(PC) Richardson v. Butler, No. 1:2009cv01151 - Document 20 (E.D. Cal. 2010)

Court Description: FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Action For Failure To State A Claim Upon Which Relief May Be Granted (Doc. 17 ), Opposition, If Any, Due Within 30 Days, signed by Magistrate Judge Dennis L. Beck on 10/20/2010. F&R's referred to Judge Oliver W. Wanger, Objections to F&R due by 11/29/2010. (Fahrney, E)

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(PC) Richardson v. Butler Doc. 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 JOHN ALBERT RICHARDSON, CASE NO. 1:09-CV-01151-OWW-DLB PC 9 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Defendant. (DOC. 17) 10 v. 11 S. BUTLER, 12 13 14 / OPPOSITION, IF ANY, DUE WITHIN 30 DAYS 15 16 Findings And Recommendation 17 I. Background 18 Plaintiff John Albert Richardson (“Plaintiff”) is a former prisoner of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 21 action by filing his complaint on June 17, 2009, in the Sacramento Division of the Eastern 22 District of California. Plaintiff’s case was transferred to this Court on July 1, 2009. On March 23 29, 2010, the Court dismissed Plaintiff’s complaint for failure to state a claim, with leave to file 24 an amended complaint. On April 14, 2010, Plaintiff filed his first amended complaint. 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 28 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 1 Dockets.Justia.com 1 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 3 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 4 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 5 1915(e)(2)(B)(ii). 6 A complaint must contain “a short and plain statement of the claim showing that the 7 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 8 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 11 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 12 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 13 II. Summary Of Amended Complaint 14 Plaintiff was previously incarcerated at Wasco State Prison (“WSP”) in Wasco, 15 California. Plaintiff names as Defendant S. Butler, correctional officer. 16 Plaintiff alleges the following. On May 18, 2008, while he was standing in the A yard 17 dining hall chow line, two other inmates began fighting. Dining hall officers Perez and Riley 18 ordered everyone to get down, and all but the two fighters complied. Defendant S. Butler was 19 the tower officer. He fired a non-lethal round into the chow hall before the dining hall officers 20 were able to gain control of the situation. The round struck Plaintiff in the hand, breaking his left 21 ring finger. Plaintiff alleges a violation of the Eighth Amendment for malicious and sadistic use 22 of force. Plaintiff also alleges a state claim of assault. 23 Plaintiff requests as relief monetary damages. 24 III. Analysis 25 A. 26 “What is necessary to show sufficient harm for purposes of the Cruel and Unusual Eighth Amendment - Excessive Force 27 Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson 28 v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim is 2 1 . . . contextual and responsive to contemporary standards of decency.” Id. (internal quotation 2 marks and citations omitted). The malicious and sadistic use of force to cause harm always 3 violates contemporary standards of decency, regardless of whether or not significant injury is 4 evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth 5 Amendment excessive force standard examines de minimis uses of force, not de minimis 6 injuries)). However, not “every malevolent touch by a prison guard gives rise to a federal cause 7 of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual 8 punishments necessarily excludes from constitutional recognition de minimis uses of physical 9 force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.” 10 Id. at 9-10 (internal quotations marks and citations omitted). 11 “[W]henever prison officials stand accused of using excessive physical force in violation 12 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was 13 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 14 cause harm.” Id. at 7. “In determining whether the use of force was wanton and unnecessary, it 15 may also be proper to evaluate the need for application of force, the relationship between that 16 need and the amount of force used, the threat reasonably perceived by the responsible officials, 17 and any efforts made to temper the severity of a forceful response.” Id. (internal quotation 18 marks and citations omitted). “The absence of serious injury is . . . relevant to the Eighth 19 Amendment inquiry, but does not end it.” Id. 20 Here, Plaintiff alleges at most negligence on the part of Defendant S. Butler. Plaintiff’s 21 allegations that the use of force was malicious and sadistic are conclusory allegations, which are 22 insufficient to state a claim. Iqbal, 129 S. Ct. at 1949. Plaintiff’s remaining factual allegations 23 indicate that Defendant Butler fired a non-lethal round in the direction of the chow hall because 24 two inmates were fighting. It appears that Plaintiff was accidentally struck by Defendant. This 25 appears to be the use of force in a good-faith effort to restore discipline. Thus, there is no 26 violation of the Eighth Amendment for use of excessive force. 27 Because there is no claim over which this Court retains original jurisdiction, the Court 28 declines to exercise supplemental jurisdiction over Plaintiff’s state law claim. 28 U.S.C. § 3 1 1367(c). 2 Plaintiff was previously provided with the opportunity to amend his complaint, but was 3 unable to cure the deficiencies herein. The Court does not recommend further leave to amend in 4 this action. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). 5 IV. Conclusion And Recommendation 6 Based on the foregoing, it is HEREBY RECOMMENDED that: 7 1. 8 9 10 This action be dismissed for failure to state a claim upon which relief may be granted; and 2. This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty 12 (30) days after being served with these Findings and Recommendations, the plaintiff may file 13 written objections with the court. The document should be captioned “Objections to Magistrate 14 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 16 Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 IT IS SO ORDERED. Dated: 3b142a October 20, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4

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