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Richard Jackson v. Mike Palombo

May 18, 2011

RICHARD JACKSON,
PLAINTIFF,
v.
MIKE PALOMBO, ET AL., FORCE CLAIM DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EXCESSIVE THIRTY-DAY DEADLINE (Doc. 1)

Screening Order

I. Screening Requirement and Standard

Plaintiff Richard Jackson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 23, 2010. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, ___ U.S. ___, ___, 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, and the factual allegations must be 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 Complaint

A. Summary of Allegations

Plaintiff, an inmate at Kern Valley State Prison in Delano, brings this action against Correctional Officers Mike Palombo and R. Miino for using excessive physical force against him and denying him medical care for his resulting injuries, in violation of the Eighth Amendment of the United States Constitution.

Plaintiff uses a walker and has twenty-five screws and a metal rod in his left leg, diabetes, arthritis, and kidney stones. On July 9, 2009, Plaintiff was ordered to submit to a mandatory unclothed body search. Defendant Palombo became angry because Plaintiff took off his clothing too slowly due to his medical conditions, and he handcuffed Plaintiff tightly through the cell door tray slot. Plaintiff requested that the handcuffs be loosened and Defendant Palombo told him to "shut the f up." (Doc. 1, Comp., p. 6.)

Plaintiff's hands began to swell up and out of nowhere, Defendant Palombo knocked Plaintiff to the ground hard and began kicking Plaintiff in the head, face, side, and back while Defendant Miino held Plaintiff down. Plaintiff was knocked unconscious and had to be transported to the medical clinic in a wheelchair.

The nurse refused to bandage Plaintiff's bloody, open wounds. The next day, Plaintiff's eyes were swollen shut. Plaintiff alleges that he was not provided with any medical attention for his injuries, which included open wounds and a fractured finger, and he was left in segregation in that condition for fifty-one days.

B. Excessive Force Claim

The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners from the use of excessive physical force. Wilkins v. Gaddy, ___ U.S. ___, ___, 130 S.Ct. 1175, 1178 (2010) (per curiam); Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995 (1992). What is necessary to show sufficient harm under the Eighth Amendment depends upon the claim at issue, with the objective component being contextual and responsive to contemporary standards of decency. Hudson, 503 U.S. at 8 (quotation marks and citations omitted). For excessive force claims, the core judicial inquiry is whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Wilkins, 130 S.Ct. at 1178 (quoting Hudson, 503 U.S. at 7) (quotation marks omitted). Although de minimis uses of force do not violate the Constitution, the malicious and sadistic use of force to cause harm ...


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