(PC) Hollis v. Gonzalez et al, No. 1:2008cv01834 - Document 17 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that FINDINGS and RECOMMENDATIONS recommending that this action proceed on Plaintiff's first amended complaint, filed May 26, 2009, against Defendant Sweeney for violation of the fourth amendment; claim against Defendants: Gonzalez, Hackitt, Hawkins, Reed and Sampson be DISMISSED without prejudice; Claims arising at Desert View Modified Community Correctional Facility and California Institute for Men be DISMISSED without prejudice and claims against Defendant Director of CDCR be DISMISSED with prejudice for failure to state a claim upon which relief may be granted; Eighth Amendment and Equal Protection Claims be DISMISSED with prejudice; re 14 Amended Prisoner Civil Rights Complaint filed by Chauncey Hollis; referred to Judge Wanger; Objections to F&R due by 7/26/2010, signed by Magistrate Judge Dennis L. Beck on 06/18/2010. (Martin, S)
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(PC) Hollis v. Gonzalez et al Doc. 17 Case 1:08-cv-01824-AWI-GSA Document 14 Filed 06/21/2010 Page 1 of 10 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CHAUNCEY HOLLIS, 9 Plaintiff, 10 11 v. R. GONZALEZ, et al., 12 Defendants. CASE NO. 1:08-cv-1834 OWW DLB PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (Doc. 14) OBJECTIONS, IF ANY, DUE WITHIN / THIRTY DAYS 13 14 15 Findings and Recommendation Following Notice By Plaintiff I. Background 16 A. 17 Plaintiff Chauncey Hollis (“Plaintiff”) is a prisoner in the custody of the California 18 Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his 20 complaint on December 2, 2008. On March 23, 2009, the Court dismissed the complaint with leave 21 to file an amended complaint within thirty days. On May 26, 2009, after receiving an extension of 22 time, Plaintiff filed his first amended complaint. On October 14, 2009, the Court screened the first 23 amended complaint and found that it stated a cognizable claim against Defendant Sweeney for 24 violation of the Fourth Amendment, and against Defendant Gonzales for retaliation in violation of 25 the First Amendment, but failed to state any other cognizable claims. The Court ordered Plaintiff 26 either to file a second amended complaint, curing the deficiencies identified, or notify the court of 27 his willingness to proceed only against Defendant Sweeney or Defendant Gonzales. On November 28 16, 2009, Plaintiff notified the Court he did not wish to amend and is willing to proceed only against Procedural History 1 Dockets.Justia.com Case 1:08-cv-01824-AWI-GSA 1 Document 14 Filed 06/21/2010 Page 2 of 10 Defendant Sweeney. Accordingly, the Court issues the following Findings and Recommendation. 2 B. 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 9 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 10 Screening Requirement claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 11 A complaint must contain “a short and plain statement of the claim showing that the pleader 12 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 14 do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 15 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to 16 ‘state a claim that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. 17 at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949. 18 II. Summary of Plaintiff’s First Amended Complaint 19 Plaintiff is currently confined at Central Valley Modified Community Correctional Facility 20 in McFarland, California. The events giving rise to this action occurred at California Correctional 21 Facility (“CCI”) in Tehachapi, at Desert View Modified Community Correctional Facility (“Desert 22 View MCCF”) in Adelanto, and at the California Institute for Men (“CIM”) in Chino. Plaintiff 23 seeks money damages and equitable relief. 24 A. 25 Plaintiff alleges that on October 23, 2008, a search was conducted in Building One, which 26 included strip searches of all inmates. Plaintiff alleges that for inmates in his tier, the procedure 27 involved strip searches of the inmates at their cell. Plaintiff states that he complied with the order 28 to submit to a visual body cavity search. Plaintiff was then told to go to the recreation yard. As he Visual Body Cavity Search 2 Case 1:08-cv-01824-AWI-GSA Document 14 Filed 06/21/2010 Page 3 of 10 1 was walking to the basketball court, defendant Sweeney, who is female, ordered Plaintiff to stop and 2 strip. Plaintiff contends that she ordered Plaintiff to submit to a second visual body cavity search 3 despite being informed by Plaintiff that one had just been conducted. Plaintiff contends that he 4 complied with the order but that defendant Sweeney then threatened to have officers shoot Plaintiff 5 if he did not comply more fully. Plaintiff alleges that he was ordered to submit to a second search 6 by defendant Sweeney. Once the search was completed to defendant Sweeney’s satisfaction, Plaintiff 7 was ordered to sit on the rocks near the basketball court. Plaintiff alleges that he was not permitted 8 to use the toilet and that he subsequently urinated on himself. Plaintiff further alleges that the cuffs 9 were too tight and that his legs, buttocks and arms became numb after sitting for two hours on rocks. 