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 ...