The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED ON THE CLAIMS
FOUND COGNIZABLE BY THE COURT IN THE SECOND AMENDED COMPLAINT
(Doc. 44.) ) ) OBJECTIONS, IF ANY, DUE ) IN THIRTY DAYS
Jaques Fearence ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on May 1, 2008. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on February 12, 2010, requiring Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed on the claims found cognizable by the Court. (Doc. 9.) On March 1, 2010, Plaintiff filed the First Amended Complaint. (Doc. 10.) On September 8, 2011, the Court found that the First Amended Complaint stated claims against defendants Hopkins, Busby, Davis and Duffy for excessive force in violation of the Eighth Amendment. (Doc. 15.) On September 23, 2011, the Court directed the United States Marshal to serve process upon the defendants. (Doc. 17.)
On December 16, 2011, defendants filed a motion to dismiss claims in the First Amended Complaint under Rules 12(b) and 12(b)(6), and on March 8, 2013, the Court granted the motion to dismiss in part, with leave to amend. (Docs. 22, 43.) On March 25, 2013, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 44.)
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 Afrivolous or malicious,@ 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). ANotwithstanding 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 is required to contain Aa short and plain statement of the claim showing that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is a state prisoner presently incarcerated at Salinas Valley State Prison in Soledad, California. The events at issue occurred at the California Correctional Institution ("CCI") in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Lieutenant S. Hopkins, J. Busby, T.C. Davis, D. Duffy, and John Doe. Plaintiff's factual allegations follow.
On August 11, 2005, Plaintiff was removed from his cell with restraints on his hands and ankles, and placed in a holding cage. While restrained and locked in the holding cage, all defendants subjected Plaintiff to verbal abuse and explained to him that they don't give a (expletive) about being sued.
Defendant Lt. S. Hopkins reached into the cage and assaulted Plaintiff aggressively. Then defendants Hopkins, John Doe, Busby, Davis, and Duffy put on gas masks and all agreed to pepper spray Plaintiff, who was still in the cage, wearing restraints, and not posing a threat to anyone. Defendant Busby sprayed Plaintiff with a whole can of O.C. pepper spray, emptying all of its contents. Defendants Busby, Hopkins, John Doe, Davis, and Duffy participated, watched, and did not intervene to stop the excessive force from continuing.
The excessive force was not justified at all, and Plaintiff did nothing wrong. Plaintiff suffers from blurred vision and sensitivity to ...