The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER FINDING A COGNIZABLE CLAIM AGAINST DEFENDANT S. MARTINEZ AND DISMISSING CLAIMS AGAINST DEFENDANTS OURIQUE, AKIN, AND ALLISON WITH PREJUDICE , CORCORAN, (ECF No. 28)
On February 1, 2010, Plaintiff Raekubian A. Barrow, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.) Plaintiff's Complaint (ECF No. 1) and First Amended Complaint (ECF No. 23) were screened and dismissed on October 25, 2011 and December 1, 2011, respectively, with leave to amend, for failure to state a cognizable claim. (ECF Nos. 22, 24.) Plaintiff's Second Amended Complaint is now before the Court for screening. (ECF No. 28.)
II. SCREENING REQUIREMENT
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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III. SUMMARY OF SECOND AMENDED COMPLAINT
The Second Amended Complaint alleges that the following California State Prison, Corcoran officials violated Plaintiff's Eighth Amendment rights: Correctional Officer S. Martinez; Sgt. J. Ourique; Lt. T. Akin; and Chief Deputy Warden K. Allison.
Plaintiff alleges the following:
On November 10, 2008, Plaintiff, who appears black in complexion, became concerned that a Hispanic inmate had been placed in his cell. "Due to ongoing tensions at the prison between Blacks and Hispanics, . . . Hispanics are normally placed in cells with other Hispanics." (Compl. at 4.) Plaintiff extended his hands through the food tray slot in his cell door and handed Defendant Martinez a note expressing his concern. (Id.) According to Plaintiff:
Defendant S. Martinez became visibly angry at hearing [P]laintiff's words, balled up the note in his hands, and then, without warning, maliciously and sadistically kicked the cell door food tray slot shut. Plaintiff, whose arms and hands were protruding through the slot as he waited for a response from
[D]efendant S. Martinez, fell back in order to avoid having the slot cover slam shut on him. In so doing, [P]laintiff's head struck the cement floor behind him causing a contusion and his hand became bruised after it struck the edge of his metal bunk. (Id.)
Defendant Ourique was Martinez's supervisor and witnessed the alleged excessive force; he pulled Martinez away from Plaintiff's cell after the tray door was kicked closed. (Id.) Defendant Akin supervised both Ourique and Martinez and ...