Opinion
No. CIV S-08-0506-LKK-CMK-P.
October 24, 2008
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's amended complaint (Doc. 15). The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a).
Plaintiff claims he suffered from the use of excessive force in violation of his Eighth Amendment rights. He alleges defendant Torrez assaulted him while he was in a holding cell, punching him in the face and "striking [him] in the upper torso area several times with his fists." Plaintiff's amended complaint also alleges some involvement by other officers, however, as discussed in the findings and recommendations issued separately, the amended complaint fails to state a claim against these other individuals.
The amended complaint appears to state a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. The court, therefore, finds that service is appropriate and will direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is informed, however, that this action cannot proceed further until plaintiff complies with this order. Plaintiff is warned that failure to comply with this order may result in dismissal of the action. See Local Rule 11-110.
Accordingly, IT IS HEREBY ORDERED that:
1. The court authorizes service on the following defendant(s): Officer J. Torrez.
2. The Clerk of the Court shall send plaintiff one USM-285 form for each defendant identified above, one summons, an instruction sheet, and a copy of the amended complaint; and
3. Within 30 days of the date of service of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form(s); and
d. Two copies of the endorsed amended complaint.