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Morales v. Saba

United States District Court, D. Massachusetts

June 16, 2015

MIGUEL A. MORALES, Plaintiff,
v.
JAMES SABA, et al., Defendants.

ORDER

JENNIFER C. BOAL, Chief Magistrate Judge.

1. The motions (Docket Nos. 2, 6, 11) for leave to proceed in forma pauperis are GRANTED. Pursuant to 28 U.S.C. § 1915(b)(1), the Court assesses an initial partial filing fee of $10.23. The remainder of the fee, $339.77, shall be collected in accordance with 28 U.S.C. § 1915(b)(2). This assessment is made apart from any other assessments made in other civil actions filed by Morales; however, because Morales is a frequent filer, for purposes of clarification for crediting any funds received, and to facilitate proper record-keeping by the Treasurer's Office at MCI Cedar Junction and by the Clerk's Office Accounting Department, this Court intends that any funds received from Morales' prison account first be applied to any prior Order of a Court assessing a filing fee pursuant to 28 U.S.C. § 1915.[1]

2. The Clerk shall provide the plaintiff with the form for Consent/Refusal of Magistrate Judge Jurisdiction and the instructions for that form ("consent package").[2]

3. The Clerk shall issue summons for service of the amended complaint on the defendants. Plaintiffs amended complaint (Docket No. 5) completely supercedes the original complaint, see Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 88 n.2 (1st Cir. 2007), and the original complaint (Docket No. 1) will no longer perform any function in this case. See Connectu LLC v. Zuckerberg, 522 F.3d 82 (1st Cir. 2008).

4. The Clerk shall send the summons, amended complaint, consent package and this Order to the plaintiff, who must thereafter serve the defendants in accordance with Federal Rule of Civil Procedure 4(m). The plaintiff may elect to have service made by the United States Marshals Service. If directed by the plaintiff to do so, the United States Marshal shall serve the summons, amended complaint, consent forms and this Order upon the defendants, in the manner directed by the plaintiff, with all costs of service to be advanced by the United States. Notwithstanding Fed.R.Civ.P. 4(m) and Local Rule 4.1, the plaintiff shall have 120 days from the date of this Order to complete service.

5. The motions for automatic judgment (Docket No. 7) and for adding exhibits (Docket No. 8) are DENIED without prejudice.

SO ORDERED.

FORMS AND INSTRUCTIONS FOR CONSENT OR REFUSAL OF MAGISTRATE JUDGE JURISDICTION

• Procedures and Other Information
• Examples of Consent and Refusal
• Blank Forms for Consent or Refusal
• General Order 09-3
• General Order 10-01

I. AUTHORITY

The Court has entered a General Order (10-1), dated February 2, 2010, amending the General Order (09-3) of March 3, 2009, authorizing the assignment of civil cases to the Magistrate Judges sitting in Boston. Those Orders may be found on the Court's web page at www.mad.uscourts.gov.

II. PROCESS

For counsel and non-prisoner pro se litigants:
As the party initiating the civil action, you are responsible for serving the Court's General Orders of March 3, 2009 and February 2, 2010 and the consent/refusal form on all opposing parties. You are also responsible for contacting these attorneys or parties to inquire as to their consent or refusal to proceed before the Magistrate Judge.
While consent to the assignment of the case to the Magistrate Judge is entirely voluntary, and no adverse substantive consequences of any kind will redound to an attorney or party refusing to consent, submission of the executed form, memorializing consent or refusal to consent to final assignment to the Magistrate Judge, is mandatory.
The document does not need to have a handwritten signature from each attorney or party.
If the consent is unanimous you may enter an electronic signature on the consent form for each attorney or party in this style: /s/ John Smith' (see the Court's CM/ECF Administrative Procedures for further information on electronic signatures). You may use multiple sheets if additional space is needed. The consent form is also available on the Court's web page. An example of a completed form is attached to these procedures.
Should any party not consent, you should electronically file the form, after completing just the bottom part of the form.
NOTE: The Court is not to be made aware of which party or parties did not consent to the Magistrate Judge's jurisdiction.
Only one consent/refusal form should be filed for the case by counsel and non-prisoner pro se litigants.
The consent or refusal is to be filed electronically in the Court's CM/ECF system, using one of these selections, found under the Other Documents' menu: Consent to Jurisdiction by U.S. Magistrate Judge, ' or Refusal of Consent to Proceed Before a U.S. Magistrate Judge.'
Non-prisoner pro se litigants who do not have access to the Court's electronic filing system are to file the completed consent or refusal with the Clerk's Office on paper.
For incarcerated pro se litigants and counsel in those cases:
The packet of materials regarding Consent or Refusal to Magistrate Judge jurisdiction will be issued by the Clerk's Office with the appropriate summons or service order. It will be the responsibility of the pro se litigant to serve this notice along with the Summons and Complaint or Notice of Removal.
The Clerk's Office will include this notice and accompanying documents with any Service Order entered in 28 U.S.C. § 2241 or 28 U.S.C. § 2254 actions filed by pro se petitioners.
While consent to the assignment of the case to the Magistrate Judge is entirely voluntary, and no adverse substantive consequences of any kind will redound to an attorney or party refusing to consent, submission of the executed form, memorializing consent or refusal to consent to final assignment to the Magistrate Judge, is mandatory.
Prisoner pro se litigants and counsel for opposing parties do not need to confer, but shall file separate documents, on paper and clearly marked "DO NOT SCAN" directly with the Clerk's Office indicating their consent or refusal to the Magistrate Judge's jurisdiction. The Clerk's Office will gather the information, and make the appropriate docket entry, based on the documents filed. The original documents relating to consent or refusal filed by any party in a litigation involving an incarcerated pro se litigant will not be attached to the electronic (CM/ECF) docket, but stored in the paper case file.

III. CONSENT AND FURTHER PROCEEDINGS

Should all parties consent to the Magistrate Judge's jurisdiction, the case will continue before the Magistrate Judge as any other civil case, including bench or jury trial, and the entry of final judgment, with direct review by the First Circuit ...

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