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McClintock v. Colosimo

United States District Court, E.D. California

February 7, 2014

JOHN MCCLINTOCK, Plaintiff,
v.
COLOSIMO, et al., Defendants.

FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

By order filed June 19, 2013, the court denied plaintiff's motion to amend his complaint as unnecessary and granted plaintiff thirty days to either submit four copies of his original complaint or a proposed amended complaint. (ECF No. 13.) On July 22, 2013, plaintiff filed a proposed first amended complaint. (ECF No. 15.)

I. Screening Requirement

The court is required to screen the proposed amended complaint. See 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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989); Franklin , 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. , 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only "give the defendant fair notice of what the... claim is and the grounds upon which it rests."'" Erickson v. Pardus , 551 U.S. 89, 93 (2007) (quoting Bell Alantic Corp. , 550 U.S. at 555, in turn quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson , 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974).

II. Plaintiff's Allegations

In his amended complaint plaintiff alleges as follows with regard to each named defendant.

A. Allegations Concerning Defendants Beshears and Colosimo

On an unspecified date, defendant Colosimo, who was working as a control tower officer at an unspecified California state prison facility, closed a solid metal mechanical door on plaintiff as plaintiff was exiting through that door. (Amended Complaint (ECF No. 15) at 1.) "Plaintiff was kept pinned in the clamped door despite plaintiff's screams and shouting." (Id.) Defendant Beshears "was in direct visual alignment" with plaintiff and "chose to proceed with her newspaper reading" even though she had a key to manually release plaintiff from under the door. (Id.) Plaintiff was able to struggle his way out from under the door and immediately went to the B-Yard Clinic for medical care. (Id.at 1-2.)

B. Allegations Concerning Defendant Merriweather

The next day, as plaintiff was waiting for a meeting with Lieutenant Cherry regarding the previous day's incident involving Beshears and Colosimo, defendant Merriweather "thr[e]w plaintiff in a stand-only cage for isolation and delousing." (Id. at 2.) Plaintiff remained in the cage for an hour and a half. (Id.) Plaintiff ...


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