The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Luis Renteria, a state prisoner proceeding with counsel, brought this action under 42 U.S.C § 1983 for a violation of his civil rights.*fn1 Plaintiff claims that Defendant K. Williams, a corrections officer violated the Eighth Amendment by use of excessive force and the First Amendment by retaliating against the Plaintiff. Plaintiff also alleges several state law claims under Cal. Penal Code § 149 and § 243(a). Defendant filed a Motion for Summary Judgment on August 4, 2007. (Doc. # 76.) Plaintiff filed his Opposition on June 11, 2007 (Doc. # 89), and Defendant filed a reply brief on June 18, 2007 (Doc. # 90.).
On November 21, 2007, Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation (R&R) recommending that the court grant Defendant's Motion for Summary Judgment as to excessive force and the state law claims, and dismiss without prejudice Plaintiff's retaliation claim for failure to exhaust administrative remedies. Plaintiff filed an Objection to the R&R on January 7, 2008 (Doc. # 95), and Defendant filed a Reply to the Objection on January 9, 2008. (Doc. # 96).
Plaintiff's § 1983 action arises out of events that occurred while he was incarcerated at Calipatria State Prison ("Calipatria"). (R&R at 2.) Defendant was a correctional officer working at Calipatria at the time. Id. Plaintiff alleges that while in his cell, Defendant, standing approximately seven to ten feet away, sprayed a stream of cleaning solution at the Plaintiff. Id. Plaintiff alleges that the spray contacted his eye and irritated his eye. Id. Plaintiff was seen by Medical Technical Assistant David Erwin and then, three weeks later, by R. Meisel, a licensed optometrist. Id. Both examinations found no sign of irritation or damage to Plaintiff's eyes. Id. In response to Plaintiff filing a grievance for his eye injury, Plaintiff claims that Defendant retaliated against him by threatennig his life by telling him repeatedly that he would be a "dead man" by use of justifiable gun fire. (Complaint at ¶ 9.)
Specifically, Plaintiff alleges the following constitutional claims: (1) Defendant violated his Eighth Amendment rights by using excessive force by spraying him this the cleaning solution; (2) Defendant violated his First Amendment rights by retaliating against him for filing prison grievances; and (3) Defendant assaulted him under Cal. Penal Code § 149 and § 243(a). Plaintiff seeks $500,000 in general damages and $500,000 in punitive damages from Defendant. (Compl. at 9.)
Now, Defendant moves for summary judgment for four reasons. (See Memo. of Pts. and Auths. in Support of Defs.' Motion to Dismiss at 6-18.) First, Defendant claims that Plaintiff has not exhausted all available state remedies for Plaintiff's claim of retaliation. Second, Defendant claims that any force was negligent, at best, and de minimus, and not actionable under the Civil Rights Act.. Next, Defendant claims that he is protected by qualified immunity.*fn2 Finally, Defendant argues that the state claims alleged by Plaintiff are unclear and criminal in nature, not civil.
The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rule of Civil Procedure ("FRCP") Rule 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980).
A. Eighth Amendment Claim of Excessive Force
The court adopts the R&R's recommendation to grant Defendant's Motion for Summary Judgment, because Plaintiff failed to establish an 'physical injury'. The R&R concludes that there is no evidence except Plaintiff's conclusory allegations that Plaintiff suffered an injury. Plaintiff merely states that he objects to the R&R, but does not identify any specific arguments in opposition to the R&R. (See Objections at 1.) Having considered the R&R and the applicable authorities, the court adopts the R&R's analysis and recommendation regarding Motion for Summary Judgment on the claim of excessive force.
Under the Prison Litigation Reform Act ("PLRA"), "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). This provision "requires a showing of physical injury that need not be significant but must be more than de minimis." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992); Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). In Oliver, the court held that back and leg pain from an uncomfortable sitting and sleeping arrangement was de minimis. Oliver, 289 F.3d at 627. Additionally, facial pain such as a bruised, sore ear and nose sores is also de minimis. Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997); Cannell v. Multnomah County, 141 F.Supp. 2d 1046, 1053. However, injuries greater then bruising like loosened teeth and a cracked dental plate qualify as physical injuries. Hudson, 503 U.S. at 10.
Plaintiff has not suffered a 'physical injury' as required by the PLRA. It is questionable if Plaintiff suffered any injury at all. However, even if the court assumes all facts in favor of Plaintiff, the alleged injury is de minimis. Defendant provided medical reports and sworn statements by Medical Technical Assistant David Erwin and R. Meisel, O.D. Both statements indicate they saw no signs of irritation or damage to the Plaintiff's eye. (Decl. of D. Erwin at ¶ 6; Decl. of R. Meisel at ¶ 1,8.) However, Plaintiff claims that R. Meisel performed pressure tests which revealed problems with his right eye.*fn4 (Opp'n of Def. Mot. for Summ. J. at ¶ 14-15.) Plaintiff alleges that the test results were normal during a follow up appointment almost two weeks later. Id. However, without additional evidence, it is impossible to determine what the notations on the medical reports mean. Therefore, since Plaintiff failed to met his burden proving a genuine issue of fact, the court grants the motion for summary judgment.
However, even if the court assumes that Plaintiff had pressure in his eye, the injury is de minimis. The injury is minor and similar to a bruise as in Siglar. Siglar, 112 F.3d at 193. This type of pain would not raise to the level of physical injury. Id. Additionally, the injury did not require additional medical care or leave a long term injury as in Madrid. Madrid, 889 F. Supp at 1254. Both of Plaintiff's eyes tested normal upon the next examination. Therefore, he has no long term effects, ...