The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT, OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 22) RESPONSE DUE WITHIN 30 DAYS
Plaintiff Clarence Howard ("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 is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at the California Correctional Institution in Tehachapi, California ("CCI-Tehachapi"). Plaintiff is suing under section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments. Plaintiff names A. Calderon (warden), Gradillo (correctional officer), Jones (correctional officer), Bennett (correctional officer), and J. Avila (correctional officer) as defendants. For the reasons set forth below, the Court finds that Plaintiff's first amended complaint states some cognizable claims. Plaintiff will be ordered to either file an amended complaint which cures the deficiencies in his non-cognizable claims, or notify the Court that he wishes to proceed only on the claims found to be cognizable in this 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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the original complaint in this action on June 13, 2005. (Doc. #1.) On May 14, 2009, Plaintiff's original complaint was dismissed with leave to amend because the Court found that it was illegible. (Doc. #17.) Plaintiff filed his first amended complaint on June 22, 2009. (Doc. #22.) This action proceeds on Plaintiff's first amended complaint.
Plaintiff claims that his constitutional rights were violated when prison officials used excessive force against Plaintiff. On April 11, 2003, Defendant Jones approached Plaintiff's cell and ordered Plaintiff to pack up his personal property because he was moving to a new cell. Plaintiff was told that the move was due to racial tensions between Plaintiff and Defendants Bennett and Avila. Plaintiff began packing his belongings and Jones returned approximately 45 minutes later. Jones then ordered Avila to cuff Plaintiff. Avila and Bennett escorted Plaintiff away, but Jones did not follow them. After reaching their destination, Avila ordered Plaintiff to face the wall. Avila then made threatening remarks referencing a verbal confrontation between Plaintiff, Bennett, and Avila that occurred earlier that morning. Avila then made threatening gestures toward Plaintiff, but Plaintiff did not flinch. Avila then struck Plaintiff in the face twice and placed Plaintiff in a choke hold. Bennett grabbed Plaintiff's legs, causing Plaintiff to fall. Avila climbed on top of Plaintiff and struck him repeatedly in the face. Avila and Bennett took turns striking Plaintiff and Bennett later retrieved a billy-club and struck Plaintiff with it. Bennett and Avila then activated the alarm and agreed to report that they had to restrain Plaintiff because he was reaching for a pen to attack the two officers with.
Plaintiff was then placed in a holding cage. Plaintiff was denied medical treatment. Plaintiff was given a rule violation report ("RVR"). Plaintiff complains that Defendant Graillo conducted an investigation and misled higher officials from the truth to cover up the attack by preparing false evidence.
A. Eighth Amendment Claims
Plaintiff claims that Defendants violated his rights under the Eighth Amendment. The Eighth Amendment prohibits the imposition of cruel and unusual punishments and "embodies 'broad and idealistic concepts of dignity, civilized standards, humanity and decency.'" Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). A prison official violates the Eighth Amendment only when two requirements are met: (1) the objective requirement that the deprivation is "sufficiently serious", Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991), and (2) the subjective requirement that the prison official has a "sufficiently culpable state of mind", Id. (quoting Wilson, 501 U.S. at 298). The objective requirement that the deprivation be "sufficiently serious" is met where the prison official's act or omission results in the denial of "the minimal civilized measure of life's necessities". Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The subjective requirement that the prison official has a "sufficiently culpable state of mind" is met where the prison official acts with "deliberate indifference" to inmate health or safety. Id. (quoting Wilson, 501 U.S. at 302-303). A ...