Gonzales v. New Mexico Corrections Department et al
Filing
12
ORDER by Magistrate Judge Gregory B. Wormuth DENYING 11 Motion to Have Defendants Served with Summons and Complaint. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NICHOLAS JAMES GONZALES,
Plaintiff,
v.
Civ. No. 18‐107 JCH/GBW
NEW MEXICO CORRECTIONS
DEPARTMENT, et al.,
Defendants.
ORDER DENYING MOTION TO HAVE DEFENDANTS SERVED
This matter is before the Court on Plaintiff’s Motion/Application to Have
Defendants Served with Summons (and) Complaint. Doc. 11. In his Motion, Plaintiff
seeks to effectuate service of process on the Defendants. Because Plaintiff is a prisoner
proceeding pro se and in forma pauperis, and his action is brought against prison officials,
the Court is obligated to conduct a preliminary screening of the Complaint. See 28
U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). Section 1915A states:
The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity. . . . On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A(a) and (b). The Court has a similar obligation to screen the complaint
when a pro se plaintiff is proceeding without prepayment of fees and costs under 28
U.S.C. § 1915(e)(2):
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
Requests for service of process are premature prior to the Court’s completion of
its screening obligation. See Jones v. Bock, 549 U.S. 199, 213‐214 (2007). The Court has
not completed screening of Plaintiff’s Complaint and will deny Defendant’s Motion as
premature at this time. If Plaintiff’s Complaint is not dismissed on initial screening, the
Court will enter further orders governing service of process. See 28 U.S.C. § 1915(d)
(when plaintiff is granted leave to proceed in forma pauperis, the Court is responsible for
issuance and service of process).
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Wherefore, IT IS ORDERED that Plaintiff’s Motion/Application to Have
Defendants Served with Summons (and) Complaint (doc. 11) is DENIED as premature.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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