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Lee James Bailey v. Fairfield Police Department

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 18, 2011

LEE JAMES BAILEY PLAINTIFF,
v.
FAIRFIELD POLICE DEPARTMENT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, a state prisoner incarcerated in the Solano County Jail, proceeds without counsel in this action filed pursuant to 42 U.S.C. § 1983. This action is referred to this court by Local Rule 302, pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 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 for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be 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. 28 U.S.C. § 1915(b)(2).

The complaint appears to state potentially cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Plaintiff alleges that defendant Fairfield Police Officers Pucci and Jacobsen used excessive force in arresting plaintiff on January 28, 2009. Plaintiff also names as a defendant the Fairfield Police Department. Plaintiff seeks damages and injunctive relief. A claim of excessive force to effect arrest is analyzed pursuant to the reasonableness requirements of the Fourth Amendment to the United States Constitution, see e.g. Tennessee v. Garner, 471 U.S. 1, 7-8 (1985), and is thus a proper claim under Section 1983, which provides, in pertinent part, that "(e)very person who, under color of any statute of any state . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis 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 in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Solano County Jail filed concurrently herewith.

3. Service is appropriate for the following defendants: the Fairfield Police Department, and Fairfield Police Officers Pucci and Jacobsen.

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 August 26, 2010 (Dkt. No. 1).

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed above; and

d. Four copies of the endorsed complaint filed August 26, 2010.

6. Plaintiff need not attempt service on 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.

bail2295.1.new.solano

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

FOR THE EASTERN DISTRICT OF CALIFORNIA

LEE JAMES BAILEY Plaintiff, v. FAIRFIELD POLICE DEPARTMENT, et al., Defendants.

No. 2:10-cv-02295 JAM KJN PS

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

completed summons form

completed USM-285 forms

copies of the Complaint

Date

Plaintiff

20110118

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