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Konrad Gilardi v. Ray Mabus

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


August 31, 2011

KONRAD GILARDI,
PLAINTIFF,
v.
RAY MABUS, SECRETARY OF THE NAVY,
DEFENDANT.

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

ORDER

On August 16, 2011, Konrad Gilardi filed suit against Ray Mabus, in his capacity as "Secretary of the Navy," for an alleged breach of an employment contract in violation of his civil rights (Doc. 1). Now before the Court are his motions to proceed without prepaying fees or costs (Doc. 2) and motion for service of process at Government expense (Doc. 4). Based on the following, the Court grants the motion to proceed without prepaying fees or costs and the motion for service of process.

By granting a motion for pauper status, a court authorizes a lawsuit to proceed without prepayment of fees. The Prison Litigation Reform Act ("PLRA"), significantly changed the district court's responsibilities in reviewing pro se complaints and in forma pauperis motions. The Seventh Circuit has clarified that the PLRA "changed § 1915 not only for cases brought by prisoners, but in some respect for all indigent litigants." Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir. 1997). Under the PLRA, the Court must screen any indigent's complaint (those filed by prisoners and non- prisoners alike) and dismiss the complaint if (a) the allegation of poverty is untrue,

(b) the action is frivolous or malicious, (c) the action fails to state a claim upon which can be granted, or (d) the action seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

Gilardi's motion survives § 1915(e)(2) review. He signed a declaration contained in his motion to proceed in forma pauperis documenting his poverty. The action appears to be neither frivolous nor malicious. At this point, the Court cannot conclude that the complaint fails to state a claim or that the named defendant is immune from suit. However, if Gilardi becomes employed he must pay the filing fee or in the event that Gilardi recovers anything in this lawsuit he must pay the filing fee.

Accordingly, the Court GRANTS Gilardi's motion to proceed without prepaying fees or costs (Doc. 2) and motion for service of process at Government expense (Doc.

4). The Clerk of Court is DIRECTED to complete, on Gilardi's half, a summons and a form USM-285 using the information provided by Gilardi in his motion for service of process at government expense (see Doc. 4); the Clerk shall issue the completed summons. The United States Marshal SHALL, pursuant to Federal Rule of Civil Procedure 4, personally serve upon defendant the summons, a copy of the complaint, and a copy of this Memorandum and Order. All costs of service shall be advanced by the United States, and the Clerk shall provide all necessary materials and copies to the United States Marshals Service.

It is FURTHER ORDERED that Gilardi shall serve upon defendant, or if an appearance has been entered by counsel, upon that attorney, a copy of every pleading or other document submitted for consideration by this Court. Gilardi shall include with the original paper to be filed a certificate stating the date that a true and correct copy of the document was mailed to defendant or counsel. Any paper received by a district judge or a magistrate judge that has not been filed with the Clerk or that fails to include a certificate of service will be disregarded by the Court.

Finally, Gilardi is ADVISED that he is under an obligation to keep the Clerk of Court and opposing counsel informed of his address; the Court will not independently investigate his whereabouts. This shall be done in writing and not later than 7 days after a change in address occurs. Failure to comply with this order will cause a delay in the transmission of court documents and may result in dismissal of this action under Federal Rule of Civil Procedure 41.

IT IS SO ORDERED.

David R. Herndon Chief Judge United States District Court

2011.08.31 15:32:07 -05'00'

20110831

© 1992-2011 VersusLaw Inc.



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