The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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 when 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 See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, 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." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff alleges defendants Pfadt, Oschener and Lawrence violated plaintiff's Fourth Amendment rights by allegedly assaulting plaintiff while plaintiff was being interviewed for a bed move, subjecting plaintiff to cruel and unusual punishment in violation of the Eighth Amendment, and violating plaintiff's right to equal protection. Plaintiff also alleges defendants Pfadt, Oschener, Lawrence, McDonald, and Guches were deliberately indifferent to plaintiff's serious medical needs. Plaintiff states he has exhausted his administrative remedies (dkt. no. 1 at 3), but appends a Director's Level Decision that only addresses plaintiff's claims concerning the alleged use of force during the bed move interview.
The exhaustion of administrative remedies prior to bringing a prisoner civil rights action is required by 42 U.S.C. § 1997e(a). The exhaustion requirement that it imposes is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). A prisoner is required to exhaust administrative remedies for claims contained within a complaint before the complaint is filed. Rhodes v. Robinson, 621 F.3d at 1005. Compliance with this requirement is not achieved by satisfying the exhaustion requirement during the course of an action. See McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). However, new claims based on conduct which occurs after the filing of an original complaint may be raised in an amended pleading if the administrative exhaustion requirement is satisfied prior to the time the amended pleading is filed. See Rhodes, 621 F.3d at 1004-05.
As a general rule, inmates must proceed through the Director's Level of Review to satisfy the exhaustion requirement and regardless of the relief sought. See Booth, 532 U.S. at 741 (inmates must satisfy exhaustion requirement "regardless of the relief offered through administrative procedures" as long as some relief is available). However, "a prisoner need not press on to exhaust further levels of review once he has either received all 'available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005).
Because it appears plaintiff failed to exhaust his administrative remedies as to plaintiff's claim that defendants were allegedly deliberately indifferent to plaintiff's serious medical needs,*fn1 plaintiff is granted leave to amend in the event plaintiff exhausted those claims prior to the filing of the complaint herein. However, if plaintiff has not exhausted his administrative remedies, he should not include the deliberate indifference claim in any amended complaint.
The court turns now to plaintiff's Fourth Amendment claim. Plaintiff was incarcerated at the time of the alleged wrongful use of force, therefore, plaintiff's right to be free of excessive force derives from the Eighth Amendment, and not from the Fourth Amendment for unlawful search and seizure. See Bell v. Wolfish, 441 U.S. 520, 535-36 (1979) (detainee "may not be punished prior to an adjudication of guilt in accordance with due process"); Pierce v. Multnomah County, Or., 76 F.3d 1032, 1043 (9th Cir. 1996) ("[T]he Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest."). Therefore, plaintiff has no claim under the Fourth Amendment. Plaintiff's first and second claims collapse into one claim of alleged excessive force under the Eighth Amendment. If plaintiff wishes to ...