The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS
Order Following Screening
Plaintiff James Cole ("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 his complaint on March 13, 2009. (Doc. 1.) The Court screened Plaintiff's complaint on July 22, 2009 and found that it stated cognizable claims against Defendants Munoz, Dicks, Rocha, and Blasdell for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment, but failed to state any other cognizable claims. The Court ordered Plaintiff to either file an amended complaint curing the deficiencies identified or notify the Court of his willingness to proceed only against Defendants Munoz, Dicks, Rocha, and Blasdell. On August 3, 2009, Plaintiff notified the Court that he was willing to proceed only against Defendants Munoz, Dicks, Rocha, and Blasdell for his excessive force and retaliation claims. Accordingly, the Court issues the following order.
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 Atl. 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 conclusions are not. Id.
B. Summary of Plaintiff's Complaint
Plaintiff is currently a state prisoner at Corcoran State Prison ("CSP") in Corcoran, California, where the acts he complains of occurred. Plaintiff names the following defendants: Lt. Munoz, Sgt. Dicks, C/O Rocha, C/O Blasdell, CC II J. Jones, CC II Cano, and CC II Hicumbontom. (Doc. 1, Pl.'s Compl. 1.)
Plaintiff alleges the following. On September 30, 2007, Defendants Rocha and Blasdell asked Plaintiff if he wished to attend a 602 inmate appeal interview. Plaintiff agreed and was cuffed and escorted out of his cell. Plaintiff was then told he had to put on a spit mask because he was attending a 115 disciplinary hearing instead. Plaintiff at this point stated his refusal to attend and asked to be returned to his cell. Defendants Lt. Munoz and Sgt. Dicks were then summoned. Lt. Munoz slammed the spit mask onto Plaintiff's head. Munoz then ordered Rocha and Blasdell to slam Plaintiff to the ground in order to apply shackles to Plaintiff's ankles. Rocha and Blasdell first slammed Plaintiff into a wall, then to the ground. While Plaintiff was on the ground, Rocha put a knee into Plaintiff's lower back and Blasdell put a knee at the side of Plaintiff's head and both then punched Plaintiff in his ribs and upper body hard. Lt. Munoz then asked Plaintiff if he had enough. Plaintiff again asked to be returned to his cell, but was taken to the office instead. (Pl.'s Compl. 3-4.)
Sgt. Dicks had filed a false disciplinary report against Plaintiff alleging he had assaulted Dicks. Plaintiff filed a 602 inmate appeal alleging that Dicks failed to provide Plaintiff with witnesses to interview in preparation for the disciplinary hearing. Sgt. Dicks and Munoz conspired to trick Plaintiff out of his cell, and then arranged to use excessive force on Plaintiff in retaliation for his filing of the 602 inmate appeal. (Pl.'s Comp. 4-5.)
Plaintiff was obstructed from exhausting his administrative remedies by J. Jones, L. Cano, and Hincumbontom by continuously refusing over 8 months to locate Plaintiff's inmate appeal despite Plaintiff's numerous requests as to its location. (Pl.'s Compl. 6.)
Plaintiff requests as relief monetary damages and expungement of ...