The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS
Findings and Recommendations Following Screening
Plaintiff Anthony Johnson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 21, 2009. On November 13, 2009, the Court screened Plaintiff's complaint and found that it stated cognizable claims against Defendants Gonzalez and Murrieta for use of excessive force in violation of the Eighth Amendment. However, Plaintiff failed to state any viable Fourteenth Amendment claims, and his allegations did not support claims against Defendants Reed, Sumaya or Adams. Plaintiff was ordered either to file an amended complaint curing the deficiencies identified, or notify the Court of his willingness to proceed only against Defendants Gonzalez and Murrieta. On November 25, 2009, Plaintiff filed notice with the Court that he did not wish to file an amended complaint and was willing to proceed only against Defendants Gonzalez and Murrieta. Accordingly, the Court issues the following Findings and Recommendations.
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 (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. at 1949.
Plaintiff, who is currently housed at California State Prison - Corcoran, brings this action for violation of the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiff names Correctional Officer L. Gonzalez, Correctional Officer A. Murrieta, Licensed Vocational Nurse A. Reed, Sergeant H. Sumaya and Warden Derral Adams as defendants.
A. Use of Excessive Force and Failure to Protect
Plaintiff alleges that on June 9, 2008, during an escort to his housing unit from the law library, Defendant Gonzalez instructed Plaintiff to walk faster. When Plaintiff informed Defendant Gonzalez that he could not maintain the pace insisted upon by Defendant, Defendant L. Gonzalez slammed Plaintiff to the ground, causing Plaintiff to hit his head. Once on the ground, Plaintiff was struck by Defendants Gonzalez and Murrieta numerous times before Plaintiff lost consciousness. After regaining consciousness, Plaintiff was escorted to the medical clinic for evaluation and treatment by Defendant Reed.
a. Defendants Gonzalez and Murrieta
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995 (1992) (citations omitted). For claims of excessive physical force, the issue is "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 7. Although de minimis uses of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always violates the Eighth Amendment, regardless of whether or not significant injury is evident. Id. at 9-10; ...