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Washington v. Early

February 6, 2009

RODERICK WASHINGTON, PLAINTIFF,
v.
RICHARD EARLY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE

(Doc. 104.)

ORDER DENYING PLAINTIFF'S REQUEST FOR THE UNITED STATES MARSHAL TO EFFECT SERVICE

(Doc. 107.)

ORDER GRANTING EXTENSION OF TIME FOR PLAINTIFF TO SERVE PROCESS ORDER FOR PLAINTIFF TO INITIATE SERVICE OF PROCESS WITHIN THE NEXT 120 DAYS AND TO FILE EVIDENCE OF SERVICE OF PROCESS EXECUTED UPON DEFENDANTS EARLY, LAMANCO, AND PASTOR BY JULY 15, 2009 DEADLINE TO FILE EVIDENCE OF EXECUTED SERVICE

JULY 15, 2009

Roderick Washington ("plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983.

I. BACKGROUND

This action now proceeds on plaintiff's claims for violation of his First Amendment freedom of speech rights against defendants Early, Lamanco, and Pastor ("defendants"). On June 16, 2008, the court ordered plaintiff to complete service of process upon defendants within one-hundred twenty days.*fn1 (Doc. 87.) On October 29, 2008, the court issued an order directing plaintiff to file evidence of service of process executed upon defendants. (Doc. 100.) Plaintiff failed to submit evidence demonstrating that he effected service of process on any of the defendants pursuant to Rule 4, and none of the defendants have made an appearance in this action. Fed. R. Civ. P. 4. On December 15, 2008, pursuant to Federal Rule of Civil Procedure 4(m), the court issued an Order to Show Cause, requiring plaintiff to file a response showing why this case should not be dismissed for his failure to effect timely service. (Doc. 104.) On January 20, 2009, plaintiff filed a response to the Order to Show Cause, requesting that the United States Marshal serve process in this case. (Doc. 107.) Due to plaintiff's response, the Order to Show Cause is now discharged.

II. PLAINTIFF'S REQUEST FOR MARSHAL TO SERVE PROCESS

Plaintiff requests that the court direct the United States Marshal to serve process in this case. Plaintiff argues that he is entitled to have the United States Marshal serve process because he is indigent and because the court is responsible for the delay in service upon defendants in this case.

a. Indigence, In Forma Pauperis Status, and Service

Under 28 U.S.C. § 1915, the court may authorize a party to proceed in forma pauperis, or without prepayment of fees, in an action or proceeding, if the party submits an affidavit showing the person is unable to pay such fees. 28 U.S.C. § 1915(a)(1). If such authorization is granted, the court may direct payment by the United States of certain expenses, and the United States Marshal is directed to serve all process in the case. 28 U.S.C. § 1915(c), (d). If such authorization is denied, the plaintiff is not automatically entitled to have the United States Marshal serve defendants. Fed. R. Civ. P. 4(c)(2). However, even if a plaintiff is not proceeding in forma pauperis, the court has discretion, at the plaintiff's request, to order that service be made by the United States Marshal. Fed. R. Civ. P. 4(c)(3).

Plaintiff is not proceeding in forma pauperis in this action, due to his payment of the filing fee on July 11, 2003. (Doc. 23.) Moreover, plaintiff is not entitled to proceed in forma pauperis in this action ...


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