CIVIL MINUTES - GENERAL
OSWALD PARADA, Magistrate Judge.
Proceedings: IN CHAMBERS: ORDER TO SHOW CAUSE
On May 2, 2013, Herman Gaithers ("Plaintiff") lodged for filing a Civil Rights Complaint pursuant to 42 U.S.C. § 1983, along with an in forma pauperis application in order to proceed without payment of the full filing fee. (ECF No. 1.)
In accordance with the mandate of the Prison Litigation Reform Act of 1995 ("PLRA"), the Court must examine a complaint for the purpose of determining whether the action is frivolous or malicious fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief, regardless of whether a prisoner prepays filing fees or requests to proceed in forma pauperis. See 28 U.S.C. §§ 1915(e)(2), 1915A(a), (c); 42 U.S.C. § 1997e(c)(1). Review under § 1915(e) for failure to state a claim is governed by the same standard applied in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Barren v. Harrington , 152 F.3d 1193, 1194 (9th Cir. 1998). A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990).
For the reasons set forth below, Plaintiff is ordered to show cause why this matter should not be dismissed.
A. Summary of Plaintiff's Allegations.
While the caption of the Complaint names the Los Angeles County Sheriff's Department as a Defendant, the body of the Complaint only names two Defendants, Sheriff's Deputies Lio and Loughlin. Defendants are sued in their individual and official capacities. Plaintiff alleges constitutional violations based on the alleges use of excessive force. He seeks damages and declaratory relief. (Compl. at 1, 3-6.)
Plaintiff alleges that on April 19, 2012, he was standing at the reception window of the El Camino Hotel located on Crenshaw Boulevard. Before checking in, he heard a voice say "hey you come here." He turned around to see Defendants Lio and Loughlin in front of their patrol car. Plaintiff started walking to his car where his wife was waiting. At that time, Defendants ran up behind him, Defendant Loughlin placed Plaintiff in a choke hold, and Defendant Lio began punching Plaintiff in the face and body. Plaintiff was then forced to the ground and handcuffed. Defendants then punched Plaintiff several more times. An ambulance arrived at the scene and transported Plaintiff to a local hospital where he received medical treatment for his injuries. (Compl. at 5-5b.)
Plaintiff was later prosecuted for a criminal offense. During his preliminary hearing, Defendants admitted to striking Plaintiff several times in an effort to detain him. (Id. at 5b.) The exhibits attached to the Complaint establish the Defendants used force against Plaintiff after he attempted to head butt and punch Defendants several ...