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Shepard v. Cohen

February 24, 2010

LAMONT SHEPARD, PLAINTIFF,
v.
DR. COHEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE DUE PROCESS CLAIM THIRTY-DAY DEADLINE

(Doc. 1)

Screening Order

I. Screening Requirement

Plaintiff Lamont Shepard, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 15, 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 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusion are not. Iqbal, 129 S.Ct. at 1949.

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal at 1949-50; Moss at 969.

II. Plaintiff's Claims

Plaintiff, who is incarcerated at the California State Prison-Corcoran, alleges that on December 13, 2008, he walked to the Acute Care Hospital at the prison. Upon his arrival and on the order of Defendant Cohen, Defendant Lopez grabbed Plaintiff by the right arm and Defendant Campbell grabbed Plaintiff by the left arm, and they forced him down on a gurney, face first. Defendants Lopez and Campbell held Plaintiff down on the gurney through use of their weight, and Defendant Dean grabbed and held Plaitniff's head down. Defendant Jane Doe then injected Plaintiff with ten milligrams of Haldol on the order of Defendant Cohen.

Plaintiff alleges claims for violation of the Due Process Clause of the Fourteenth Amendment, use of excessive physical force in violation of the Eighth Amendment, and assault and battery under California law.

A. Due Process Claim

Prisoners have a substantial liberty interest, grounded in the Due Process Clause, in avoiding the involuntary administration of antipsychotic medication. Washington v. Harper, 494 U.S. 210, 229 (1990). Accordingly, Plaintiff's allegation that Defendant Cohen ordered Defendants Lopez, Campbell, and Dean to hold Plaintiff down, and ordered Defendant Jane Doe to administer a shot of ...


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