The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS CLAIMS AGAINST DEFENDANTS DAVIS AND DUFFY FOR FAILURE TO STATE A CLAIM BE GRANTED, WITH LEAVE TO AMEND (Doc. 22.) OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS
Jaques Fearence ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 1, 2008. (Doc. 1.) This case now proceeds on Plaintiff's First Amended Complaint, filed on March 1, 2010, against defendants Sergeant J. Busby, Correctional Officer ("C/O") T. C. Davis, C/O Duffy, and Lieutenant S. Hopkins (collectively "Defendants") for use of excessive force in violation of the Eighth Amendment. (Doc. 10.)
On December 16, 2011, Defendants filed a motion to dismiss under Rules 12(b) and 12(b)(6), on the grounds that Plaintiff (1) failed to exhaust administrative remedies for the claims against Defendants before filing suit, and (2) failed to state an Eighth Amendment claim against defendants Davis and Duffy. (Doc. 22.) On February 15, 2012, Plaintiff filed an opposition to the motion. (Doc. 25.) On February 22, 2012, Defendants filed a reply to Plaintiff's opposition. (Doc. 26.)
On December 13, 2012, Defendants' motion to dismiss was resolved in part. (Doc. 35.) The Court denied the motion to dismiss for failure to exhaust, but the motion to dismiss for failure to state a claim was left unresolved. Id. The case was referred back to the Magistrate Judge for consideration of Defendants' motion to dismiss for failure to state a claim. Id.
Defendants' motion to dismiss for failure to state a claim is now before the Court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is a state prisoner presently incarcerated at Pelican Bay State Prison in Crescent City, California. The events at issue in this action allegedly occurred at the California Correctional Institution ("CCI") in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as defendants CDCR employees Sgt. J. Busby, T. C. Davis, Sgt. John Doe, Duffy, and Lieutenant S. Hopkins. Plaintiff alleges as follows in the First Amended Complaint.
On August 11, 2005, Plaintiff was removed from his cell with restraints on his ankles and hands, and placed in a holding cage. "All Officers" subjected him to verbal abuse. (First Amd Cmp, Doc. 10 at 3 ¶IV.) Lt. Hopkins reached into the cage and assaulted Plaintiff aggressively. They put on gas masks and agreed to pepper spray Plaintiff, who was still in restraints in the holding cage, even though Plaintiff did not pose any threat to staff or anyone. Defendant Busby sprayed a whole can of O.C. pepper spray. Defendants Hopkins, Busby, John Doe, Davis, and Duffy were all involved in the incident. Plaintiff requests unspecified relief.
III. EIGHTH AMENDMENT EXCESSIVE FORCE CLAIM
After screening the First Amended Complaint pursuant to 28 U.S.C. § 1915A, the Court found that Plaintiff stated cognizable claims for excessive force against defendants Hopkins, Busby, Davis, and Duffy. (Doc. 15.)
"What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful ...