(PC) Greene v. Ortiz et al, No. 1:2018cv01330 - Document 15 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of 14 Action for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 12/5/2018. Referred to Judge Dale A. Drozd. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RASHAN GREENE, 12 Plaintiff, 13 v. 14 M. ORTIZ, et al., 15 Defendants. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-01330-DAD-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 14] Plaintiff Rashan Greene is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s first amended complaint, filed December 4, 2018. 21 I. 22 BACKGROUND 23 On October 9, 2018, the Court found that Plaintiff’s complaint failed to state a cognizable claim 24 for relief and granted plaintiff thirty days to file an amended complaint addressing the deficiencies 25 identified by the Court. (ECF No. 8.) Plaintiff failed to file an amended complaint within thirty days. 26 Therefore, on November 19, 2018, the Court issued Findings and Recommendation recommending the 27 action be dismissed for failure to comply with a court order and failure to state a cognizable claim for 28 relief. (ECF No. 11.) On this same date, Plaintiff filed a motion for an extension of time to file an 1 1 amended complaint, which was placed on the docket after the issuance of the Findings and 2 Recommendations. (ECF No. 12.) On November 20, 2018, the Court vacated the November 19, 2018 3 Findings and Recommendation and granted Plaintiff thirty days to file an amended complaint. (ECF 4 No. 13.) As previously stated, on December 4, 2018, Plaintiff filed a first amended complaint which is 5 presently before the Court for screening pursuant to 28 U.S.C. § 1983. (ECF No. 14.) 6 II. 7 SCREENING REQUIREMENT 8 The Court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 11 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 12 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 13 A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled 14 to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare 15 recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 17 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the 18 deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 19 20 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 21 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 22 which requires sufficient factual detail to allow the Court to reasonably infer that each named 23 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 24 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 25 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 26 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 27 /// 28 /// 2 1 III. 2 COMPLAINT ALLEGATIONS 3 On November 18, 2016, at around 8:20 a.m., officer M. Ortiz went to Plaintiff’s cell and 4 ordered Plaintiff and his cellmate to step out of the cell and get in the lower B shower. Ortiz then 5 ordered Plaintiff and his cellmate to strip out of their clothing. Ortiz ordered Plaintiff to turn around, 6 bend at the waist, open his buttocks and cough. After complying with Ortiz’s orders, he said, “I want 7 to see what you had for breakfast, do it again…This time, open wider until I can see what you had for 8 breakfast.” Ortiz continued ordering Plaintiff and his cellmate to bend and spread open their buttocks 9 over four times before giving them back their clothing. Ortiz detained them in the shower area, then 10 conducted a cell search. About an hour later, Ortiz returned and stated, “I’m not done with you black 11 assess… let’s do this again.” Ortiz ordered Plaintiff and his cellmate to take their clothing off and 12 ordered them to follow his orders slowly. Ortiz pulled out his pepper spray can, and ordered them one 13 at a time to bend over and crack it open. As Plaintiff and his cellmate complied, Ortiz made sexual 14 jokes and comments about their buttocks while threatening the use of pepper spray. Ortiz then took 15 Plaintiff to potty-watch and ordered him to defecate in a mop bucket. 16 17 Correctional officers J. Acevedo, S. Sevilla and M. Rodriguez failed to take reasonable measures to protect Plaintiff and his cellmate from Ortiz’s actions. 18 IV. 19 DISCUSSION 20 A. Fourth Amendment Unreasonable Searches 21 The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 U.S. 520, 22 558 (1979); Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011); 23 Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The reasonableness of the search is 24 determined by the context, which requires a balancing of the need for the particular search against the 25 invasion of personal rights the search entails. Bell, 441 U.S. at 558-59 (quotations omitted); Byrd, 629 26 F.3d at 1141; Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010); Nunez v. 27 Duncan, 591 F.3d 1217, 1227 (9th Cir. 2010); Michenfelder, 860 F.2d at 332-34. Factors that must be 28 evaluated are the scope of the particular intrusion, the manner in which it is conducted, the 3 1 justification for initiating it, and the place in which it is conducted. Bell, 441 U.S. at 559 (quotations 2 omitted); Byrd, 629 F.3d at 1141; Bull, 595 F.3d at 972; Nunez, 591 F.3d at 1227; Michenfelder, 860 3 F.2d at 332. 