The opinion of the court was delivered by: Helen Gillmor United States District Judge
ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND
Plaintiff Lee Peyton filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. He alleges that while incarcerated at High Desert State Prison, Defendant prison officials used excessive force against him, denied him adequate medical care, prohibited him from presenting witnesses at disciplinary hearings, and retaliated against him for filing complaints and practicing his religion.
Plaintiff's First Amended Complaint is DISMISSED for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1), with leave to amend.
STATUTORY SCREENING OF THE COMPLAINT
Federal district courts are required to screen cases in which prisoners seek redress from a governmental entity or its officers or employees. 28 U.S.C. § 1915A(a). The court must dismiss the complaint if the plaintiff raises claims that are legally frivolous or malicious, that fail to state a claim on 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) and (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A claim fails to state a claim on which relief may be granted if it appears that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, Inc., 651 F.2d 1289, 1294 (9th Cir. 1981).
During screening, the court must accept as true the allegations of the complaint, Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003) (the court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt). The court is not required to accept as true, however, the plaintiff's conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
If the court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Dep't. of Corr., 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant on how to cure the defects. Such advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); Lopez, 203 F.3d at 1131 n.13.
To sustain an action under section 1983, a plaintiff must show: "(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right." Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted); West v. Atkins, 487 U.S. 42, 48 (1988). Mere allegations that a right secured by a state law has been violated do not satisfy the first element of a claim under § 1983. Lovell v. Poway Unified School District, 90 F.3d 367, 370-71 (9th Cir. 1996).
A. Plaintiff's Eighth Amendment Claims Are Dismissed, With Leave To Amend
Plaintiff alleges that Defendants Gullion, Flores, Koenig, Beaumiller, and Punt violated his rights under the Eighth Amendment to the United States Constitution. (First Amended Complaint at ¶¶ 1-3, Doc. 19.)
1. Plaintiff's Eighth Amendment Excessive Force Claims
An officer's use of excessive force violates the Eighth Amendment only when the inmate is subjected to the "unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). To decide whether force inflicts "unnecessary and wanton" pain, courts must determine "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 6-7. "The Eighth Amendment's prohibition of 'cruel and unusual' punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'" Id. at 9-10 (internal citations omitted).
A prison official may also violate the Eighth Amendment by failing to intervene when fellow officers use excessive force. Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (internal citations omitted).
a. Plaintiff's Eighth Amendment excessive force claims against Defendants Gullion, Beaumiller, and Koenig are dismissed, with leave to amend
Plaintiff alleges that on November 11, 2006, while being escorted between cells, Defendant Gullion placed Plaintiff in restraints, which cut off his blood circulation. (First Amended Complaint at ¶ 1.) Plaintiff also alleges that Defendants Beaumiller and Koenig witnessed Defendant Gullion's actions but failed to intervene. (Id.)
Plaintiff fails to allege sufficient facts to state an Eighth Amendment claim for excessive force. He does not describe the extent of the injury suffered, besides the temporary cutting off of blood circulation, and he does not allege that being placed in restraints was unnecessary to maintain discipline. He also fails to allege that Defendants Beaumiller and Koenig, as witnesses, were aware of his pain or that any of the three Defendants acted maliciously or ...