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James Mcbride v. S. Lopez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 13, 2012

JAMES MCBRIDE,
PLAINTIFF,
v.
S. LOPEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS (ECF No. 1)

I. Screening Requirement

Plaintiff James McBride is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed December 2, 2010. (ECF No. 1.)

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

II. Discussion

Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at High Desert State Prison. The incidents in the complaint occurred while Plaintiff was incarcerated at Pleasant Valley State Prison. Plaintiff alleges that Defendants S. Lopez, R. Ruggles, M. Perez, D. Lopez, S. Koch, and R. Athey hit and kicked him causing his nose to be broken and swelling to his head and eyes. Additionally Plaintiff claims that the defendants were under Defendant Athey's command and she refused to stop them from beating Plaintiff, but joined them in attacking him. Plaintiff brings this action for violation of the Sixth and Eighth Amendments seeking compensatory and punitive damages.

Plaintiff's allegations are sufficient to state a cognizable claim against Defendants S. Lopez, R. Ruggles, M. Perez, D. Lopez, S. Koch, and R. Athey for excessive force and R. Athey for failure to intervene in violation of the Eighth Amendment.

However, the Sixth Amendment provides for the rights of an individual in a criminal prosecution. Plaintiff's allegations of excessive force do not state a cognizable claim under the Sixth Amendment.

III. Conclusion and Order

Plaintiff's states a cognizable claim against Defendants S. Lopez, R. Ruggles, M. Perez, D. Lopez, S. Koch, and R. Athey for excessive force and R. Athey for failure to intervene in violation of the Eighth Amendment, however, Plaintiff allegations fail to state any additional claims under section 1983. Accordingly, it is HEREBY ORDERED that:

1. This action shall proceed on Plaintiff's complaint, filed December 2, 2010, against Defendants S. Lopez, R. Ruggles, M. Perez, D. Lopez, S. Koch, and R. Athey for excessive force and R. Athey for failure to intervene in violation of the Eighth Amendment; and

2. Plaintiff's Sixth Amendment claim is dismissed for failure to state a claim.

IT IS SO ORDERED.

20120213

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