The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EXCESSIVE FORCE CLAIM THIRTY-DAY DEADLINE (Doc. 1)
Plaintiff Angel H. Hernandez is a prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1981, and California tort law. Plaintiff filed this action on February 11, 2009.
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 Allegations
Plaintiff is a pretrial detainee being held at the Kings County Jail in Hanford, California. Plaintiff alleges that on January 18, 2007, he was removed from his cell, placed in waist and leg restraints, and left by the top tier shower. When Plaintiff called out to Defendant Henderson, who was in the dayroom, Defendant Costner ran up to Plaintiff yelling, kneed Plaintiff in his back, and shocked Plaintiff two or three times with a stun gun. Plaintiff sustained injuries as a result of the incident, and alleges that he was not resistant during the incident.
Plaintiff names Sheriff Chris Jordan, the Board of Supervisors for Kings County, Sergeant Tolbert, Senior Deputy Garcia, Senior Deputy Costner, Sergeant Henderson, Captain Vento, Does 1-25, Kings County, the Mayor of Kings County, and Taser International, Inc., as defendants. Plaintiff alleges three claims for relief arising out of the incident of force against him, and seeks damages, a declaratory judgment, and unspecified injunctive relief.
Plaintiff alleges a claim for use of excessive physical force, in violation of the Fourth, Eighth, and Fourteenth Amendments. Because Plaintiff is a pretrial detainee, it is the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment that protects him "from the use of excessive force that amounts to punishment." Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). Force that is unreasonable under the circumstances violates the Constitution. Id.
Plaintiff's allegations are sufficient to state a claim against Defendant Costner, who used the stun gun against Plaintiff. However, Plaintiff has not alleged facts linking Defendant Garcia to an unreasonable use of force against him, and has not linked any other defendant to the incident. Plaintiff's apparent attempt to link other defendants to this claim by vaguely asserting a failure to train is insufficient. There are ...