ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS THIRTY-DAY DEADLINE (Doc. 1)
Plaintiff Eldred Nicholson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the Court is the complaint, filed June 30, 2009. (Doc. 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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
Plaintiff is in the custody of the Department of Corrections and Rehabilitation ('CDCR") and is currently housed at California State Prison, Sacramento. Plaintiff alleges that correctional officers at Corcoran set up fights for their own entertainment and Defendants Adams, R. Davis, Gadsen, and M. Mason who manage and supervise the employees, are aware that Corcoran has the "well known and publicized label ('gladiator school')."*fn1 (Doc. 1, ¶¶ 13-17.)
On November 8, 2007, while housed at Corcoran State Prison, Plaintiff was approached by staff and "told to get ready for yard." (Id., ¶ 20.) Defendants E. De Landa, S. Escamilla, and A. L. Davis were responsible for searching the inmates for weapons and contraband before they entered the yard. (Id., ¶ 18.) A correctional officer conducted a strip search of Plaintiff and he went to the yard. (Id., ¶¶ 20, 21.) As Plaintiff walked into the yard, inmate Howard attacked him from behind. (Id., ¶ 22.) While Plaintiff was being attacked, Defendant Lomeli, the yard observation officer, allegedly just sat and watched. (Id., ¶¶ 26, 30.)
Defendant Lomeli fired her 40 mm launcher and hit Plaintiff in the back of the head. (Id., ¶26.) Plaintiff sustained a broken jaw and was knocked unconscious from the attack. His head was split open from being hit by the shot fired by Defendant Lomeli. (Id., ¶ 27.) Plaintiff was told by medical staff that the injury to his chin was caused by a weapon that was confiscated. The weapon was never logged or documented. (Id., ¶ 28.) On November 8, 2007, Defendant Adame was the official responsible for collecting, logging, and processing all evidence. (Id., ¶ 29.)
Plaintiff alleges that inmate Howard was moved from an upper tier cell to a lower tier cell "assuring that [inmate Howard] would have access to the yard before [Plaintiff]." (Id., ¶ 24.) There were other open cells that inmate Howard could have been housed in. (Id., ¶ 25.) Plaintiff brings suit against Defendants Director of CDCR Matthew Cate, Warden Derral Adams, Capt. R. Davis, Lt. H. Q. Gadsen, Sgt. M. Mason, Correctional Officers R. Adame, E. De Landa, S. Escamilla, Lomeli, and H. L. Davis, in their individual and official capacities, for use of excessive force and cruel and unusual punishment in violation of the Eighth Amendment and due process violations. He is seeking compensatory and punitive damages. (Id., ¶¶ 39, 40.) Additionally Plaintiff states that he desires declaratory and injunctive relief, but does not state what relief he requests. (Id., ¶ 37.)
A. Eighth Amendment Claims
1. Cruel and Unusual Punishment
Liability under section 1983 exists where a defendant "acting under the color of law" has deprived the plaintiff "of a right secured by the Constitution or laws of the United States." Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). To prove a violation of the Eighth Amendment the plaintiff must "objectively show that he was deprived of something 'sufficiently serious,' and make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires a showing that "prison officials were aware of a "substantial risk of serious harm" to an ...