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Luis Valenzuela Rodriguez, Plaintiff v. Susan Hubbard

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 11, 2013

LUIS VALENZUELA RODRIGUEZ, PLAINTIFF,
v.
SUSAN HUBBARD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION REQUESTING IN FORMA PAUPERIS STATUS AND SERVICE BY UNITED STATES MARSHAL ORDER GRANTING IN PART PLAINTIFF'S SECOND MOTION FOR EXTENSION OF TIME TO EFFECT SERVICE ECF No. 45 SERVICE DEADLINE: MAY 17, 2013

Plaintiff Luis Valenzuela Rodriguez ("Plaintiff") is a California state prisoner proceeding pro se in a civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his third amended complaint on February 29, 2012. By separate order, the Court has screened Plaintiff's third amended complaint pursuant to 28 U.S.C. § 1915A(a) and finds that it states cognizable claims for relief against Defendants Hubbard, Cate, Harrington, Biter, Soto, Phillips, Da Veiga, Ozaeta, Betzinger, Gregory, Garza, Wegman, Alic, Grissom, Speidell, Davis, Foster, Freir, and Rankin. On November 16, 2012, the Court granted Plaintiff 120 days by which to effect service of process. Pending before the Court is Plaintiff's motion, filed February 6, 2013, requesting 1) to proceed in forma pauperis in all further proceedings and to have the United States Marshal effect service of process and 2) in the alternative, be granted an additional 120 days to complete service. ECF No. 45.

As to Plaintiff's first request, the Court will again explain that Plaintiff is not proceeding in forma pauperis because the filing fee was paid in full. Plaintiff was presented the option of either filing the correct in forma pauperis application or paying the full filing fee, and Plaintiff opted for the latter. Plaintiff is not proceeding in forma pauperis in this action. Plaintiff is not entitled to have 2 the United States Marshal effect service of process. See Fed. R. Civ. P. 4(c)(3) (service by the

United States Marshal required only when party is proceeding in forma pauperis). Plaintiff cites to 4 the Court's May 14, 2010 Order, which suggested that the United States Marshal would serve 5 process after the Court screened Plaintiff's complaint. To the extent that the order suggested that Plaintiff would always have the benefit of the United States Marshal effecting service of process, the order is incorrect.

As to Plaintiff's second request, the Court will grant Plaintiff a limited extension of time to complete service of process. No further extensions of time will be granted. If Plaintiff does not effect service of process in a timely manner, the Court will dismiss the action without prejudice as to each Defendant.

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff's motion, filed February 6, 2013, requesting to proceed in forma pauperis in all further proceedings and to have the United States Marshal effect service of process, is denied;

2. Plaintiff's motion, filed February 6, 2013, requesting an extension of time to complete service of process is granted in part;

3. Plaintiff is granted up to May 17, 2013 by which to complete service of process on Defendants;

4. Failure to effect service of process by the deadline will result in dismissal of the action without prejudice as to each Defendant on whom Plaintiff fails to serve process.

IT IS SO ORDERED.

20130211

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