4 Although inmates, have a “limited right to bodily privacy,” Michenfelder v. Sumner, 860 F.2d 5 328, 333 (9th Cir. 1988), the Eighth Amendment protects inmates from repetitive and harassing 6 searches, and from sexual abuse, Schwenk v. Hartford, 204 F.3d 1187, 1196-1197 (9th Cir. 2000). 7 The Ninth Circuit has recognized that digital rectal searches are highly intrusive and humiliating. 8 Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1998). Prisoners thus have a clearly established right 9 to be free from digital rectal searches conducted for purposes unrelated to legitimate penological 10 concerns. Tribble, 860 F.2d at 325-327. A digital rectal search may violate the Eighth Amendment if 11 it is not reasonably related to any legitimate penological concerns. Id. at 325 n. 6. 12 The Supreme Court has held that visual body cavity searches performed to prevent prisoners’ 13 possession of weapons and contraband are reasonable, even in the absence of probable cause. Bell, 14 441 U.S. at 558-560. In addition, the Ninth Circuit has held that visual body cavity searches 15 “involving no touching” are reasonable. Michenfelder, 860 F.2d at 332. “The prisoner bears the 16 burden of showing that prison officials intentionally used exaggerated or excessive means to enforce 17 security in conducting a search.” Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997). 18 In this instance, Plaintiff fails to state a cognizable claim under the Fourteenth Amendment. 19 Although Plaintiff contends that he was subjected to a number of rectal digital searches on November 20 18, 2016, there are insufficient factual allegations to demonstrate that the searches were unreasonable 21 under the circumstances. Even assuming the validity of Plaintiff’s allegations, the searches took place 22 on one single day, by the same gender prison official, involved both Plaintiff and his cellmate, did not 23 involve any physical contact, and resulted in Plaintiff being placed on potty-watch. While Plaintiff 24 may not have agreed with the strip-searches, “[u]npleasant physical measures—e.g., a strip search— 25 may be necessary to secure the safety of an institution even though they impinge on the dignity of 26 innocent inmates.” Wagner v. Cnty. of Maricopa, 706 F.3d 942, 948 (9th Cir. 2013), opinion amended 27 747 F.3d 1048 (citing Bull v. City and County of San Francisco, 595 F.3d 964). Given these 28 4 1 circumstances, there is no basis to find that the searches were unreasonable. Accordingly, Plaintiff 2 fails to state a cognizable claim for relief. 3 B. Eighth Amendment Unreasonable Searches 4 In some cases, an inmate’s Eighth Amendment right to be free from cruel and unusual 5 punishment may be implicated by a search. Harris v. Miller, 818 F.3d 49, 63-64 (2d Cir. 2016). A 6 prison official violates the Eighth Amendment’s proscription of cruel and unusual punishment where 7 he or she deprives a prisoner of the minimal civilized measure of life’s necessities with a “sufficiently 8 culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “After incarceration, only the 9 unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the 10 Eighth Amendment.” Jordan v. Gardner, 986 F.2d 1521, 1525 (9th Cir. 1993) (en banc) (quoting 11 Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and indications of alteration 12 omitted). 13 Although inmates, have a “limited right to bodily privacy,” Michenfelder v. Sumner, 860 F.2d 14 328, 333 (9th Cir. 1988), the Eighth Amendment protects inmates from repetitive and harassing 15 searches, and from sexual abuse, Schwenk v. Hartford, 204 F.3d 1187, 1196-1197 (9th Cir. 2000). 16 The Ninth Circuit has recognized that digital rectal searches are highly intrusive and humiliating. 17 Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1998). Prisoners thus have a clearly established right 18 to be free from digital rectal searches conducted for purposes unrelated to legitimate penological 19 concerns. Tribble, 860 F.2d at 325-327. A digital rectal search may violate the Eighth Amendment if 20 it is not reasonably related to any legitimate penological concerns. Id. at 325 n. 6. The Ninth Circuit 21 has also held that, under limited circumstances, a bodily search involving intimate touching may inflict 22 psychological pain sufficient to implicate the Eighth Amendment even in the absence of sexual 23 assault. In Jordan v. Gardner, the Ninth Circuit held that a prison policy requiring male guards to 24 conduct frequent random clothed body searches of female inmates constituted cruel and unusual 25 punishment when the policy was adopted despite the warnings of prison psychologists that the 26 intrusive searches would severely traumatize inmates, many of whom had pre-incarceration histories 27 of sexual abuse by men. Jordan, 986 F.2d at 1523-1531. By contrast, the Ninth Circuit has also found 28 that “the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in 5 1 this nation’s prisons” of which “we do not approve,” but which do not violate the Eighth Amendment. 