The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE SECOND AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 22)
Plaintiff Monte Haney ("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 this action on July 5, 2007. The Court dismissed Plaintiff's complaint with leave to amend on June 30, 2008. Plaintiff filed his amended complaint on July 16, 2008.
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)(2). "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)).
Plaintiff alleges that on December 14, 2006, he was handcuffed, removed from his cell, and beaten by Defendants Oaks and Silva. Plaintiff alleges that he was injured and still bears scars from the attack. Plaintiff alleges that the attack was retaliatory after he had an altercation with a Hispanic inmate.
Plaintiff alleges that he was moved to another cell after the beating by Defendants Oaks and Silva, where Defendants Botello, Rickman, Oliver, and Torres deprived him of outdoor exercise from December 15, 2006, to March 15, 2007. Plaintiff alleges that Defendants Botello, Rickman, Oliver, and Torres allowed white and Hispanic prisoners outdoor exercise, but denied outdoor exercise to African American prisoners, including Plaintiff. Plaintiff informed Defendant Sergeant Cano that Defendants Botello, Rickman, Oliver, and Torres were denying him outdoor exercise but Defendant Cano failed to take any action.
Plaintiff alleges violations of the Eighth and the Fourteenth Amendments by Defendants Oaks, Silva, Botello, Rickman, Oliver, Torres, and Cano, and seeks damages, injunctive relief, and a declaratory judgment.*fn1
Plaintiff alleges that he was assaulted by Defendants Oaks and Silva on December 14, 2006, in violation of the Eighth Amendment. Defendants Oaks knocked Plaintiff against a wall and steel bars, causing Plaintiff a bleeding mouth. Defendant Silva then slammed Plaintiff's face against a wall, then threw him on the ground and slammed Plaintiff's face into the floor several times. Defendant Oaks kicked and punched Plaintiff while his hands were handcuffed behind his back.
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). When a prison security measure is undertaken in response to an incident, the question of whether the measures taken inflicted unnecessary and wanton pain and suffering depends on "whether force was applied in a good faith effort to ...