United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
GARY S. AUSTIN, Magistrate Judge.
I. Screening Requirement
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
Plaintiff, a civil detainee in the custody of the California Department of Mental Health (DMH) at Coalinga Stat Hospital, brings this civil rights action against two employees employed by DMH at Coalinga. Plaintiff names as defendants K. O'Brien and E. James. Plaintiff claims that Defendant O'Brien insulted Plaintiff and gave his meal to another patient. Plaintiff claims that Defendant James subjected him to excessive force.
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A. , 534 U.S. 506, 512 (2002); Fed.R.Civ.P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz , 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams , 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin. , 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents , 673 F.2d 266, 268 (9th Cir. 1982)).
II. Plaintiff's Claims
A. Summary of Complaint
Plaintiff's complaint is taken up largely with a rambling, incoherent narrative. Plaintiff appears to allege that Defendant O'Brien, on several occasions, verbally insulted Plaintiff and, at one point, gave Plaintiff's meal to another inmate. Under section 1983, Plaintiff is required to show that Defendants (1) acted under color of state law, and (2) committed conduct which deprived Plaintiff of a federal right. Hydrick v. Hunter , 500 F.3d 978, 987-88 (9th Cir. 2007). "A person deprives another of a constitutional right, where that person does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.'" Id . at 988 (quoting Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978)). "[T]he requisite causal connection can be established not only by some kind of direct, personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.'" Id . (quoting Johnson at 743-44). A single instance of deprivation of a meal does not constitute a violation of a protected right.
Regarding O'Brien's verbal insults, mere verbal harassment or abuse is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero , 830 F.2d 136, 139 (9th Cir. 1987). See McFadden v. Lucas , 713 F.2d 143, 146 (5th Cir. 1983) cert. denied, 464 U.S. 998 (1983)(mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations).
B. Fourth Amendment Claim
Plaintiff alleges that Defendant James, along with another staff member, forcefully placed Plaintiff into an isolation cell. Plaintiff alleges that he was not offering resistance, yet James and the other staff member forced Plaintiff into an "arm bar lock." They "continued to apply pressure until a very loud pop was heard." Plaintiff alleges that he was injured as a result.
As a civil detainee, Plaintiff is entitled to protection under the Fourteenth Amendment, rather than the Eighth Amendment. Fisher v. Bryant, 2:10 cv 2311 KJM DAD, 2012 WL 3276968 (E.D. Cal. Aug. 9, 2012)(Applying the Fourteenth Amendment due process standard to a claim of the excessive force brought by a civil detainee, rather than the standard set forth under the Eighth Amendment). The Ninth Circuit has recognized that the aforementioned Eighth Amendment rights guaranteed for prisoners "set a floor for those that must be afforded to" civil detainees. Hydrick v. Hunter , 500 F.3d 978, 989 (9th Cir. 2007) summarily reversed on other grounds by Hunter v. Hydrick , 129 S.Ct. 2431 (2009). The objectively reasonable standard set forth by the Fourteenth Amendment, rather than the "malicious and sadistic" standard of the Eighth Amendment, Fisher, 2012 WL 3276986 *9 (E.D. Cal. 2012), applies to Plaintiff's claim. Liberally construed, Plaintiff has stated a colorable claim for relief against Defendant James.
Regarding the other staff member, Plaintiff is advised that the Court cannot order service upon unidentified defendants. In order to hold an individual defendant liable, Plaintiff must name the individual defendant, describe where that defendant is employed and in what capacity, and explain how that defendant acted under color of state law. Plaintiff should state clearly, in his or her own words, what happened. ...