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Robert Saunders v. the Law Offices of Elaine Van Beveren

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 9, 2011

ROBERT SAUNDERS, PLAINTIFF,
v.
THE LAW OFFICES OF ELAINE VAN BEVEREN, ELAINE VAN BEVEREN, INDIVIDUALLY, DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is proceeding without counsel, filed his complaint and an application to proceed in forma pauperis on September 21, 2010. On December 1, 2010, the undersigned granted plaintiff's application to proceed in forma pauperis, but dismissed plaintiff's complaint pursuant to the court's screening authority under 28 U.S.C. § 1915(e)(2) and granted leave to amend. (Order, Dec. 1, 2010, Dkt. No. 3.) On January 14, 2011, plaintiff filed a First Amended Complaint alleging a federal claim for violations of his civil rights and several state law claims. (First Am. Compl., Dkt. No. 4.)

The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See also Lopez, 203 F.3d at 1126-27 ("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").

The undersigned cannot conclude on the present recordthat plaintiff's action is frivolous, fails to state claims on which relief can be granted, or seeks monetary relief from an immune defendant. The undersigned reserves decision as to plaintiff's claims until the record is sufficiently developed, and this order does not preclude defendants from challenging plaintiff's complaint through a timely motion pursuant to Federal Rule of Civil Procedure 12 or other appropriate methods of challenging plaintiff's First Amended Complaint. Accordingly, the undersigned will order service of the First Amended Complaint on defendants Elaine Van Beveren, an individual, and the Law Offices of Elain Van Beveren.

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Service of plaintiff's First Amended Complaint is appropriate for the following defendants: Elaine Van Beveren, an individual, and the Law Offices of Elain Van Beveren.

2. The Clerk of the Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4.

3. The Clerk of Court shall send plaintiff two USM-285 forms, one summons, an endorsed copy of the First Amended Complaint, this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes.

4. Plaintiff is advised that to effectuate service, the U.S. Marshal will require:

a. One completed summons;

b. One completed USM-285 form for each defendant to be served;

c. A copy of the complaint for each defendant to be served, with an extra copy for the U.S. Marshal; and

d. A copy of this court's scheduling order and related documents for each defendant to be served; and

5. Plaintiff shall supply the United States Marshal, within 30 days from the date this order is filed, all information needed by the Marshal to effectuate service of process, and shall, within 10 days thereafter, file a statement with the court that such documents have been submitted to the United States Marshal.

6. The U.S. Marshal shall serve process, with copies of this court's scheduling order and related documents, within 90 days of receipt of the required information from plaintiff, without prepayment of costs. The United States Marshal shall, within 10 days thereafter, file a statement with the court that such documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on any defendant, the Marshal shall promptly report that fact, and the reasons for it, to the undersigned.

7. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030).

8. Plaintiff's failure to comply with this order may result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

20110209

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