The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF CERTAIN CLAIMS WITHOUT LEAVE TO AMEND ORDER GRANTING PLAINTIFF LEAVE TO AMEND CERTAIN CLAIMS
Plaintiff Billy Phelps ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 2, 2009. He names Christain Ramos, M. Sotelo and David Lomeli, Fresno police officers, as Defendants. His complaint arises out of an incident on November 18, 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); 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).
B. Failure to State a Claim
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 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).
According to the complaint, Plaintiff alleges that on November 18, 2008, he arrived at the Family Express Mini Market located in Fresno, California. On his way to enter the store, several police cars surrounded the car that he had just exited. The car was occupied by two passengers. As the officers approached Plaintiff, he heard one of them say "get that n****er." Plaintiff feared for his safety and tried to flee. As he ran, Plaintiff "felt hard objects" striking him in the upper back and shoulder area. His momentum kept him "on the move," crossing the intersection, knocking him to the ground in the middle of the street and causing him to get hit by a passing vehicle. Plaintiff alleges that he stumbled off the car and continued to flee. At that time, the whole left side of his body locked up. He was paralyzed as he fell to the ground. Plaintiff then was arrested and it was brought to his attention that he had been shot in the lower back. He was taken to Community Regional Medical Center and underwent two major surgeries during a seven-day period.
Plaintiff alleges that Fresno Police Department officials arranged a cover-up to justify Defendant Ramos' unreasonable use of his department issue bretta (sic) handgun and filed false reports. Plaintiff further alleges that Officers Lomeli, Ramos and Sotelo worked in concert to cover up true facts "of case #08-097906."
Plaintiff asserts three claims: (1) deliberate indifference and cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution; (2) violation of due process and equal protection in violation of the Fourteenth Amendment to the United States Constitution; and (3) fabrication of legal documents for purposes of malicious prosecution in violation of California Penal Code §§ 118.1, 133 and 134. Plaintiff seeks compensatory and exemplary damages.
D. Discussion 1. Eighth Amendment Claim
Plaintiff alleges that Defendant Officer Ramos' actions were unjustified and penologically unnecessary. He claims a violation of the Eighth Amendment for cruel and unusual punishment. The Eighth Amendment prohibits excessive bail, fines or cruel and unusual punishment. Such protections were designed to protect those convicted of crimes. Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979); Ingraham v. Wright, 430 U.S. 651, 664 (1977). Based on Plaintiff's allegations, there is no indication that he was entitled to Eighth Amendment protections at the time of the incident. Because Plaintiff was not a convicted prisoner at the time, the Fourth Amendment rather than the Eighth Amendment protects Plaintiff from the use of excessive force. See Graham v. Connor, 490 U.S. 386, 394 (1989) (Fourth and Eighth Amendment "primary sources of constitutional protection against physically abusive governmental conduct"; where excessive force claim arises in the context of effecting arrest it is properly characterized as invoking the protections of the Fourth Amendment). Although ...