1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HORSTMAN, Case No.: 25-cv-01493-AJB-SBC CDCR #BX-4358, 12 ORDER DIRECTING U.S. Plaintiff, 13 MARSHAL TO EFFECT SERVICE vs. OF FIRST AMENDED COMPLAINT 14 AND SUMMONS ON DEFENDANT MORENO, Correctional Officer, 15 MORENO PURSUANT TO 28 U.S.C. Defendant. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 16 17 18 On June 9, 2025, Plaintiff Michael Horstman, a state inmate proceeding pro se, filed 19 a civil rights Complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in 20 forma pauperis (“IFP”). (Doc. Nos. 1–2.) Plaintiff claimed he was subjected to the use of 21 excessive force; was denied his right of access to the courts by the denial of access to the 22 law library, legal supplies, and his property; and was subjected to cruel and unusual 23 punishment and double jeopardy by a loss of privileges. (Doc. No. 1 at 3-5.) 24 On July 23, 2025, the Court granted Plaintiff leave to proceed IFP and dismissed the 25 Complaint with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure 26 to state a claim. (Doc. No. 3.) The Court found Plaintiff had failed to provide sufficient 27 details regarding his encounter with Defendant Moreno to plausibly allege an Eighth 28 Amendment excessive force claim, that his access to courts claim failed to allege an actual 1 injury, and that his remaining claims relied on conclusory allegations. (Id. at 4-7.) Plaintiff 2 was instructed that any claims not included in an amended complaint would be considered 3 waived. (Id. at 8.) Plaintiff has now filed a First Amended Complaint (“FAC”) in which he 4 presents only his excessive force claim. (Doc. No. 4.) 5 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 6 A. Standard of Review 7 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-Answer 8 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 9 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 10 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 11 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v. 12 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 17 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 18 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”). Rule 19 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 20 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether 22 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 23 the reviewing court to draw on its judicial experience and common sense.” Id. 24 B. Discussion 25 Plaintiff alleges he was subjected to cruel and unusual punishment in violation of 26 the Eighth Amendment when Defendant Moreno slammed him to the ground, breaking his 27 leg in several places requiring surgery at an outside hospital with eight screws and two 28 plates. (Doc. No. 4 at 3.) He claims Moreno is trained in the use of force against prisoners 1 and there was no excuse for the level of force used because Plaintiff was handcuffed with 2 his hands behind his back. (Id.) Plaintiff alleges it was done with the intent to cause him 3 harm, that he posed no threat, and that the force used was unnecessary. (Id. at 5, 7.) 4 The Eighth Amendment forbids prison officials from “the unnecessary and wanton 5 infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). It “places restraints on 6 prison officials, who may not, for example, use excessive physical force against prisoners.” 7 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused 8 of using excessive physical force in violation of the [Eighth Amendment], the core judicial 9 inquiry is that set out in Whitley: whether force was applied in a good-faith effort to 10 maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 11 McMillan, 503 U.S. 1, 6–7 (1982). A court looks to the “extent of injury suffered by an 12 inmate . . . , the need for application of force, the relationship between that need and the 13 amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and 14 ‘any efforts made to temper the severity of a forceful response.’” Id. at 7 (quoting Whitley, 15 475 U.S. at 321). 16 Plaintiff’s allegations regarding his encounter with Moreno plausibly allege an 17 Eighth Amendment claim. Id.; see also Whitley, 475 U.S. at 321 (extent of injury is a factor 18 in determining “whether the use of force could plausibly have been thought necessary” in 19 the situation, “or instead evinced such wantonness with respect to the unjustified infliction 20 of harm as is tantamount to a knowing willingness that it occur.”). Accordingly, Plaintiff 21 is entitled to have the U.S. Marshal effect service of the summons and complaint against 22 Defendant Moreno. