(PC) Venable v. Tally

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 MAURICE L. VENABLE, Case No. 2:24-cv-1779-JDP (P) 12 Plaintiff, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 TALLY, 15 Defendant. [16] 17 Plaintiff, a state prisoner, alleges in his first amended complaint that defendant Talley 18 violated his Eighth Amendment rights by using excessive force against him. ECF No. 8. The 19 complaint has not cured the defects identified in the court’s prior screening order and continues to 20 fail to state an Eighth Amendment excessive force claim. Therefore, I will recommend that this 21 action be dismissed without leave to amend for failure to state a claim. 22 Screening Order 23 I. Screening and Pleading Requirements 24 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 25 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 26 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 27 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 28 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 1 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 2 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 3 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 4 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 6 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 7 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024 , 8 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 9 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257 , 1264 10 n.2 (9th Cir. 2006) (en banc) (citations omitted). 11 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 12 U.S. 519 , 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 13 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 14 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 15 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 16 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251 , 17 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 18 II. Analysis 19 Plaintiff alleges that on September 20, 2023, he reported to the education department and 20 sat at a computer to begin working. ECF No. 8 at 3. Plaintiff attempted to log into the computer, 21 but his password was not working. Id. Plaintiff asked his teacher, defendant Talley, why his 22 password was always changing, to which she responded that she did not know. Id. Plaintiff then 23 asked Talley for the code to reset his password, and when she approached his desk and told him 24 to put his code in, plaintiff explained to her that he had already done so. Talley told plaintiff to 25 do it again. Plaintiff did not respond, but Talley tried to make it seem as if plaintiff was causing 26 the computer error. Id. at 3-4. Talley asked plaintiff again if he was going to type in the code, to 27 which plaintiff did not respond. Id. at 4. Talley then asked plaintiff if he wanted to go back his 28 cell, to which he responded that he did not want to return to his cell, he only wanted his code 1 reset. Id. Following this conversation, plaintiff “felt a hit on [his] should[er] and [his] vest lift 2 up, Talley had struck [him] in her actions to remove me from her class with force enough to lift 3 [his] vest from [his] shoulder and back area.” Id. Plaintiff told Talley to not touch him, to which 4 she responded that she had not touched him. Talley then sought the assistance of Officer Mortel. 5 Id. Plaintiff alleges that he suffers from stress, anxiety, anger, and fear as a result of Talley’s 6 actions. Id. at 6. 7 These allegations, taken as true, fail to state a claim for excessive force against Talley. 8 The alleged use of force is that Talley’s hand “hit” plaintiff’s shoulder and lifted his vest. This is 9 the kind of de minimis use of force that the Supreme Court has held does not violate the Eighth 10 Amendment. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (“The Eighth Amendment’s 11 prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition 12 de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the 13 conscience of mankind.”) (internal quotation marks omitted). As explained in the court’s prior 14 screening order, the allegations do not claim that Talley struck plaintiff with any great force or 15 that she inflicted significant injury or pain by making contact with his shoulder and lifting his 16 vest. The alleged contact does not rise above the de minimis threshold. See Wilkins v. Gaddy, [17] 559 U.S. 34, 40 (2010) (“An inmate who complains of a ‘push or shove’ that causes no 18 discernible injury almost certainly fails to state a valid excessive force claim.”); Ferrell v. 19 Clackamas Cnty. Sheriff’s Dep’t, No. 93-35042, 1993 WL 501590, at *1 (9th Cir. Dec. 3, 1993) 20 (holding that pushing the plaintiff into a desk “would not rise to the level of a constitutional 21 violation” and explaining that the Eighth Amendment “does not reach de minimis uses of physical 22 force”); Broadway v. Lynn, No. CV S-09-0192 GGH P, 2009 WL 10658353 , at *2 (E.D. Cal. 23 Aug. 28, 2009), aff’d, 523 F. App’x 465 (9th Cir. 2013) (explaining that “[n]ot every unnecessary 24 push and shove is actionable under the Eighth Amendment”). 25 Accordingly, it is ORDERED that the Clerk of Court randomly assign a district judge to 26 this matter. 27 Further, it is hereby RECOMMENDED that this action be dismissed for failure to state a 28 claim without leave to amend and that the Clerk of Court be directed to close this action. 1 These findings and recommendations are submitted to the United States District Judge 2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 3 | after being served with these findings and recommendations, any party may file written 4 | objections with the court and serve a copy on all parties. Such a document should be captioned 5 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 | objections shall be served and filed within fourteen days after service of the objections. The 7 | parties are advised that failure to file objections within the specified time may waive the right to 8 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 9 | v. Vist, 951 F.2d 1153 (9th Cir. 1991). [10] Wl IT IS SO ORDERED. 12 ( 4 ie — Dated: _ December 19, 2024 Q_—_—. 13 JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE