IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 19, 2010
ALEXIOS ALEXANDER, PLAINTIFF,
SEAN FITZGERALD ET AL., DEFENDANTS.
Plaintiff is an El Dorado County Jail inmate proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. In accordance with the court's December 11, 2009 order, plaintiff has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). An initial partial filing fee of $19.33 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).
In his complaint, plaintiff has identified El Dorado County Sheriff's Deputies Sean Fitzgerald and Richard Strasser, as well as the El Dorado County Sheriff's Department as the defendants in this action. Plaintiff claims that defendant Fitzgerald used excessive force against plaintiff during the course of his arrest. Plaintiff also alleges that defendant Strasser failed to provide him with adequate medical care following his arrest. Finally, plaintiff alleges that defendant El Dorado County Sheriff's Department has knowingly created an atmosphere of lawlessness where superiors condone and justify unconstitutional behavior on the part of deputies. In terms of relief, plaintiff requests monetary damages and any further relief the court deems necessary and proper. (Compl. Attach. 1-13.)
Liberally construed, plaintiff's complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.*fn1
Also pending before the court is plaintiff's motion for leave to file with the court a digital versatile disc or a "dvd," which purportedly proves the allegations in his complaint. Plaintiff is advised that he should retain his dvd at this time. In the event that the instant action reaches the summary judgment stage or proceeds to trial, he may submit the dvd as evidence with the admission of such evidence governed by the Federal Rules of Evidence.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis (Doc. Nos. 2 & 8) is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $19.33. All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Service of the complaint is appropriate for the following defendants: Fitzgerald, Strasser, and the El Dorado County Sheriff's Department.
4. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an instruction sheet, and a copy of the complaint filed December 3, 2009.
5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:
a. The completed, signed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 3 above; and
d. Four copies of the endorsed complaint, including the exhibits attached thereto, filed December 3, 2009.
6. Plaintiff shall not attempt to effect service of the complaint on defendants or request a waiver of service of summons from any defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
7. Plaintiff's motion for leave to file with the court a digital versatile disc or a "dvd" (Doc. No. 7) is denied.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed one completed summons form; three completed USM-285 forms; and ____ four true and exact copies of the complaint, including the exhibits attached thereto, filed December 3, 2009.