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Velasquez v. U.S. Marshals

United States District Court, N.D. California

August 3, 2015

DANILO ARTURO VELASQUEZ, Plaintiff,
v.
U.S. MARSHALS, et. al., Defendants.

ORDER OF DISMISSAL WITH LEAVE TO AMEND

EDWARD J. DAVILA, District Judge.

Plaintiff, a federal prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's motion for leave to proceed in forma pauperis will be granted in a separate written order.

DISCUSSION

A. Standard of Review

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

B. Plaintiff's Claims

Plaintiff alleges that during his arrest on or about September 14, 2009[1], he was brutally beaten by members of the U.S. Marshals Office and San Francisco Police Department, and thereby permanently injured and suffered significant brain damage. (Compl. at 1.) Plaintiff claims that he did not resist arrest or provoke the beating. (Id.) Liberally construed, Plaintiff states a claim of excessive force in violation of the Fourth Amendment. See Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1043 (9th Cir. 1996).

However, Plaintiff fails to identify any Defendant by name, and rather states that John Does #1-#5 are San Francisco Police Officers and John Does #1-#5 are U.S. Marshals. (Compl. at 2.) Although the use of "John Doe" to identify a defendant is not favored in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections, 406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of alleged defendants cannot be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover their identities or that the complaint should be dismissed on other grounds. See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F.Supp. 1172, 1180 (N.D. Cal. 1986). Failure to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (abuse of discretion to deny plaintiff an opportunity to amend to name correct defendants).

Because this action cannot proceed without any named Defendants upon which the action can be served, Plaintiff shall be given an opportunity to file an amended complaint identifying at least one John Doe defendant.

CONCLUSION

For the foregoing reasons, the Court orders as follows:

1. The complaint is DISMISSED with leave to amend. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall file an amended complaint using the court's form complaint. The amended complaint must include the caption and civil case number used in this order and the words "AMENDED COMPLAINT" on the first page and write in the case number for this action, Case No. C 15-02535 EJD (PR). Plaintiff must answer all the questions on the form in order for the action to proceed.

Failure to respond in accordance with this order by filing an amended complaint will result in the dismissal of this action without prejudice and without further notice to Plaintiff.

The Clerk shall include two copies of the court's complaint with a copy of this order to Plaintiff.

COMPLAINT BY A PRISONER UNDER THE CIVIL RIGHTS ACT, 42 U.S.C §§ 1983

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

[All questions on this complaint form must be answered in order for your action to proceed..]

I. Exhaustion of Administrative Remedies.

[Note: You must exhaust your administrative remedies before your claim can go forward. The court will dismiss any unexhausted claims.]
A. Place of present confinement _______________________________
B. Is there a grievance procedure in this institution?
C. Did you present the facts in your complaint for review through the grievance procedure?
D. If your answer is YES, list the appeal number and the date and result of the appeal at each level of review. If you did not pursue a certain level of appeal, explain why.
1. Informal appeal ___________________________________ _______________________________________________________
2. First formal level _______________________________________________________
3. Second formal level _______________________________________________________
4. Third formal level _______________________________________________________ _______________________________________________________
E. Is the last level to which you appealed the highest level of appeal available to you?
F. If you did not present your claim for review through the grievance procedure, explain why. __________________________________________________________________ _______________________________________________________________________________

II. Parties.

A. Write your name and your present address. Do the same for additional plaintiffs, if any.

__________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________

B. Write the full name of each defendant, his or her official position, and his or her place of employment.

__________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________

III. Statement of Claim.

State here as briefly as possible the facts of your case. Be sure to describe how each defendant is involved and to include dates, when possible. Do not give any legal arguments or cite any cases or statutes. If you have more than one claim, each claim should be set forth in a separate numbered paragraph. __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________

IV. Relief.

Your complaint cannot go forward unless you request specific relief. State briefly exactly what you want the court to do for you. Make no legal arguments; cite no cases or statutes. __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________

I declare under penalty of perjury that the foregoing is true and correct.

Signed this ___________ day of ____________________, 20_____


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