10 Plaintiff seeks relief from defendant Sweeney for violation of the Fourth Amendment, Eighth 11 Amendment, and the Equal Protection Clause of the Fourteenth Amendment.1 12 Plaintiff contends that search of the Building was in response to a fist fight between two 13 inmates occurring six days earlier. Plaintiff alleges that defendants Director of Corrections 14 (“Director”) and Warden Gonzalez are liable for having authorized a plan to conduct strip searches 15 of the inmates using both female and male officers. 16 i. Fourth Amendment 17 The Fourth Amendment guarantees the right of the people to be secure against unreasonable 18 searches, and its protections extend to incarcerated prisoners. Bell v. Wolfish, 441 U.S. 520, 545 19 (1979). In determining the reasonableness of a search under the Fourth Amendment, “[c]ourts must 20 consider the scope of the particular intrusion, the manner in which it is conducted, the justification 21 for initiating it, and the place in which it is conducted.” Id. at 559. The reasonableness of a prisoner 22 search is determined by reference to the prison context and strip searches that are excessive, 23 vindictive, harassing or unrelated to any legitimate penological interest may not be reasonable. 24 Michenfelder v. Sumner, 860 F.2d 328 at 332 (9th Cir. 1988). “When a prison regulation impinges 25 on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate 26 27 28 1 Plaintiff further contends that defendants violated various sections of Title 15. There is no independent cause of action for violation of Title 15 regulations. Davis v. Kissinger, No. CIV S-04-0878 GEB DAD P, 2009 W L 256574, *12 n.4 (E.D. Cal. Feb. 3, 2009). 3 Case 1:08-cv-01824-AWI-GSA 1 Document 14 Filed 06/21/2010 Page 4 of 10 penological interests.” Turner v. Safley, 482 U.S. 78, 79 (1987). 2 The Ninth Circuit has not yet held that a cross-gender search in a prison setting violates a 3 prisoner’s rights under the Fourth Amendment. Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 4 1985) (high potential for female guards to view male inmates disrobing, showering, and using toilet 5 facilities did not render prison policies unconstitutional); Jordan v. Gardner, 986 F.2d 1521, 1524 6 (9th Cir. 1993); Somers v. Thurman, 109 F.3d 614, 620 (9th Cir. 1997). Rather, a prisoner’s 7 legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. 8 Jordan, 986 F.2d at 1524; see also Michenfelder, 860 F.2d at 328 (visual body-cavity searches of 9 male inmates conducted within view of female guards held constitutional). 10 Plaintiff contends that the search conducted by defendant Sweeney was repetitive and 11 harassing. Under the minimal federal notice pleading standard, Plaintiff’s allegations that defendant 12 Sweeney ordered Plaintiff to submit to a second visual body cavity search despite having knowledge 13 that a search had just been conducted, and that she threatened to have Plaintiff shot during the search, 14 are sufficient to state a cognizable Fourth Amendment claim against her. However, Plaintiff’s claims 15 are insufficient to state a viable claim against defendants Director and Gonzalez. Their approval of 16 a plan that allows for visual body searches by female officers does not state a cognizable claim for 17 violation of the Fourth Amendment. Grummett, 779 F.2d at 496; Jordan, 986 F.2d at 1524; Somers, 18 109 F.3d at 620. 19 ii. Eighth Amendment 20 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 21 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 22 Extreme deprivations are required to make out a conditions of confinement claim, and only those 23 deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form 24 the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 25 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth 26 Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew 27 of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 28 U.S. 825, 847, 114 S.Ct. 1970 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 4 Case 1:08-cv-01824-AWI-GSA Document 14 Filed 06/21/2010 Page 5 of 10 1 Plaintiff alleges excessive force and deliberate indifference by defendant Sweeney arising 2 from the visual body cavity search.2 However, Plaintiff fails to state a claim against her for violation 3 of the Eighth Amendment. Even assuming that Plaintiff’s allegations satisfy the subjective 4 component of the Hudson analysis, Plaintiff fails to meet the objective component. The Court does 5 not find that an order to comply with a strip search, even in a situation where a similar search had 6 recently been completed by other prison staff, is objectively harmful enough to establish a violation 7 of the Eighth Amendment. Further, “[c]ross-gendered searches cannot be called inhumane and 8 therefore do not fall below the floor set by the objective component of the Eighth Amendment.” 9 Somers, 109 F.3d at 623. 10 Finally, the circumstances, nature, and duration of the deprivations are critical in determining 11 whether the conditions complained of are grave enough to form the basis of a viable Eighth 12 Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Plaintiff’s allegations that 13 he was forced to sit outside on rocks for two hours, that his hand cuffs were too tight, and that he was 14 not permitted to use the restroom fail to rise to the level of a constitutional violation. There is 15 nothing to suggest that the officer “[knew] of and disregard[ed] an excessive risk to [plaintiff’s] 16 health or safety.” Farmer, 511 U.S. at 837. 