United States District Court, D. Arizona
November 17, 2005.
Rene Antonio Vera, Plaintiff,
Albert Smith, et al., Defendants.
The opinion of the court was delivered by: NEIL WAKE, District Judge
In this civil rights action filed by a state prisoner,
Plaintiff has submitted a First Amended Complaint. The Court will
order Defendant Smith to answer the First Amended Complaint and
dismiss Defendant City of Phoenix Police Department without
A. Statutory Screening of Prisoner Complaints.
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or portion thereof if the
Plaintiff has raised claims that are legally "frivolous or
malicious," that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
B. First Amended Complaint.
Plaintiff sues the City of Phoenix Police Department and one of
its officers, Albert Smith. Plaintiff alleges that Officer Smith,
during an arrest, punched Plaintiff behind his head with a gun, slammed Plaintiff's face on the sidewalk, put
his knee in Plaintiff's head, and then kicked Plaintiff. Other
unidentified officers arrived and joined Smith in kicking
Plaintiff. They did not stop until they heard over their radios
that civilians were watching. Plaintiff also alleges that the
officers were deliberately indifferent to his medical needs. He
suffered various physical injuries, including fractured ribs and
a bump on his head. For relief, he requests an award of 3.5
million dollars and an order for medical treatment. These
allegations adequately state a claim against Defendant Smith, and
the Court will require him to answer the Complaint.
The Court will, however, dismiss the City of Phoenix Police
Department. Plaintiff was informed in the Court's earlier Order
that to state a claim against the city, he must allege that his
injury occurred as a result of a policy or custom of the city.
Plaintiff has not set forth any allegations to cure that
Plaintiff may have intended to sue the unidentified police
officers who joined Smith in kicking him; his allegations are not
entirely clear. See First. Am. Compl. at 2, ¶ 4. The Ninth
Circuit has held that where identity is unknown prior to the
filing of a complaint, the plaintiff should be given an
opportunity through discovery to identify the unknown defendants.
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
(citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980)). Thus, Plaintiff he may later seek to amend his complaint
to add these person as parties once he learns the names in
C. Warning of Possible Dismissal Pursuant to Rule 41.
Plaintiff should take notice that if he fails to timely comply
with every provision of this Order, or any order entered in this
matter, this action will be dismissed pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir.) (district court may dismiss
action for failure to comply with any order of the Court), cert.
denied, 506 U.S. 915 (1992).
IT IS THEREFORE ORDERED that:
(1) Defendant City of Phoenix Police Department is dismissed
(2) Defendant Smith will be required to answer the First
Amended Complaint. (3) The Clerk of Court shall send Plaintiff a service packet
including the First Amended Complaint (Doc. #10), this Order, and
both summons and request for waiver forms for Defendant Smith.
(4) Plaintiff shall complete and return the service packet to
the Clerk of Court within 20 days of the date of filing of this
Order. The United States Marshal will not provide service of
process if Plaintiff fails to comply with this Order.
(5) If Plaintiff does not either obtain a waiver of service of
the summons or complete service of the Summons and First Amended
Complaint on the Defendant within 120 days of the filing of the
complaint or within 60 days of the filing of this Order,
whichever is later, the action may be dismissed as to each
Defendant not served pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure and Local Rule of Civil Procedure
(6) The United States Marshal shall retain the Summons, a copy
of the First Amended Complaint, and a copy of this Order for
(7) The United States Marshal shall notify Defendants of the
commencement of this action and request waiver of service of the
summons pursuant to Rule 4(d) of the Federal Rules of Civil
Procedure. The notice to Defendants shall include a copy of this
Order. The Marshal shall file waivers of service of the summons
or requests for waivers that were returned as undeliverable as
soon as they are received. If a waiver of service of summons is
not returned by a Defendant within thirty days from the date the
request for waiver was sent by the Marshal, the Marshal shall:
(a) Personally serve copies of the Summons, First
Amended Complaint, and this Order upon the Defendant
pursuant to Rule 4(e)(2) of the Federal Rules of
(b) Within 10 days after personal service is
effected, file the return of service for the
Defendant, along with evidence of the attempt to
secure a waiver of service of the summons and of the
costs subsequently incurred in effecting service upon
the Defendant. The costs of service shall be
enumerated on the return of service form (USM-285)
and shall include the costs incurred by the Marshal
for photocopying additional copies of the Summons, First Amended
Complaint, or this Order and for preparing new
process receipt and return forms (USM-285), if
required. Costs of service will be taxed against the
personally served defendant pursuant to Rule 4(d)(2)
and (5) of the Federal Rules of Civil Procedure,
unless otherwise ordered by the Court.
(8) A Defendant who agrees to waive service of the Summons and
First Amended Complaint shall return the signed waiver forms to
the United States Marshal, not the Plaintiff.
(9) Defendant shall answer the First Amended Complaint or
otherwise respond by appropriate motion within the time provided
by the applicable provisions of Rule 12(a) of the Federal Rules
of Civil Procedure.
(10) Any answer or responsive pleading shall state the specific
Defendant by name on whose behalf it is filed. The Court may
strike any answer, responsive pleading, or other motion or paper
that does not identify the specific Defendant by name on whose
behalf it is filed.
(11) Plaintiff shall serve upon Defendant, or if appearance has
been entered by counsel, upon counsel, a copy of every further
pleading or other document submitted for consideration by the
Court. Plaintiff shall include with the original document and
copy, to be filed with the Clerk of the Court, a certificate
stating the date a true and correct copy of the pleading or
document was mailed to Defendant or counsel. Any paper received
by a District Court Judge or Magistrate Judge which has not been
filed with the Clerk of Court may be disregarded by the Court.
(12) At all times during the pendency of this action, Plaintiff
shall immediately advise the Court and the United States Marshal
of any change of address and its effective date. Such notice
shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice
shall contain only information pertaining to the change of
address and its effective date. Plaintiff shall serve a copy of
the notice on all opposing parties. The notice shall not include
any motions for any other relief. Failure to file a Notice of
Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.
(13) A clear, legible copy of every pleading or other document
filed shall accompany each original pleading or other document
filed with the Clerk for use by the District Judge or Magistrate
Judge to whom the case is assigned. Failure to comply with this
requirement may result in the pleading or document being stricken
without further notice to Plaintiff.
(14) This matter is referred to Magistrate Jay R. Irwin
pursuant to Local Rules of Civil Procedure 72.1 and 72.2 for
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