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Elias v. Lichinov

United States District Court, C.D. California

August 29, 2019

KEIRON ELIAS, Plaintiff,
v.
C/O A. LICHINOV, Defendant.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          HONORABLE JACQUELINE CHOOLJIAN, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On August 28, 2019, plaintiff Keiron Elias, who is in state custody at the California State Penitentiary, Los Angeles County (“CSP-LAC”), is proceeding pro se, and has been granted leave to proceed without prepayment of filing fees (“IFP”), filed a Civil Rights Complaint (“Complaint” or “Comp.”) pursuant to 42 U.S.C. § 1983 (“Section 1983”) and multiple supporting documents. (Docket Nos. 1-5). Construed liberally, the Complaint appears to claim that the sole defendant - CSP-LAC Correctional Officer A. Lichinov - who is sued in his individual and official capacities - used excessive force against plaintiff. (Comp. at 3, 5). Plaintiff seeks $1 million in damages. (Comp. at 6).

         Congress mandates that district courts perform an initial screening of complaints in civil actions where a plaintiff is permitted to proceed IFP and where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). This Court may dismiss such a complaint, or any portion thereof, before service of process if the complaint (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. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

         As the Complaint is deficient in multiple respects, including those detailed below, it is dismissed with leave to amend.[1]

         II. THE COMPLAINT

         The Complaint, construed liberally, alleges the following:

         On April 12, 2019, defendant grabbed plaintiff, placed him in handcuffs, and moved plaintiff beyond five feet to a cage in the gym against plaintiff's will and without plaintiff's consent, thereby assaulting and falsely imprisoning him. (Comp. at 3, 5). Defendant acted with deliberate indifference after having been placed on notice that he should not violate the peace, property or jurisdiction of “the KING” (presumably plaintiff). (Comp. at 5).

         III. DISCUSSION

         Here, the Complaint is deficient in multiple respects, including those detailed below.

         First, the Complaint does not state a viable Section 1983 claim against defendant Lichinov in his official capacity because the State - the real party in interest - is immune from this suit for damages. “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment bars suits for money damages against states and their agencies under Section 1983. See Howlett v. Rose, 496 U.S. 356, 365 (1990); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (dismissal of civil rights action “as to the Department of Prisons was proper” because “[t]he Nevada Department of Prisons, as a state agency, clearly was immune from suit under the Eleventh Amendment”). (citations omitted). “California has not waived its Eleventh Amendment immunity with respect to claims brought under [Section] 1983 in federal court.” Brown v. Cal. Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 2009). Therefore, defendant, in his official capacity, is protected from this damages suit under the Eleventh Amendment. Id.

         Second, the Complaint does not state a viable Section 1983 Eighth Amendment excessive force claim against defendant Lichinov in his individual capacity. “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); (citation and internal quotation marks omitted); Hope v. Pelzer, 536 U.S. 730, 737 (2002). “The alleged pain may be physical or psychological.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). However, “not ‘every malevolent touch by a prison guard gives rise to a federal cause of action.'” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Rather, “whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, 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, 503 U.S. at 6-7; Wilkins, 559 U.S. at 37. Factors that may be considered in determining whether the use of force was wanton and unnecessary include: (1) the extent of injury the inmate suffered; (2) the need for application of force; (3) the relationship between that need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Furnace v. Sullivan, 705 F.3d 1021, 1028-29 (9th Cir. 2013).

         Here, at a minimum, the Complaint does not state a viable Eighth Amendment excessive force claim because it neither alleges that defendant inflicted any pain - let alone unnecessarily and wantonly- nor alleges that the force used by defendant against plaintiff was anything other than de minimis. See Hudson, 503 U.S. at 9-10 (“Eighth Amendment's prohibition of cruel and unusual punishments 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) (citations and internal quotations omitted). To the extent plaintiff may believe that the contents of his supporting documents establish that he has somehow stated a viable claim, he is mistaken. It is not the Court's responsibility to sift through plaintiff's multiple submissions in an attempt to glean whether plaintiff has an adequate basis upon which to state a viable claim. Cf. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1066 (9th Cir. 2009) (“[j]udges are not like pigs, hunting for truffles buried in briefs”) (citation omitted).

         IV ...


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