the Plaintiff is not a prisoner seeking in forma pauper is status, and
therefore should not be subjected to such high scrutiny by the Court during
the filing stage.

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Objection 2:8–12, ECF No. 16; Objection 2:8–12, ECF No. 15.1 However, Foley’s complaint

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has now passed screening and been allowed to proceed. On December 10, 2014, Summons was

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issued as to the same parties as in the earlier, stricken Summons. Furthermore, service of

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process has been effected by the U.S. Marshalls. It does not appear that Foley has re-requested

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CM/ECF access, though he may now move to do so.

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Because Foley’s case has now proceeded beyond screening, Foley’s objections to Judge

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Koppe’s delays due to the screening process are moot.

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III.

Conclusion
Accordingly, IT IS ORDERED that Plaintiff’s Objection, ECF No. 15, and Objection,

ECF No. 16, are DENIED as moot.
Dated this 31th day of March, 2015.

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RICHARD F. BOULWARE, II
UNITED STATE DISTRICT JUDGE

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Screening under 28 U.S.C. § 1915(e)(2) is, in fact, applicable to non-prisoner plaintiffs
proceeding in forma pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (“[T]he
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).
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