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VERA v. SMITH

November 17, 2005.

Rene Antonio Vera, Plaintiff,
v.
Albert Smith, et al., Defendants.



The opinion of the court was delivered by: NEIL WAKE, District Judge

ORDER

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 prejudice.

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 deficiency.

  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 discovery.

  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 without prejudice.

  (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 ...


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