Isiah Hill, Petitioner-appellant, v. United States Government, Respondent-appellee, 959 F.2d 240 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 959 F.2d 240 (9th Cir. 1992) Submitted March 25, 1992. *Decided March 30, 1992

Before JAMES R. BROWNING, TANG and WIGGINS, Circuit Judges.


Isiah Hill, a federal prisoner, appeals pro se the district court's dismissal of his Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, action against the United States for failure to prosecute. Hill alleged that prison officials were liable for injuries Hill received when he was stabbed by another inmate whom prison officials had reason to know was dangerous. The district court dismissed the action because Hill had failed to serve the defendant with the summons and complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986), and reverse and remand.

If a plaintiff is granted leave to proceed in forma pauperis, " [t]he officers of the court shall issue and serve all process." 28 U.S.C. § 1915(c). Rule 4(c) of the Federal Rules of Civil Procedure provides:

(B) A summons and complaint shall, at the request of the party seeking service ... be served by a United States marshal or deputy United States marshal, or by a person specially appointed by the court for that purpose, only--

(i) on behalf of a party authorized to proceed in forma pauperis pursuant to Title 28 U.S.C. § 1915....

Rule 5.6 of the Local Rules for the United States District Court for the Central District of California provides: "When a party who is in custody has been permitted to proceed in forma pauperis, service of process shall be made by the United States Marshal. Cost of such service shall be borne by the United States."

Here, Hill sought to proceed in forma pauperis and submitted a forma pauperis declaration. Although this request was filed and is part of the record, it was not entered on the docket sheet and it appears the district court did not rule on it. If Hill is indigent and his complaint is not frivolous, he is entitled to proceed in forma pauperis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). If Hill is granted in forma pauperis status, then he would be entitled to service by the United States marshal under 28 U.S.C. § 1915(c) and Local Rule 5.6, provided that he requests such service. See Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991). Thus, the district court erred by dismissing the action for failure to effect service without first ruling on Hill's request to proceed in forma pauperis. See Henderson, 779 F.2d at 1423.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3