Opinion
No. CIV S-10-0528 JAM DAD PS.
May 17, 2011
ORDER GRANTING REQUEST TO DIRECTING CLERK TO SEND MATERIALS FOR SERVICE, AND REQUIRING SERVICE BY UNITED STATES MARSHAL
This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a)(1). Plaintiff's request for leave to proceed in forma pauperis will therefore be granted.
The determination that plaintiffs may proceed in forma pauperis does not complete the inquiry required by the statutes. Under 28 U.S.C. § 1915(e)(2), the court is required to dismiss an in forma pauperis case at any time if the plaintiff's allegations of poverty is untrue or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Here, the court finds that plaintiff has not alleged sufficient facts to make out a claim for violation of 42 U.S.C. § 1983 against the City of Tracy. "To establish municipal liability under § 1983, a plaintiff `must show that (1) [he] was deprived of a constitutional right; (2) the County had a policy; (3) the policy amounted to a deliberate indifference to [his] constitutional right; and (4) the policy was the moving force behind the constitutional violation.'" Burke v. County of Alameda, 586 F.3d 725, 734 (9th Cir. 2009) (quoting Mabe v. San Bernadino County, Dept. Of Public Social Services, 237 F.3d 1101, 1110-11 (9th Cir. 2001). Though plaintiff repeatedly alleges in his complaint that the City of Tracy had a policy of denying requests for a Tow Hearing in violation of California law, he has alleged no facts in support of his bare allegation in this regard. As noted above, plaintiff must allege facts sufficient to state a claim to relief that is plausible on its face and the court need not accept as true conclusory allegations.
Though plaintiff names that State of California as a defendant in the caption of his complaint, the factual allegations and requests for damages therein concern only Officer Hicks and the City of Tracy. (Compl. (Doc. No. 1)).
Plaintiff has however alleged sufficient facts to make out a cognizable claim for a violation of 42 U.S.C. § 1983 against Officer Brett Hicks. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's application to proceed in forma pauperis (Doc. No. 2) is granted.
2. The Clerk of the Court is directed to issue process and to send plaintiff an instruction sheet for service of process by the United States Marshal, one USM-285 form, one summons form, and an endorsed copy of plaintiff's complaint filed March 4, 2010. (Doc. No. 1).
3. Within thirty (30) days after this order is served, plaintiff shall submit to the United States Marshal a properly completed USM-285 form, a properly completed summons form, and the number of copies of the endorsed complaint and of this order required by the United States Marshal; the required documents shall be submitted directly to the United States Marshal either by personal delivery or by mail to: United States Marshals Service, 501 I Street, Suite 5600, Sacramento, CA 95814 (tel. 916-930-2030).
4. Within ten (10) days after submitting the required materials to the United States Marshals Service, plaintiff shall file with this court a declaration stating the date on which he submitted the required documents to the United States Marshal. Failure to file the declaration in a timely manner may result in an order imposing appropriate sanctions.
5. Within thirty (30) days after receiving the necessary materials from plaintiff, the United States Marshal is directed to serve process on defendant Brett Hicks, without prepayment of costs.
6. The Clerk of the Court is directed to serve a copy of this order on the United States Marshal.
DATED: May 16, 2011.