The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING DEFENDANT MEDINA'S MOTION FOR JUDGMENT ON PLEADINGS (ECF No. 112)
Plaintiff Brandon Rackliffe ("Plaintiff"), a California state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 20, 2007.
This action proceeds on Plaintiff's amended complaint, filed February 25, 2008, against Defendants Rocha and Medina for use of excessive physical force in violation of the Eighth Amendment of the United States Constitution. (ECF No. 11.) Plaintiff's claim arises from an incident which occurred on July 26, 2006, at Kern Valley State Prison in Delano, California. Jury trial in the matter is schedule to commence on May 14, 2013. (ECF No. 135.)
On January 24, 2013, Defendant Medina filed a motion for judgment on the pleadings. (Def.'s Mot., ECF No. 112.) Plaintiff has filed an opposition. (Pl.'s Opp'n, ECF No. 137.) Defendant's motion is now ready for ruling pursuant to Local Rule 230(l).
A motion for judgment on the pleadings may be brought "[a]fter the pleadings are closed but within such time as to not delay the trial." Fed.R.Civ.P. 12(c). All allegations of fact by the party opposing a motion for judgment on the pleadings are accepted as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.1984). A "dismissal on the pleadings for failure to state a claim is proper only if 'the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Id. (quoting 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1368, at 690 (1969)); see also McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988).
When a Rule 12(c) motion is used to raise the defense of failure to state a claim, the motion is subject to the same test as a motion under Rule 12(b)(6). McGlinchy, 845 F.2d at 810; Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1989). Thus, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, this court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007).
B. Plaintiff's First Amendment Retaliation Claims
The Court previously screened Plaintiff's amended complaint and in a detailed order found that it stated a cognizable claim. 28 U.S.C. § 1915A; ECF Nos. 11, 17, 22. The screening standard is the same standard which governs Rule 12(b)(6) motions, Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), and therefore, in cases which have been screened, the Court generally views motions to dismiss for failure to state a claim with disfavor. Unless a motion sets forth new or different grounds not previously considered by the Court, it is disinclined to "'rethink what it has already thought.'" Sequoia Forestkeeper v. U.S. Forest Service, No. CV F 09-392 LJO JLT, 2011 WL 902120, at *6 (E.D.Cal. Mar. 15, 2011) (quoting United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998)).
For the reasons which follow, the instant motion presents no exception to the general disfavor with which such motions are viewed, and Court is not persuaded to depart from its prior screening order.
The analysis of an excessive force claim brought pursuant to § 1983 begins with "identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Amendment's prohibition on cruel and unusual punishment applies to incarcerated individuals, such as the Plaintiff here. Whitley v. Albers, 475 U.S. 312, 318 (1976). To state an Eighth Amendment claim, a plaintiff must allege that the use of force was "unnecessary and wanton infliction of pain." Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). 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. Hudson v. McMillian, 503 U.S. 1, 9 (1992); 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." Hudson, 503 U.S. at 9. "The Eighth Amendment's ...