The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING THE FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM
Plaintiff Harold Walker, a state prisoner proceeding pro se and in forma pauperis, filed a First Amended Complaint, alleging claims pursuant to 42 U.S.C. § 1983, on March 23, 2010. He consented to jurisdiction by a U.S. Magistrate Judge on December 14, 2009. This Court has screened the complaint and dismisses it for failure to state a claim.
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).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 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. Twombly, 550 U.S. at 555.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, Plaintiff must set forth the legal and factual basis for his claim.
Plaintiff was paroled from Kern Valley State Prison on November 26, 2006, following incarceration for a conviction of corporal injury to spouse (California Penal Code § 273.5) and false imprisonment. The victim was his former girlfriend, Kimberly Canada. As conditions of parole, Plaintiff was to have no contact with Canada or her family, participate in and complete a 52-week Batterer's Treatment Program, and complete a drug treatment program. Plaintiff was returned to prison for eleven months on February 20, 2007, for contact with a prohibited person, obstruction of a Peace Officer, and marijuana use. He was again returned to prison on January 4, 2008, for cocaine use and failure to participate in drug treatment, and on June 9, 2008, for failing to report a change of address and failing a drug test. Plaintiff was again released on August 18, 2009.
At approximately 6:00 p.m. on August 29, 2009, Plaintiff arrived at the Executive Suites of Fresno. Because Plaintiff is disabled, Plaintiff's friend Michael Edwards and Edwards's friend, Eddie, helped Plaintiff up the stairs to Edwards's apartment, # 213. Plaintiff contends that he was visiting Edwards's apartment.
Police reports tell a different story. At about 11:47 p.m., after first calling apartment 213, Defendant Arthur Madrid, manager of the Executive Suites apartments, called police and reported Plaintiff to be a suspicious person acting strangely in the complex. Fresno Police Officers L. Leibee and Aranas responded. Madrid reported that he had observed Plaintiff loitering on the grounds and acting suspiciously. When Madrid confronted Plaintiff, Plaintiff was not forthcoming about his presence at the apartments. Eventually, Madrid saw Plaintiff enter the apartment of Michael Edwards, who lived alone.*fn1 When Madrid telephoned Edwards's apartment, someone other than Edwards answered and said that Edwards was not available. When Madrid advised the individual of his intent to call police, the individual replied, "I don't give a fuck."
The officers looked through the apartment's open windows but saw no one. When no one responded to the officers' knocks and announcements, Madrid gave Leibee his pass key, and the officers opened the apartment door. After the officers announced themselves several times, Plaintiff emerged from the living room. No one else was in the apartment. Aranas identified himself and directed Plaintiff to walk toward him. Plaintiff refused and stated that he was staying in the apartment. Aranas informed Plaintiff that he needed to leave the apartment to confirm he was staying there. Plaintiff again refused, and walked into the living room, out of sight. The officers advised Plaintiff that they would not leave until Plaintiff left the apartment. At some point, the officers became alarmed at Plaintiff's erratic behavior and drew their guns.
When Plaintiff finally entered the hallway, the officers directed Plaintiff to drop to his knees. He refused. They then directed him to lie on the ground. He again refused. Aranas then took Plaintiff down to the ground in a single quick motion. When Plaintiff continued to resist, Aranas employed a carotid restraint and took Plaintiff into custody for resisting arrest (California Penal Code § ...