The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS (ECF No. 17) THIRTY-DAY DEADLINE
Findings and Recommendations Following Screening
Plaintiff Andre Wells ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2011. On September 14, 2011, the action was transferred to the Fresno Division of the Eastern District of California. On December 7, 2012, the Court issued an order requiring Plaintiff to either file an amended complaint or notify the Court in writing which defendant he wished to proceed against. (ECF No. 5.) On December 26, 2012, Plaintiff filed a first amended complaint. (ECF No. 17.)
On April 4, 2013, the Court screened Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A, and found that it stated a cognizable claim against Defendant T. Cagle for excessive force in violation of the Eighth Amendment; a cognizable claim against Defendant John Doe for failure to intervene in violation of the Eighth Amendment; and a cognizable claim against Defendant De La Cruz*fn1 of retaliation in violation of the First Amendment. However, the Court also determined that Plaintiff could not proceed with his claim against Defendants Cagle and John Doe and his claim against Defendant De La Cerda in the same action pursuant to Federal Rule of Civil Procedure 18. The Court therefore provided Plaintiff with an opportunity to file an amended complaint or notify the Court whether he was agreeable to proceed only against Defendants Cagle and Doe or only against Defendant De La Cruz in this action. (ECF No. 19.)
On April 24, 2013, Plaintiff notified the Court that if he cannot proceed against all three defendants in this action, then he would like to proceed against Defendants T. Cagle and John Doe. (ECF No. 21.) Accordingly, the Court issues the following Findings and Recommendations.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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 frivolous 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). "Notwithstanding 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 must contain "a 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 "[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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are 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). While factual allegations are accepted as true, legal conclusions are not; Plaintiff must present factual allegations sufficient 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. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must demonstrate a link between actions or omissions of each named defendant and the violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1949; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
II.Allegations of First Amended Complaint
Plaintiff brings this action against Defendant T. Cagle, Defendant De La Cruz and Defendant John Doe, correctional officers employed at Corcoran State Prison. Plaintiff alleges as follows: On September 29, 2010, Defendants T. Cagle and John Doe were escorting Plaintiff to the program complex. While Plaintiff was restrained, Defendant T. Cagle slammed Plaintiff head-first into the wall of 3A-05. Defendant T. Cagle did this in response to Plaintiff's reply from Defendant T. Cagle yelling in Plaintiff's ears approximately two inches from his face. Defendant T. Cagle's actions were meant to cause harm. Plaintiff now experiences headaches on a regular basis. Plaintiff asserts a cause of action for violation of his Eighth Amendment right to be free from cruel and unusual punishment against Defendant T. Cagle. Plaintiff also asserts a cause of action against Defendant John Doe for failure to intervene in violation of the Eighth Amendment.
Plaintiff also alleges that Defendant De La Cruz assaulted Plaintiff and slapped his personal property out of his hands in retaliation for the September 29, 2010 incident with Defendant Cagle. Defendant De La Cruz's actions chilled Plaintiff's "appeal to redress the Government" in violation of the First Amendment.