Dupre v. City of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
Plaintiff Colin Dupre, a pro se litigant who had already paid the filing fee, moved to proceed in forma pauperis (IFP) and for service of his amended complaint by the U.S. Marshal. The court denied the fee waiver request as moot but granted the request for service by the U.S. Marshal based on Plaintiff's demonstrated inability to pay service costs.
| What the court decided | The model |
|---|---|
Denial of Plaintiff's request for fee waiver as moot“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.” | agree with court The court correctly identified that the request for a fee waiver was moot because the filing fee had already been paid (Dkt. 6). A fee waiver cannot be granted for a fee that has already been satisfied. |
Grant of Plaintiff's request for service of the amended complaint by the U.S. Marshal“Accordingly, Plaintiff’s motion is granted for the purpose of service by the U.S. Marshal.” | agree with court The court applied 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3), which allow the court to direct service by the U.S. Marshal for a party who demonstrates an inability to pay the costs of service. The order recites that Plaintiff swore by affidavit that he earns less than $500 per month and is homeless, which is sufficient to show inability to pay service costs under the cited authorities. |
The order itself: sound — The order correctly distinguishes between the fee waiver (moot because the fee was paid) and the service costs (granted because the plaintiff demonstrated inability to pay). It cites the correct statutory and rule authorities (28 U.S.C. § 1915(d), Fed. R. Civ. P. 4(c)(3)) and supporting Ninth Circuit case law. The factual basis (affidavit of low income and homelessness) is sufficient to support the ruling on service costs.
Opinion
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 COLIN DUPRE, Case No.: 22cv169-JO-AGS 9 Plaintiff, 10 11 v. ORDER GRANTING LEAVE TO 12 PROCEED IN FORMA PAUPERIS CITY OF SAN DIEGO; ALPHA; AND INSTRUCTING THE U.S. 13 FATHER JOES; MCELROY; MARSHAL TO SERVE MOSTELLAR; NISLET; SAYASANE; 14 and DOES 1 through 40, inclusive, 15 Defendants. 16 17 18 In this pro se civil rights action, Plaintiff Colin Dupre filed a motion to proceed in 19 forma pauperis (“IFP”). Dkt. 15. For the following reasons, the Court denies Plaintiff’s 20 request for fee waiver as moot and grants Plaintiff’s request for service of the amended 21 complaint by the U.S. Marshal. 22 On February 4, 2022, Plaintiff filed a complaint and an accompanying motion to 23 proceed IFP. Dkts. 1–2. On July 8, 2022, however, Plaintiff paid the filing fee in this 24 action. Dkt. 6. On September 8, 2022, Plaintiff filed a motion for reconsideration renewing 25 his IFP request and, several weeks later, filed an amended complaint. Dkts. 15, 21. 26 The Court finds that Plaintiff’s motion is sufficient to show that he is unable to pay 27 the costs to execute service of his own summons and amended complaint. “At the request 28 of the plaintiff . . . the court may direct that service be effected by a United States marshal, 1 deputy United States marshal, or other person or officer specially appointed by the court 2 for that purpose.” Fed. R. Civ. P. 4(c)(3); see also 28 U.S.C. § 1915(d); Walker v. Sumner, 3 14 F.3d 1415, 1422 (9th Cir. 1993); Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 4 1991). Plaintiff swears by affidavit that he earns less than $500 per month and is presently 5 homeless. See Dkts. 2, 15. Accordingly, Plaintiff’s motion is granted for the purpose of 6 service by the U.S. Marshal. Plaintiff’s request is denied as moot to the extent he requests 7 a fee waiver, however, because Plaintiff already paid the filing fee in this action. Dkt. 6. 8 For the reasons set out above, the Court GRANTS IN PART AND DENIES IN PART 9 Plaintiff’s motion [Dkt. 15]. 10 The Court directs the Clerk to (1) provide Plaintiff with a blank U.S. Marshal Form 11 285 for each Defendant named in the amended complaint [Dkt. 21]; (2) provide Plaintiff 12 with a certified copy of this order; and (3) provide Plaintiff with a certified copy of the 13 amended complaint and the summons so that he may serve the Defendants. Upon receipt 14 of this “IFP Package,” Plaintiffs must complete the Form 285 as completely and accurately 15 as possible, include an address where the Defendants may be served, see S.D. Cal. Civ.L.R. 16 4.1.c, and return it to the United States Marshal according to the instructions the Clerk 17 provides in the letter accompanying the IFP package. The U.S. Marshal shall serve a copy 18 of the amended complaint and summons upon the Defendants as directed by Plaintiffs on 19 the USM Form 285 provided to them. All costs of that service will be advanced by the 20 United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 21 IT IS SO ORDERED. 22 23 Dated: October 18, 2022 24 –––––––––––––––––––––– 25 Hon. Jinsook Ohta United States District Judge 26 27 28