Dupre v. City of San Diego

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA COLIN DUPRE, Case No.: 22cv169-JO-AGS Plaintiff, v. ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS CITY OF SAN DIEGO; ALPHA; AND INSTRUCTING THE U.S. FATHER JOES; MCELROY; MARSHAL TO SERVE MOSTELLAR; NISLET; SAYASANE; and DOES 1 through 40, inclusive, Defendants. In this pro se civil rights action, Plaintiff Colin Dupre filed a motion to proceed in forma pauperis (“IFP”). Dkt. 15. For the following reasons, the Court denies Plaintiff’s request for fee waiver as moot and grants Plaintiff’s request for service of the amended complaint by the U.S. Marshal. On February 4, 2022, Plaintiff filed a complaint and an accompanying motion to proceed IFP. Dkts. 1–2. On July 8, 2022, however, Plaintiff paid the filing fee in this action. Dkt. 6. On September 8, 2022, Plaintiff filed a motion for reconsideration renewing his IFP request and, several weeks later, filed an amended complaint. Dkts. 15, 21. The Court finds that Plaintiff’s motion is sufficient to show that he is unable to pay the costs to execute service of his own summons and amended complaint. “At the request of the plaintiff . . . the court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the court for that purpose.” Fed. R. Civ. P. 4(c)(3); see also 28 U.S.C. § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1993); Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991). Plaintiff swears by affidavit that he earns less than $500 per month and is presently homeless. See Dkts. 2, 15. Accordingly, Plaintiff’s motion is granted for the purpose of service by the U.S. Marshal. Plaintiff’s request is denied as moot to the extent he requests a fee waiver, however, because Plaintiff already paid the filing fee in this action. Dkt. 6. For the reasons set out above, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion [Dkt. 15]. The Court directs the Clerk to (1) provide Plaintiff with a blank U.S. Marshal Form 285 for each Defendant named in the amended complaint [Dkt. 21]; (2) provide Plaintiff with a certified copy of this order; and (3) provide Plaintiff with a certified copy of the amended complaint and the summons so that he may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiffs must complete the Form 285 as completely and accurately as possible, include an address where the Defendants may be served, see S.D. Cal. Civ.L.R. 4.1.c, and return it to the United States Marshal according to the instructions the Clerk provides in the letter accompanying the IFP package. The U.S. Marshal shall serve a copy of the amended complaint and summons upon the Defendants as directed by Plaintiffs on the USM Form 285 provided to them. All costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Dated: October 18, 2022

–––––––––––––––––––––– Hon. Jinsook Ohta United States District Judge