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Ephraim Kirkpatrick v. Officer Plitman

August 24, 2011

EPHRAIM KIRKPATRICK,
PLAINTIFF,
v.
OFFICER PLITMAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

I.

INTRODUCTION

On July 6, 2011, plaintiff Ephraim Kirkpatrick ("Plaintiff"), a California state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (the "Complaint") against various defendants. For the reasons stated below, the Complaint is dismissed with leave to amend.*fn1

Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if it concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

II.

ALLEGATIONS OF THE COMPLAINT

Plaintiff alleges that the following fourteen named defendants violated his civil rights: (1) Officer Plitman, badge no. 40115 ("Officer Plitman"); (2) Officer Davenport, badge no. 40125 ("Officer Davenport"); (3) Officer Magana, badge no. 37647 ("Officer Magana"); (4) Lieutenant Pardo, badge no. 22865 ("Lt. Pardo"); (5) Officer Rylko, badge no. 40125 ("Officer Rylko"); (6) Officer Mejia, badge no. 25943 ("Officer Mejia"); (7) Sergeant Lewis, badge no. 30713 ("Sgt. Lewis"); (8) Sergeant Tango, badge no. 32036 ("Sgt. Tango"); (9) Officer Capra, badge no. 40470 ("Officer Capra"); (10) Officer Gallegos, badge no. 30702 ("Officer Gallegos"); (11) Officer Reyes, badge no. 40499 ("Officer Reyes"); (12) Detective Gonzalez, badge no. 30391 ("Det. Gonzalez"); (13) the City of Los Angeles (the "City"); and (14) the Los Angeles Police Department (the "Police Department") (collectively, "Defendants"). (Complaint at 1, 3). Plaintiff is also suing seven "John Doe" officers whose names are unknown to him (the "Doe Defendants"). (Id. at 1). The Complaint does not state whether Plaintiff is suing Defendants in their individual or official capacities. (See generally id. at 1-3).

Although Plaintiff's allegations are unclear, the Complaint appears to allege a single cause of action for excessive force against all Defendants. (See Complaint at 3-5). Plaintiff alleges that on the night of March 7, 2011, while he was staying at a friend's house, police officers broke the back window of the home and shot Plaintiff in the torso, back and foot, fracturing three ribs and permanently disabling him. (Id. at 3-4). Specifically, Plaintiff alleges that Officer Plitman, "shooting from outside the house inside at [Plaintiff]," shot him in the back and foot. (Id. at 4). Plaintiff also claims that Officer Plitman shot one of Plaintiff's friends in the same incident, knocking her unconscious. (Id.). Plaintiff further alleges that after he was shot in the back, Officer Magana and Officer Davenport entered the home through the broken back window and handcuffed and arrested Plaintiff and two of his friends. (Id. at 5). Plaintiff alleges that as he and his friends were being led outside the house, "one of the officer's [sic] slamed [sic] [Plaintiff's female friend] to the ground" and dragged her, injuring her leg. (Id.). Finally, Plaintiff alleges that Lt. Pardo, realizing that "his 8 officers['] actions we're [sic] unjust . . . covered up their wrongdoing" and falsely "charged [Plaintiff and his friends] with resisting arrest." (Id.).

Plaintiff seeks compensatory and punitive damages in amounts "according to proof," as well as attorneys' fees and costs of suit. (Complaint at 3).

III.

DISCUSSION

Under 28 U.S.C. ยง 1915A(b), the Court must dismiss Plaintiff's Complaint due to defects in pleading. Pro se litigants in civil rights cases, however, must be given leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d at ...


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