1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MYLES LEROY TOMERLIN, No. 2:23–cv–1755 KJN 12 Plaintiff, ORDER GRANTING IFP REQUEST 13 v. (ECF No. 3) 14 ROSENDO MESA, 15 Defendant. 16 17 Plaintiff, who is represented by counsel, requests leave to proceed in forma pauperis 18 (“IFP”).1 (ECF No. 2.) Plaintiff’s affidavit makes the required financial showing, and so 19 plaintiff’s request is granted. See

(authorizing the commencement of an action 20 “without prepayment of fees or security” by a person who is unable to pay such fees). 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant.

(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction over the case. See 26 United Investors Life Ins. Co. v. Waddell & Reed Inc.,

(9th Cir. 2004). 27 1 This case has been directly assigned to a magistrate judge under Appendix A, sub. (m) of the 28 court’s Local Rules pending the parties’ submission of the consent/decline forms. ] The court finds that plaintiff's complaint states claims that are sufficiently cognizable to 2 || survive this initial screening inquiry.” Accordingly, service of process is warranted on the named 3 || defendant. Given that plaintiff is represented by counsel, he may choose to serve defendant 4 | himself or request the assistance of the U.S. Marshal. See

(d). Ifthe former, 5 || plaintiff shall effectuate service following Fed. R. Civ. P. 4. If the latter, the court will issue 6 || further orders. Plaintiff shall inform the court of his choice within seven days of this order. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED; 9 2. Service of the complaint is appropriate for defendant Rosendo Mesa, and so the 10 Clerk of Court shall issue forthwith all process pursuant to Federal Rule of Civil 11 Procedure 4 without prepayment of costs. 12 3. Within 7 days of this order, plaintiff shall inform the court whether he intends to 13 serve defendant himself or wishes to utilize the services of the U.S. Marshal. If 14 the court has not heard from plaintiff within this time period, it will presume he 15 intends to serve defendant himself; 16 4. Following service or waiver of service, defendants shall reply to the complaint 17 within the time provided in Federal Rule of Civil Procedure 12(a); and 18 5. Failure to comply with this order may result in any appropriate sanctions, 19 including monetary sanctions and/or dismissal of the action pursuant to Federal 20 Rule of Civil Procedure 41(b). 21 | Dated: August 24, 2023 ” Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 tome.1755 25 26 27 || * The court reserves decision on the merits of plaintiff’s claims until the record is sufficiently developed. This order does not preclude any defendant from challenging plaintiff's complaint 28 | through a timely motion under Rule 12 or other appropriate method.