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Emery L. Franklin Iii v. United States

October 25, 2011

EMERY L. FRANKLIN III,
PLAINTIFF,
v.
UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)

AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On January 20, 2010, Plaintiff Emery L. Franklin III, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims Act ("FTCA"). (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.) Plaintiff's Complaint is now before the Court for screening.

II. SCREENING REQUIREMENT

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

III. SUMMARY OF COMPLAINT

The Complaint names the United States as the sole defendant.

Plaintiff alleges: On December 17, 2008, Bureau of Prison ("BOP") Employee Paul F. Lehmann Jr. was driving Plaintiff to the United States Penitentiary, Atwater ("Atwater"). Lehmann was speeding and driving recklessly. "On M circle in Merced, California we had a head on collision with another vehicle." (Compl. at 2.) Lehmann "nonchalantly" removed Plaintiff from the vehicle. Plaintiff "felt a sharp pain in [his] neck, [his] upper and lower back, and [his] tailbone." (Id.) Kyle S. Ray and Kirk Jon Duncan, both BOP employees, allowed Plaintiff to sit in the chaser car in pain for "[w]hat seem[ed] like five minutes . . . ." (Id. at 3.) Lehmann then drove the chaser car recklessly to Atwater.

At the prison Plaintiff waited for "what seemed like hours" until a physician's assistant examined him. (Id.) During the examination Plaintiff experienced ten times the pain he endured when Lehmann removed him from the car accident. (Id.) Plaintiff ultimately "suffered a broken back, damaged disk, and other injuries." (Id. at 4.)

Plaintiff alleges that jurisdiction is proper because his previous unspecified tort claim was denied. Plaintiff also requests that the Court assign him a lawyer.

IV. ...


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