The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MAURICE L. VENABLE, Case No. 2:24-cv-01779-JDP (PC)
12 Plaintiff, ORDER
13 v. GRANTING PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA PAUPERIS
14 TALLY,
ECF No. 2
15 Defendant.
SCREENING ORDER
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FINDING THAT THE COMPLAINT FAILS
17 TO STATE A COGNIZABLE CLAIM AND
GRANTING LEAVE TO AMEND
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ECF No. 1
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Plaintiff, a state prisoner, brings this action against defendant Tally and alleges that she
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violated his Eighth Amendment rights by using excessive force against him. ECF No. 1 at 3-5.
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The complaint, taken as true, fails to state an Eighth Amendment excessive force claim, however.
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I will give plaintiff an opportunity to amend before recommending this action be dismissed. I
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will also grant his application to proceed in forma pauperis. ECF No. 2.
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1 Screening Order
2 I. Screening and Pleading Requirements
3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental
4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable
5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a
6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is
7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2).
8 A complaint must contain a short and plain statement that plaintiff is entitled to relief,
9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its
10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not
11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S.
12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere
13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not
14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,
15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that
16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264
17 n.2 (9th Cir. 2006) (en banc) (citations omitted).
18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404
19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it
20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).
22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements
23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,
24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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1 II. Analysis
2 Plaintiff alleges that, on November 15, 2023, he was sitting at a desk in a computer
3 vocational class. ECF No. 1 at 3. Defendant Tally, an “education employee” at the prison,
4 approached him and demanded to know what was going on with his computer. Id. Plaintiff
5 claimed that the machine simply needed to restart, but Tally insisted he “do something else” and
6 the two began to argue. Id. at 3-4. He alleges that, during their argument, Tally’s “hand went
7 across [his] shoulder,” thereby violating his right to be free from excessive force. Id. at 4.
8 Plaintiff also alleges that, after the incident, Tally filed a false disciplinary report against him. Id.
9 These allegations, taken as true, fail to state a cognizable claim. As to the alleged use of
10 force, a hand passing across plaintiff’s shoulder is the kind of de minimis use of force that the
11 Supreme Court has held does not violate the Eighth Amendment. See Hudson v. McMillian, 503
12 U.S. 1, 9-10 (1992) (“The Eighth Amendment’s prohibition of cruel and unusual punishment
13 necessarily excludes from constitutional recognition de minimis uses of physical force, provided
14 that the use of force is not of a sort repugnant to the conscience of mankind.”) (internal quotation
15 marks omitted). Here, despite characterizing the touch as an “assault,” ECF No. 1 at 5, plaintiff
16 does not allege that Tally struck him with any great force or that she inflicted significant injury or
17 pain in moving her hand across his shoulders. And, as to the false disciplinary report, prisoners
18 have no federal right to be free from false disciplinary allegations. See Brown v. Godwin, No.
19 2:15-cv-01300 WBS AC P, 2017 U.S. Dist. LEXIS 67686, *5 (E.D. Cal. May 3, 2017) (“Inmates
20 do not have any due process right to be free from false disciplinary charges.”). Plaintiff may file
21 an amended complaint that explains why this action should still proceed. If he does not, I will
22 recommend this action be dismissed.
23 Plaintiff is advised that the amended complaint will supersede the current complaint. See
24 Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). The amended
25 complaint should be titled “Amended Complaint” and refer to the appropriate case number.
26 Accordingly, it is ORDERED that:
27 1. Within thirty days from the service of this order, plaintiff must file an amended
28 complaint that complies with this order. If he fails to do so, I will recommend that this action be
1 | dismissed.
2 2. The Clerk of Court shall send plaintiff a section 1983 complaint form with this order.
3 3. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is GRANTED.
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5 IT IS SO ORDERED.
Dated: _ August 17, 2024 Q————.
7 JEREMY D. PETERSON
8 UNITED STATES MAGISTRATE JUDGE
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