United States District Court, D. Montana, Helena Division
DARIN E. HEINBERG, Plaintiff,
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
Johnston United States Magistrate Judge.
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.)
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).
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.
upon the foregoing, the Court issues the following:
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).
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