The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
(1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2]
(2) SUA SPONTE DISMISSING IN PART COMPLAINT; [Doc. No. 1]
(3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF PROCESS PURSUANT TO 28 U.S.C. § 1915(d) FED. R. CIV. P. 4(c)(3); AND
(4) DENYING WITHOUT PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 3]
Plaintiff commenced this action on December 16, 2011 against the City of San Diego Harbor Police and Officer Robert Padilla, Badge # 5311 alleging that they violated his civil rights. [Doc. No. 1.] Along with his complaint, Plaintiff submitted a motion to proceed in forma pauperis and a motion for the appointment of counsel. [Doc. Nos. 2-3.] Having considered Plaintiff's submissions, the Court GRANTS Plaintiff leave to proceed in forma pauperis, DISMISSES IN PART Plaintiff's complaint, ORDERS the U.S. Marshal to effect service of Plaintiff's complaint, and DENIES WITHOUT PREJUDICE Plaintiff's motion for the appointment of counsel.
The following allegations are taken from the complaint. On October 30, 2010, Plaintiff was on a fishing pier when he was assaulted by four men. [Doc. No. 1, Compl. at 1.] Plaintiff called 911, and the Harbor Police responded to his call with Defendant Padilla as the lead officer. [Id.] When the Harbor Police arrived, they told Plaintiff to get down on the ground. [Id.] Plaintiff complied with their request, and the officers handcuffed him. [Id.] Plaintiff told the officers what happened, and the officers told him that he still needed to be handcuffed. [Id.] The officers then talked to other witnesses, and at this time, Plaintiff began to experience chest pains. [Id.] After about thirty minutes, the officers placed Plaintiff in the back of a squad car, and then took him out of that car and placed him in a different squad car. [Id.] Plaintiff states that this hurt his shoulders and back due to his heavy weight. [Id.]
The officers charged Plaintiff with petty theft and brandishing a deadly weapon and gave him a notice to appear at the county superior court on December 28, 2010. [Compl. at 2, 4.] Plaintiff admits that during the altercation with the men he had a knife for cutting bait, which he used to make the men back off when they began to approach him. [Id.] Plaintiff also states that one of the men had an ear piece that fell out during the altercation. [Id.] Plaintiff admits that he took the ear piece and put it near his belongings as the men were leaving. [Id.]
On November 22, 2011, Plaintiff filed a previous complaint against City of San Diego Harbor Police Officers Roberto Padilla, # 5311, and Michael Rich, # 2814, related to his interaction with them on the fishing pier. See Freitag v. Padilla, 11-cv-2725 (S.D. Cal., filed Nov. 22, 2011). In that case, the Court dismissed Plaintiff's complaint and his first amended complaint as frivolous and for failure to state a claim and granted Plaintiff leave to file a second amended complaint. See id. (Orders filed Dec. 1, 2011 and Dec. 19, 2011).
I. MOTION TO PROCEED IN FORMA ...