The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO FILE A SECOND AMENDED COMPLAINT (Doc. 8)
AMENDED COMPLAINT DUE IN 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). This action proceeds on the December 27, 2010, first amended complaint, filed in response to the November 24, 2010, order dismissing the original complaint and granting leave to file an amended complaint.
Plaintiff is currently housed at Salinas Valley State Prison in Soledad. The events giving rise to the claim at issue in this action occurred at Kern Valley State Prison, where Plaintiff was housed at the time of the events complained of. Plaintiff originally named 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 (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)).
In the November 24, 2010, order, the Court noted that Plaintiff's complaint stated a claim for relief under the Eighth Amendment Defendant Gonzalez for use of excessive physical force. Plaintiff was advised that he failed to state a claim against the Doe defendants. Plaintiff was provided an opportunity to file an amended complaint that corrected the deficiencies identified in the original complaint.
In the December 27, 2010, first amended complaint, Plaintiff adds two defendants:
Lieutenant Whitehead and Sergeant Gomez. The only conduct charged to Defendant Whitehead is that "J. Whitehead responded to incident commander at Facility B Upper Yard at Kern Valley State Prison on March 18, 2009 around 3:22 hours." (Am. Compl. ¶ IV.) Plaintiff asserts similar allegations as to Defendant Gomez. Plaintiff alleges that Gomez responded to the incident. Id. Though Plaintiff names ...