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PHELPS v. COUNTY OF ALAMEDA

United States District Court, N.D. California


October 4, 2005.

COY PHELPS, Plaintiff,
v.
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.

  SO ORDERED.

20051004

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