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Michael Cheek v. Ezra Cosby

April 15, 2013


The opinion of the court was delivered by: Ralph R. Beistline United States District Judge


Michael Cheek, a civil committee in the Coalinga State Hospital appearing pro se and in forma pauperis, brings this action against various officials and employees.*fn1


Cheek's action arises out of a search of Cheek's person, his personal property, clothing, and room for drugs. Cheek alleges that in conducting a search, officers unnecessarily slammed him against a wall, handcuffed him, and then conducted a body search, including an unnecessary digital penetration of his anus.


This Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief."*fn2 In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn3 "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."*fn4

This requires the presentation of factual allegations sufficient to state a plausible claim for relief.*fn5 "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'"*fn6 Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true.*fn7 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."*fn8

Section 1983 suits do not support vicarious liability, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his or her rights.*fn9 To impose liability on a supervisor, the supervisor's wrongful conduct must be sufficiently causally connected to the constitutional violation.*fn10 That is, the official must "implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation."*fn11

A person deprives another "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) (Johnson) (emphasis added). The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. [Citations omitted.]*fn12


Cheek seeks compensatory and punitive damages for pain and suffering and emotional distress, as well as declaratory relief arising out of a strip search. The Complaint is essentially a rambling recitation of a series of events, some of which may give rise to a viable complaint of excessive force in conducting a search, but for the most part constitutes mere surplusage that does not constitute actionable conduct under § 1983. Although strip searches, including invasive searches of the body cavities, do not per se violate the Eighth Amendment, accepting Cheek's allegations as true, as this court must, Cheek raises a colorable claim for excessive force in violation of the Eighth Amendment prohibition of using excessive force that constitutes "the unnecessary and wanton infliction of pain."*fn13 It is well settled that the use of force must be made in a good-faith effort to maintain or restore discipline, but may not be used to maliciously and sadistically cause harm.*fn14

To determine if the use of force was wanton and unnecessary, this Court must examine the necessity of force, the relationship between necessity and amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of the forceful response.*fn15

Normally, in formulating a Complaint, a plaintiff must identify who did what and when. In this case, Cheek has alleged that six Department of Police Service ("DPS") employees were involved in the initial seizure of his person, but does not identify any of them by name. Cheek has also alleged that Officer Buscacca and five unidentified DPS Officers were involved in the strip search. It appears from the Complaint that Cheek can identify the officers involved, although he may not be able to identify which specific officer did what. For the purposes of his Amended Complaint, it is sufficient for Cheek to identify the officers involved without necessarily identifying which specific officer did which act ...

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