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Eugene Jones, Iii v. J. Walker; (Warden)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 1, 2010

EUGENE JONES, III, PLAINTIFF,
v.
J. WALKER; (WARDEN), ET AL., J. LEBECK, CORRECTIONAL OFFICER, K. SPITZER; CORRECTIONAL OFFICER KL.WOOTEN; CORRECTIONAL OFFICER; CADET RAMOS, DEFENDANTS.

The opinion of the court was delivered by: Robert H. Whaley United States District Judge

ORDER DIRECTING SERVICE

On October 24, 2008, Plaintiff, a California state inmate, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff contends that his civil rights were violated when Defendant Lebeck sprayed him with pepper spray. Plaintiff is seeking over $35 million dollars in damages. Plaintiff has also filed an application to proceed in forma pauperis, which is granted in a separate order filed simultaneously.

PRELIMINARY REVIEW

Pursuant to 28 U.S.C. § 1915(A), this court must conduct a preliminary review of the complaint to identify any cognizable claims, and to dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915(A)(b)(1),(2).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a violation of a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. In his complaint, Plaintiff alleged claims of excessive force, racial discrimination, harassment, assault, and reckless endangerment of human life.

The underlying conduct at the heart of Plaintiff's claims is the unprovoked use of pepper spray. According to Plaintiff, Defendant Lebeck pepper-sprayed him, notwithstanding the fact that he was sitting at a table in the dayroom and did nothing to provoke the attack. The Court finds Plaintiff's allegations, when liberally construed, state a cognizable claim that Defendant Lebeck violated his constitutional rights. See Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (stating that in order to establish a claim for excessive force as the result of the use of pepper spray, inmates must show that the officials applied the pepper spray maliciously and sadistically for the very purpose of causing harm). Additionally, the Court finds Plaintiff's allegations that Defendant Lebeck used the pepper spray because he and his cellmate are African-American, when liberally construed, states a cognizable Equal Protection claim.

Plaintiff also names as Defendants J. Walker (Warden), K. Spitzer, R. Wooten, and Cadet Ramos. Plaintiff does not allege that these Defendants sprayed pepper spray or used excessive force, or committed any other act against Defendant other than to participate in the search. To state a claim under § 1983, a plaintiff must set forth specific facts as to each individual defendant's conduct that proximately caused a violation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Moreover, Plaintiff's inclusion of the Warden as a Defendant based on a respondeat superior theory is insufficient to state a § 1983 claim. See Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). Accordingly, the claims against these Defendants will be dismissed.

Accordingly, IT IS HEREBY ORDERED:

1. Plaintiff has failed to state a cognizable claim for relief against Defendants J. Walker, K. Spitzer, R. Wooten, and Cadet Ramos, and the claims against these Defendants are DISMISSED. The Clerk shall terminate these Defendants from this action. Service is appropriate for J. Lebeck, at New Folsom State Prison, in Represa, California.

2. The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one summons, an instruction sheet and a copy of the complaint.

3. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the Court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. The completed USM-285 form for Defendant J. Lebeck; and

d. Two (2) copies of the endorsed complaint.

4. Plaintiff need not attempt service on Defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal Service to serve the above-named Defendants pursuant to Federal Rules of Civil Procedure 4 without payment of costs.

5. The Clerk of the Court shall also mail a courtesy copy of the complaint, all attachments thereto, and this order to the California Attorney General's Office and serve a copy of this order on Plaintiff.

6. All communications by the Plaintiff with the Court must be served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel.

7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery.

8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

s/Robert H. Whaley

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

EUGENE JONES, III, Plaintiff, No. CIV

v. J. WALKER; (WARDEN), et al., J. NOTICE OF SUBMISSION LEBECK, CORRECTIONAL OF DOCUMENTS OFFICER, K. SPITZER; CORRECTIONAL OFFICER KL.WOOTEN; CORRECTIONAL OFFICER; CADET RAMOS, Defendants.

Plaintiff hereby submits the following documents in compliance with the court's order filed completed summons form completed USM-285 forms copies of the Complaint/Amended Complaint

DATED:

Plaintiff

20101201

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