United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is plaintiffs complaint (Doc. 1).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a "short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). This means that claims must be stated
simply, concisely, and directly. See McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to
Fed.R.Civ.P. 8(e)(1)). These rules are satisfied if the
complaint gives the defendant fair notice of the plaintiffs
claim and the grounds upon which it rests. See Kimes v.
Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because
plaintiff must allege with at least some degree of
particularity overt acts by specific defendants which support
the claims, vague and conclusory allegations fail to satisfy
this standard. Additionally, it is impossible for the court
to conduct the screening required by law when the allegations
are vague and conclusory.
statement of his claim consists of one paragraph in his
complaint as follows:
I claim correctional sergeant Salazar on 5-22-15 used
excessive use of force. I was hand cuffed and didn't pose
a threat to him. I had medical and safety concerns. I
received a injury to my head and cut to my chin, which need
sti[t]ches. He also refused to give back my eye glasses.
(Compl, Doc. 1 at 3).
stated above, plaintiff must allege with at least some degree
of particularity overt acts by specific defendants which
support the claims, vague and conclusory allegations fail to
satisfy the basic pleading standard. In 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, 555-57 (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. at 678
(2009). Furthermore, a claim upon which the court can grant
relief has facial plausibility. See 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).
court finds the allegations in plaintiffs complaint so vague
and conclusory that it fails to state a claim upon which
relief can be granted. 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. See Jones v. Community Redev.
Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff
must allege with at least some degree of particularity overt
acts which defendants engaged in that support plaintiffs
claim. See id. Plaintiffs complaint fails to allege
any specific acts, only the vague conclusory allegation that
the defendant used excessive force. The complaint must be
dismissed, but plaintiff will be grant leave to file an
treatment a prisoner receives in prison and the conditions
under which the prisoner is confined are subject to scrutiny
under the Eighth Amendment, which prohibits cruel and unusual
punishment. See Helling v. McKinney, 509 U.S. 25, 31
(1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The Eighth Amendment "embodies broad and idealistic
concepts of dignity, civilized standards, humanity, and
decency." Estelle v. Gamble, 429 U.S. 97, 102
(1976). Conditions of confinement may, however, be harsh and
restrictive. See Rhodes v. Chapman, 452 U.S. 337,
347 (1981). Nonetheless, prison officials must provide
prisoners with "food, clothing, shelter, sanitation,
medical care, and personal safety." Toussaint v.
McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison
official violates the Eighth Amendment only when two
requirements are met: (1) objectively, the official's act
or omission must be so serious such that it results in the
denial of the minimal civilized measure of life's
necessities; and (2) subjectively, the prison official must
have acted unnecessarily and wantonly for the purpose of
inflicting harm. See Farmer, 511 U.S. at 834. Thus,
to violate the Eighth Amendment, a prison official must have
a "sufficiently culpable mind." See id.
prison officials stand accused of using 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); Whitley v.
Albers, 475 U.S. 312, 320-21 (1986). The "malicious
and sadistic" standard, as opposed to the
"deliberate indifference" standard applicable to
most Eighth Amendment claims, is applied to excessive force
claims because prison officials generally do not have time to
reflect on their actions in the face of risk of injury to
inmates or prison employees. See Whitley, 475 U.S.
at 320-21. In determining whether force was excessive, the
court considers the following factors: (1) the need for
application of force; (2) the extent of injuries; (3) the
relationship between the need for force and the amount of
force used; (4) the nature of the threat reasonably perceived
by prison officers; and (5) efforts made to temper the
severity of a forceful response. See Hudson, 503
U.S. at 7. The absence of an emergency situation is probative
of whether force was applied maliciously or sadistically.
See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.
1993) (en banc). The lack of injuries is also probative.
See Hudson, 503 U.S. at 7-9. Finally, because the
use of force relates to the prison's legitimate
penological interest in maintaining security and order, the
court must be deferential to the conduct of prison officials.
See Whitley, 475 U.S. at 321-22.
not "every malevolent touch by a prison guard gives rise
to a federal cause of action." Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (citing Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ("Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, violates a
prisoner's constitutional rights")). De minimis uses
of physical force are not necessarily in violation of the
Eighth Amendment, "provided that the use of force is not
of a sort 'repugnant to the conscience of
mankind.'" Id. at 9-10 (citing
Whitley, 475 U.S. at 327 ((quoting Estelle,
429 U.S. at 106) (internal quotation marks omitted))). Thus,
something more than a de minimis use of force is generally
necessary for an Eighth Amended violation.