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Henry v. State

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 3, 2008

SONNY HENRY, PLAINTIFF,
v.
STATE OF WISCONSIN, CIRCUIT COURTS, SHEBOYGAN ET. AL.; JUDGE GARY LANGHOFF; JUDGE JAMES BOLGERT; REBECCA PERSICK; FAMILY COURT COMMISSION; SHEBOYGAN COUNTY CHILD SUPPORT AGENCY; AND HEATHER HENRY, DEFENDANT.

The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

On October 1, 2008, Plaintiff Sonny Henry, pro se, filed a Civil Rights Complaint pursuant to 21 U.S.C. § 1983 and 18 U.S.C. § 241 against State of Wisconsin, Circuit Courts, Sheboygan et. al., Judge Gary Langhoff, Judge James Bolgert, Rebecca Persick, Family Court Commission, Sheboygan County Child Support Agency, and Heather Henry. On October 16, 2008, Plaintiff filed a motion for service of process at the Government's expense, requesting that the United States Marshal serve Defendants (Doc. 4).

Under Federal Rules of Civil Procedure 4(c)(3), the Court may order at the plaintiff's request "that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." Fed. R. Civ. P. 4(c)(3). Further, the court must order service by the United States Marshal if the plaintiff is proceeding in forma pauperis or is a seaman. Id. If a plaintiff is not proceeding in forma pauperis or as a seaman, the decision falls within the discretion of the court. The Court should exercise it's discretion in determining whether service should be made under 4(c)(3) instead of simply denying service to those plaintiffs not proceeding in forma pauperis. See Koger v. Bryan, 523 F.3d 789, 803 (7th Cir. 2008).

Although Plaintiff states in his Motion for Service of Process at Government Expense (Doc. 4) that he has been approved to proceed in forma pauperis, Plaintiff has not, in fact, been granted in forma pauperis status. Plaintiff filed his complaint on October 1, 2008 and paid the filing fee. Plaintiff has neither filed a motion to proceed in forma pauperis nor has he been granted such status. Therefore, the Court is not mandated to order that service be made by the United States Marshal.

However, that finding does not end the inquiry. The Court may, in it's discretion, order that service be made by the United States Marshal. However, Plaintiff paid his filing fees and lied in his motion for service of process about having been granted in forma pauperis status. Furthermore, Plaintiff has failed to file any documentation with the Court proving indigency or an inability to serve Defendants through other means. Therefore, Plaintiff's motion fore service of process at the Government's expense (Doc. 4) is DENIED.

IT IS SO ORDERED.

David R. Herndon Chief Judge United States District Court

20081103

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