Lewis v. City of Fresno et al

Filing 11

ORDER Dismissing Certain Claims and Parties, and Referring Matter back to Magistrate Judge to Initiate Service of Process Proceedings signed by District Judge Lawrence J. O'Neill on 04/04/2012. City of Fresno and City of Fresno Police Department terminated from Action.(Flores, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

ROBERT LEWIS,

CASE NO. 1:11-cv-01415-LJO-SKO

10

ORDER DISMISSING CERTAIN CLAIMS
AND PARTIES, AND REFERRING
MATTER BACK TO MAGISTRATE
JUDGE TO INITIATE SERVICE OF
PROCESS PROCEEDINGS

Plaintiff,
11
v.
12
13

CITY OF FRESNO, et al.,

(Docs. 1, 8, and 10)

14
Defendants.
15
/
16
17

Plaintiff Robert Lewis, proceeding pro se and in forma pauperis, filed this civil rights action

18

pursuant to 42 U.S.C. § 1983 against Defendants City of Fresno, Fresno Police Department, and

19

Police Officer Catton. (Doc. 1.) On December 20, 2011, the Magistrate Judge screened Plaintiff's

20

complaint and found that it states a Section 1983 claim for damages against Defendant Catton for

21

alleged excessive force, but it fails to state any other claims for relief. 28 U.S.C. § 1915(e)(2). (Doc.

22

8.) Plaintiff was ordered to either file an amended complaint or notify the Court of his willingness

23

to proceed only on his cognizable excessive force claim. (Doc. 8.)

24

Plaintiff sought an extension of time to file either a statement of his willingness to proceed

25

with the cognizable excessive force claim or file an amended complaint (Doc. 9), and the Court

26

granted Plaintiff until March 5, 2012, to comply with the Court's December 20, 2011, order. (Doc.

27

10.) Plaintiff was warned that if he failed to comply with the order, this action would proceed on

28

the excessive force claim and the other claims and parties would be dismissed. (See Docs. 8, 10.)

1

More than thirty days have passed and Plaintiff has not filed an amended complaint or

2

otherwise responded to the order. Plaintiff has had more than three months to draft and file an

3

amended complaint. The Court has reviewed the Magistrate Judge's screening order, and in light

4

of Plaintiff's failure to file an amended complaint, this action shall proceed at this time on Plaintiff's

5

cognizable claim against Defendant Catton for alleged excessive use of force.

6

§ 1915(e)(2).

7

Accordingly, it is HEREBY ORDERED that:

8

1.

28 U.S.C.

9

against Defendant Officer Catton on Plaintiff's claim arising out of alleged excessive

10

use of force;

11

2.

12

Plaintiff's claims for wrongful arrest and wrongful prosecution are dismissed, with
prejudice, for failure to state a claim;

13

3.

14

Defendants City of Fresno and the Fresno Police Department are dismissed from this
action based on Plaintiff's failure to state a claim against them; and

15

4.

16

This matter is referred back to the Magistrate Judge to initiate service of process
proceedings.

17
18

This action for damages shall proceed on Plaintiff's complaint, filed August 22, 2011,

IT IS SO ORDERED.
Dated:
66h44d

April 4, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
2