(PC) Cramer v. Dickinson et al, No. 1:2008cv00375 - Document 20 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Failure to State a Claim Upon Which Relief Can be Granted re 18 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gary S. Austin on 2/9/2010. Referred to Judge Ishii. Objections to F&R due by 3/5/2010. (Jessen, A)
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(PC) Cramer v. Dickinson et al Doc. 20 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 LATANYA CRAMER, 7 Plaintiff, 8 1: 08 CV 00375 AWI YNP GSA (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 S. DICKINSON, et al., Defendants. 12 13 14 Plaintiff is a former state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 15 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 16 U.S.C. § 636(b)(1). 17 18 19 This action proceeds on the June 26, 2009, first amended complaint, filed in response to an earlier order dismissing the original complaint with leave to amend. Plaintiff, formerly an inmate at Valley State Prison for Women (VSPW), brings this 20 action against correctional officials employed by the CDCR at VSPW. The claims in this lawsuit 21 stem from a cavity search that Plaintiff was subjected to. In the original complaint, Plaintiff 22 alleges that Correctional Officer (C/O) Dickinson falsely accused Plaintiff of possessing drugs. 23 Dickinson directed a nurse, Defendant Patricia Johnson, to perform a rectal cavity search. 24 Plaintiff alleges that this was “done without legal documents stating for this to be done.” 25 To warrant relief under the Civil Rights Act, a plaintiff must allege and show that 26 1 Dockets.Justia.com 1 defendant’s acts or omissions caused the deprivation of his constitutionally protected rights. Leer 2 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). 3 plaintiff must allege that: (1) a person was acting under color of state law at the time the 4 complained of act was committed; and (2) that person’s conduct deprived plaintiff of rights, 5 privileges or immunities secured by the Constitution or laws of the United States. Paratt 6 v.Taylor, 451 U.S. 527, 535 (1981). In order to state a claim under § 1983, a 7 Digital body cavity searches must “be conducted with reasonable cause and in a 8 reasonable manner” to serve a legitimate penological interest. Vaughan v. Ricketts, 950 F.2d 9 1464, 1468-69 (9th Cir. 1991). In the order dismissing the original complaint, the court noted that 10 Plaintiff alleged no facts indicating that the search was conducted in an unreasonable manner. 11 The facts alleged indicate that Plaintiff was accused of possessing drugs. 12 In the first amended complaint, Plaintiff re-states the allegations of the original 13 complaint, but fails to cure the identified defects. Plaintiff does indicate that the search occurred 14 while she was handcuffed and that she did not submit to it voluntarily. Such allegations do not 15 rise to the level of an unconstitutional search within the meaning of Vaughan, or deliberate 16 indifference within the meaning of Farmer v. Brennan, 511 U.S. 825, 834 (1994). 17 In the June 18, 2009, order the court informed Plaintiff of the deficiencies in her 18 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 19 upon which relief could be granted. Because Plaintiff has failed to cure the identified 20 deficiencies, the court recommends dismissal of this action with prejudice for failure to state a 21 federal claim upon which the court could grant relief. See Noll v. Carlson, 809 F. 2d 1446, 1448 22 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to 23 dismissing for failure to state a claim). 24 25 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. 26 2 These findings and recommendations are submitted to the United States District 1 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 3 twenty days after being served with these findings and recommendations, plaintiff may file 4 written objections with the court. Such a document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time waives all objections to the judge’s findings of fact. See 7 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 8 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 9 F.2d 1153 (9th Cir. 1991). 10 11 12 IT IS SO ORDERED. Dated: 6i0kij February 9, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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