Opinion
2:22-cv-01212-KJM-EFB (PC)
02-27-2023
MICHAEL AARON WITKIN, Plaintiff, v. F. GONZALEZ, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a former state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. After dismissal of the original complaint pursuant to 28 U.S.C. § 1915A (ECF No. 7), plaintiff has filed an amended complaint (ECF No. 8), which the court must screen.
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).
As in the original complaint, plaintiff purports to bring a Fourth Amendment unreasonable search and seizure claim and an Eighth Amendment excessive force claim. ECF No. 8 at 3, 5. The amended complaint alleges that in June of 2021, plaintiff was assigned to Minimum B Custody at the California Medical Facility (CMF) and was walking outdoors when defendant correctional officers Gonzalez, Kahie, Gotu, and Hernandez pulled up in a sedan, got out of the car, and grabbed him without “any reasonable suspicion[.]” Id. at 3-4. Plaintiff alleges that Gonzalez handcuffed him “with his left wrist handcuffed extremely and excessively tight . . . and left him handcuffed for about five minutes. Id. at 4. “The defendants repeatedly ignored plaintiff's requests to loosen his left handcuff' while they performed an unclothed body search, “despite plaintiff's loud screams of pain.” Id. at 4-5. Defendant Gonzalez allegedly told plaintiff that, if he didn't struggle against the cuffs, it wouldn't hurt. Id. Plaintiff sustained a left wrist fracture with nerve damage, requiring a brace and physical therapy. Id.
In the prior screening order, the court found plaintiff's allegations too vague and conclusory to show that the body search was unreasonable or to establish a claim for excessive force. ECF No. 7 at 2-3. In the amended complaint, plaintiff provides more details about his interaction with defendants during the five minutes he spent in handcuffs, but once again, the allegations do not rise to the level of an Eighth Amendment violation. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (“The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” (internal quotation marks and citations omitted)). Nor do plaintiff's revised allegations show that the body search was unreasonable under the Fourth Amendment. Accordingly, the amended complaint, like the original complaint, fails to state a cognizable claim.
Despite notice of the deficiencies in the complaint and an opportunity to amend, plaintiff is unable to state a claim upon which relief could be granted. The court finds that further leave to amend is not warranted. See Plumeau v. SchoolDist. # 40, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile).
Accordingly, it is RECOMMENDED that plaintiff's amended complaint (ECF No. 8) be DISMISSED without leave to amend for failure to state a claim upon which relief could be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).