# (PC) Venable v. Tally > District Court, E.D. California · August 19, 2024 URL: https://www.frixlaw.com/law-library/cases/10636552 ## Case - **Court:** District Court, E.D. California - **Decided:** August 19, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10636552 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 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 16 FINDING THAT THE COMPLAINT FAILS 17 TO STATE A COGNIZABLE CLAIM AND GRANTING LEAVE TO AMEND 18 ECF No. 1 19 20 Plaintiff, a state prisoner, brings this action against defendant Tally and alleges that she 21 violated his Eighth Amendment rights by using excessive force against him. ECF No. 1 at 3-5. 22 The complaint, taken as true, fails to state an Eighth Amendment excessive force claim, however. 23 I will give plaintiff an opportunity to amend before recommending this action be dismissed. I 24 will also grant his application to proceed in forma pauperis. ECF No. 2. 25 26 27 28 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)). 25 26 27 28 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. 4 5 IT IS SO ORDERED. Dated: _ August 17, 2024 Q————. 7 JEREMY D. PETERSON 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10636552. Public record. Not legal advice.