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Bogue v. Wiegel

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 2, 2009

STEVEN V. BOGUE, PLAINTIFF,
v.
M. WIEGEL, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's second amended complaint filed May 6, 2009. For the following reasons, the second amended complaint is dismissed.

The only named defendant is Officer Wiegel. Plaintiff alleges that on January 22, 2008, he and inmate Karelas got into a fight on the yard. Defendant Wiegal fired two shots from his launcher that hit plaintiff on his right shoulder and the back of his head. Plaintiff alleges that he lost about two pints of blood as a result of being shot.

On May 6, 2009, plaintiff separately filed, apparently in support of the second amended complaint, a copy of the incident report prepared by prison officials regarding his shooting. The incident report states that defendant Wiegal shot plaintiff after he (plaintiff) was seen battering inmate Karelas. According to the report, plaintiff was seen hovering over Karelas "wildly punching" him. At that time, defendant Wiegal fired at plaintiff.

In order to state an Eighth Amendment claim for excessive use of force, plaintiff must allege facts demonstrating that force was not applied in a good faith effort to maintain or restore discipline, but maliciously and sadistically to cause harm. Hudson v. McMillan, 503 U.S. 1, 7, 112 S.Ct. 995 (1992).

The second amended complaint contains no allegations demonstrating that defendant Wiegal acted maliciously and sadistically to cause him harm when he fired at him. The incident report indicates that defendant Wiegal fired at plaintiff in a good faith effort to restore discipline. For these reasons, the court cannot find that plaintiff has stated a colorable Eighth Amendment claim against defendant Wiegal. Plaintiff is granted one final opportunity to clarify his claims.

Accordingly, IT IS HEREBY ORDERED that:

1. The second amended complaint filed May 6, 2009, is dismissed with thirty days to file a third amended complaint; failure to comply with this order will result in a recommendation of dismissal of this action;

2. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint.

20090602

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