The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN CLAIMS IN SECOND AMENDED COMPLAINT
Plaintiff Rudy Minjarez ("Plaintiff"), a prisoner 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 his initial complaint on August 30, 2010, and filed a First Amended Complaint on November 16, 2010.
On April 25, 2011, the Court issued a screening order requiring Plaintiff to either file a Second Amended Complaint or inform the Court of his willingness to proceed only on the cognizable claim. Of the four causes of action, the Court found that Plaintiff's Eighth Amendment excessive force claim against Defendants Cortez, Swetalla, Gaona, Fidler and Barajas stated a claim and could go forward.
Plaintiff opted to file a Second Amended Complaint on June 7, 2011.
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.
III. Summary Of Second Amended Complaint
Plaintiff is incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names Director of CDCR John Doe 1, Warden Gonzales, Sergeant Barajas, Sergeant Fidler, Officer Cortez, Officer Swetalla, Officer Gaona, and Correctional Captain John Doe 2 as Defendants.
Plaintiff alleges that on March 6, 2009, when he was housed in Unit 4, Cell 139, Officer Sweaney arbitrarily chose to withhold his canteen purchases, as well as the purchases of his cell mate and two inmates housed in Cell 137. Plaintiff, his cell mate, and the inmates in Cell 137 withheld their food trays and covered their door windows in protest. Hours later, Facility Captain Hill negotiated an agreement and the inmates received their canteen items. Plaintiff was subsequently moved to Unit 2.
On March 7, 2009, Plaintiff was ordered by the Unit 2 Officer to report to the Unit Office. Once there, Defendants Cortez and Swetalla conducted a strip search and then gave him paper underwear. Defendants Cortez and Swetalla ordered the inmate porters to exit the office.
Fifteen minutes later, Plaintiff was escorted to the sergeant's office and ordered to straddle a chair. Defendant Fidler asked Plaintiff why he kept his morning meal tray and Plaintiff responded that he had not. Defendant Fidler then asked Plaintiff why he had caused trouble the night before. Plaintiff explained that Captain Hill had assured Plaintiff that the incident from Unit 4 would not follow him to Unit 2. Plaintiff alleges that Defendant Fidler then raised his voice and told Plaintiff that he didn't care about what Captain Hill said and that he ran the program. Plaintiff responded that he was better off in ad-seg (administrative segregation).
Defendant Fidler ordered Plaintiff to stand with his hands behind his back and cuff up. As Plaintiff stood with his hands behind his back, Defendants Cortez, Swetalla, Gaona, Fidler, and Barajas began to beat Plaintiff. Plaintiff alleges that he suffered multiple injuries, including bruises, scratches, and an injury to his knee caused by Defendant Fidler ...