United States District Court, E.D. California
MICHAEL M. COTTRELL, Plaintiff,
M. E. SPEARMAN, et al., Defendants.
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
requests leave to proceed in forma pauperis. Since plaintiff
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a), his request will be granted.
Plaintiff is required to pay the statutory filing fee of
$350.00 for this action. 28 U.S.C. §§ 1914(a),
1915(b)(1). By separate order, the court will direct the
appropriate agency to collect the initial partial filing fee
from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
briefly alleges that corrections officials at High Desert
State Prison failed to protect him, retaliated against him,
and used excessive force in violation of his constitutional
rights. (ECF No. 1.)
Eighth Amendment's prohibition on cruel and unusual
punishment imposes on prison officials, among other things, a
duty to “take reasonable measures to guarantee the
safety of the inmates.” Farmer v. Brennan, 511
U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468
U.S. 517, 526-27 (1984)). “‘[P]rison officials
have a duty ... to protect prisoners from violence at the
hands of other prisoners.'” Id. at 833.
“[A] prison official violates the Eighth Amendment when
two requirements are met. First, the deprivation alleged must
be, objectively, ‘sufficiently serious[.]' For a
claim . . . based on a failure to prevent harm, the inmate
must show that he is incarcerated under conditions posing a
substantial risk of serious harm.” Id. at 834.
Second, “[t]o violate the Cruel and Unusual Punishments
Clause, a prison official must have a ‘sufficiently
culpable state of mind' ... [T]hat state of mind is one
of ‘deliberate indifference' to inmate health or
safety.” Id. The prison official will be
liable only if “the official knows of and disregards an
excessive risk to inmate health and safety; the officials
must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837.
determining whether a correctional guard's use of force
was wanton and unnecessary under the Eighth Amendment, courts
may evaluate the extent of the prisoner's injury, the
need for application of force, the relationship between that
need and the amount of force used, the threat reasonably
perceived by the responsible officials, and any efforts made
to temper the severity of a forceful response.
Hudson, 503 U.S. at 7 (quotation marks and citations
omitted). While the absence of a serious injury is relevant
to the Eighth Amendment inquiry, it does not end it.
Hudson, 503 U.S. at 7. Mere negligence is not
actionable under §1983 in the prison context.
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
establish a claim for retaliation, a prisoner must show that
a prison official took some adverse action against an inmate
because of that prisoner's protected conduct, that the
action chilled the inmate's exercise of his
constitutional rights, and the action did not advance a
legitimate correctional goal. Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005).
court finds the allegations in plaintiff's complaint so
vague and conclusory that it fails to state a claim upon
which relief can be granted under the above standards.
Although the Federal Rules of Civil Procedure adopt a
flexible pleading policy, a complaint must give fair notice
and state the elements of the claim plainly and succinctly.
Jones v. Community Redev. Agency, 733 F.2d 646, 649
(9th Cir. 1984). Plaintiff must allege ...