The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
OBJECTIONS DUE APRIL 20, 2011 ALL CLAIMS EXCEPT PLAINTIFF'S
EXCESSIVE FORCE CLAIM AGAINST DEFENDANT GONZALES BE
DISMISSED WITH PREJUDICE FINDINGS AND RECOMMENDATION THAT
(ECF No. 55)
Plaintiff Jesse T. Moten ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 11, 2010, the Court dismissed Plaintiff's First Amended Complaint for failure to state a claim upon which relief could be granted. (ECF No. 46.) Plaintiff filed his Second Amended Complaint on March 11, 2011. (ECF No. 55.) Plaintiff's Second Amended Complaint is now before the Court for screening.
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). Though Plaintiff has filed five complaints in this action, none of those have been substantively screened by the Court.
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, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
A. Plaintiff's Excessive Force Claim
In its prior Screening Order, the Court dismissed Plaintiff's excessive force claim for failure to state a claim. (ECF No. 46.) Plaintiff moved to reconsider the ruling and, in denying the Motion to Reconsider, the District Judge noted that Plaintiff appeared likely to have a claim for excessive force in violation of the Eighth Amendment, but that he needed to state additional facts concerning the events prior to the use of force. (ECF No. 52 at 3.)
In his Second Amended Complaint, Plaintiff has included additional facts about the disputed incident. Plaintiff alleges that he was exiting the dining hall on March 2, 2006 when Defendant J. Gonzales conducted a routine pat-down. Plaintiff and Gonzales had "an exchange of words" after which Gonzales told Plaintiff to "shut-up", became agitated and aggressive, and slammed Plaintiff's head and body to the ground. (Pl.'s Second Am. Compl. (ECF No. 55) p. 3-1.) Plaintiff alleges that he did not strike or attempt to strike Gonzales or any other officers; instead, he remained in a "secured search position" during the entire incident. (Id.)
As pled, it appears that the force used by J. Gonzales was more than de minimis and was not exerted in a good faith effort to maintain discipline. Thus, the Court finds that Plaintiff has stated a claim for excessive force against Defendant Gonzales.
Plaintiff also brings excessive force claims against Defendants A. Bowman, T. Cogdil, and D. Valtiera. Plaintiff alleges that, after he was assaulted and placed in a holding cell, Cogdil verbally threatened to "spray" him and beat him up. (Pl.'s Second Am. Compl. at 3-2.) Verbal harassment or threats alone do not rise to the level of an Eighth Amendment violation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Plaintiff fails to attribute any physical acts of force to Cogdil, Bowman, or Valtiera. As such, he has failed to state facts showing that they violated his constitutional rights.
Because Plaintiff was previously notified of the deficiencies in his claim and the appropriate legal standard and failed to amend his complaint to correct the deficiencies, the Court finds that further leave to amend is not warranted. The Court recommends that Plaintiff's excessive force claims against A. Bowman, T. Cogdil, and D. Valtieira be dismissed with prejudice.
B. Other Claims in Plaintiff's Second Amended Complaint
Plaintiff's First Amended Complaint was a sixteen page time line of disjointed events. (ECF No. 39.) In its prior Screening Order, the Court attempted to parse all of the allegations and discern the constitutional violations Plaintiff was asserting or potentially could assert. The Court construed Plaintiff's allegations as asserting claims for: (1) excessive force, (2) denial of medical care, (3) due process in the prison grievance system, (4) due process in connection with Plaintiff's classification hearing, (5) deprivation of property without due process, (6) denial of access to the courts, and (7) unconstitutional prison conditions. (ECF No. 46.) ...