2 Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (internal quotation marks omitted). Thus, not 3 “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. 4 at 9; Calhoun v. DeTella, 319 F.3d 936, 939 (9th Cir. 2003). 5 Plaintiff fails to state a cognizable claim under the Eighth Amendment for cruel and unusual 6 punishment. Plaintiff alleges that on November 18, 2016, he and his cellmate were subjected to 7 multiple strip searches, and Plaintiff was ultimately placed on potty-watch. Plaintiff’s factual 8 allegations demonstrate nothing more than verbal comments without any physical contact, which is 9 insufficient to give rise to a claim under the Eighth Amendment. The fact that Plaintiff and his 10 cellmate were subjected to searches on one single day by the same gender prison staff without any 11 physical contact is insufficient to give rise to a claim under the Eighth Amendment. Accordingly, 12 Plaintiff fails to state a cognizable claim under the Eighth Amendment. 13 The Court notes that Plaintiff also contend that Defendants violated the “PREA” (Prison Rape 14 Elimination Act). However, Plaintiff is advised that he PREA did not create a private cause of action. 15 Miller v. Brown, No. 1:12-cv-01589-LJO-BAM, 2014 WL 496919, at *8 (E.D. Cal. Feb. 6, 2014), 16 report and recommendation adopted, No. 1:12-cv-01589-LJO-BAM, 2014 WL 806957 (E.D. Cal. Feb. 17 28, 2014); Law v. Whitson, No. 2:08-cv-0291-SPK, 2009 WL 5029564, at *4 (E.D. Cal. Dec. 15, 18 2009). Therefore, Plaintiff has failed to state a claim for violation of the PREA. 19 C. 20 Plaintiff contends that Defendants Acevedo, Sevilla, and Rodriguez failed to take reasonable 21 Failure to Protect measures to protect him from officer Ortiz’s action. 22 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 23 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 24 Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with 25 food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 26 825, 832-33 (1994) (quotations omitted). Prison officials have a duty under the Eighth Amendment to 27 protect prisoners from violence at the hands of other prisoners because being violently assaulted in 28 prison is simply not part of the penalty that criminal offenders pay for their offenses against society. 6 1 Farmer, 511 U.S. at 833-34 (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2 2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable 3 under the Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a 4 substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference occurs 5 when an official acted or failed to act despite his knowledge of a substantial risk of serious harm. 6 Farmer, 511 U.S. at 834, 841 (quotations omitted); Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. 7 As an initial matter, Plaintiff has failed to demonstrate that Defendant Ortiz violated his 8 constitutional rights; therefore, Defendants Acevedo, Sevilla, and Rodriguez cannot be liable for 9 failing to protect Plaintiff. Furthermore, even if Plaintiff did state a cognizable claim against 10 Defendant Ortiz, Plaintiff fails to provide any factual detail surrounding his claim that Defendants had 11 the ability to protect and failed to do so. Accordingly, Plaintiff fails to state a cognizable failure to 12 protect claim. 13 V. 14 CONCLUSION AND RECOMMENDATIONS 15 For the reasons discussed herein, Plaintiff fails to state a cognizable constitutional claim for 16 relief. Plaintiff was previously notified of the applicable legal standards and the deficiencies in his 17 pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical 18 to the original complaint. Based upon the allegations in Plaintiff’s original and first amended complaint, 19 the Court is persuaded that Plaintiff is unable to allege any additional facts that would support a 20 constitutional claim for relief, and further amendment would be futile. See Hartmann v. CDCR, 707 21 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny leave to amend when amendment would 22 be futile.”) Based on the nature of the deficiencies at issue, the Court finds that further leave to amend 23 is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446- 24 1449 (9th Cir. 1987). 25 Based on the foregoing, it is HEREBY RECOMMENDED that: 26 1. The instant action be dismissed for failure to state a cognizable claim for relief; 27 2. The Clerk of Court be directed to terminate this action. 28 /// 7 These Findings and Recommendations will be submitted to the United States District Judge 1 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 3 days after being served with these Findings and Recommendations, Plaintiff may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 7 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 10 11 IT IS SO ORDERED. Dated: December 5, 2018 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9