The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner, proceeding without counsel or "pro se" and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.
Although plaintiff entitled his filing as an "Amended Complaint," plaintiff's filing seeks reconsideration of the court's order dismissing the complaint. Plaintiff claims that hog-ties are against the law, citing Madrid v. Cate, C90-3094 THE (N.D. Cal.), and that being forced to be escorted with the opposite sex is against the Constitution.
This court's prior order provided detailed information as to why the court could not determine whether plaintiff stated a cognizable civil rights claim against defendants Enos, Gibb, Fillipello, Saradeth, and Ybarra, and failed to state a cognizable civil rights claim as to defendants Knipp and Lozano. Moreover, in the original complaint, plaintiff did not allege that he was escorted while naked with, or in front of, members of the opposite sex. If plaintiff was escorted with, or in the presence of, members of the opposite sex, he must include such allegations in his amended complaint.
Finally, plaintiff's generic citation to the class action Madrid v. Cate, C90-3094 THE (N.D. Cal.) is unavailing. In the January 10, 1995 order, the district court addressed the use of fetal restraints in dozens of instances where they were "imposed from anywhere between a few minutes to 24 hours, with most instances falling in the three to six hour range." Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1995). The court in Madrid specifically discussed the use of fetal restraints to address the issue of inmates kicking their cell doors, and found that it was not "necessary or primarily prompted by legitimate penological purposes." Id. at 1170. However, the court went on to state that:
We do not, and need not, find that every application of the fetal restraint at Pelican Bay was punitive in nature. Nor do we address the facial validity of the prison's fetal restraint rule.
Id. at 1171. Thus, plaintiff's reliance on Madrid is inapposite. Here, plaintiff conceded that he was resistive during the escort. (Dkt. No. 1 at 4.) Plaintiff conceded he was restrained in hog-tied fashion for a brief period of time, 5 to 10 minutes, and experienced discomfort in his breathing. (Id.) Plaintiff's allegations, without more, demonstrate that defendants applied restraints for the legitimate penological purpose of bringing plaintiff under control, and failed to demonstrate a substantial risk of harm existed during the brief period of restraint. Without additional factual allegations demonstrating that each defendant acted with a culpable state of mind, the court cannot find that plaintiff stated a cognizable civil rights claim.
Thus, plaintiff's filing, construed as a request for reconsideration of the court's October 16, 2012 order, is denied. However, plaintiff is granted an additional thirty days in which to file an amended complaint that complies with the October 16, 2012 order. Plaintiff is cautioned that failure to timely file a complete amended complaint will result in the dismissal of this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's filing (dkt. no. 13), construed as a request for reconsideration, is denied; and
2. Plaintiff is granted thirty days in which to file an amended complaint that complies with this court's October 26, 2012 order. Failure to file a complete amended complaint will result in the dismissal of this action.
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