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Griffin v. Linder

United States District Court, D. Montana, Missoula Division

February 5, 2015

ROBERT H. GRIFFIN, JR., Plaintiff,
v.
DAN LINDER, ALAN BROOKS DANNY THOMPSON, ERIC MORISON, MARK ASKUIG, PAULA SULLIVAN, JARED LAKO, JUSTIN SMITH, and BRYCE MIDDLETON, Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

JEREMIAH C. LYNCH, Magistrate Judge.

Pending is Plaintiff Robert Griffin, Jr.'s Complaint. (Doc. 2.) Griffin alleges Defendants violated his Fourth, Sixth, and Eighth Amendment rights under the United States Constitution when they entered his home in the early morning hours of September 2, 2014, handcuffed him, and took him to an abandoned parking lot without a warrant.

Griffin is proceeding in forma pauperis so the Court must review his Complaint under 28 U.S.C. §§ 1915, 1915A. Section 1915(e)(2)(B) requires the Court to dismiss a complaint filed in forma pauperis before it is served upon the defendants if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

Griffin lists Eric Morrison, Mark Askig, Paula Sullivan, Jared Lako, Justin Smith, and Bryce Middleton as Defendants but makes no allegations against these individuals. (Complaint, Doc. 2.) As such, Griffin has failed to set forth a minimum factual and legal basis sufficient to give them fair notice of the allegations against them pursuant to Rule 8 of the Federal Rules of Civil Procedure which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Therefore, these Defendants should be dismissed without prejudice.

The Court has considered whether Griffin's Complaint as alleged against the Defendant Linder, Brooks, and Thompson is frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Griffin has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). The Court concludes that dismissal is not appropriate at this time. Defendants Linder, Brooks, and Thompson must respond to the Complaint. Based on the foregoing, the Court issues the following:

ORDER

1. Pursuant to Fed.R.Civ.P. 4(d), the Court requests Defendants Linder, Brooks, and Thompson to waive service of summons by executing, or having counsel execute, the Waiver of Service of Summons. The Waiver must be returned to the Court within thirty (30) days of the entry date reflected on the Notice of Electronic Filing. If Defendants choose to return the Waiver of Service of Summons, the answer or an appropriate motion will be due within 60 days after the entry date reflected on the Notice of Electronic Filing for this Order, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See 42 U.S.C. § 1997e(g)(2) (while Defendants may be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983, " once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a "reasonable opportunity to prevail on the merits, " Defendants are required to respond).

2. The Clerk of Court shall forward the documents listed below to:

* the Complaint (Doc. 2);
* THE sUPPLEMENT TO THE cOMPLAINT (dOC. 7);
* this Order;
* a Notice of Lawsuit & Request to Waive Service ...

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