Opinion
No. 3:04-CV-1004-R.
August 10, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Jester III Unit in Richmond, Texas. Defendants are the Dallas Police Department and two unknown Dallas police officers. The court has not issued process in this case.
Statement of Case: The complaint alleges that on June 3, 2002, two unknown Dallas police officers unreasonably beat Plaintiff after a high-speed chase caused him to crash against a concrete pole. Plaintiff seeks monetary relief. Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
While Plaintiff does not remember any of the details of the beating because he was unconscious, he relies on a statement from his defense counsel that the alleged beating was video taped by a Channel Five helicopter.
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Accepting as true Plaintiff's allegations as to the force used by the unknown police officers, the magistrate judge concludes that Plaintiff has arguably raised a claim for excessive use force in violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) ("all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard"). Plaintiff's allegation that the unknown police officers beat him up after he crashed into a concrete pole arguably raise a claim that the force used may have been excessive to the need and objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (setting out the elements of an excessive force claim).
By letter dated May 17, 2004, the undersigned notified Plaintiff that service of process could not be issued on the "John Doe" police officers, and that, as a result, no further action could be taken with respect to this case until Plaintiff identified the police officers and filed an amended complaint. As of the date of this recommendation, Plaintiff has not filed an amended complaint identifying the unknown police officers, nor has he requested an extension of time within which to contact his defense counsel. Therefore, Plaintiff's excessive force claim should be dismissed without prejudice at this time.
The court further notes that the Dallas Police Department is not a proper party to this action. A governmental department cannot engage in litigation "unless the true political entity has taken explicit steps to grant the servient agency with jural authority." Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991). Governmental offices and departments do not have a separate legal existence. See Ruggiero v. Litchfield, 700 F. Supp. 863, 865 (M.D.La. 1988) (local sheriff's office is not legal entity subject to suit). Accordingly, the claims against the Dallas Police Department should likewise be dismissed at the screening stage. RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed without prejudice.
A copy of this recommendation will be mailed to Plaintiff Kenneth Wayne Ramirez, #1141100, TDCJ-CID, Jester III Unit, Rt. 2, Richmond, Texas 77469.