(PC) Brown v. Henry, No. 2:2019cv02304 - Document 12 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/17/2019 ORDERING Clerk to assign a district judge to this case and RECOMMENDING Plaintiff's 14th Amendment claim be dismissed with prejudice and this action proceed solely on Plaintiff's 8th Amendment claim against defendant Henry. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE CHEROKEE BROWN, 12 13 14 15 No. 2:19-cv-2304 KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS D. HENRY, Defendant. 16 17 Plaintiff is a state prisoner, proceeding without counsel. By separate order, the 18 undersigned found that plaintiff states a potentially cognizable Eighth Amendment claim against 19 defendant Henry based on his alleged use of excessive force on July 24, 2019. In his complaint, 20 plaintiff also asserts a violation of his Fourteenth Amendment rights based on the same claim of 21 excessive force. It appears plaintiff seeks relief for the same conduct under both the Eighth and 22 Fourteenth Amendments. 23 The United States Supreme Court has determined in this context that the Due Process 24 Clause serves no purpose as an alternative basis for relief. “We think the Eighth Amendment, 25 which is specifically concerned with the unnecessary and wanton infliction of pain in penal 26 institutions, serves as the primary source of substantive protection to convicted prisoners in cases 27 such as this one, where the deliberate use of force is challenged as excessive and unjustified.” 28 Whitley v. Albers, 475 U.S. 312, 327 (1986) (holding that “the Due Process Clause affords 1 1 [prison inmates] no greater protection than does the Cruel and Unusual Punishment Clause”); see 2 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (“[W]e hold that whenever prison officials stand 3 accused of using excessive physical force in violation of the Cruel and Unusual Punishments 4 Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a good- 5 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm”). 6 Therefore, Eighth Amendment jurisprudence provides plaintiff the appropriate and exclusive 7 standards for resolving the use of force claim. Accordingly, plaintiff’s Fourteenth Amendment 8 claim against defendant Henry should be dismissed. Plaintiff’s excessive force claim will 9 proceed against defendant Henry solely under the Eighth Amendment. 10 Because plaintiff cannot present his Eighth Amendment excessive force claim as a due 11 process violation under the Fourteenth Amendment, Whitley, 475 U.S. at 327, plaintiff cannot 12 amend his pleading to state a cognizable Fourteenth Amendment claim against defendant Henry. 13 Thus, plaintiff’s Fourteenth Amendment claim should be dismissed without leave to amend. 14 15 16 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and Further, IT IS RECOMMENDED that plaintiff’s Fourteenth Amendment claim be 17 dismissed with prejudice. This action proceeds solely on plaintiff’s Eighth Amendment claim 18 against defendant Henry. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, plaintiff may file written objections 22 with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 24 failure to file objections within the specified time may waive the right to appeal the District 25 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: December 17, 2019 27 brow2304.56 28 2
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