United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se in a civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff’s
complaint is before the Court for screening. Plaintiff has
consented to the jurisdiction of a magistrate judge.
forma pauperis statute provides, “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).
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
state a claim under § 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); Ketchum v. Alameda
Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. Facial
plausibility demands more than the mere possibility that a
defendant committed misconduct and, while factual allegations
are accepted as true, legal conclusions are not. Id.
relevant times Plaintiff was an inmate housed at California
Correctional Institution (“CCI”) in Tehachapi,
California. He names as Defendants CCI Correctional
Officers (“CO”) R. Harris and J. Gonzalez and
Lieutenant (“Lt.”) J.L. Peterson.
Plaintiff’s claims can be summarized essentially as
November 4, 2012, CO Gonzalez placed handcuffs on Plaintiff
tightly and roughly escorted him from his cell to outside the
building in which he was housed. Once outside, CO Gonzalez
forcefully and without provocation slammed Plaintiff
violently onto the pavement, causing injury to
Plaintiff’s left shoulder, left elbow, left knee, and
the left side of his face. This incident left Plaintiff
stunned and bleeding. CO Gonzalez, who is approximately 200
pounds, then sat on Plaintiff’s head, and he pressed
his right knee hard into Plaintiff’s face and head.
Plaintiff was only 143 pounds at the time.
CO Weathers observed the incident from the yard gun tower and
activated the alarm button. Within seconds, a number of
prison guards came running to where CO Gonzalez and Plaintiff
the guards, CO Harris, struck Plaintiff twice with a steel
baton, again without provocation. Plaintiff was still on the
ground at this point. Though this Defendant was yelling
“Stop resisting, ” Plaintiff was not resisting
because he was still stunned from the body slam by CO
this incident, Plaintiff was taken to the medical unit where
CO Harris directed Plaintiff to face the wall. When Plaintiff
complied, CO Harris punched Plaintiff twice in the
facial/head area and said, “Nigger you’re were
[sic] in my building I’ll kill you.”
medical unit, Plaintiff was placed in a small cage for
“[at] least an hour or two, may be longer” with
the tight handcuffs before someone removed them.
the assault, “strange things began to happen, my mail
start disappearing & tampered with.” Plaintiff does
not assert any facts related to this allegation.
investigation of the assault occurred, and Plaintiff was
interviewed by non-party CO Crotty who told Plaintiff that a
video of the assault did not exist. Plaintiff later learned
that a video taken from the yard tower did exist.
December 13, 2012, Senior Hearing Officer CO Peterson
conducted a hearing concerning the November 4, 2012, assault.
Plaintiff requested the presence of CO Crotty at the hearing.
CO Peterson’s denial of this request violated
Plaintiff’s right to a fair trial. As to the video of
the assault, CO Peterson also denied Plaintiff’s
request to view it. Instead, CO Peterson viewed the video
outside of the presence of Plaintiff, claiming that it showed
Plaintiff dipping his shoulder toward one of the officers. In
light of this evidence, CO Peterson found Plaintiff guilty of
assault on a peace officer. Plaintiff denies making any
threatening conduct towards either CO Gonzalez or CO Harris
and asserts that his due process rights were violated because
CO Peterson was not a fair hearing officer.
attempted to exhaust his administrative remedies regarding
the December 13, 2012, hearing, but was threatened by an
unidentified lieutenant, who said, “You should drop the
602 complaint if you know what’s best for you.”
This lieutenant said that Plaintiff won’t leave in one