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Rene Gonzalez v. Visalia Police Department

June 28, 2012

RENE GONZALEZ,
PLAINTIFF,
v.
VISALIA POLICE DEPARTMENT, ET AL., DEFENDANTS.



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

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 12) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On August 1, 2011, Plaintiff Rene Gonzalez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On April 30, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 9.) Plaintiff's First Amended Complaint (ECF No. 12) 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff names Officers Juan Saenz and Erica Martinez of the Visalia Police Department as Defendants in this action. Plaintiff alleges the following:

On August 4, 2010, Plaintiff was outside "looking around" his apartment. The property manager approached and asked Plaintiff if he had lost his keys. The Defendants then approached Plaintiff. As Defendant Martinez came within three feet of Plaintiff, Martinez started assaulting Plaintiff. Martinez "continued to assault [Plaintiff] for no reason. [Plaintiff] could only try to cover up . . . and pray for God's help for [D]efendant Martinez to stop." The Defendants transported Plaintiff to a hospital. Plaintiff told the Defendants what they did was wrong. In response, Martinez twisted Plaintiff's arm and assaulted Plaintiff again until Plaintiff lost consciousness. (Compl. at 3.)

IV. ANALYSIS

A. Section 1983

To state a claim under Section 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United ...


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