The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
Plaintiff James C. Stuff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff's Complaint 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 COMPLAINT
On September 15, 2009, while being transported by ambulance from Kern Valley
State Prison (KVSP) to an off-site hospital for treatment of severe back complications, Plaintiff and the attending emergency medical technician (EMT) became involved in a verbal altercation. (Compl. at 2-3.) As a result, the EMT began pulling on Plaintiff's leg iron causing it to cut into his ankle, continued to verbally harass him and when moving to the front of the ambulance "purposely bumped into Plaintiff really hard, reaggravating his back injury." (Id.)
Plaintiff, who was cuffed and chained at the waist, swung his arm at the EMT in an attempt to strike him. (Id.). The EMT then threw a punch at Plaintiff's face, grazing his cheek, grabbed Plaintiff's neck, yanking and jerking Plaintiff by the neck and choking him, slamming his head into the gurney and causing Plaintiff excruciating neck and back pain. (Id.)
Defendant Ochoa, a KVSP correctional officer was present in the ambulance, but took no action to intervene or stop the EMT notwithstanding Plaintiff's pleading that he do so, causing Plaintiff injury and violating his Eighth and Fourteenth Amendment rights. (Id. at 3-4)
Plaintiff names as Defendant S. Ochoa, correctional ...