17 With respect to defendants Director and Gonzalez, Plaintiff also fails to state a cognizable 18 Eighth Amendment claim against them. An allegation that they approved of a plan to search 19 inmates, and that a female officer was included as a member of the strip search team, does not meet 20 either the subjective or objective components of an Eighth Amendment claim. Plaintiff has not 21 alleged that defendants “[knew] of and disregard[ed] an excessive risk to [plaintiff’s] health or 22 23 24 25 26 27 28 2 W hen a prison official stands accused of using excessive physical force in violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically for the purpose of causing harm. Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and unnecessary, it is proper to consider factors such as the need for application of force, the relationship between the need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of the forceful response. The Court does not find Plaintiff’s Eighth Amendment claim based on an a theory of excessive force viable because there are no allegations of physical force alleged. Further, verbal harassment or abuse alone is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 5 Case 1:08-cv-01824-AWI-GSA Document 14 Filed 06/21/2010 Page 6 of 10 1 safety.” Id. Plaintiff has also failed to allege any wrongdoing that is objectively harmful enough to 2 establish a constitutional violation. Somers, 109 F.3d at 623. 3 iii. Equal Protection Clause 4 Next, Plaintiff alleges that the search violated the Equal Protection Clause of the Fourteenth 5 Amendment. “Section 1983 claims based on Equal Protection violations must plead intentional 6 unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory 7 intent.” Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). Plaintiff 8 has not sufficiently alleged that defendants Sweeney, Director or Gonzalez acted with an intent or 9 purpose to discriminate against Plaintiff based upon membership in a protected class, Barren v. 10 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and a bare allegation that Plaintiff, who is male, 11 was searched by a female correctional officer is not sufficient to show that defendants acted with a 12 discriminatory amicus towards male prisoners. Plaintiff fails to state a viable claim for violation of 13 the Fourteenth Amendment. 14 iv. Due Process Clause 15 Finally, Plaintiff alleges that defendant Gonzalez and Director violated due process. 16 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 17 deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 18 556 (1974). Plaintiff has not alleged any facts that would support a claim that he was deprived of 19 a protected interest without procedural due process. 20 “To establish a violation of substantive due process . . . , a plaintiff is ordinarily required to 21 prove that a challenged government action was clearly arbitrary and unreasonable, having no 22 substantial relation to the public health, safety, morals, or general welfare. Where a particular 23 amendment provides an explicit textual source of constitutional protection against a particular sort 24 of government behavior, that Amendment, not the more generalized notion of substantive due 25 process, must be the guide for analyzing a plaintiff’s claims.” Patel v. Penman, 103 F.3d 868, 874 26 (9th Cir. 1996) (citations, internal quotations, and brackets omitted), cert. denied, 117 S. Ct. 1845 27 (1997); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Plaintiff has not alleged any facts 28 that would support a claim that his rights under the substantive component of the Due Process Clause 6 Case 1:08-cv-01824-AWI-GSA 1 Document 14 Filed 06/21/2010 Page 7 of 10 were violated. 2 B. 3 Plaintiff additionally alleges that defendants Gonzalez and Director retaliated against Plaintiff 4 for filing prison grievances by transferring him from CCI to Desert View MCCF on January 26, 5 2009. Retaliation Claim 6 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition 7 the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 8 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 9 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment 10 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 11 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 12 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance 13 a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 14 Under the minimal federal notice pleading standard, Plaintiff’s allegations that defendant 15 Gonzalez responded to Plaintiff’s grievance activity by transferring him to another facility is 16 sufficient to state a claim for retaliation against him. However, Plaintiff’s allegations are insufficient 17 to state a claim against defendant Director. Plaintiff must set forth “sufficient factual matter, 18 accepted as true, to ‘state a claim that is plausible on its face’” Iqbal, 129 S.Ct. at 1949 (quoting 19 Twombly, 550 U.S. at 555). Determining whether a complaint states a plausible claim for relief is 20 a “context-specific task that requires the reviewing court to draw on its judicial experience and 21 common sense[.]...Where the well-pleaded facts do not permit the court to infer more than the mere 22 possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is 23 entitled to relief.’” Id. at 1950; see Fed. R. Civ. P 8(a)(2). The Court does not find plausible an 24 allegation that the Director of CDCR would personally intervene to have Plaintiff transferred from 25 one CDCR facility to another, in retaliation for Plaintiff pursuing prison grievance activity. 