The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
SCREENING ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS FROM AMENDED COMPLAINT, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE TO INITIATE SERVICE OF PROCESS
Plaintiff Rodney Graves-Bey, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 5, 2008. On February 17, 2009, the Court dismissed Plaintiff 's complaint, with leave to amend, for failure to state any claims. Plaintiff filed an amended complaint on May 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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
A. Summary of Plaintiff's Amended Complaint
Plaintiff, who is currently housed at California State Prison-Los Angeles County, brings this action against prison officials based on events which occurred while he was housed at Kern Valley State Prison. Plaintiff names Warden A. Hedgepeth; Correctional Officers M. Spry, A. Wesselman, J. Castillo, and K. Matheny; Lieutenant B. Teasdale; and Sergeants Flippo and D. Wattrel as defendants, and is seeking money damages and injunctive relief for the violation of his rights under the United States Constitution.
Plaintiff alleges that in March 2008, in retaliation against him for writing up Defendant Wesselman, Defendant Spry closed the cell door on Plaintiff's face, violating his right to be free from the use of excessive force. Following the incident, Defendant Wesselman wrote a false report to cover up the incident.
Plaintiff and the inmate who was his cellmate at Kern Valley State Prison are homosexual, and Plaintiff alleges that Defendant Castillo called them "freak-hate names for homosexuals," and then began to steal his personal and legal mail, destroying it to keep Plaintiff from reporting him. (Doc. 33, Amend. Comp., § IV.) Plaintiff alleges that Defendant Wesselman also began to steal his personal and legal mail, destroying it to keep Plaintiff from reporting her abusive treatment of him.
Plaintiff alleges that Defendants Flippo, Teasdale, and Wattrel wrote false reports to cover up the fact that his chin bone was closed in the cell door by Defendant Spry, and were "behind" many of the forms of retaliation taken against Plaintiff. (Id.) Plaintiff alleges that Defendant Matheny verbally abused him every day, made him live in a cell with human waste and a broken toilet for four days, sought to create conflict between Plaintiff and inmates of other races, stole his legal books, and was "behind" having other officers discriminate against Plaintiff based on his homosexuality. (Id.)
B. Claims Arising Out of Incident of Force
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, 112 S.Ct. 995 (1992) (citations omitted). For claims of excessive physical force, the issue is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force . . . ." Id. at 9-10 ...