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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 KEIRON ELIAS, Case No. 2:19-cv-07457-MWF-JC 11 Plaintiff, 12 ORDER DISMISSING COMPLAINT v. WITH LEAVE TO AMEND 13

C/O A. LICHINOV,

14 Defendant. 15 16 I. INTRODUCTION 17 On August 28, 2019, plaintiff Keiron Elias, who is in state custody at the 18 California State Penitentiary, Los Angeles County (“CSP-LAC”), is proceeding 19 pro se, and has been granted leave to proceed without prepayment of filing fees 20 (“IFP”), filed a Civil Rights Complaint (“Complaint” or “Comp.”) pursuant to 21 42 U.S.C. § 1983 (“Section 1983”) and multiple supporting documents. (Docket 22 Nos. 1-5). Construed liberally, the Complaint appears to claim that the sole 23 defendant – CSP-LAC Correctional Officer A. Lichinov – who is sued in his 24 individual and official capacities – used excessive force against plaintiff. (Comp. 25 at 3, 5). Plaintiff seeks $1 million in damages. (Comp. at 6). 26 Congress mandates that district courts perform an initial screening of 27 complaints in civil actions where a plaintiff is permitted to proceed IFP and where 28 a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. 1 §§ 1915(e)(2)(B), 1915A(a). This Court may dismiss such a complaint, or any 2 portion thereof, before service of process if the complaint (1) is frivolous or 3 malicious; (2) fails to state a claim upon which relief can be granted, or (3) seeks 4 monetary relief from a defendant who is immune from such relief. 28 U.S.C. 5 §§ 1915(e)(2)(B), 1915A(b); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & 6 n.7 (9th Cir. 2000) (en banc). 7 As the Complaint is deficient in multiple respects, including those detailed 8 below, it is dismissed with leave to amend.1 9 II. THE COMPLAINT 10 The Complaint, construed liberally, alleges the following: 11 On April 12, 2019, defendant grabbed plaintiff, placed him in handcuffs, 12 and moved plaintiff beyond five feet to a cage in the gym against plaintiff’s will 13 and without plaintiff’s consent, thereby assaulting and falsely imprisoning him. 14 (Comp. at 3, 5). Defendant acted with deliberate indifference after having been 15 placed on notice that he should not violate the peace, property or jurisdiction of 16 “the KING” (presumably plaintiff). (Comp. at 5). 17 III. DISCUSSION 18 Here, the Complaint is deficient in multiple respects, including those 19 detailed below. 20 First, the Complaint does not state a viable Section 1983 claim against 21 defendant Lichinov in his official capacity because the State – the real party in 22 interest – is immune from this suit for damages. “[A] suit against a state official in 23 his or her official capacity is not a suit against the official but rather is a suit 24 against the official’s office. As such, it is no different from a suit against the State 25 itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The Eleventh 26 27 1A magistrate judge may dismiss a complaint with leave to amend without the approval of 28 a district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 2 1 || Amendment bars suits for money damages against states and their agencies under 2 || Section 1983. See Howlett v. Rose, 496 U.S. 356, 365 (1990); Taylor v. List, 880 3 || F.2d 1040, 1045 (9th Cir. 1989) (dismissal of civil rights action “as to the 4 || Department of Prisons was proper” because “[t]he Nevada Department of Prisons, 5 || as a state agency, clearly was immune from suit under the Eleventh Amendment’). 6 || (citations omitted). “California has not waived its Eleventh Amendment immunity 7 || with respect to claims brought under [Section] 1983 in federal court.” Brown v. 8 | Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009). Therefore, defendant, in 9 || his official capacity, is protected from this damages suit under the Eleventh 10 | Amendment. Id. 11 Second, the Complaint does not state a viable Section 1983 Eighth 12 | Amendment excessive force claim against defendant Lichinov in his individual 13 | capacity. “After incarceration, only the unnecessary and wanton infliction of pain 14]... constitutes cruel and unusual punishment forbidden by the Eighth 15 | Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986); (citation and internal 16 || quotation marks omitted); Hope v. Pelzer, 536 U.S. 730, 737 (2002). “The alleged 17 || pain may be physical or psychological.” Watison v. Carter, 668 F.3d 1108, 1112 18 || (9th Cir. 2012). However, “not ‘every malevolent touch by a prison guard gives 19 || rise to a federal cause of action.’” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per 20 || curiam) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Rather, “whenever 21 || prison officials stand accused of using excessive physical force in violation of the 22 || Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether 23 || force was applied in a good-faith effort to maintain or restore discipline, or 24 || maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7; Wilkins, 25 | 559 U.S. at 37. Factors that may be considered in determining whether the use of 26 || force was wanton and unnecessary include: (1) the extent of injury the inmate 27 || suffered; (2) the need for application of force; (3) the relationship between that 28 || need and the amount of force used; (4) the threat reasonably perceived by the

