(PS) Creel v. Sacramento County Sheriff Department et al

Filing 11

ORDER signed by Magistrate Judge Sean C. Riordan on 03/06/25 ORDERING service of 8 Second Amended Complaint appropriate for Sacramento County Sheriff's Department, Sheriff Jim Cooper, Deputy Sheriff #1, and Deputy Sheriff #2. The Clerk to iss ue forthwith, and the USM to serve within 90 days, all process without payment of costs. Clerk to send Plaintiff (4) USM-285 forms, one summons, a copy of the SAC, and consent form. Plaintiff to supply USM with service documents within 15 days and file a statement with the court that documents have been submitted. (Deputy Clerk KML)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHAD MICHAEL CREEL,

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Plaintiff,

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v.

No. 2:24-cv-01533-KJM-SCR

ORDER

SACRAMENTO COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.

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Plaintiff is proceeding pro se in this action, and accordingly this matter was referred to the

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undersigned by operation of Local Rule 302(c)(21). The Court previously granted Plaintiff leave

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to proceed in forma pauperis (“IFP”). ECF No. 5. Granting IFP status does not end the court’s

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inquiry, however, as the Court is required by Section 1915(e)(2) to screen the complaint and must

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dismiss an action if it is “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915(e)(2). The Court has previously screened the original and first amended complaints. ECF

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Nos. 5 & 7. Now before the Court is Plaintiff’s second amended complaint (“SAC”). The Court

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concludes that, for screening purposes only, the SAC presents sufficiently cognizable claims and

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directs service.

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I. SCREENING

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A.

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The federal IFP statute requires federal courts to dismiss a case if the action is legally

Legal Standard

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain

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statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court,

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rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to

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relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought.

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Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R.

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Civ. P. 8(d)(1).

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B.

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Plaintiff’s SAC names as defendants: 1) the Sacramento County Sheriff’s Department; 2)

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Sheriff Jim Cooper; 3) Deputy Sheriff #1; and 4) Deputy Sheriff #2. ECF No. 8 at 2-3. Plaintiff

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asserts federal question jurisdiction and cites to 42 U.S.C. § 1983. ECF No. 8 at 3-4. Plaintiff

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alleges violation of his First and Fourth Amendment rights. He contends he was subjected to

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unlawful detention in retaliation for “flashing his middle finger” at officers. Id. at 7. Plaintiff

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alleges he was searched without consent, and that one of the officers “groped” his genital area.

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Id. Plaintiff alleges the date the events occurred, January 8, 2024, and that they occurred in a

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recreational vehicle park where Plaintiff was living. Id.

The Complaint

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C.

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Plaintiff’s SAC (ECF No. 8) asserts a jurisdictional basis, contains a statement of his

Analysis

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claim, and a request for monetary damages. It appears the gist of Plaintiff’s SAC is that he was

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allegedly unlawfully detained, searched, and groped in retaliation for the exercise of his First

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Amendment rights. In order to state a claim under section 1983, a plaintiff is required to plead

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that (1) a defendant acting under color of state law (2) deprived plaintiff of rights secured by the

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Constitution or federal statutes. Benavidez v. County of San Diego, 993 F.3d 1134, 1144 (9th Cir.

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2021). Plaintiff does not know the names of the two officers involved in the incident, but as
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Plaintiff alleges the date and location of the occurrence, those names will presumably be learned

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through discovery. Plaintiff has alleged colorable claims under § 1983 concerning First

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Amendment retaliation related to his making an obscene gesture. See Duran v. City of Douglas,

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904 F.2d 1372, 1378 (9th Cir. 1990) (“Thus, while police, no less than anyone else, may resent

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having obscene words and gestures directed at them, they may not exercise the awesome power at

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their disposal to punish individuals for conduct that is not merely lawful, but protected by the

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First Amendment.”); Mitchell v. City of Henderson, 2015 WL 427835 (D. Nev. 2015)

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(“Individuals are entitled to verbally oppose police activities, which includes obscene gestures

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such as giving the middle finger.”). Accordingly, for screening purposes only, the Court

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concludes that Plaintiff’s claims are sufficiently cognizable and directs service.

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II. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:

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1. Service of the Second Amended Complaint (ECF No. 8) is appropriate for the following

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Defendants: 1) the Sacramento County Sheriff’s Department; 2) Sheriff Jim Cooper; 3)

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Deputy Sheriff #1; and 4) Deputy Sheriff #2.

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2. The Clerk of the Court is directed to issue forthwith, and the U.S. Marshal is directed to

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serve within ninety days of the date of this order, all process pursuant to Federal Rule of

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Civil Procedure 4, without prepayment of costs.

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3. The Clerk of the Court shall send Plaintiff the above: one USM-285, one summons, a

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copy of the SAC, and an appropriate form for consent to trial by a magistrate judge.

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4. Plaintiff is directed to supply the U.S. Marshal, within 15 days from the date this order is

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filed, all information needed by the Marshal to effect service of process, and shall

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promptly file a statement with the court that said documents have been submitted to the

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United States Marshal. The court anticipates that, to effect service, the U.S. Marshal will

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require, for each defendant in ¶ 2, above, at least:

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a. One completed summons;

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b. One completed USM-285 form;

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c. One copy of the endorsed filed complaint, with an extra copy for the
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U.S. Marshal;

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d. One copy of the instant order; and

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e. An appropriate form for consent to trial by a magistrate judge.

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5. In the event the U.S. Marshal is unable, for any reason whatsoever, to effect service on the

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Defendants within 90 days from the date of this order, the Marshal is directed to report

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that fact, and the reasons for it, to the undersigned.

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6. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal, 501
“I” Street, Sacramento, Ca., 95814, Tel. No. [phone].
7. Failure to comply with this order may result in a recommendation that this action be
dismissed.

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IT IS SO ORDERED.

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DATED: March 6, 2025

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