No. CIV S-08-2477 KJM P.United States District Court, E.D. California.
November 24, 2009
ORDER
SUE ROBINSON, District Judge
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $3.51 will be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the
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preceding month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
The court finds that plaintiff’s June 5, 2009 amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983
and 28 U.S.C. § 1915A(b) against defendant McGuire for a violation of the Eighth Amendment. Therefore, the court will order service of process on defendant McGuire. The court will not order service of process upon the other defendants identified in plaintiff’s amended complaint or with respect to the other claims because no claim is stated on which the court can grant relief.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $3.51. All fees shall be collected and paid in accordance with this court’s order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Service is appropriate for defendant McGuire.
4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed June 5, 2009.
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5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form; and
d. Two copies of the endorsed amended complaint filed June 5, 2009.
6. Plaintiff need not attempt service of process and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve defendant McGuire pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
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NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court’s order filed __________:
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