United States District Court, N.D. California
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
J. DAVILA United States District Judge.
a California state prisoner, filed the instant pro
se civil rights action pursuant to 42 U.S.C. § 1983
against the San Jose Police Department (“SJPD”)
and its officers. After an initial review, the Court found
the complaint was attempting to state an excessive force
claim, (Docket No. 6 at 2.) However, Plaintiff failed to
specify how each of the eight defendants caused his injuries.
(Id.) Plaintiff was given leave to file an amended
complaint to correct this deficiency. (Id. at 3.)
Plaintiff has filed an amended complaint. (Docket No. 7.)
Standard of Review
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).
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).
claims that on February 9, 2014, he was shot multiple times
by two or more officers and repeatedly tasered during the
course of his arrest, which amounted to excessive force. (Am.
Compl. at 3.) Plaintiff names Defendant Officer Monzon as one
of the officers who shot and struck him twice with bullets.
(Id.) Liberally construed, Plaintiff's
allegations are sufficient to indicate that excessive force
may have been used during the course of his arrest which is a
valid claim under § 1983. See Rutherford v. City of
Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled
on other grounds by Graham v. Connor, 490 U.S. 386
also names other officers of the San Jose Police Department,
(Am. Compl. at 2), but fails to explain how each of the
officers acted during the course of his arrest to establish a
claim against them. As explained in the previous court order,
without an adequate description of the specific acts each
individual defendant allegedly committed, and how the alleged
acts violated his constitutional rights, the Court cannot
determine whether Plaintiff has stated claims for relief
against each named defendant. (Docket No. 6 at 3.)
Accordingly, the other named officers shall be dismissed from
this action without prejudice until such time Plaintiff,
through discovery, is able to establish their involvement in
the excessive force claim arising out of the February 9, 2014
arrest. He may do so by filing a motion to add newly
identified defendants, as they become known, along with a
supplemental complaint describing their unlawful actions.
See Brass v. County of Los Angeles, 328 F.3d 1192,
1195-98 (9th Cir. 2003).
reasons state above, the Court orders as follows:
Clerk of the Court shall mail a Notice of Lawsuit and Request
for Waiver of Service of Summons, two copies of the Waiver of
Service of Summons, a copy of the amended complaint, (Docket
No. 7), all attachments thereto, and a copy of this order
upon Defendant Officer Monzon (Badge # 4147) at the San Jose
Police Department (201 W. Mission Street, San Jose, CA
95110). The Clerk shall also mail a copy of this Order to
other Defendants are DISMISSED from this action.
Defendants are cautioned that Rule 4 of the Federal Rules of
Civil Procedure requires them to cooperate in saving
unnecessary costs of service of the summons and the
complaint. Pursuant to Rule 4, if Defendants, after being
notified of this action and asked by the Court, on behalf of
Plaintiff, to waive service of the summons, fail to do so,
they will be required to bear the cost of such service unless
good cause shown for their failure to sign and return the
waiver form. If service is waived, this action will proceed
as if Defendants had been served on the date that the waiver
is filed, except that pursuant to Rule 12(a)(1)(B),
Defendants will not be required to serve and file an answer
before sixty (60) days from the day on which the request for
waiver was sent. (This allows a longer time to respond than
would be required if formal service of summons is necessary.)
Defendants are asked to read the statement set forth at the
foot of the waiver form that more completely describes the
duties of the parties with regard to waiver of service of the