Clark v. PETERSON

Filing 29

ORDER DISMISSING CASE for failure to state a claim upon which relief can be granted. The clerk of the court shall enter judgment accordingly. Signed by Chief Judge Roger L. Hunt on 8/30/2010. (Copies have been distributed pursuant to the NEF - SD)

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Clark v. Peterson Doc. 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has filed an amended complaint (#24). The court has reviewed it, and the court will dismiss this action. When a "prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," the court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. 1915A(b). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. North Star Intern. v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). In considering whether the plaintiff has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). vs. OFFICER PETERSON, Individually, Defendant. MICHAEL CLARK, Plaintiff, Case No. 2:09-CV-01865-RLH-(PAL) ORDER UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges that defendant threw a hard-boiled egg into a crowd of inmates at High Desert State Prison. "The Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (citations and quotation marks omitted). Although throwing an egg might appear to be unnecessary, it is also the type of force that is so minimal that it does not amount to a constitutional violation. Cf. Hudson, 503 U.S. at 9. IT IS THEREFORE ORDERED that this action is DISMISSED for failure to state a claim upon which relief can be granted. The clerk of the court shall enter judgment accordingly. DATED: August 30, 2010. _________________________________ ROGER L. HUNT Chief United States District Judge -2-

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