1 || responsible officials; and (5) any efforts made to temper the severity of a forceful 2 || response. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Furnace v. Sullivan, 3 || 705 F.3d 1021, 1028-29 (9th Cir. 2013). 4 Here, at a minimum, the Complaint does not state a viable Eighth 5 || Amendment excessive force claim because it neither alleges that defendant 6 || inflicted any pain — let alone unnecessarily and wantonly— nor alleges that the 7 || force used by defendant against plaintiff was anything other than de minimis. See 8 | Hudson, 503 U.S. at 9-10 (“Eighth Amendment’s prohibition of cruel and unusual 9 || punishments necessarily excludes from constitutional recognition de minimis uses 10 || of physical force, provided that the use of force is not of a sort repugnant to the 11 || conscience of mankind) (citations and internal quotations omitted). To the extent 12 || plaintiff may believe that the contents of his supporting documents establish that 13 || he has somehow stated a viable claim, he is mistaken. It is not the Court’s 14 | responsibility to sift through plaintiff's multiple submissions in an attempt to 15 || glean whether plaintiff has an adequate basis upon which to state a viable claim. 16 || Cf. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1066 (9th Cir. 2009) (“[j Judges 17 || are not like pigs, hunting for truffles buried in briefs”) (citation omitted). 18 || IV. ORDERS’ 19 In light of the foregoing, IT IS HEREBY ORDERED that the Complaint is 20 || dismissed with leave to amend. 21 IT IS FURTHER ORDERED that within twenty (20) days of the date of this 22 || Order, plaintiff must do one of the following: 23 24 *The Court’s orders herein constitute non-dispositive rulings on pretrial matters. To the 25 || extent a party disagrees with such non-dispositive rulings, such party may file a motion for review by the assigned District Judge within fourteen (14) days. See Local Rule 72-2.1. To the 26 extent a party believes the rulings to be dispositive, rather than non-dispositive, such party has 27 || the right to object to this Court’s determination that the rulings are non-dispositive within fourteen (14) days. A party will be foreclosed from challenging the rulings herein if such party 28 || does not seek review thereof, or object thereto.

1 1. File a First Amended Complaint which cures the pleading defects set 2 forth herein;3 or 3 2. Sign and file the attached Notice of Dismissal which will result in 4 the voluntary dismissal of this action without prejudice; or 5 3. File a Notice of Intent to Stand on Complaint, indicating plaintiff’s 6 intent to stand on the original Complaint despite the pleading defects set forth 7 herein, which may result in the dismissal of this action in its entirety based upon 8 such defects. 9 Plaintiff is cautioned that plaintiff’s failure timely to file a First 10 Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on 11 Complaint may be deemed plaintiff’s admission that amendment is futile, and 12 may result in the dismissal of this action with or without prejudice on the 13 grounds set forth above, on the ground that amendment is futile, for failure 14 diligently to prosecute and/or for failure to comply with this Order. 15 IT IS SO ORDERED. 16 DATED: August 29, 2019 ________________/s/______________________ 17 Honorable Jacqueline Chooljian 18 UNITED STATES MAGISTRATE JUDGE 19 Attachments 20 21 22 3The Clerk is directed to provide plaintiff with a Central District of California Civil Rights Complaint Form, CV-66, to facilitate plaintiff’s filing of a First Amended Complaint if he 23 elects to proceed in that fashion. Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original 24 Complaint – i.e., it must include all claims on which plaintiff seeks to proceed (Local Rule 15-2); 25 (c) contain a “short and plain” statement of each of the claim(s) for relief (Fed. R. Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) set forth 26 clearly the sequence of events giving rise to the claim(s) for relief; (f) allege specifically what the 27 defendant did and how that individual’s conduct specifically violated plaintiff’s civil rights; and (g) not add defendants or claims that are not reasonably related to the claim asserted in the 28 original Complaint. 5