Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESSIE RAY-LYNN HORN, Case No. 25-cv-2404-BAS-GC 12 Plaintiff, ORDER DISMISSING FIRST 13 v. AMENDED COMPLAINT WITHOUT LEAVE TO AMEND FOR FAILURE 14 TO STATE A CLAIM PURSUANT TO MARIO DE LA TORRE, Correctional 15 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) Officer, 16 Defendant. 17 18 19 Plaintiff Jessie Ray-Lynn Horn is a state prisoner proceeding pro se and in forma 20 pauperis with a First Amended Complaint (“FAC”) filed pursuant to 42 U.S.C. § 1983. 21 (ECF No. 8.) 22 I. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 23 A. Standard of Review 24 Because Plaintiff is a prisoner proceeding IFP, his FAC requires a pre-Answer 25 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, the Court 26 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 27 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 1 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 2 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets of frivolous or 3 malicious suits need not bear the expense of responding.” Nordstrom v. Ryan, 762 F.3d 4 903, 920 n.1 (9th Cir. 2014) (internal quotation marks omitted). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 9 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 10 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 11 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 12 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 13 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual 14 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 15 supported by mere conclusory statements, do not suffice.” Id. “Determining whether a 16 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 17 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 18 possibility of misconduct” falls short of meeting this plausibility standard. Id. 19 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 20 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 21 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 22 substantive rights, but merely provides a method for vindicating federal rights elsewhere 23 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 24 omitted). 25 B. Allegations in the FAC 26 Plaintiff alleges in the FAC, as he did in the original Complaint, that on August 20, 27 2024, he was resting his foot on a railing while tying his boot after having removed it to go 28 through a metal detector, when Defendant Correctional Officer De La Torre instructed him 1 to tie his shoe behind the red out of bounds line. (ECF No. 8 at 3.) “Before I could even 2 react to his request or react fast enough for c/o De La Torre he yelled ‘now’! Then very 3 violently, aggressively, and forcefully slapped my foot off the rail I had it on while tying 4 my boots back up.” (Id.) Plaintiff states that his “foot swelled up for up to ten days making 5 it hard for me to do just normal everyday activity. I even went and got an x-ray due to the 6 pain and swelling.” (Id.) Plaintiff alleges that De La Torre’s act was designed to frighten 7 and degrade him, that it “put a huge target on my back” because “all the inmates treat me 8 like I don’t matter or make a difference on the yard,” and although he “escape[d] without 9 serious injury,” he has experienced “severe mental and emotional issues.” (Id. at 4–5.) 10 C. Analysis 11 The Eighth Amendment forbids prison officials from “the unnecessary and wanton 12 infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). It “places restraints on 13 prison officials, who may not, for example, use excessive physical force against prisoners.” 14 Farmer v. Brennan, 511 U.S. 825, 832 (1994). Nevertheless, “prison officials are 15 authorized and indeed required to take appropriate measures to maintain prison order and 16 discipline and protect staff and other prisoners.” LeMaire v. Maas, 12 F.3d 1444, 1458 (9th 17 Cir. 1993). “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments 18 necessarily excludes from constitutional recognition de minimis uses of physical force, 19 provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” 20 Hudson v. McMillian, 503 U.S. 1, 9 (1992), quoting Whitley, 475 U.S. at 327. 