Burchett v. Doe

         FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF'S EXCESSIVE FORCE CLAIMS AGAINST THE EIGHT DOE DEFENDANTS THAT ALLEGEDLY ATTACKED HIM ON JANUARY 31, 2018, AND DEFENDANT RAMIREZ, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED (ECF NO. 16)

         Peter Burchett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on October 16, 2018. (ECF No. 1).

         The Court screened Plaintiff's First Amended Complaint on September 25, 2019, and gave Plaintiff options as to how to move forward. (ECF No. 49). On November 12, 2019, Plaintiff filed his response to the Court's screening order. (ECF No. 52). Plaintiff states that he wants to stand on his complaint. (Id.).^[1]

         Accordingly, the Court issues these findings and recommendations to the district judge consistent with the screening order.

         For the reasons described below, the Court finds that Plaintiff has stated cognizable excessive force claims against the eight unidentified Defendants that allegedly attacked him on January 31, 2018, and defendant Ramirez. The Court also finds that Plaintiff failed to state any other cognizable claims.

         I. SCREENING REQUIREMENT

         The 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. § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 12), the Court may also screen the complaint under 28 U.S.C. § 1915. “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).

         A complaint is required to 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. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF PLAINTIFF'S COMPLAINT^[2]

         Plaintiff was confined at California Correctional Institution when the events alleged in the complaint took place.

         Plaintiff alleges that on January 31, 2018, at least eight peace officers^[3] attacked him and sprayed him with pepper spray for no reason but physical torture. Plaintiff was laying down and followed the officers' instructions, and other inmates witnessed him following instructions.

         The attack began on the B Yard Clinic Area during Second Watch, while Plaintiff lay still. The attack ended two buildings away at the Administrative Segregation Unit. Plaintiff was dragged, ...