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Infinity v. Jo Ellen Felice


February 24, 2012



Plaintiff, an inmate confined at Pleasant Valley State Prison, filed this pro se action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Screening Order

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "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." Id. § 1915A(b). A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them, if possible. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A. Dckt. No. 1. The complaint challenges the alleged failure by defendant to issue him a Social Security card after he legally changed his name. Id. at 3. Plaintiff seeks a declaration of his rights and the duty owed to him by defendant. Id. Plaintiff does not seek monetary damages. For the limited purposes of § 1915A screening, the court finds that the complaint states a cognizable claim against defendant pursuant to 28 U.S.C. §§ 1361 and/or 2201. See 28 U.S.C. § 1361 ("The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."); 28 U.S.C. § 2201(a) ("In a case of actual controversy within its jurisdiction, . . . , any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. "); see also Infinity v. Social Sec. Admin., 2010 WL 2889110 (D. Md. July 21, 2010).

III. Motion for Declaratory Judgment

Plaintiff has filed a motion for a declaratory judgment, requesting that the court provide a response to his complaint and in forma pauperis application. Dckt. No. 5. In light of this order, that motion is now moot.

Accordingly, it is hereby ORDERED that:

1. Plaintiff's request to proceed in forma pauperis, Dckt. No. 2, is granted.

2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Plaintiff's motion for a declaratory judgment, Dckt. No. 5, is denied as moot.

4. The allegations in the pleading are sufficient to state a cognizable claim against defendant. Therefore, the Clerk of the Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4.

5. The Clerk of Court shall send plaintiff one USM-285 form, one summons, a copy of the complaint, this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes.

6. Plaintiff is advised that the U.S. Marshal will require:

a. One completed summons;

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

c. A copy of the complaint, Dckt. No. 2, for each defendant, 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.

7. Plaintiff shall supply the United States Marshal, within 21 days from the date this order is filed, all information needed by the Marshal to effect service of process, and shall, within 14 days thereafter, file a statement with the court that said documents have been submitted to the United States Marshal.

8. 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 14 days thereafter, file a statement with the court that said 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.

9. 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).


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