(PC) Handy v. Castillo

Opinion

MICHAEL HANDY, Case No.: 1:22-cv-01160-KES-SKO (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS v. (Doc. 16)

Defendant. Plaintiff Michael Handy is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C § 1983. This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On February 28, 2024, the assigned magistrate judge issued findings and recommendations, recommending that this action be dismissed for plaintiff’s failure to state a claim upon which relief could be granted. Doc. 16. Plaintiff’s first amended complaint alleged a single excessive force claim against David Castillo; however, the magistrate judge found that plaintiff’s exhibits filed with the first amended complaint fatally contradicted plaintiff’s claim. Id. at 7 (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). The findings and recommendations were served on Plaintiff and provided him 14 days to file objections thereto. Id. at 8. No objections have been filed and the time to do so has now passed. See docket. An Eighth Amendment excessive force claim requires that a plaintiff allege facts to suggest the force was excessive and not a good faith effort to maintain or restore discipline, or F.3d 780, 788 (9th Cir. 2018) (citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Plaintiff’s allegation that defendant used excessive force, by punching him twice in the face while he was restrained, is contradicted by plaintiff's own exhibit, which indicates that he was actively resisting officers, including by trying to bite them, and was not yet fully restrained. A plaintiff can “plead himself out of a claim by including unnecessary details contrary to his claim.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Plaintiff has done so here by including details that are explicitly contrary to a finding that the force was excessive. Plaintiff includes incident reports as an exhibit to his first amended complaint. These reports indicate that plaintiff was resisting lawful orders at the time of the incident, that plaintiff bit defendant’s hand and was attempting to bite another officer when defendant punched him twice to deter him, and that guards handcuffed plaintiff only after the punching occurred. Jd. at 12. In accordance with the provisions of 28 U.S.C. § 636(b)(1), the court has conducted a de novo review of this case. Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and proper analysis. Accordingly, it is HEREBY ORDERED that: 1. The findings and recommendations issued on February 28, 2024, Doc. 16, are ADOPTED; 2. Plaintiff's first amended complaint is DISMISSED without leave to amend for a failure to state a claim upon which relief can be granted; and 3. The Clerk of the Court is directed to terminate all pending motions and to close this case. 94 □□ □□ SO ORDERED. _ Dated: _ June 21, 2024 4h UNITED STATES DISTRICT JUDGE