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 RESPONSE DUE IN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
I. Screening Requirement
Plaintiff is a state prisoner 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).
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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).
II. Plaintiff's Claims
A. Summary of Complaint
Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at North Kern State Prison. Plaintiff brings this civil rights action against defendant officials employed by the CDCR at North Kern State Prison. The events giving rise to the claims at issue in this action allegedly occurred at North Kern. Plaintiff names as defendants North Kern State Prison, the CDCR, and "correctional officers 1, 2, 3, 4, 5."
On September 20, 2013, Plaintiff asked to be placed in protective custody "due to being a homosexual." Plaintiff alleges that "instead of following procedures, " a C/O harassed Plaintiff, using derogatory terms. Plaintiff alleges that the harassment continued during the morning meal, where Plaintiff was "in risk of harm or death by prison gangs (due to their prison rule to not allow homosexuals around them in G.P. or S.N.Y.)" Plaintiff then asked C/O Lopez "to please stop the comments due to the risk he's putting me in." C/O Lopez continued with his remarks. When Plaintiff asked him "what his issue with gays was, " Lopez "stepped back, shouted, then sprayed me with mace, pulled out his baton and beat me with it, then once on the ground he sprayed me again in the face with mace."
Plaintiff also alleges that, even though C/O Lopez told an investigative employee that he was never assaulted, Plaintiff was charged with and found guilty of assault on staff. In addition, Plaintiff alleges that he was not allowed to call his witnesses at his hearing.
B. Eighth Amendment Claims
1. Excessive Force
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Hudson v. McMillian , 503 U.S. 1, 5, 112 S.Ct. 995 (1992) (citations omitted). For claims of excessive physical force, the issue is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson , 503 U.S. at 7. Although de minimis uses of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always violates the Eighth Amendment, regardless of whether or not significant injury is evident. Id. at 9-10; 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)).
Plaintiff's allegations describing the incident of physical force on September 20, 2013, are sufficient to give rise to a claim for relief against C/O ...