United States District Court, N.D. California
October 4, 2005.
COY PHELPS, Plaintiff,
COUNTY OF ALAMEDA, et al., Defendants.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER OF DISMISSAL
Plaintiff, a federal prisoner, filed a pro se complaint in
state court alleging violations of state law, civil rights claims
under 42 U.S.C. § 1983, and claims under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Defendant marshals removed the case to this court. The
court conducted an initial review and dismissed the complaint
with leave to amend.
In a footnote in his amended complaint plaintiff pointed out
that he is neither a "prisoner" as that term is defined in
28 U.S.C. § 1915A(c), nor is he proceeding in forma pauperis. As a
result, neither 28 U.S.C. § 1915(e)(2) nor 28 U.S.C. § 1915A(a)
authorizes screening such as the court performed. In an order
entered on March 14, 2005, the court accordingly vacated the
screening order. The court set a deadline for performing service
of 120 days from the date the order was entered. See
Fed.R.Civ.P. 4(m) (120 days from filing of complaint to perform
service unless court extends time for good cause). Plaintiff was
warned that if he did not obtain service within that time, or
provide a sufficient explanation of his failure to do so, the
case will be dismissed without prejudice. He has neither filed
proofs of service nor has he explained why he has not performed
service. This case is therefore DISMISSED without prejudice. The clerk
shall close the file.
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