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Ackerman v. Wolfe

United States District Court, D. New Jersey

March 6, 2019

Cheryl Ackerman, Plaintiff,
v.
David Wolff, Esq. Defendant.

          OPINION

          KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE.

         The plaintiff, Cheryl Ackerman, has brought a series of actions and applications, most in the form of appeals from orders of the Bankruptcy Court in No. 17-7032. Because of repetitive filings seeking the same relief, the bankruptcy court entered an order limiting the filing of new motions. This court's most recent ruling dismissed a bankruptcy appeal as moot in light of the court-ordered sale of Ms. Ackerman's property. (18 cv 8045 DE 34) Now Ms. Ackerman has brought a civil complaint against the trustee in bankruptcy, David Wolff, asserting many of the same matters that were the subject of her bankruptcy appeals. The complaint in this matter (DE 1) will be dismissed, for two reasons.

         1. Plaintiff has not accomplished service.

         The complaint was originally filed on July 16, 2018. In forma pauperis status was granted, and USM 285 forms were sent, on October 31 and November 1, 2018. (DE 3, 4) The Plaintiff failed to fill out or return the USM 285 forms so a summons could be issued and service be accomplished. On December 6, 2018, the court issued an order requiring the plaintiff to either return the forms or show cause why the action should not be dismissed. (DE 5)

         On December 21, 2018, the plaintiff responded with an application for a 60-day extension of her time to serve the defendant. (DE 6) On January 4, 2019 (the return date of the order to show cause), I granted the 60-day extension. (DE 9)

         Rule 4(m), Fed. R. Civ. P., requires that a complaint be served within 90 days after filing. I entered an order to show cause why the complaint should not be dismissed. Although Ms. Ackerman provided no adequate grounds, I nevertheless granted an additional 60-day extension of the time to serve the summons and complaint. More than 60 days have elapsed since January 4, 2019, when I entered the order granting the extension.

         Accordingly, I will order that the complaint be dismissed without prejudice for failure to accomplish service.

         2. The complaint does not state a cognizable claim

          This court granted in forma pauperis status, permitting the complaint to be filed without the payment of a fee. The court is therefore obligated to screen the allegations of the complaint to determine whether it

(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28U.S.C. § 1915(e).

[T]he provisions of § 1915(e) apply to all in forma pauperis complaints, not simply those filed by prisoners. See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 114 n. 19 (3d Cir.2002) (non-prisoner indigent plaintiffs are "clearly within the scope of § 1915(e)(2)"). See also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.2000)(ยง 1915(e) ...

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