The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF'S EIGHTH AMENDMENT CLAIM AND THAT PLAINTIFF'S SUPERVISORY LIABILITY CLAIM BE DISMISSED
Findings and Recommendations Following Screening of Plaintiff's Complaint
Plaintiff Ess'nn A. Aubert is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 7, 2009, this Court issued a screening order finding that Plaintiff's complaint stated Eighth Amendment claims against Defendants Kevin Elijah and Mario Garcia for use of excessive force but did not state any other cognizable claims for relief (Doc. 10). Plaintiff was ordered either to file an complaint or to notify the Court of his willingness to proceed only on the claims found to be cognizable by the Court.
On May 14, 2009, Plaintiff notified the Court that he is willing to proceed only on his cognizable claims against Defendants Elijah and Garcia (Doc. 11). Based on Plaintiff's notice, this Findings and Recommendations now issues.
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, supra, 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))). However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitzke 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).
Plaintiff's complaint arises from a routine body search conducted as Plaintiff returned from the exercise unit to his assigned housing at Kern Valley State Prison, where he still resides. After searching Plaintiff, Defendant Garcia confiscated Plaintiff's state-issued boxer shorts. When Plaintiff requested justification, Garcia replied, "I have the power to." Plaintiff and Garcia then engaged in a brief verbal interchange, ending with several guards, including Defendants Garcia and Elijah, isolating Plaintiff in the rotunda in front of the B section day room. There, Garcia verbally attacked Plaintiff, calling Plaintiff's mother a "bitch" and a "whore," and crudely describing an act of sodomy that he would perform on her. After Plaintiff responded that he loved his mother, who would be proud of him for maintaining his self-control despite the attempt to provoke him, Elijah ordered Garcia to "just kick his ass and do what you want with him so I can kick him out of my building with his smart ass mouth." Plaintiff requested a Lieutenant be called, protesting that Elijah's order endangered his life. Elijah then began to choke Plaintiff, initiating a beating by Elijah, Garcia and other unnamed correctional officers.
B. Eighth Amendment Claim - Excessive Force
Plaintiff claims that Correctional Officers Elijah and Garcia's beating deprived him of his Eighth Amendment right to be free of cruel and unusual punishment. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue...." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is... contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates ...