ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE THIRTY-DAY DEADLINE (ECF. No. 1) A CLAIM
Plaintiff Michael John McGlothin ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the Court is the complaint filed, February 16, 2010. (ECF No. 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 California Department of Corrections and Rehabilitation and is housed at Kern Valley State Prison. He brings this action against Defendants Sgt. Steen, Correctional Officers J. Torres and M. Capello, Lt. Castro, Lt. Garza, and Sgt. Jose for excessive force and cruel and unusual punishment and is seeking compensatory and punitive damages. (Compl. 3, ECF No. 1.)
On May 12, 2009, Plaintiff was preparing to be transported to an outside medical appointment. He was placed in the holding tank and told to change into the transportation clothing. (Id.) As Plaintiff removed his right sock an item fell out, which he alleges was a small piece of rolled up plastic about the size of the tip of his little fingernail. Plaintiff immediately picked the item up and Defendant Capello asked what it was. Plaintiff replied that it was his medication. Defendant Capello told Plaintiff to give the item to him, but Plaintiff swallowed it. (Id. at p. 4.)
Defendant Capello then rushed over to Plaintiff, grabbed him by the arm, and slammed his knee into Plaintiff's back. Plaintiff alleges that he was already on the ground so there was no need for Defendant Capello "to panic in the unprofessional way" that the matter was handled. Additionally, Defendant Capello knew that Plaintiff walked with a cane and takes pain medication for back pain. Plaintiff was handcuffed and placed into the holding cage. (Id.)
Defendant Steen made the decision to take Plaintiff to the facility program office so they could decide what to do with him. Defendant J. Torres cuffed Plaintiff with leg irons. Plaintiff requested that he be allowed to at least put on his socks as he was in his underwear. Defendants Torres and Steen denied the request. Plaintiff had to walk fifty to seventy feet on the "nasty and filthy ground" in his bare feet. (Id. at 5.) As Plaintiff walked the leg irons were hurting his ankle bones and digging into his flesh. (Id.)
Plaintiff was placed in the cage and told that he would be put on "potty watch." The cage was about two and one half feet by three feet and Plaintiff had to stand for four hours with the leg irons digging into his bare ankles. Defendants Torres and Steen forced Plaintiff to put a pair of "filthy, smelly black canv[a]s mitts" on his bare hands and wrist. (Id. at 6.) Plaintiff broke out in sores and developed an infection from having to wear the canvas mitts. The mitts are required while an inmate is on "potty watch." (Id.)
While on "potty watch" Plaintiff had to sleep on a mattress on the asphalt, which was removed at approximately 6:00 in the morning. Plaintiff had to lay on the ground until the mattress was returned at approximately 9:00 in the evening. The mitts Plaintiff was required to wear had human waste on them, he was unable to brush his teeth or bathe for three days. (Id. at 7.)
III. Eighth Amendment ...