United States District Court, N.D. California
BENDY A. FALLA, Plaintiff,
C. DUCART, et al., Defendants.
ORDER OF DISMISSAL WITH LEAVE TO AMEND
TIGAR United States District Judge.
a California prisoner incarcerated at Pelican Bay State
Prison (“PBSP”) proceeding pro se, filed this
civil rights action under 42 U.S.C. § 1983. Plaintiff
has been granted leave to proceed in forma pauperis in a
separate order. His complaint is now before the Court for
review under 28 U.S.C. § 1915A.
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1), (2). Pro se pleadings must,
however, be liberally construed. See Balistreri v.
Pacifica Police Dep’t., 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” “Specific facts are not
necessary; the statement need only “‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v.
Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted).
Although in order to state a claim a complaint “does
not need detailed factual allegations, . . . a
plaintiff’s obligation to provide the grounds of his
‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations
omitted). A complaint must proffer “enough facts to
state a claim for relief that is plausible on its
face.” Id. at 1974.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
states that he was the victim of excessive force and that he
was denied medical care.
treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the
Eighth Amendment. Helling v. McKinney, 509 U.S. 25,
31 (1993). “After incarceration, only the unnecessary
and wanton infliction of pain . . . constitutes cruel and
unusual punishment forbidden by the Eighth Amendment.”
Whitley v. Albers, 475 U.S. 312, 319 (1986) (ellipsis in
original) (internal quotation and citation omitted). With
respect to excessive force, the core judicial inquiry is
whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to
cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7
(1992). But not every malevolent touch by a prison guard
gives rise to a federal cause of action. Id. at 9.
The Eighth Amendment’s prohibition of cruel and unusual
punishment necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that
the use of force is not of a sort repugnant to the conscience
of mankind. Id. An inmate who complains of a push or
shove that causes no discernable injury almost certainly
fails to state a valid excessive force claim.
indifference to serious medical needs violates the Eighth
Amendment’s proscription against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
Cir. 1992), overruled on other grounds by WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th
Cir. 1997) (en banc). A determination of “deliberate
indifference” involves an examination of two elements:
the seriousness of the prisoner’s medical need and the
nature of the defendant’s response to that need.
Id. at 1059.
“serious” medical need exists if the failure to
treat a prisoner’s condition could result in further
significant injury or the “unnecessary and wanton
infliction of pain.” Id. The existence of an
injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of
a medical condition that significantly affects an
individual’s daily activities; or the existence of
chronic and substantial pain are examples of indications that
a prisoner has a “serious” need for medical
treatment. Id. at 1059-60.
prison official is deliberately indifferent if he or she
knows that a prisoner faces a substantial risk of serious
harm and disregards that risk by failing to take reasonable
steps to abate it. Farmer v. Brennan, 511 U.S. 825,
837 (1994). The prison official must not only “be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, ” but he
“must also draw the inference.” Id. If a
prison official should have been aware of the risk, but was
not, then the official has not violated the Eighth Amendment,
no matter how severe the risk. Gibson v. County of
Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A
difference of opinion between a prisoner-patient and prison
medical authorities regarding treatment does not give rise to
a § 1983 claim.” Franklin v. Oregon, 662
F.2d 1337, 1344 (9th Cir. 1981).
alleges that on June 4, 2015, PBSP correctional officers
Vangilder and Vasquez were engaging in unprofessional conduct
and “horse playing” with each other when
Vangilder discharged a chemical agent grenade near
plaintiff’s cell. Plaintiff states he felt a severe
burning sensation in his skin and eyes from the chemical
agent being dispersed. Plaintiff requested medical attention,
but Vangilder and Vasquez ignored his pleas ...