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 CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this Court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
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 section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). 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. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Plaintiff is currently housed at Salinas Valley State Prison in Soledad. The events giving rise to the claims at issue in this action occurred at Kern Valley State Prison, where Plaintiff was housed at the time of the events complained of. Plaintiff names as defendants Jose L. Gonzalez, a correctional officer (C/O) at Kern Valley State Prison, and Does 1-10.
Plaintiff alleges that on March 18, 2009, an alarm was activated on the Facility B exercise yard, where Plaintiff was located. The alarm was activated in response to "an alleged melee" that occurred on the yard. The inmates on the yard, including Plaintiff, were ordered to immediately lie on the ground in a prone position. (Compl. ¶ 7.) Plaintiff "remained in the same position in absolute compliance with the officers orders." (Compl. ¶ 9.)
Plaintiff alleges that he immediately complied, and was on the ground in a prone position, with his arms "extended open." (Compl. ¶ 8.) Plaintiff alleges that "approximately thirty or more seconds seemed to have passed," when Defendant C/O Gonzalez "aimed and fired his weapon, to wit, assault rifle (mini-14) upon Plaintiff." (Compl. ¶ 10.) Plaintiff alleges that C/O Gonzalez fired approximately five rounds in short succession. Most of the rounds struck the ground "just inches" from Plaintiff's head. One of the rounds struck Plaintiff's left arm, "and nearly severed it." (Compl. ¶ 11.)
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; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)).
Plaintiff's allegations describing the incident of physical force on March 18, 2009, liberally construed, are sufficient to give rise to a claim for relief against Defendant ...