The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S REQUEST FOR SUBPOENA (Docs. 1 and 9)
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
ORDER DENYING PLAINTIFF'S REQUEST FOR COUNSEL
Plaintiff, Eric Lee Hacket, ("Plaintiff"), a state prisoner, appearing pro se and proceeding in forma pauperis, filed the instant complaint on January 20, 2009. Plaintiff alleges he was a victim of police brutality after he was unlawfully arrested due to a bus driver's false accusations of assault and battery against him. He also alleges ineffective assistance of counsel because the public defender who represented him during his criminal proceedings conspired against him. Plaintiff files this civil rights action pursuant to 42 U.S.C. §1983 based on violations of the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Plaintiff names the City of Fresno Fax Area Express and Ms. Henderson, a public defender as Defendants.
The court has examined Plaintiff's claims and dismisses the action with leave to amend the complaint. The complaint also contains a request for appointment of counsel and a request for a subpoena. All of Plaintiff's requests are denied.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
B. Plaintiff's Allegations
Plaintiff alleges that on July 30, 2008, he was assaulted by a City of Fresno bus driver who "knocked out his teeth with a metal cup for not having a full dollar." Complaint at pg. 3. Plaintiff alleges he was unlawfully arrested based on the false allegations of the bus driver who alleged that Plaintiff had assaulted him. Id. During the arrest, a police officer handcuffed Plaintiff and placed him on his stomach. Complaint at 3. Plaintiff also alleges that the police officer "tazed" Plaintiff by placing the tazer on Plaintiff's spine. This incident resulted in Plaintiff's left foot being injured and Plaintiff requiring oxygen. Compl. at 3. Plaintiff alleges that the incident constitutes police brutality and resulted in a violation of his Eighth Amendment rights. Plaintiff is seeking an unspecified amount of punitive and compensatory damages. Complaint at pg. 4.
Although it is not entirely clear, it appears that Plaintiff was convicted of a criminal offense as a result of this incident. Plaintiff alleges that his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process were violated because Ms. Henderson, the Fresno County public defender who represented him during the criminal proceedings, conspired against him. ...