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 23 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he 24 court may order that service be made by a United States marshal or deputy marshal . . . if 25 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 26 Plaintiff also again alleges that unknown prison staff misdiagnosed his broken leg 27 and allowed him to walk on it until he was taken to the outside hospital and properly 28 diagnosed and treated. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HORSTMAN, Case No.: 25-cv-01493-AJB-SBC CDCR #BX-4358, 12 ORDER DIRECTING U.S. Plaintiff, 13 MARSHAL TO EFFECT SERVICE vs. OF FIRST AMENDED COMPLAINT 14 AND SUMMONS ON DEFENDANT MORENO, Correctional Officer, 15 MORENO PURSUANT TO 28 U.S.C. Defendant. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 16 17 18 On June 9, 2025, Plaintiff Michael Horstman, a state inmate proceeding pro se, filed 19 a civil rights Complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in 20 forma pauperis (“IFP”). (Doc. Nos. 1–2.) Plaintiff claimed he was subjected to the use of 21 excessive force; was denied his right of access to the courts by the denial of access to the 22 law library, legal supplies, and his property; and was subjected to cruel and unusual 23 punishment and double jeopardy by a loss of privileges. (Doc. No. 1 at 3-5.) 24 On July 23, 2025, the Court granted Plaintiff leave to proceed IFP and dismissed the 25 Complaint with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure 26 to state a claim. (Doc. No. 3.) The Court found Plaintiff had failed to provide sufficient 27 details regarding his encounter with Defendant Moreno to plausibly allege an Eighth 28 Amendment excessive force claim, that his access to courts claim failed to allege an actual 1 injury, and that his remaining claims relied on conclusory allegations. (Id. at 4-7.) Plaintiff 2 was instructed that any claims not included in an amended complaint would be considered 3 waived. (Id. at 8.) Plaintiff has now filed a First Amended Complaint (“FAC”) in which he 4 presents only his excessive force claim. (Doc. No. 4.) 5 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 6 A. Standard of Review 7 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-Answer 8 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 9 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 10 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 11 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v. 12 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 17 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 18 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”). Rule 19 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 20 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether 22 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 23 the reviewing court to draw on its judicial experience and common sense.” Id. 24 B. Discussion 25 Plaintiff alleges he was subjected to cruel and unusual punishment in violation of 26 the Eighth Amendment when Defendant Moreno slammed him to the ground, breaking his 27 leg in several places requiring surgery at an outside hospital with eight screws and two 28 plates. (Doc. No. 4 at 3.) He claims Moreno is trained in the use of force against prisoners 1 and there was no excuse for the level of force used because Plaintiff was handcuffed with 2 his hands behind his back. (Id.) Plaintiff alleges it was done with the intent to cause him 3 harm, that he posed no threat, and that the force used was unnecessary. (Id. at 5, 7.) 4 The Eighth Amendment forbids prison officials from “the unnecessary and wanton 5 infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). It “places restraints on 6 prison officials, who may not, for example, use excessive physical force against prisoners.” 7 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused 8 of using excessive physical force in violation of the [Eighth Amendment], the core judicial 9 inquiry is that set out in Whitley: whether force was applied in a good-faith effort to 10 maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 11 McMillan, 503 U.S. 1, 6–7 (1982). A court looks to the “extent of injury suffered by an 12 inmate . . . , the need for application of force, the relationship between that need and the 13 amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and 14 ‘any efforts made to temper the severity of a forceful response.’” Id. at 7 (quoting Whitley, 15 475 U.S. at 321). 16 Plaintiff’s allegations regarding his encounter with Moreno plausibly allege an 17 Eighth Amendment claim. Id.; see also Whitley, 475 U.S. at 321 (extent of injury is a factor 18 in determining “whether the use of force could plausibly have been thought necessary” in 19 the situation, “or instead evinced such wantonness with respect to the unjustified infliction 20 of harm as is tantamount to a knowing willingness that it occur.”). Accordingly, Plaintiff 21 is entitled to have the U.S. Marshal effect service of the summons and complaint against 22 Defendant Moreno. