On October 7, 2010, the court dismissed plaintiff's complaint with leave to amend. On October 13, 2010, and on October 20, 2010, plaintiff filed amended complaints. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).
An amended complaint supercedes an earlier filed complaint. Therefore, the court has reviewed plaintiff's October 20, 2010 amended complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable due process claim against defendant Sisson. However, plaintiff's remaining claims must be dismissed for failure to state a claim.
I. Excessive Force Allegations
Plaintiff alleges as follows. Defendant Hull called plaintiff a liar. In response, plaintiff called Hull a liar. Plaintiff then got into a loud argument with another inmate. Hull told them to keep it down. Plaintiff and the other inmate resumed their loud argument. Hull then said "That's enough," and tapped plaintiff on his shoulder. Plaintiff told Hull not to touch him. Plaintiff took a few steps away and then turned back to face Hull. Hull then grabbed plaintiff's arm, pushed plaintiff against the wall, and said "Cuff up." Plaintiff asked, "Cuff up for what?" Hull would not provide an explanation and as a result, they "began struggling." Hull pushed plaintiff against some lockers, and then plaintiff pushed Hull off of him. The force of plaintiff's push caused Hull to fall to the floor. Hull began grabbing at plaintiff, but plaintiff pushed Hull against the wall. Plaintiff then climbed on top of Hull. Hull called for assistance. Plaintiff pressed his arm against Hull's throat and held Hull down until responding staff arrived. Upon arrival, defendant Dillard said to plaintiff, "What are you doing down there, get off of him." Dillard hit plaintiff on the back two times. When plaintiff lifted the left side of his body so that Hull could get up, either defendant Turner or Dillard hit plaintiff two times with a metal baton across the back of his legs. Dillard placed his bent knee on plaintiff's throat. Plaintiff told Dillard he could not breathe and Dillard responded, "I don't give a damn."
As plaintiff is aware, the Eighth Amendment prohibits the infliction of "cruel and unusual punishments," and the "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 319 (1986). In order to state a claim for the use of excessive force in violation of the Eighth Amendment, plaintiff must allege facts that, if proven, would establish that prison officials applied force "maliciously and sadistically to cause harm," rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Plaintiff's allegations fail to suggest that defendants applied force maliciously and sadistically to cause harm. Rather, given plaintiff's allegations of talking back to Hull, disobeying his orders, resisting him, and physically assaulting and pinning him down, the force allegedly applied by defendants appears to have been done in a good-faith effort to maintain or restore discipline. Claims against these defendants are therefore dismissed.
II. Remaining Allegations
Plaintiff's remaining allegations consist of the following. As a result of the incident with Hull, plaintiff was charged with and found guilty of attempted murder of a peace officer. Apparently in connection with the proceedings leading to the determination of guilt, plaintiff claims defendant Cochoran "signed his name upon the CDCR 837" instead of letting defendant Felker sign his name. He claims further that defendant McDonald will not release plaintiff from the security housing unit, and that defendant Drieth stated in a memorandum that plaintiff "makes no allegations of staff misconduct . . . ." Plaintiff also claims that defendant Grannis told him that any further submissions from plaintiff regarding his inmate appeal would be confiscated, that he submitted a complaint for the "Government Claims Program" to defendant Tinetti.
The court finds that these allegations are so vague and conclusory that they fail to state any claim upon which relief could be granted. Accordingly, they too, must be dismissed.
To the extent plaintiff intends to bring a due process claim, the court notes, that the Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In a disciplinary proceeding where a liberty interest is at stake, due process requires that minimum procedural requirements be met, including: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense;(3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Wolff, 418 U.S. at 564-70.
Additionally, plaintiff may not impose liability on defendants simply because they played a role in processing plaintiff's inmate appeals, as there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner's claimed loss of a liberty interest in the processing of his appeals does not violate due process because prisoners lack a separate constitutional entitlement to a specific prison grievance system).
Plaintiff may proceed forthwith to serve defendant Sisson and pursue his due process claim or he may delay serving Sisson and attempt to state a cognizable claim against defendants Hull, Dillard, Turner, Cochoran, Felker, McDonald, Drieth, Grannis or Tinetti.
If plaintiff elects to attempt to amend his complaint to state a cognizable claim against defendants Hull, Dillard, Turner, Cochoran, Felker, McDonald, Drieth, Grannis or Tinetti, he has 30 days so to do. He is not obligated to amend his complaint. However, if plaintiff elects to proceed forthwith against defendant Sisson, against whom he has stated a cognizable due process claim, then within 30 days he must return materials for service of process enclosed herewith. In this event the court will construe plaintiff's election as consent to ...