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Chavez-Alvarez v. San Jose Police Dept.

United States District Court, N.D. California

April 5, 2017

SAN JOSE POLICE DEPT., et al., Defendants.


          EDWARD J. DAVILA United States District Judge.

         Plaintiff, 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.)


         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 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 (1989).

         Plaintiff 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).


         For the reasons state above, the Court orders as follows:

         1. The 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 Plaintiff.

         All other Defendants are DISMISSED from this action.

         2. 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 summons. ...

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