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 23 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he 24 court may order that service be made by a United States marshal or deputy marshal . . . if 25 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 26 Plaintiff also again alleges that unknown prison staff misdiagnosed his broken leg 27 and allowed him to walk on it until he was taken to the outside hospital and properly 28 diagnosed and treated. (ECF No. 4 at 4.) To the extent this is an attempt to cure the pleading 1 defects of a claim possibly raised in the original Complaint regarding a delay in medical 2 care, as the Court previously informed Plaintiff, these allegations fail to identify any 3 individual Defendant he seeks to hold responsible for the delay in medical care. See Leer 4 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into causation must be 5 individualized and focus on the duties and responsibilities of each individual defendant 6 whose acts or omissions are alleged to have caused a constitutional deprivation.”); Iqbal, 7 556 U.S. at 678 (noting that a complaint is subject to dismissal for failure to state a claim 8 if it does not “contain sufficient factual matter, accepted as true, to state a claim to relief 9 that is plausible on its face,” and the “mere possibility of misconduct” falls short of meeting 10 this plausibility standard). Plaintiff has failed to cure that pleading defect in the FAC. 11 In addition, such allegations of inadequate medical treatment, medical malpractice, 12 or even gross negligence by themselves do not rise to the level of an Eighth Amendment 13 violation. See Farmer, 511 U.S. at 835 (“negligen[ce] in diagnosing or treating a medical 14 condition” does not amount to deliberate indifference) (quoting Estelle v. Gamble, 429 U.S. 15 97, 106 (1976) (an inadvertent failure to provide medical care, negligence or malpractice 16 and differences of opinion over what medical treatment is proper, does not state an Eighth 17 Amendment claim)). Because Plaintiff has not cured the pleading defect of such a claim 18 and has abandoned his other claims, all claims in the FAC other than the Eighth 19 Amendment excessive force claim against Defendant Moreno remain dismissed from this 20 action pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. 21 II. Conclusion and Orders 22 Accordingly, the Court: 23 1) DIRECTS the Clerk to issue a summons as to the First Amended Complaint 24 (Doc. No. 4) for Defendant Moreno and forward it to Plaintiff along with a blank U.S. 25 Marshal Form 285. The Clerk will provide Plaintiff with certified copies of the First 26 Amended Complaint and summons for use in serving this Defendant. Upon receipt of this 27 “In Forma Pauperis Package,” Plaintiff must complete the USM Form 285 as completely 28 and accurately as possible, include an address where Defendant may be found and/or 1 || subject to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to the United 2 || States Marshal according to the instructions the Clerk provides in the letter accompanying 3 In Forma Pauperis Package. 4 2) ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint 5 |}and summons upon Defendant Moreno as directed by Plaintiff on the USM Form 285. 6 || Costs of service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. 7 P. 4(c)(3). 8 3) ORDERS Defendant, once served, to reply to Plaintiff's First Amended 9 || Complaint and any subsequent pleading he files in this matter in which Defendant is named 10 || as a party within the time provided by the applicable provisions of Federal Rules of Civil 11 |}Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while defendant may 12 || occasionally be permitted to “waive the right to reply to any action brought by a prisoner 13 |}confined in any jail, prison, or other correctional facility under section 1983,” once the 14 || Court has conducted its sua sponte screening, defendant is required to respond). 15 4) ORDERS Plaintiff, after service has been made by the U.S. Marshal, to serve 16 || upon Defendant, or if appearance has been entered by counsel, upon Defendant’s counsel, 17 copy of every further pleading, motion, or other document submitted for the Court’s 18 |/consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original 19 ||document sought to be filed with the Clerk a certificate stating the manner in which a true 20 correct copy of that document has been served on defendants or their counsel, and the 21 of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court which 22 not been properly filed with the Clerk, or which fails to include a Certificate of Service 23 || upon a defendant, or their counsel, may be disregarded. 24 IT IS SO ORDERED. 25 Dated: September 17, 2025
27 United States District Judge 28 5 ee