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April 29, 2004.

BRIAN ERIC DEMARCO, Plaintiff, V. N.W. TAYLOR, et al., Defendants

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge


Plaintiff, a California prisoner at San Quentin State Prison ("SQSP"), filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis in a separate order.


  Plaintiff alleges the following sequence of events. He received medical authorization in July 2003 to wear soft sole shoes at SQSP, and subsequently received notice that a package for him from a family member containing such shoes had arrived. Plaintiff was informed that it would take approximately two weeks for him to get the shoes. After three weeks had passed, plaintiff made inquiries of various SQSP officials about the shoes. On August 20, 2003, defendant N.W. Taylor ("Taylor"), an SQSP guard, erroneously informed plaintiff that he was not entitled to the shoes. When plaintiff was returned to his cell, he began banging on the upper bunk. He was then escorted back to the podium area of the cell block, where Taylor told him that he would be going to administrative segregation. Plaintiff used a racial slur against Taylor, and Taylor grabbed plaintiff by the left arm and pushed him into a chair in a nearby office. Taylor then "shook" plaintiff by the upper left arm, and "yanked" him back out of the chair and office. Plaintiff was then escorted by a different guard to the infirmary, where he underwent a psychiatric examination. Plaintiff next received a shower, at which time he noticed he had three bruises on his upper left arm.


 A. Standard of Review

  A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins. 487 U.S. 42, 48 (1988).

 B. Legal Claims

  The unnecessary and wanton infliction of pain against prisoners constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers. 475 U.S. 312, 319 (1986). "Whenever prison officials stand accused of using excessive force in violation of the Eighth Amendment . . . the core judicial inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In determining whether the use of force was for the purpose of maintaining or restoring discipline, or for the malicious and sadistic purpose of causing harm, a court may evaluate the need for application of force, the relationship between that need and the amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. See id at 7. Here, the use of force alleged to have been used by Taylor is not sufficient to implicate the Eighth Amendment. Not every malevolent touch by a prison guard gives rise to a federal cause of action; the Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10. Plaintiff alleges that Taylor "grabbed" his arm, pushed him into a chair, shook him, and then "yanked" him out of the chair. The three bruises on plaintiffs arm suggest that he was grabbed with force, but that the amount of force used was not more than de minimis. Cf. id (finding blows directed at inmate, causing bruises, swelling, loosened teeth and cracked dental plate more than de minimis). Moreover, plaintiff alleges he was intentionally creating a disturbance and that he used a racial slur against Taylor. In the context of an inmate creating a disturbance and using a racial slur against a guard, some force was reasonably necessary to maintain order and discipline. Plaintiffs allegations as to the amount of force used, even when liberally construed and with inferences drawn in plaintiffs favor, do not plead an unreasonable use of force. In sum, plaintiff's complaint alleges no more than a de minimis use of force which, in any event, was reasonable under the circumstances plaintiff alleges. Consequently, Taylor's alleged conduct does not give rise to a cognizable claim based on a violation of plaintiff's Eighth Amendment rights.

  Plaintiff also states that Taylor violated his right to due process by "intermeddling and erroneously informing" plaintiff that plaintiff was not going to be allowed to have soft sole shoes. The Court is aware of no authority, and plaintiff suggests none, that such conduct constitutes a due process violation.

  Plaintiff's claims against the other defendant, J.S. Woodford, are not cognizable because plaintiff makes no allegation that Woodford engaged in any conduct that proximately caused the alleged harm. See Leer v. Murphy. 844 F.2d 628, 634 (9th Cir. 1988) (requiring plaintiff to allege facts demonstrating defendant was "actual and proximate cause" of constitutional violation). The only allegation as to Woodford is that she was the SQSP Warden. This allegation is not sufficient to state a claim against Woodford based on Taylor's alleged conduct, as plaintiff may not rely on a respondeat superior theory of liability for purposes of alleging a claim under § 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).


  For the foregoing reasons, the above-titled action is hereby DISMISSED for failure to state a claim upon ...

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