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October 11, 2005.

DAVID MARK GILL, CDC #P-69531, Plaintiff,

The opinion of the court was delivered by: WILLIAM HAYES, District Judge

Plaintiff, an inmate currently incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while he was incarcerated at the San Diego County Central Jail, Defendants Vargas and Petty denied him adequate medical care and used excessive force in violation of his constitutional rights. See Compl. at 3-5.

Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a), but has instead submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. I. Motion to Proceed IFP [Doc. No. 2]

  All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).

  Prisoners seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint. . . ." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

  While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6-month period immediately preceding the filing of his Complaint.*fn1 See 28 U.S.C. § 1915(a)(2); S.D.CAL. CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). Without Plaintiff's trust account statement, the Court is simply unable to assess the appropriate amount of the filing fee required to initiate this action. See 28 U.S.C. § 1915(b)(1). Therefore, Plaintiff's Motion to Proceed IFP [Doc. No. 2] must be DENIED.

  II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

  A. Standard of Review

  In addition, 28 U.S.C. § 1915A further obligates the Court to review complaints filed by prisoners, like Plaintiff, who are "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of IFP status. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).*fn2

  "Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Id. at 447 (citing Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1997)). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in giving liberal interpretation to a pro se civil rights complaint, the court may not, "supply essential elements of the claim that were not initially pled." Ivey v. Bd of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

  B. Application to Plaintiff's Complaint

  Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal citations omitted); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). As such, § 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

  A. Excessive Force claims

  Plaintiff alleges that Defendants Vargas and Petty used excessive force against him when they threw Plaintiff onto a "wooden bench inside a holding cell" and applied "pressure point/pain holds while pulling plaintiff from a sitting position." See Compl. at 4-5. Because Plaintiff claims to have been in San Diego County Jail at the time Deputies Vargas and Petty are alleged to have used excessive force against him, it is unclear whether the Eighth or Fourteenth Amendment applies to Plaintiff's claim. The Eighth Amendment's prohibition against the "malicious or sadistic" use of force, see Hudson v. McMillian, 503 U.S. 1, 7 (1992), does not apply "until after conviction and sentence." Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989). "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

  Pretrial detainees, on the other hand, are protected by substantive due process, and may also challenge the use of force against them under the Fourteenth Amendment if that force is so excessive that it amounts to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979) ("[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law."). For pretrial detainees, "who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners." Id. at 545; Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991) (en banc) (holding that "deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the Fourteenth Amendment," and "conduct that is so wanton or reckless with respect to the `unjustified infliction of harm as is tantamount to a knowing willingness that it occur,' will also suffice to establish liability because it is conduct equivalent to a deliberate choice.") (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)); see also White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990) (for a pretrial detainee to show a violation of substantive due process, he must show "egregious government conduct in the form of excessive and brutal use of physical force."). In deciding whether that force is "excessive," the court should consider: "(1) the need for force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; and (4) whether the force was applied in good faith."). Id.; cf. Hudson, 503 U.S. at 7 (considering same four Whitley ...

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