United States District Court, E.D. California
FRANKIE L. GERMANY, Plaintiff,
M. COELHO, Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED
COMPLAINT OR NOTIFY THE COURT OF INTENT TO PROCEED ON CLAIM
FOUND TO BE COGNIZABLE [ECF No. 12]
Frankie L. Germany is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff
consented to the jurisdiction of the United States Magistrate
Judge on March 21, 2017. Local Rule 302.
before the Court is Plaintiff's first amended complaint,
filed June 5, 2017.
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 “fails to state a claim on
which relief may be granted, ” or that “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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 demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are still entitled
to have their pleadings liberally construed and to have any
doubt resolved in their favor, but the pleading standard is
now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012) (citations omitted), and to survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged. Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient, and “facts
that are ‘merely consistent with' a defendant's
liability” falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572
F.3d at 969.
AMENDED COMPLAINT ALLEGATIONS
claims his Eighth Amendment rights were violated when prison
official used excessive force against him and acted with
deliberate indifference to his safety. On December 5, 2016,
while detained in North Kern State Prison, (“North
Kern”) Plaintiff claims three Correctional Officers and
one Sergeant used excessive force causing injuries to
Plaintiff. Throughout the day and on a couple of instances,
Plaintiff spoke with Officer Coelho and requested a cell
move. Plaintiff reasons that his request for a cell move was
warranted as Plaintiff sustained a broken arm by falling off
the top bunk. Upon denying Plaintiff's request, Plaintiff
then asked to speak with a Sergeant, to which Officer Coelho
replied, “hell no.” As such, Officer Coelho
denied both requests. Later, during meal time in the dayroom,
Plaintiff asked Officer Coelho if he could speak with a
Sergeant, where Officer Coelho began to pepper spray
Plaintiff without provocation. Immediately after, Officer
Coelho and his co-workers then proceeded to kick and punch
Plaintiff while he was on the ground. Defendants picked
Plaintiff off the ground and proceeded in handcuffing him.
While being escorted out of the building, Plaintiff was body
slammed on the ground and was beat again. Defendant proceeded
to pick Plaintiff off the ground and continued to escort
Plaintiff to the program office where he was placed in a
cell. Plaintiff named the following Defendants and claims
they were also involved in this incident, Officer P. Ward,
Officer Garcia-Fernandez, and Sergeant Hanson.
further claims, while detained at the program office he was
treated with deliberate indifference by being denied medical
care by nurse Negre. Nurse Negre was on duty at the D yard
facility and did not properly treated Plaintiff's
injuries, which consisted of: bleeding, bruises, scratches,
and a previous injury of a broken arm. Nurse Negre looked at
Plaintiff and said, “he was not hurt too bad”,
and proceeded to walk away.
is requesting a trial and monetary damages.