Opinion
No. CIV S-08-0971 FCD KJM PS.
May 15, 2008
ORDER
Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-302(c)(21).
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The complaint states a claim against defendant Beatty under 42 U.S.C. § 1983 for violation of plaintiff's constitutional rights by the use of excessive force. With respect to the defendant City of Fairfield, however, the complaint fails to state a claim. No allegations are made that any official policy gave rise to the alleged constitutional deprivation. See Monell v. Department of Social Servs., 436 U.S. 658 (1978). The court will therefore only order service of summons on defendant Beatty and the action will proceed against this defendant only.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis (docket no. 2) is granted.
2. The Clerk of Court is directed to send plaintiff one USM-285 form for defendant Beatty, one summons for this defendant and an instruction sheet.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the court with the following documents:
a. One completed summons for the defendant named in the complaint;
b. One completed USM-285 form for the defendant named in the complaint; and
c. Two copies of the endorsed complaint filed May 6, 2008.
4. Plaintiff need not attempt service on defendant and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the defendant pursuant to Federal Rule of Civil Procedure 4 without prepayment of costs.
5. Failure to comply with this order may result in a recommendation that this action be dismissed.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed ____________:
_____ completed summons form _____ completed USM-285 forms _____ copies of the Complaint DATED: _______________________________ Plaintiff