The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff's original complaint was dismissed and plaintiff has filed an amended complaint.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff's amended complaint contains allegations of excessive force, inadequate medical care and retaliation. The court notes that other than a few additions and some reworded paragraphs most of the amended complaint is identical to the original complaint.
Plaintiff states that another inmate assaulted him and they began fighting. Two guards, defendants Valdez and Freitas, arrived and ordered plaintiff and the inmate to get down. Plaintiff states that he got down on the ground but before he hit the ground he was already soaked with pepper spray. Plaintiff then states a witness saw the guards kick plaintiff in the ribs while he was on the ground, however, plaintiff did not feel the kicks, see the kicks or apparently suffer any injury as a result of the kicks. Plaintiff has failed to allege a viable claim of excessive force. The use of pepper spray on two inmates fighting is reasonable. With respect to the guard that may have kicked plaintiff, but he did not feel, this also fails to state a viable claim of excessive force.
Plaintiff was then taken to medical where he was checked for injuries. Plaintiff states that instead of washing him with water, some unidentified person placed him in a holding cage for 45 minutes where the pepper spray penetrated his skin and eyes and he was unable to breathe properly. Plaintiff has again failed to identify what medical staff checked him for injuries and did not allow him to wash with water. If plaintiff wishes to proceed with this claim he must identify the appropriate defendant.
Plaintiff then alleges that five months later he woke up with a swollen face and his neck and arms were irritated. Doctors at the prison treated him for a rash or allergy, despite plaintiff's insistence that this was the result of the pepper spray from five months prior. Plaintiff contends this condition became worse and several months later he was taken to an outside hospital, Doctors Hospital of Manteca. Plaintiff then states that the doctors at the hospital did not treat him for delayed reaction to pepper spray. Plaintiff states doctors repeatedly tested his blood and urine and performed a biopsy of skin from his arm. However, plaintiff alleges these doctors were somehow deliberately indifferent. Plaintiff was later taken to Doctors Hospital of San Pablo where another doctor again treated plaintiff for a rash or allergy, instead of for exposure to pepper spray.*fn1 Plaintiff does not allege his medical problems were ignored, rather his ailments were not quickly cured and he does not agree with the great deal of treatment he received. Plaintiff must show that defendants were deliberately indifferent to his serious medical needs. In addition, it is not apparent from the complaint if the defendants at the Doctors Hospital of Manteca or Doctors Hospital San Pablo are state actors under 42 U.S.C. § 1983.
Plaintiff also makes allegations that approximately 18 months after the alleged incident he was placed in administrative segregation in retaliation for the filing of a complaint. Plaintiff generally states that certain defendants placed him in administrative segregation, because they "knew" he would not withdraw his appeal, but does not provide any factual support to this allegation. Plaintiff does makes one allegation that defendant Captain Cappel, "asked plaintiff to withdraw his complaint. Again, knowing that plaintiff would not withdraw his complaint, Captain Cappel ordered the retention of plaintiff to AD/SEG." Amended complaint at 17. While this could allege a claim of retaliation, plaintiff must allege more facts as it is not clear what happened. Rather than state what defendants were thinking, plaintiff must describe the interaction or discussion that occurred with these defendants. Plaintiff should describe what the defendants said, and what plaintiff stated.
The amended complaint is dismissed and plaintiff will be provided 28 days to file a second amended complaint. No further amendments will be allowed. Failure to file a second amended complaint will result in this action being dismissed.
In order to state a claim under § 1983, a plaintiff must allege that: (1) defendant was acting under color of state law at the time the complained of act was committed; and (2) defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48 (1988). As discussed above, it does not appear that the doctors from the outside hospital are state actors.
To state an Eighth Amendment claim, a plaintiff must allege that the use of force was "unnecessary and wanton infliction of pain." Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses ...