Bealer v. Warden

Summary

The United States District Court for the Eastern District of California denied without prejudice the plaintiff’s motions to proceed with discovery and for summary judgment because no defendants had been identified or served and no scheduling order had issued. The court directed the plaintiff to notify it within thirty days whether he would use the U.S. Marshal to serve subpoenas seeking the identities of unknown defendants, subject to applicable fees.

Holdings

1. The court denied plaintiff's motion to proceed with discovery and motion for summary judgment without prejudice as premature because no defendant had been identified or served and no scheduling order had issued.
2. Because plaintiff was not proceeding in forma pauperis, the United States Marshal would not serve plaintiff's subpoenas for free; plaintiff had to arrange service himself or pay the Marshal's applicable service fees.
3. Plaintiff was required either to have each subpoena served by a qualified nonparty at least 18 years old or to bear the costs of service by the United States Marshal, including the fees specified in 28 C.F.R. § 0.114.

Questions Presented

1. Whether plaintiff's motion to proceed with discovery was premature because no defendant had been identified or served and no scheduling order had issued.
2. Whether plaintiff's motion for summary judgment was premature under the same circumstances.
3. Whether the United States Marshal was required to serve plaintiff's subpoenas without charge when plaintiff was not proceeding in forma pauperis.
4. What plaintiff was required to do to arrange service of the subpoenas and comply with the applicable service deadlines.

Disposition

other