(PC) Bealer v. Warden

Opinion

ANTWOINE BEALER, Case No. 2:23-cv-0284-DC-JDP (P) Plaintiff, v. ORDER WARDEN, et al., Defendants. Pending before the court are plaintiff’s motion to proceed with discovery and motion for summary judgment. ECF Nos. 27 & 30. However, because no defendant has been identified or served, and because no scheduling order has issued, both motions are denied without prejudice as premature. Once plaintiff determines the identity of defendants, he shall file a motion to substitute the named individual defendants. After defendants are served, the court will issue a scheduling order, which will include deadlines for discovery and dispositive motions. Plaintiff has returned to the court subpoenas directed at discovering the identities of the unknown defendants. ECF No. 23. Since plaintiff is not proceeding in forma pauperis, the U.S. Marshal will not serve plaintiff’s subpoenas for free. See 28 U.S.C. § 1915(d); cf. James v. Scribner, No. 1:04-cv-5878-LJO-DLB P, 2008 WL 3318879, at *1 (E.D. Cal. Aug. 11, 2008) (“As plaintiff is proceeding pro se and in forma pauperis, he is entitled to service of the subpoena by the United States Marshal [pursuant to 28 U.S.C. § 1915(d)].”). Accordingly, plaintiff must either cause each subpoena to be served himself or bear the costs of service by the U.S. Marshal. See Fed. R. Civ. P. 45(b)(1) (“Any person who is at least 18 years old and not a party may serve a subpoena.”). As for service by the U.S. Marshal, plaintiff is directed to 28 C.F.R. § 0.114, which sets the fees for such services, including “$65 per person per hour for each item served, plus travel costs and any other out-of-pocket expenses.” Within thirty days, plaintiff shall notify the court that he either will or will not use the U.S. Marshal to serve the subpoenas. Plaintiff should take note that, if a defendant is not served within the ninety days after acomplaint is filed, the court must, after notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m). Accordingly, it is hereby ORDERED that: 1. Plaintiffs motion to proceed with discovery and motion for summary judgment, ECF Nos. 27 & 30, are denied as premature. 2. Plaintiff shall, within thirty days, notify the court that he will or will not use the services the U.S. Marshal to serve the subpoenas. If plaintiff chooses to have the U.S. Marshal serve the subpoenas, he will be obligated to pay the fees as outlined in 28 C.F.R. § 0.114. ( 1 Oy — Dated: _ May 5, 2025 ow—— JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE