United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON, UNITED STATES MAGISTRATE JUDGE.
Malachi Stops, a prisoner proceeding without counsel, filed a
complaint pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated when a correctional
officer slapped him in the upper shoulder/chest area with his
hand. (Doc. 2.) The Court screened the Complaint pursuant to
28 U.S.C. §§ 1915, 1915A and determined that it
failed to state a federal claim upon which relief may be
granted. Mr. Stops filed an Amended Complaint (Doc. 6) but he
failed to correct the deficiencies with his original
Complaint. Therefore, this matter should be dismissed.
Stops makes the same allegations in his Amended Complaint as
those raised in his original complaint. That is, on January
9, 2017 while incarcerated at Crossroads Correctional Center,
he was attempting to lower the volume on a metal detector
when Officer Bamke approached him in a threatening manner and
struck his upper right shoulder/chest area with his hand.
Officer Bamke then told him to not touch it again. Officer
Bamke continued to stand in front of Mr. Stops for an
additional five seconds glaring at him with an intimidating
menaced expression. (Amended Complaint, Doc. 6 at 5.)
Stops is a prisoner proceeding in forma pauperis so the Court
must review his Complaint under 28 U.S.C. §§ 1915,
1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court
to dismiss a complaint filed in forma pauperis and/or by a
prisoner against a governmental defendant before it is served
if it is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
Mr. Stops did not raise any additional facts in his Amended
Complaint, he has still failed to state a constitutional
claim for relief. When a prison guard is accused of using
excessive force in violation of the Eighth Amendment,
“the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian, 503 U.S. 1, 6-7,
9-10 (1992). In analyzing an Eighth Amendment excessive force
claim, courts consider the following factors: (1) the need
for application of force; (2) the relationship between the
need and the amount of force used; (3) the extent of the
injury inflicted; (4) the threat “reasonably perceived
by the responsible officials”; and (5) “any
efforts made to temper the severity of a forceful
is no indication that Mr. Stops was authorized to turn down
the volume on the metal detector and therefore he may have
been acting in violation of prison rules. Thus, it is
plausible that there may have been a reasonable justification
for the use of force and the minimal use of force may have
been a good-faith effort to maintain discipline.
Mr. Stops indicates he suffered physical pain he does not
describe this pain. Wilkins v. Gaddy, 559 U.S. 34
130 S.Ct. 1175 (2010); Schwenk v. Hartford, 204 F.3d
1187, 1196 (9th Cir.2000) (the attack need not result in
permanent injury). A de minimis use of force does not violate
the Constitution, but the malicious and sadistic use of force
to cause harm always violates contemporary standards of
decency, regardless of whether or not significant injury is
evident. Wilkins v. Gaddy, 559 U.S. 34, 37-38
(2010)(citing Hudson, 503 U.S. at 9-10) (quotation
marks omitted); Oliver v. Keller, 289 F.3d 623, 628
(9th Cir. 2002). “An inmate who complains of a push or
shove that causes no discernible injury almost certainly
fails to state a valid excessive force claim.”
Wilkins, 559 U.S. at 38 (internal citations and
quotations omitted). Here Mr. Stops has alleged nothing more
than a slap and there is no allegation that it caused any
serious injury. He states he suffered physical pain but does
not indicate the severity of the pain or how long it lasted.
minimis use of force does not violate the Eighth Amendment
unless it is of a sort repugnant to the conscience.
Hudson, 503 U.S. at 7. The Court continues to rely
on the cases cited in its prior Order finding that the type
of force allegedly used by Officer Bamke (i.e., a single
slap) constitutes a “de minimis” use of force
under Hudson and does not give rise to a
constitutional violation. See, e.g., Riley v.
Dorton, 115 F.3d 1159, 1168 n. 4 (4th Cir.1997)
(“angry slap” of pretrial detainee by police
officer “falls squarely within the de minimis
category”); Hill v. Vannatta, 123 F.App. 723,
724 (7th Cir. 2005) (district court found that a slap causing
redness and swelling was de minimis and insufficient to state
an Eighth Amendment claim); Valentine v. Thomas, 119
F. App, 634635 (5th Cir. 2004) (guard pushing an inmate into
a file cabinet that resulted in a bruise was de minimis);
Siglar v. Hightower, 112 F.3d 191, 194 (5th Cir.
1997) (officer twisting an inmate's ear, causing soreness
and bruising, was de minimis and insufficient to provide a
basis for a civil rights lawsuit); Norman v. Taylor,
25 F.3d 1259, 1264 (4th Cir. 1994) (keys swung at an
inmate's face striking his thumb was not repugnant to the
conscience of mankind);
Stops allegations, accepted as true, “do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not
“show[n]”-“that [Mr. Stops] is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)(citing Fed.R.Civ.P. 8(a)(2)).
Court has considered whether Mr. Stops's Amended
Complaint is frivolous, malicious, fail to state a claim, or
seek solely monetary relief from a defendant who is immune.
See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Mr.
Stops's allegations fail to state a plausible claim upon
which relief may be granted.
Mr. Stops need not set forth detailed factual allegations,
the Court previously advised him that he must plead
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2009)). A pleading that merely alleges “naked
assertion[s] devoid of further factual enhancement” is
insufficient. Iqbal, 556 U.S. at 678 (alteration in
original, internal quotation marks omitted). Further, as the
Supreme Court has made clear, if a “complaint pleads
facts that are merely consistent with a defendant's
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id.
(internal quotation marks omitted). The Court in its prior