The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON SECOND AMENDED COMPLAINT, AND CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations Following Screening of Second Amended Complaint
Plaintiff Nicolas Moran ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985, and California tort law. Plaintiff filed this action on January 3, 2008, and on January 17, 2008, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a). On September 17, 2008, the Court dismissed Plaintiff's amended complaint for failure to comply with Federal Rule of Civil Procedure 8(a) and provided Plaintiff with the legal standards applicable to his claims. Plaintiff filed a second amended complaint on November 18, 2008.
II. Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(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... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
A. Summary of Second Amended Complaint
Plaintiff is currently housed at Pleasant Valley State Prison. The claims in this action arose after Plaintiff was transported from Calipatria State Prison to Kern Valley State Prison on or around November 6, 2006, for mental health treatment at the prison hospital. Plaintiff names Warden C. Chrones; Sergeants E. Morales and D. Hill; Correctional Officers J. Orosco, V. Yates, J. Harden, Maese, Hernandez, M. Aguilar, Moreno, Chesley, Polambo, and J. Perez; Counselor C. Jackson; Medical Technical Assistant Cessar; and Does one through one-hundred as defendants.*fn1 Plaintiff is seeking damages and injunctive relief for the violation of his rights under section 1983, section 1985, and state tort law. Because Plaintiff is no longer housed at Kern Valley State Prison and because the injunctive relief sought would not remedy the claims alleged in this action, the Court recommends the action proceed as one for damages only.*fn2 18 U.S.C. § 3626(a)(1)(A); City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006).
Plaintiff enumerates multiple section 1983 claims, most of which are based on violations of the Eighth Amendment, which protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).
1. Excessive Force Claims
Plaintiff alleges numerous incidents of excessive physical force. For excessive force claims, not "every malevolent touch by a prison guard gives rise to a federal cause of action," and "[t]he Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995 (1992) (citations and ...