United States District Court, E.D. California
ORDER DISMISSING COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT AMENDED COMPLAINT DUE IN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
I. Screening Requirement
Plaintiff is a civil detainee 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 a plaintiff 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).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkewicz 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." Nietze 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
Plaintiff, an civil detainee the custody of the Department of State Hospitals at Coalinga State Hospital (CSH), brings this civil rights action against the following individual defendants: Pam Ahlin, former CSH Director; CSH Director Audrey King; Hospital Administrator George King; R. Rhandhawa, M.D.; John Doe members of Police Services.
On September 18, 2011, Plaintiff was housed on the Secured Services Unit (SSU) at CSH. Plaintiff alleges that the criteria for assignment to the SSU is "because the individual has had some problems adjusting to the mental health environmental surroundings. Meaning the individual is unable to get along with his peers, or his behavior is such that he is constantly in violation of facility rules and regulations."
On September 18, 2011, at approximately 3:00 p.m., Plaintiff, while in the SSU courtyard, "took up a protective position on the top of the basketball pole" The psychiatric technician and duty officer on the yard at the time ordered Plaintiff to climb down from the pole. Plaintiff alleges that the basketball pole is roughly 10 to 11 feet at its highest point, where the pole bends forward to hold the backboard. Plaintiff alleges that the end of the pole where the backboard is attached was the position he occupied for several hours.
Plaintiff refused to come down on the ground that he was not given an opportunity to talk to the then Director, Pam Ahlin. Four inch mattresses were placed around the base of the pole in order to protect Plaintiff if he fell. Plaintiff refused commands to come down from the pole. Plaintiff alleges that unidentified officers fired "several shots from the launcher" in order to get Plaintiff down from the pole. Plaintiff used his hands to cover his eyes and fell over backwards, falling head first. Plaintiff alleges that the fall "created a tremendous and dangers amount of strain on his head and neck." Plaintiff alleges that he "did not intentionally provoke, harass, use profanity, or violent actions toward any of the officer and PTs."
C. Excessive Force
Under the Eighth Amendment, "prison officials have a duty... to protect prisoners from violence." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). To establish a violation of this duty, a prisoner must demonstrate that prison officials were "deliberately indifferent to a serious threat to the inmate's safety." Farmer, 511 U.S. at 834. This requires the prisoner to satisfy both an objective and a subjective component. First, the prisoner must demonstrate that the alleged deprivation was, in objective terms, "sufficiently serious." Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prisoner must demonstrate that prison officials must have known of and disregarded an excessive risk to the prisoner's safety. Id. at 837.
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.
Here, a state employee firing non-lethal rounds to remove Plaintiff from a basketball pole without any provocation, as alleged here, denotes an objective use of force. As such, Plaintiff states an Eighth Amendment claim against Defendants for excessive force. Therefore, it logically follows that Plaintiff states a cognizable claim under the Fourteenth Amendment. However, Plaintiff has not identified the individual who fired the non-lethal round. Plaintiff names as defendants Doe officers. The Court cannot order service upon unidentified defendants. Plaintiff must name the ...