The opinion of the court was delivered by: Sandra M. Snyder icido3 United States Magistrate Judge
ORDER STRIKING PROPOSED THIRD AMENDED COMPLAINT, AND REQUIRING PLAINTIFF TO EITHER FILE THIRD AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON EXCESSIVE FORCE CLAIM (Docs. 31 and 32)
Plaintiff Leroy Dewitt Hunter, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 3, 2007. On November 15, 2010, the Court issued an order granting Plaintiff one final extension of time to file a second amended complaint. Plaintiff filed his second amended complaint on December 16, 2010.
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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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) (emphasis added). 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
II. Plaintiff's Second Amended Complaint
Plaintiff, who is currently incarcerated at Kern Valley State Prison, brings this action against Kern County Sheriff's Deputy Parker for violating Plaintiff's constitutional rights while he was detained at the Kern County Lerdo Pretrial Facility in Bakersfield, California. Plaintiff alleges that on June 13, 2007, Defendant Parker used excessive physical force against him and discriminated against him. Plaintiff seeks damages for the violation of his rights.
Plaintiff, presumably a pretrial detainee at the relevant time, alleges that Defendant Parker threatened Plaintiff and then pushed Plaintiff's wheelchair into a wall as hard as he could, causing Plaintiff injuries as he tried to slow or stop the chair with his hands and feet.
The Due Process Clause of the Fourteenth Amendment protects pretrial detainees from the use of excessive force that amounts to punishment. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)) (quotations omitted). Under the Fourth Amendment, which sets the applicable constitutional limitations for excessive force claims against pretrial detainees, Gibson, 290 F.3d at 1197, the issue is whether the defendant's actions were objectively reasonable in light of the facts and circumstances confronting him at the time, without regard to the underlying intent or motivation, Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003) (quoting Graham, 490 U.S. at 397) (quotations omitted).
Because the inquiry is fact specific and requires the Court to balance the intrusion complained of with the government's interests, Lolli, 351 F.3d at 415-16, Plaintiff's allegation that force was used against him and he was injured as a result is sufficient at the pleading ...