21 Plaintiff “admit[s] to just minor physical injury,” but argues there is no need to show 22 a serious injury for an Eighth Amendment violation. (ECF No. 8 at 4–5.) Plaintiff is correct 23 that “[w]hen prison officials maliciously and sadistically use force to cause harm, 24 contemporary standards of decency always are violated . . . whether or not significant injury 25 is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no 26 matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” 27 Hudson, 503 U.S. at 9. Nevertheless, the extent of injury is relevant to the inquiry. See 28 Whitley, 475 U.S. at 321 (noting that the extent of the injury suffered by an inmate is one 1 factor that may suggest “whether the use of force could plausibly have been thought 2 necessary” in the situation, “or instead evinced such wantonness with respect to the 3 unjustified infliction of harm as is tantamount to a knowing willingness that it occur”). 4 However, “[n]ot every malevolent touch by a prison guard gives rise to a federal cause of 5 action,” and “[a]n inmate who complains of a ‘push or shove’ that causes no discernible 6 injury almost certainly fails to state a valid excessive force claim.” Wilkins v. Gaddy, 559 7 U.S. 34, 38 (2010), quoting Hudson, 503 U.S. at 9 (“The Eighth Amendment’s prohibition 8 of “cruel and unusual” punishments necessarily excludes from constitutional 9 recognition de minimis uses of physical force, provided that the use of force is not of a sort 10 repugnant to the conscience of mankind.”) (quotation marks omitted); Whitley, 475 U.S. at 11 321–22 (“Prison officials are entitled to deference whether a prisoner challenges excessive 12 force or conditions of confinement.”); Simmons v. G. Arnett, 47 F.4th 927, 933 (9th Cir. 13 2022) (“[P]rison officials should be accorded ‘wide-ranging deference’ when they are 14 exercising their judgment to maintain prison safety,” because “[i]n the specialized context 15 of prison operations, the use of force can be a ‘legitimate means for preventing small 16 disturbances from becoming dangerous to other inmates or the prison personnel.’”) 17 (citations omitted). 18 Defendant is alleged to have forcefully slapped Plaintiff’s foot off the rail he was 19 using to tie his boot after telling Plaintiff he was required to do so in an authorized area, 20 causing swelling of his foot for up to ten days. (ECF No. 8 at 3–4.) Although Plaintiff 21 indicates he subjectively perceived Defendant’s action as malicious and sadistic (see id. at 22 3–5), he has once again failed to plausibly allege the objective component of an Eighth 23 Amendment violation by showing the force used was objectively harmful enough to 24 establish it was applied maliciously and sadistically to cause harm. See Farmer, 511 U.S. 25 at 834 (noting that the Eighth Amendment standard requires proof the alleged wrongdoing 26 was objectively “harmful enough” to establish a constitutional violation and that the prison 27 official acted with a sufficiently culpable state of mind); Hudson, 503 U.S. at 8 (“[C]ourts 28 considering a prisoner’s [Eighth Amendment] claim must ask both if ‘the officials act(ed) | |} with a sufficiently culpable state of mind’ and if the alleged wrongdoing was objectively 2 || ‘harmful enough’ to establish a constitutional violation.”), quoting Wilson v. Seiter, 501 3 294, 298 (1991) (“[O]nly those deprivations denying ‘the minimal civilized measure 4 |lof life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment 5 || violation.”); Anthony v. Schackmann, 402 Fed.Appx. 207, 208 (9th Cir. 2010) (discussing 6 a single unprovoked slap by correctional officer on prisoner constituted de minimis 7 || force which did not violate the Eighth Amendment); /gbal, 556 U.S. at 678 (noting that a 8 || complaint is subject to dismissal for failure to state a claim if it does not “contain sufficient 9 || factual matter, accepted as true, to state a claim to relief that is plausible on its □□□□□□□ 10 The FAC is dismissed under 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state 11 claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because it is now clear 12 || Plaintiff is unable to state a 42 U.S.C. § 1983 claim, the dismissal is without further leave 13 amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 14 ||should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 15 1915(e)(2)] unless ‘it is absolutely clear that the deficiencies of the complaint could not 16 || be cured by amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); 17 || Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) 18 || (recognizing futility of amendment as a proper basis for dismissal without leave to amend). 19 Conclusion 20 Upon review, the Court DISMISSES the First Amended Complaint for failure to 21 a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2) & 22 || 1915A(b) without leave to amend. The Clerk of Court shall close the case. 23 IT IS SO ORDERED. 24 25 ||DATED: April 28, 2026 (yatta Bahar te % H n. Cynthia Bashant, Chief Judge United States District Court 27 28 5