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Carlos D. Gabarrete v. C.B Hazel

May 31, 2012

CARLOS D. GABARRETE,
PLAINTIFF,
v.
C.B HAZEL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF NO. 15) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SECOND SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Carlos D. Gabarrete, a state prisoner proceeding pro se and in forma pauperis filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff filed a First Amended Complaint on June 21, 2011 (First Am. Compl., ECF No. 10) without the original Complaint having been screened by the Court. The First Amended Complaint was dismissed with leave to amend for failure to state a claim. (Order Dismiss.

First Am. Compl., ECF No. 14.) Plaintiff then filed a Second Amended Complaint (Second Am. Compl., ECF No. 15) which is now before the Court for screening.

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

Plaintiff reiterates his claim that he was incarcerated at Corcoran State Prison (CSP) in the Security Housing Unit (SHU) when, on May 28 2010, Defendant corrections staff members used excessive force against him in violation of his Eighth Amendment rights.*fn1

(Second Am. Compl. at 3.)

Defendants were escorting Plaintiff, who was mechanically restrained, from one SHU holding area to another when, without provocation or necessity they sprayed him with pepper spray, kicked him, and banged his head against the concrete floor until he lost consciousness, awakening later in the hospital. (Id.)

He suffered physical injuries, pain and mental distress. (Id. at 3.)

He names as Defendants (1) Sgt. Hazel, (2) Sgt. Medina, (3) Sgt. Prudhel, (4) Sgt. Torres, (5) Sgt. Sumaya, (5) ...


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