Jamison P. Nodine v. Lamisha Ellis, et al.

Summary

The United States District Court for the Eastern District of California grants Jamison P. Nodine leave to proceed in forma pauperis and assesses the statutory filing fee. The court finds potentially cognizable Eighth Amendment excessive-force claims against Lamisha Ellis, Gerardo Mendez, and David Joseph, while dismissing the Fourth Amendment and Tom Bane Civil Rights Act claims with leave to amend. The order permits plaintiff either to proceed on the Eighth Amendment claims or file an amended complaint within thirty days, and includes a notice-of-election form.

Holdings

1. Racial slurs, verbal harassment, embarrassment, defamation, and mere threats, without more, do not state a cognizable civil-rights claim under § 1983.
2. The complaint, as pleaded, did not state a Fourth Amendment claim, but plaintiff was granted leave to amend because the court could not determine that amendment would necessarily be futile.
3. A state-law claim for damages against a public entity or its officers under the California Bane Act is inadequately pleaded when the complaint does not allege compliance with the California Government Claims Act.
4. The allegations that Ellis slapped plaintiff and that Mendez and Joseph grabbed and assaulted him, including Mendez's strikes to plaintiff's mouth and forehead, were sufficient at screening to state potentially cognizable Eighth Amendment excessive-force claims.
5. Plaintiff satisfied the showing required for in forma pauperis status, but remained obligated to pay the statutory filing fee through the initial partial fee and subsequent monthly payments required by 28 U.S.C. § 1915.

Questions Presented

1. Whether the complaint's allegations of verbal harassment, racial slurs, and threats state a claim under 42 U.S.C. § 1983.
2. Whether the alleged conduct states a Fourth Amendment claim.
3. Whether the Bane Act claim is adequately pleaded absent allegations of compliance with the California Government Claims Act.
4. Whether the allegations of physical assault and excessive force are sufficient at the screening stage to state potentially cognizable Eighth Amendment claims.
5. Whether the plaintiff may proceed in forma pauperis and how the filing fee must be assessed and collected.

Disposition

other