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Heinberg v. Hibbs

United States District Court, D. Montana, Helena Division

July 22, 2019

DARIN E. HEINBERG, Plaintiff,
v.
GILBERT L. HIBBS, DOROTHY S. HIBBS, SAFECO INSURANCE, PROGRESSIVE INSURANCE COMPANY, and COURTNEY HIBBS, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         Plaintiff Darin Heinberg, a state prisoner proceeding without counsel, filed an Amended Complaint alleging he was injured while riding his bike in Kennewick, Washington. He claims Courtney Hibbs struck him with her pick-up truck while he was riding his bike. He alleges she was making a left hand turn while on her phone. (Amended Complaint, Doc. 9-1 at 5.)

         The Court has considered whether Mr. Heinberg's Amended Complaint 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 Mr. Heinberg has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. Mr. Heinberg's allegations against Courtney Hibbs “are sufficient to meet the low threshold for proceeding past the screening stage.” Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). Ms. Hibbs must respond to the Amended Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally 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, ” Defendant is required to respond).

         In his Amended Complaint, Mr. Heinberg did not name the insurance companies named in his original complaint and therefore those Defendants should be dismissed. In addition, he has not stated any basis for liability against Gilbert or Dorothy Hibbs. His only allegation is that they owned the truck driven by Courtney Hibbs. This is insufficient to state a claim against these individuals.

         Based upon the foregoing, the Court issues the following:

         ORDER

         1. Pursuant to Fed.R.Civ.P. 4(d), the Court requests Defendant Courtney Hibbs to waive service of summons of Mr. Heinberg's Complaint 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 of this Order as reflected on the Notice of Electronic Filing. If Ms. Hibbs chooses to return the Waiver of Service of Summons, the answer or appropriate motion will be due within 60 days of the entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

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

Courtney D. Hibbs 20 East 36th Place Kennewick, WA 99337
* Complaint (Doc. 2);
* the Court's April 4, 2019 Order (Doc. 7);
* Amended Complaint (Doc. 9);
* this Order;
* a Notice of Lawsuit & Request to Waive Service of ...

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