United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN CLAIMS (ECF Nos. 1, 9,
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
Larry William Cortinas (“Plaintiff”) is a state
prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983.
December 4, 2019, the Court screened Plaintiff's
complaint and found that Plaintiff stated a cognizable claim
against Defendant McDonald for excessive force in violation
of the Eighth Amendment, but failed to state any other
cognizable claims. The Court ordered Plaintiff to either file
a first amended complaint or notify the Court of his
willingness to proceed only on the cognizable claim. (ECF No.
9.) On December 16, 2019, Plaintiff notified the Court of his
willingness to proceed on the cognizable claim against
Defendant McDonald identified by the Court. (ECF No. 10.)
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
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 Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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).
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 (quotation marks omitted); Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer
possibility that a defendant acted unlawfully is not
sufficient, and mere consistency with liability falls short
of satisfying the plausibility standard. Iqbal, 556
U.S. at 678 (quotation marks omitted); Moss, 572
F.3d at 969.
Allegations in Complaint
is currently housed at California State Prison, Sacramento.
The events in the complaint are alleged to have occurred
while Plaintiff was housed at Corcoran State Prison, Corcoran
in Corcoran, California. Plaintiff asserts claims for
violation of the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act, and the Eighth
Amendment of the United States Constitution. Plaintiff names
Defendant McDonald as the sole defendant and alleges as
MARCH 17, 2018 I was inside california state prison Corcoran
hospital. I suffered a black out from my heart condiction.
Correctional Officer Mc Donald was allow with me in the
hospital room. He was asking me Questions which I would not
answer. So he [Mc Donald] grabed my handcuffed to the
hospital bed right hand. Mc Donald SQUEEZED my hand until the
bones broke. I had surgery upon the hand to set the bones
with pins. Mc Donald used this force to punish me for not
responding to his questions. NO INCIDENT REPORT was filed No.
rule violation occured., A use of force video was made. The
medical records have my statement that Mc Donald broke my
hand intentionally. Mc Donald did not deny breaking my hand.
This punishment for not answering Mc Donalds Questions
inflicted alot of pain upon me.
(ECF No. 1 at 4-5) (unedited text). As relief, Plaintiff
seeks monetary damages.
Eighth Amendment ...