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Huse v. Cundiff

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 27, 2007

DONALD HUSE, PLAINTIFF,
v.
THOMAS CUNDIFF, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Herndon, Chief District Judge

MEMORANDUM AND ORDER

Plaintiff brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. §§ 1983 and 1985(3) and for state torts of battery and assault. Plaintiff seeks damages against the Defendants for using excessive force against him during his arrest and/or detention at the Williamson County Jail. Specifically, Plaintiff contends that the Defendants "assaulted and tasered" him "at least ten times" between August 30, 2006, and January 13, 2007. This case is before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915(e)(2),*fn1 which provides:

(2)Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--

(A) the allegation of poverty is untrue; or

(B) the action or appeal -(i) is frivolous or malicious;

(ii) fails to state a claim upon which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Upon careful review of the complaint, which the Court finds to be somewhat confusing and deficient in some technical detail, as well as any supporting exhibits, the Court finds that the claims in the complaint may not be dismissed at this point in the litigation.

DISPOSITION

Defendants CUNDIFF, BEASLEY, HUTCHINSON, DUNNIGHAM, BROWN, PINKERTON, SWEENEY, and WATTS are ORDERED to timely file an appropriate responsive pleading to the complaint, and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to a United States Magistrate Judge for further pre-trial proceedings.

Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.

IT IS SO ORDERED.

DavidRHerndon Chief Judge United States District Court


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