Opinion
No. CIV S-07-0474 GEB DAD P.
May 17, 2007
ORDER/
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) 1915(b)(1). An initial partial filing fee of $6.70 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).
Plaintiff alleges that on January 21, 2005, he approached the front of his cell bars and informed Correctional Officer Avila that he was on a list to attend Juma'ah prayer services. Officer Avila told him that she would check the list. While Officer Avila checked the list, Defendant Hofer approached plaintiff and said "Fuck your unlock." Plaintiff asked defendant Hofer to repeat what he said to make sure he heard him correctly. Defendant Hofer then stepped in between plaintiff and Correctional Officer Avila and pushed plaintiff several times, saying "you hear me." Plaintiff told defendant Hofer not to touch him. Defendant Hofer then allegedly said "What are you going to do now Nigger" and pushed plaintiff again. Defendant told plaintiff to get up against the wall. Defendant Hofer then grabbed plaintiff's hand and arm and yanked downward. As a result, plaintiff alleges that he fell down and struck the back of his head against the concrete. Plaintiff alleges that he injured his shoulder and neck. Plaintiff also alleges that he was engulfed in pepper spray gas and another officer hit him with a baton.
Plaintiff alleges that defendant Hofer;s actions constituted the use of excessive force in violation of his Eighth Amendment rights. Plaintiff also alleges that defendant Hofer and other correctional staff filed false information in an attempt to cover up defendant Hofer's use of excessive force. Plaintiff seeks compensatory damages ($1,000,000), punitive damages ($1,000,000), and any other relief the court deems proper.
Plaintiff's complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's April 24, 2007 application to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $6.70. All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Service of the complaint is appropriate for defendant Lee T. Hofer.
4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet, and a copy of the complaint filed March 12, 2007.
5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:
a. The completed, signed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for the defendant listed in number 3 above; and
d. Two copies of the endorsed complaint filed March 12, 2007.
6. Plaintiff shall not attempt to effect service of the complaint on the defendant or request a waiver of service of summons from the defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed _________________________:one one two
_____ completed summons form; _____ completed USM-285 form; and _____ true and exact copies of the complaint filed [date]. DATED: ________________________________. _________________________ Plaintiff