Langley v. Tulare Police Department et al

Filing 49

ORDER Granting 47 Motion to Proceed IFP; ORDER Vacating Scheduling Order Pending Screening of the Complaint signed by Magistrate Judge Sheila K. Oberto on 08/03/2017. (Attachments: # 1 IFP Application)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RANDY LANGLEY,
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Plaintiff,

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v.
TULARE POLICE DEPARTMENT and
OFFICER COLEJIO,

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Defendants.

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Case No. 1:16-cv-0336-DAD-SKO
ORDER GRANTING PLAINTIFF’S
APPLICATION TO PROCEED IN
FORMA PAUPERIS
(Doc. 47)
ORDER VACATING SCHEDULING
/ ORDER PENDING SCREENING OF THE
COMPLAINT
(Doc. 23)

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Plaintiff, Randy Langley, is a prisoner in the custody of the California Department of

16 Corrections and Rehabilitation and is housed at the Sierra Conservation Center. On February 5,
17 2016, Plaintiff, proceeding pro se, filed a Complaint in the Superior Court of California, County of
18 Tulare, against Defendants “Tulare Police Department,” “Officer Colejio,” and “Doe 1,” alleging
19 causes of action for “[g]eneral [n]egligence,” “[i]ntentional [t]ort,” “false imprisonment, battery,
20 cruel and unusual punishment, wrongful prosecution, conviction, violation of civil rights, [and]
21 police misconduct/brutality” arising out of his arrest by Defendants. (Doc. 2, Ex. 1 at 7–11.)
22 Plaintiff seeks compensatory damages and punitive damages in the amount of $100 million. (Id.
23 at 9.)
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Defendant City of Tulare (erroneously named as Tulare Police Department) filed their

25 answer in state court and, on March 10, 2016, removed the action to this Court. (Doc. 2.) On July
26 20, 2017, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
27 (Doc. 47.) Plaintiff has made the showing required § 1915(a) and accordingly, the request to
28 proceed in forma pauperis will be granted.

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The Court is required to screen complaints brought by prisoners seeking relief against a

2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). A
3 complaint, or portion thereof must be dismissed if the prisoner has raised claims that are legally
4 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary
5 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.
6 § 1915(e)(2)(B)(i)–(iii). This case was removed to this Court by Defendant City of Tulare1 such
7 that Plaintiff only recently filed his application to proceed in forma pauperis and none of
8 Plaintiff’s claims have been screened. However, a scheduling order has issued under which the
9 parties are presumably engaging in discovery. (See Doc. 23.)
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At a mere glance, it is apparent to the Court that not all of the claims Plaintiff asserts in the

11 Complaint are cognizable. It would be a waste of limited judicial resources, as well as both time
12 and effort by the parties, for this case to proceed without screening. As such, it is reasonable to
13 vacate the dates set in the scheduling order, including deadlines for discovery, until the Complaint
14 has been screened and cognizable claims have been found on which Plaintiff may proceed. See,
15 e.g., Marshall v. Stanton, No. CIV S-04-1694 LKK PAN P, 2006 WL 2382271, at *3 (E.D. Cal.
16 Aug. 17, 2006).
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Accordingly, IT IS HEREBY ORDERED that

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1. Plaintiff’s application to proceed in forma pauperis (Doc. 47) is GRANTED;

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2. The dates set forth in the scheduling order entered September 8, 2016 (Doc. 23),

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are VACATED and will be reset, as appropriate, in a revised scheduling order to be

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issued following the screening by the Court of the Complaint; and

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As the Court has previously noted, see Docs. 40 & 48, there is no indication that Defendant Officer Colejio has
properly “received—through service or otherwise—a copy of the initial pleading stating the claim for relief” or was
“served with the summons for an initial pleading on file at the time of service,” thereby triggering Defendant Officer
Colejio’s legal obligation to respond to Plaintiff's complaint under Fed. R. Civ. P. 81(c)(2)(A).

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3. The Clerk of the Court is directed to serve a copy of this order and a copy of

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Plaintiff’s in forma pauperis application on the Warden of Sierra Conservation

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Center, via the Court’s electronic case filing system (CM/ECF).

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Dated:

August 3, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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