The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE AMENDED COMPLAINT OR NOTICE OF VOLUNTARY DISMISSAL WITHIN THIRTY DAYS (Doc. 1)
Plaintiff Chauncey Hollis ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on December 2, 2008. (Doc. 1.) Plaintiff's complaint is presently before the Court for screening.
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. Pro. 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. Pro. 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. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))).
B. Summary of Plaintiff's Complaint
Plaintiff is currently a state prisoner at Desert View Medium Community Correctional Facility in Adelanto, California. Plaintiff was formerly imprisoned at California Correctional Institution ("CCI") in Tehachapi, California, where the acts he complains of occurred. Plaintiff names as defendants: Correctional officer ("C/O") Sweeney; Warden R. Gonzalez of CCI; and CCI Sergeants who supervised C/O Sweeney.
Plaintiff alleges the following. On October 17, 2008, upon arrival at CCI, Plaintiff was strip searched in front of a photo lady named Tracy and other female counselors. Plaintiff filed a grievance regarding this which was never answered. On October 23, 2008, Plaintiff was ordered out of his cell along with other inmates, dressed only in boxers and shorts. Defendant Sweeney ordered Plaintiff to strip, open his mouth, lift his testicles, and spread his butt cheeks. When Plaintiff did not comply sufficiently, defendant Sweeney threatened to have Plaintiff shot if he did not comply to her satisfaction. Afterwards, defendant Sweeney handcuffed Plaintiff and left him sitting in the dirt for two hours. Plaintiff was not permitted to go to the bathroom and subsequently urinated on himself.
Plaintiff alleges a violation of the Eighth Amendment. Plaintiff seeks defendant Sweeney to be fired, the sergeants to be disciplined, appointment of counsel, and monetary damages.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an ...