IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 19, 2010
ALBERT POON, PLAINTIFF,
KERN COUNTY SHERIFF'S, DEPUTY JOHN DOE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER FINDING THAT PLAINTIFF'S SECOND AMENDED COMPLAINT STATES A COGNIZABLE CLAIM
ORDER FOR SERVICE OF COMPLAINT
Plaintiff is proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. On January 6, 2010, plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc # 2)
Because Plaintiff has been granted leave to proceed IFP, this Court must "screen" his complaint under 28 U.S.C. § 1915(e)(2)(B), which requires the dismissal of a case at any time if the court determines that it (1) "is frivolous or malicious," or (2) "fails to state a claim on which relief may be granted," or (3) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i),(ii) and (iii).
A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Id.
The thrust of Plaintiff's complaint is that Defendants, while acting under color of state law, violated his rights under the Fourteenth Amendment. In particular, he claims that on April 14, 2009, while a detainee, Defendant Sheriff Deputy John Doe subjected him to excessive force, that Sheriff Younglood failed to train the deputy and that the County of Kern had a policy of failing to train its employees not to use excessive force. (Doc. 8, p. 7). Plaintiff seeks $500,000 in compensatory damages, an unspecified amount of punitive damages and his fees and costs. (Doc. 8, p. 9-10).
The Court finds that Plaintiff appears to state a cognizable claim for relief under 42 U.S.C. § 1983 against Defendants Sheriff Deputy John Doe, Sheriff Youngblood and the County of Kern. Accordingly, it is HEREBY ORDERED that:
1. Service is appropriate for defendants Sheriff Deputy John Doe and Sheriff Youngblood, in their individual capacities, and as to the County of Kern;
2. The Clerk of the Court shall send Plaintiff three USM-285 form, three summons, a Notice of Submission of Documents form, an instruction sheet, and a copy of the complaint filed March 16, 2010;
3. Within thirty days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
a. Completed summonses;
b. One completed USM-285 form for each defendant listed above; and
c. Three (3) copies of the endorsed complaint filed March 16, 2010.
4. Plaintiff need not attempt service on the defendants and need not request waiver of service. 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.
Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.
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