The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS ECF No. 1
Plaintiff Oscar Marshall ("Plaintiff") is a civil detainee in the custody of the California Department of Mental Health ("DMH"), detained pursuant to California's Sexually Violent Predators Act ("SVPA"), Cal. Welf. & Inst. Code § 6600, et seq. Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On November 16, 2011, Plaintiff filed his complaint. ECF No. 1. On September 24, 2012, the Court screened Plaintiff's complaint and found that it stated cognizable claims for relief against Defendants Moreno and Medina for violation of the Fourth Amendment and excessive force in violation of the Due Process Clause of the Fourteenth amendment. ECF No. 6. Plaintiff was provided the opportunity to file an amended complaint or proceed on the cognizable claims. On October 5, 2012, Plaintiff notified the Court that he wished to proceed only on the cognizable claims. ECF No. 7.
"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
2 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3
"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5
U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 6 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 7 allegations are accepted as true, legal conclusions are not. Id. 8
II. Summary of Complaint 9
Plaintiff is civilly committed at Coalinga State Hospital ("CSH") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Pam Ahlin, executive director of CSH; David Montoya, Chief of Hospital Police Officers; F. Moreno and R. Medina, hospital police officers; and John Doe, director of the DMH.
Plaintiff alleges the following. On September 13, 2010, at 6:30 p.m., Plaintiff was approached by Defendants Moreno and Medina as he exited the Unit #11 restroom. Compl. ¶ 9. Defendants Moreno and Medina were the officers assigned to work the Unit #11 housing unit that night. Defendants stood approximately five feet in front of the doorway. One of the Defendants informed Plaintiff that he smelled smoke coming from the restroom, and wanted to pat search Plaintiff for tobacco. Plaintiff stated that if there was smoke, it was not from Plaintiff. Plaintiff stated that he was not smoking, and that Defendants could not smell smoke on Plaintiff. Plaintiff states that all tobacco products were discontinued in 2008. However, hospital staff would sneak in tobacco and sell it to patients.
Defendant Moreno insisted that he wanted to search Plaintiff. Compl. ¶ 10. Plaintiff indicated that he had a right to refuse a body search at any time. However, Plaintiff proposed a compromise that he would consent to a search by Defendants' superior, a sergeant. Defendant Moreno stated that he was not going to call the sergeant and would search Plaintiff one way or another.
Plaintiff interpreted the statement as intent to use force. Compl. ¶ 11. Plaintiff stated that he knew his rights and Defendants were not authorized to search Plaintiff without the sergeant present.
Plaintiff then turned away from the officers and walked about eight feet. Compl. ¶ 12. Defendant 2
Moreno then lunged behind Plaintiff's back, grabbed him in a headlock, and swiveled to his left, 3 slamming Plaintiff face down on the tile floor. Defendant Medina dropped to the floor in a squat, 4 with his knee on the small of Plaintiff's back. Defendant Medina held Plaintiff's legs down, while 5
Defendant Moreno activated the staff emergency alarm. Defendant Moreno forced Plaintiff's left 6 arm behind his back. Defendant Moreno handcuffed ...