Opinion
No. 02 C 2970.
May 8, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Ronald Tibbs brings this action against defendants M. Kooistra and the City of Chicago, alleging constitutional violations and pendent state claims. Along with his complaint, plaintiff has filed an application to proceed in forma pauperis. For the following reasons, plaintiff's petition to proceed in forma pauperis is granted.
Under 28 U.S.C. § 1915 (a) we may authorize a plaintiff to proceed in forma pauperis if he is unable to pay the prescribed court fees. The application here indicates that plaintiff earns $351 a week and all of this money goes to supporting his family. Plaintiff identifies no other savings or income. On these facts, plaintiff has established his inability to pay court fees.
Our inquiry does not end with a finding of indigency, however. Under § 1915 we must conduct an initial review of plaintiff's claims and dismiss the action if we find that the action is frivolous or malicious; it fails to state a claim on which relief may he granted; or petitioner seeks damages from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii); Alston v. Debruy, 13 F.3d 1036, 1039 (7th Cir. 1994). This action does not appear to be frivolous or malicious. Since the City is included as a defendant only in the state law claims, plaintiff has avoided the immunity problem of alleging respondeat superior liability under 42 U.S.C. § 1983. Our only inquiry, then, is whether plaintiff has properly stated a claim. We apply the same standards as if this were an ordinary dismissal under Fed.R.Civ.P. 12(b)(6). Zimmerman v. Tribble, 266 F.3d 568, 571 (7th Cir. 2000).
The facts of this case are taken from plaintiff's complaint. Plaintiff alleges that on March 19, 2001, he was walking to his car when he was assaulted and handcuffed by defendant police officer Kooistra, who informed him that he was under arrest for an outstanding warrant. The outstanding warrant was for "Ronald L. Tibbs," and plaintiff produced an i.d. showing that he is "Ronald A. Tibbs." Kooistra was not persuaded, and plaintiff was taken to the station and held for two days before he was bonded out. At the hearing relating to the warrant, the court noted that plaintiff was the wrong person and all charges were dropped.
Plaintiff brings constitutional claims under 42 U.S.C. § 1983 and various pendent state claims. He alleges that his Fourth Amendment rights were violated through the use of excessive force, false arrest and imprisonment, and malicious prosecution. Police officers violate the Fourth Amendment if they shove, push, or otherwise assault innocent citizens without provocation. Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467, 475 (7th Cir. 1997). However, police officers do have a right to use a reasonable amount of force in light of the circumstances they face. Id. Here, plaintiff alleges that Officer Kooistra unnecessarily assaulted him without provocation. Under the Rule 12(b)(6) standard, plaintiff has successfully stated a Fourth Amendment claim and this action should go forward.
For the above reasons, plaintiff's petition to proceed in forma pauperis is granted.