Opinion
No. C 03-2526 CRB (PR), (Doc #3).
June 4, 2003.
ORDER OF DISMISSAL
Plaintiff, a State of California prisoner currently housed at Atascadero State Hospital, has filed a pro se complaint for damages under 42 U.S.C. § 1983 claiming various violations of his constitutional rights while he was housed at Salinas Valley State Prison in Soledad ("SVSP"), California Men's Colony in San Luis Obispo ("CMC"), and California State Prison, Sacramento in Represa ("CSP — SAC"). Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
A substantial part of the events or omissions giving rise to plaintiffs CMC claim occurred in the County of San Luis Obispo, which lies within the venue of the Central District of California, Western Division. See 28 U.S.C. § 84(c)(2). And a substantial part of the events or omissions giving rise to plaintiff's CSP — SAC claim occurred in the County of Sacramento, which lies within the venue of the Eastern District of California. See id. § 84(b). Venue for plaintiffs CMC and CSP — SAC claims therefore properly lies in the Central District, Western Division and the Eastern District, respectively. See id. § 1391(b). The CMC and CSP — SAC claims accordingly are DISMISSED without prejudice to plaintiff raising them in the proper venue. See In re Hall, 939 F.2d 802, 804 (9th Cir. 1991) (dismissal for improper venue does not go to the merits of the claims and therefore must be without prejudice).
Venue for plaintiffs SVSP claim properly lies in this court; however, the claim will be DISMISSED under the authority of 28 U.S.C. § 1915A(b) because it does not amount to a constitutional claim under 42 U.S.C. § 1983. Plaintiff alleges that while Correctional Officer Hansen was trying to place him in administrative segregation at SVSP, Hansen "pushed [him] into the corner leaving an abrasion to upper right forehead which became a bump." Although regrettable, it is well-established that not every push and touch by a prison guard gives rise to a constitutional cause of action: The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). Hansen's alleged "push," which caused plaintiff no more than an abrasion and bump, falls outside the Eighth Amendment's recognition of excessive use of force. Cf. id. (blows directed at inmate which caused bruises, swelling, loosened teeth and cracked dental plate were not de minimis).
CONCLUSION
For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc #3) is DENIED and the complaint is DISMISSED.
The Clerk shall close the file and terminate all pending motions as moot. No fee is due.
SO ORDERED.