(PC) Witkin v. Gonzalez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, No. 2:22-cv-01212-KJM-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 F. GONZALEZ, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 28, 2023, the magistrate judge filed findings and recommendations, which 21 were served on plaintiff and contained notice to plaintiff that any objections to the findings and 22 recommendations were to be filed within fourteen days. Plaintiff timely filed objections. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 court has conducted a de novo review of this case. Having reviewed the file, the court declines to 25 adopt the findings and recommendations. 26 Plaintiff advances two claims in the amended complaint: an Eighth Amendment claim and 27 a Fourth Amendment claim. See generally First Am. Compl. (FAC), ECF No. 8. The court takes 28 these claims, as well as the findings and recommendations’ analysis of the claims, in turn. 1 First, the magistrate judge recommends dismissing the Eighth Amendment claim for cruel 2 and unusual punishment, stating plaintiffs’ allegations “do not rise to the level of an Eighth 3 Amendment violation.” Findings & Recommendations at 2, ECF No. 9. Implicitly, the 4 magistrate judge finds the allegations state no more than a de minimis use of physical force, 5 which is excluded from constitutional prohibition. See id. (citing Hudson v. McMillian, 6 503 U.S. 1, 9–10 (1992)). An excessive force claim requires an ultimate showing that the officer 7 used malicious force to cause harm, rather than used force in a good-faith attempt to maintain 8 discipline. See Hudson, 503 U.S. at 6. Courts consider a variety of factors in making this 9 determination, including the need for physical force, perceived threat and efforts to reduce the 10 severity of the force. See id. at 7; see also Hughes v. Rodriguez, 31 F.4th 1211, 1221 (9th Cir. 11 2022) (providing five factors). 12 Here, plaintiff alleges the officers used more than a de minimis amount of force. He 13 alleges they handcuffed him with such force that they fractured his left wrist and damaged his 14 ulnar nerve, FAC ¶¶ 21, 32, even though less force was available, such as verbal persuasion or 15 orders, id. ¶ 25. Plaintiff alleges defendants dragged him while his left wrist was “crushed” by 16 the handcuffs and left him for “about 5 minutes.” Id. Plaintiff further alleges defendants 17 “repeatedly ignored [his] requests to loosen his left handcuff.” Id. Despite plaintiff’s “loud 18 screams of pain,” defendants refused to reduce the force used. Id. ¶ 27. Instead, defendants 19 “seemed like they were amused by plaintiff’s apparent pain and injury.” Id. ¶ 29. Plaintiff 20 ultimately “underwent extensive physical therapy to regain function in his left hand and wrist,” 21 id. ¶ 30, experienced severe pain and relied on painkillers, while losing six months of use of his 22 left wrist and hand, id. ¶ 31. These allegations plausibly plead more than a de minimis amount of 23 force. Plaintiff plausibly pleads defendants maliciously used unnecessary force in violation of the 24 Eighth Amendment. This claim may therefore proceed at this stage. 25 Second, the magistrate judge recommends dismissing plaintiff’s Fourth Amendment claim 26 because it does not show “the body search” was unreasonable. Findings & Recommendations 27 at 2. The court agrees the complaint’s allegations are insufficient to state a Fourth Amendment 28 claim, but does not agree that dismissal should be with prejudice, or with the findings and 1 || recommendations’ analysis. “Searches of prisoners must be reasonable to be constitutional.” See 2 || Nunez v. Duncan, 591 F.3d 1217, 1227 (9th Cir. 2010) (citing Michenfelder v. Sumner, 3 | 860 F.2d 328, 331 (9th Cir. 1988)). The reasonableness of a prisoner search under the Fourth 4 | Amendment is assessed by applying the Be// v. Wolfish balancing test. See 441 U.S. 520, 559 5 || (1979). Courts consider the intrusion’s scope, manner, justification and place. See Nunez, 6 || 591 F.3d at 1227 (citing Bell, 441 U.S. at 559). Here, plaintiffs amended complaint does not 7 || plausibly plead an unreasonable search. Plaintiffs allegations about the search are mere legal 8 | conclusions. See, e.g., FAC § 20 (“At the time the defendants did not possess any reasonable 9 || suspicion to perform an inspection of plaintiffs person... .”). Plaintiff offers no allegations 10 || about the scope and manner of the search itself, nor its justification, other than that it was “‘an 11 | unclothed body search.” /d. 421. Plaintiff states he was walking “‘on the ranch facility,” id. J 18, 12 || and also that he was “on the dirt road located behind the ranch,” id. Whether plaintiff was on or 13 || off the facility’s premises when defendants decided to search him could bear on the 14 || reasonableness of the search. So too could the nature of the search itself. The court finds 15 | plaintiff does not plausibly plead an unreasonable search. Nevertheless, plaintiff could 16 || conceivably add allegations to support the claim, so the court dismisses the claim with leave to 17 | amend. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The findings and recommendations filed February 28, 2023, are not adopted; 20 2. Plaintiff's Fourth Amendment claim in the amended complaint (ECF No. 8) is 21 DISMISSED with leave to amend; 22 3. Plaintiff's Eighth Amendment claim in the amended complaint may proceed and may 23 be included as currently pled in any amended complaint; 24 4. Any amended complaint must be filed within thirty days of the filing date of this 25 order; and 26 5. This matter is referred back to the magistrate judge for all pretrial proceedings not 27 inconsistent with this order. /\ (] 28 | DATED: April 27, 2023. | /Y f\ (/ AN CHIEF ED STATES DISTRICT JUDGE