26 Accordingly, Plaintiff states a claim only against defendant Warden Gonzalez for retaliation, 27 in violation of the First Amendment. 28 /// 7 Case 1:08-cv-01824-AWI-GSA Document 14 Filed 06/21/2010 Page 8 of 10 1 C. 2 In addition to the claims discussed above, Plaintiff further alleges retaliatory activity by 3 various other prison staff members at CCI. A summary of these claims is provided by the following 4 paragraphs. Plaintiff’s Other Claims Arising at CCI 5 Plaintiff alleges that defendant librarian R. Hackett denied Plaintiff access to the law library, 6 thereby raising claims for denial of access to the courts, retaliation, violation of due process and 7 violation equal protection. 8 Plaintiff further alleges that defendant Correctional Officer Hawkins deliberately rerouted 9 Plaintiff’s mail and searched his cell in retaliation for Plaintiff’s grievance activity. Plaintiff alleges 10 claims for violation of the Eighth Amendment, as well as violations of due process and equal 11 protection. Plaintiff alleges similar claims against defendant Correctional Officer Reed, whom 12 Plaintiff states retaliated against him by moving him to another cell. 13 Plaintiff also alleges that defendant Appeals Coordinator Sampson violated Plaintiff’s rights 14 under the Eighth and Fourteenth Amendments by failing to answer or acknowledge Plaintiff’s inmate 15 grievances. 16 i. Rule 18(a) 17 Plaintiff may not proceed in one action on a myriad of unrelated claims against different staff 18 members. “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to 19 relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as 20 independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has 21 against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against 22 Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims 23 against different defendants belong in different suits, not only to prevent the sort of morass [a 24 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required 25 filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals 26 that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George 27 v. Smith, 507 F.3d at 607. 28 At this juncture, Plaintiff states only a claim against defendant Sweeney for violation of the 8 Case 1:08-cv-01824-AWI-GSA Document 14 Filed 06/21/2010 Page 9 of 10 1 Fourth Amendment, and against defendant Gonzalez for retaliation in violation of the First 2 Amendment. Upon review, the remainder of Plaintiff’s claims arising at CCI are unrelated to either 3 of the cognizable claims identified. Plaintiff may not proceed with unrelated claims against different 4 defendants in a single suit. Id. Accordingly, Plaintiff may not pursue his claims against defendants 5 Hackitt, Hawkins, Reed or Sampson in this action. 6 D. 7 Plaintiff’s Claims Concerning his Conditions of Confinement at Desert View MCCF and at CIM 8 For the same reasons discussed above, Plaintiff may not pursue his claims arising from his 9 conditions of confinement at Desert View MCCF or at CIM in this action. The claims alleged 10 against correctional staff at those facilities are unrelated to the cognizable claims alleged against 11 defendants Sweeney and Gonzalez arising at CCI. To allow Plaintiff to pursue those unrelated 12 claims here would result in a violation of Rule 18(a). Plaintiff is not prevented from pursuing those 13 claims if he wishes; however, he may not litigate them in this action. 14 III. Conclusion and Recommendation 15 Plaintiff’s first amended complaint states a claim against Defendant Sweeney for violation 16 of the Fourth Amendment arising from the strip search incident on October 23, 2008. Plaintiff also 17 states a claim for retaliation in violation of the First Amendment against defendant Warden 18 Gonzalez, for purportedly transferring Plaintiff to a different CDCR facility in response to Plaintiff’s 19 grievance activities. Although both claims arise at CCI and the Court identifies both claims as 20 cognizable, the claims are unrelated. Plaintiff may not proceed with a “mishmash of a complaint” 21 and therefore cannot proceed with both claims in this one action. George, 507 F.3d at 607. Plaintiff 22 has indicated that he is willing to proceed only against Defendant Sweeney in this action. 23 Accordingly, the Court HEREBY RECOMMENDS the following: 24 1) 25 26 against Defendant Sweeney for violation of the Fourth Amendment; 2) 27 28 This action proceed on Plaintiff’s first amended complaint, filed May 26, 2009, Plaintiff’s claim against Defendant Gonzalez for retaliation in violation of the First Amendment be DISMISSED without prejudice; 3) Plaintiff’s claims against Defendants Hackitt, Hawkins, Reed and Sampson be 9 Case 1:08-cv-01824-AWI-GSA 1 Document 14 Filed 06/21/2010 Page 10 of 10 DISMISSED without prejudice; 2 4) 3 Plaintiff’s claims arising at Desert View Modified Community Correctional Facility and at the California Institute for Men be DISMISSED without prejudice; 4 5) 5 Plaintiff’s claims against Defendant Director of CDCR be DISMISSED with prejudice for failure to state a claim upon which relief may be granted; and 6 6) 7 Plaintiff’s Eighth Amendment and Equal Protection claims be DISMISSED with prejudice for failure to state a claim upon which relief may be granted. 8 9 IT IS SO ORDERED. 10 Dated: 3b142a June 18, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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