ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Asofa Tafilele ("Plaintiff"), an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 18, 2010. (ECF No. 1.) No other parties have appeared.
Plaintiff's Complaint is now before this Court for screening. For the reasons set forth below, the Court finds that Plaintiff has failed to state any cognizable claims.
II. SCREENING REQUIREMENTS
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).
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 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff brings this action for use of excessive force, failure to protect, and inadequate medical care, each in violation of the Eighth Amendment, a due process violation under the Fourteenth Amendment, and a retaliation claim under the First Amendment. Plaintiff names the following individuals as Defendants: Kelly Harrington, Warden; Northcutt, correctional officer; Rivera, correctional officer sergeant; Solez, correctional officer; Mata, correctional officer; Williams, correctional officer; Hernandez, correctional officer; Murphy, correctional officer; Spurgeon, correctional officer; Wojick, correctional officer; Lomelli, correctional officer; and Meza, licensed vocational nurse. All Defendants were employed at Kern Valley State Prison at the time of the incident.
Plaintiff alleges as follows: On January 21, 2010, Plaintiff was walking laps in the morning day room. Defendant Northcutt blocked Plaintiff's path, so Plaintiff walked around him. Northcutt yelled for Plaintiff to stay behind him. Plaintiff continued walking. Northcutt blocked Plaintiff's path again and again told Plaintiff to stay behind him. Plaintiff responded "whatever man" and continued walking. Northcutt pushed Plaintiff, and yelled at him. Plaintiff responded by asking him what his problem was. Northcutt then punched Plaintiff in the face. Plaintiff was pepper sprayed and struck repeatedly on both sides in his ribs and stomach. Plaintiff fell to the ground, crawled away, and proned out. Plaintiff was again peppered sprayed, struck several more times, shot in the arm by Defendant Mata, and picked up and thrown to the ground. During some point, his left arm was broken. Restraints were placed on Plaintiff and he was drug away while being struck on the head and arms. Someone sat on Plaintiff and slammed his head against the wall. Plaintiff was struck in the mouth and then lost consciousness. Plaintiff told Defendant Meza that he was in pain, and she told him to fill out a medical request form where ever he went.
On April 7, 2010, Defendants Lomelli and Medina approached Plaintiff and asked if he had filed a complaint for staff misconduct. Lomelli then threatened Plaintiff to drop the complaint or be assaulted again.
Plaintiff seeks declaratory relief, compensatory damages, and punitive damages.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
A. Eighth Amendment Claims
1. Excessive Use of Force
Plaintiff claims that Defendants used excessive force in violation of his constitutional rights.
The analysis of an excessive force claim brought pursuant to Section 1983 begins with "identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Amendment's prohibition on cruel and unusual punishment applies to incarcerated individuals, such as the Plaintiff here. Whitley v. Albers, 475 U.S. 312, 318 (1976). 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; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries). 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 of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).
Whether force used by prison officials was excessive is determined by inquiring if the "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. The Court must look at the need for application of force; the relationship between that need and the amount of force applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived by prison officials; and any efforts made to temper the severity of the response. See Whitley, 475 U.S. at ...