The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (DOC. 11) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS
Plaintiff Richard Paredez ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C.§ 1983. Plaintiff initiated this action by filing his complaint on September 15, 2010. Doc. 1. On May 6, 2011, the Court screened Plaintiff's complaint and found that it stated a cognizable retaliation claim against Defendant Ramirez, but failed to state any other claims. Doc. 9. Plaintiff was provided the opportunity to either file a first amended complaint or notify the Court of his willingness to proceed only against Defendant Ramirez. On May 31, 2011, Plaintiff filed his first amended complaint. Doc. 11.
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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of First Amended Complaint
Plaintiff was previously incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: warden James Yates, and correctional officers M. Hernandez, Phealon, John Doe, and Ramirez.
Plaintiff alleges the following. Defendant Yates was aware of numerous inmate grievances filed against Defendant Hernandez and failed to act by minimizing Defendant Hernandez's contact with inmates. Am. Compl. 3A-B. On August 7, 2009, Defendant Hernandez forced Plaintiff out of his assigned cell and to Plaintiff's knees. Id. at 3C. A cell search was conducted, during which Defendant Hernandez threatened Plaintiff and his cell mate for disrespecting Defendant Hernandez's first watch officer. Id. at 3D. Defendant Hernandez swept Plaintiff's property onto the floor, including a bowl of soup onto Plaintiff's personal property. Id. Plaintiff sat on his knees and handcuffed behind his back. Id. Defendant Hernandez grabbed Plaintiff by his wrist and lifted him to his feet, bending the wrist until Plaintiff moaned in pain. Id. He then shoved Plaintiff into the cell. Id. Plaintiff contends that his left wrist was swollen and had scarring. Id. at 3B. Plaintiff also contends that he suffered psychological and mental injury. Id. at 3F. Defendant Hernandez placed Plaintiff and his cell mate on CTQ (confined to quarters) status. Id. at 3G-3H. Defendant Phealon witnessed Defendant Hernandez's alleged use of excessive force and failed to act. Id. at 3I-3J. Defendant John Doe was the watch tower officer who opened Plaintiff's cell door to allow Defendants Hernandez and Phealon to act. Id. at 3K-3L. Defendant John Doe did not act to prevent excessive force, and did not allow Plaintiff to leave his CTQ without prior approval from the A-yard captain. Id. at 3L. Plaintiff was not permitted to seek medical attention for his alleged injuries because of the CTQ. Id. at 3M.
On August 10, 2009, Defendant Ramirez was packing Plaintiff's property and found a grievance written by Plaintiff concerning being wrongfully placed on CTQ by Defendant Hernandez. Id. at 3N. Defendant Ramirez removed the grievance from Plaintiff's property and shoved it into Defendant's open shirt. Id. Defendant handcuffed Plaintiff and escorted him to counselor's office. Id. There, correctional officers B. Davis and John Doe 2 yelled at Plaintiff and attempted to get Plaintiff to lie and say that Plaintiff and his cell mate owed money. Id. at 3O. Plaintiff refused, and Defendant Ramirez became angry. Id. Defendant Ramirez asked why Plaintiff was trying to take down his partner (presumably, Defendant Hernandez). Id. Defendant Ramirez told Plaintiff that he would not come back to the yard if he stated that he owed money. Id. Plaintiff refused, at which point Defendant Ramirez informed Plaintiff that his life was going to be hell on this yard and that Plaintiff could not file his 602 grievance. Id.
Defendant Ramirez told Plaintiff Defendant Hernandez would return tomorrow to handle Plaintiff personally. Id. Defendant then secured Plaintiff in the C-section shower for 3 hours during the night dayroom program, while leaving Plaintiff's cell door open. Id. Because Plaintiff was afraid for his life, he took a razor to his wrist to attempt suicide in order to be removed from the cell before Defendant Hernandez returned. Id.
Plaintiff requests as relief monetary damages for past and future pain and suffering, including shame, humiliation, emotional distress, mental distress, and for the use of excessive force.
A. Eighth Amendment - Excessive Force
"What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). 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. Id. at 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 ...