(PC) Witkin v. Rosario ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, No. 2:20-CV-0126-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 D. ROSARIO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s verified original complaint. See ECF 19 No. 1. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 This action proceeds on plaintiff’s verified original complaint. See ECF No. 1. 10 Plaintiff names the following as defendants: (1) D. Rosario; and (2) S. Hanlon. See id. at 1, 2. 11 Plaintiff claims defendants violated his Fourth Amendment rights by conducting a warrantless 12 search of his cell and then performing a strip search. Plaintiff also claims defendants’ conduct 13 violated his right to equal protection under the Fourteenth Amendment because his cell was 14 searched while the cells of other inmates in his unit were not. See id. at 7. For relief, plaintiff 15 seeks monetary damages. See id. 16 17 II. DISCUSSION 18 In this case, plaintiff complains of Fourth and Fourteenth amendment violations 19 arising from a cell search and strip search. The Court finds plaintiff fails to state any claims for 20 relief and that this action should be dismissed with prejudice. 21 Plaintiff alleges he was subject to a warrantless cell search in violation of his rights 22 under the Fourth Amendment. This claim is meritless as a matter of law because prisoners have 23 no Fourth Amendment right of privacy in their cells. See Hudson v. Palmer, 468 U.S. 517, 525- 24 26 (1984); see also Seaton v. Mayberg, 10 F.3d 530, 534 (9th Cir. 2010) (recognizing a right of 25 privacy in traditional Fourth Amendment terms is fundamentally incompatible with the continual 26 surveillance of inmates and their cells to ensure security and internal order). 27 / / / 28 / / / 1 Plaintiff also alleges he was subject to a strip-search in violation of the Fourth 2 Amendment. Generally, strip searches of prisoners do not violate the Fourth Amendment. See 3 Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir. 1988). If, however, the strip search is 4 vindictive, excessive, or harassing, it may be unconstitutional. See Id. at 332. Plaintiff’s current 5 pleading does not describe the alleged purpose for or manner of the strip search. To the extent 6 plaintiff can allege facts sufficient to state a claim, he will be provided an opportunity to amend. 7 Finally, plaintiff contends defendants’ conduct violated his equal protection rights 8 under the Fourteenth Amendment because his cell was searched whereas the cells of other 9 inmates in his unit, whom he claims were thus similarly situated, were not. This claim is too 10 vague, and fails to specify the nature of the alleged discrimination. Plaintiff has not described 11 why he believes he was treated differently. Plaintiff does not allege racial discrimination. Nor 12 does he allege discrimination based on religion. Plaintiff will be provided leave to amend to 13 allege additional facts in support of his Fourteenth Amendment claim. 14 15 III. CONCLUSION 16 Because it is possible that some of the deficiencies identified in this order may be 17 cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the 18 entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff 19 is informed that, as a general rule, an amended complaint supersedes the original complaint. See 20 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 21 amend, all claims alleged in the original complaint which are not alleged in the amended 22 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 23 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make 24 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 25 complete in itself without reference to any prior pleading. See id. 26 / / / 27 / / / 28 / / / 1 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 2 || conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See 3 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 4 | each named defendant is involved, and must set forth some affirmative link or connection 5 | between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 6 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 7 Because some of the defects identified in this order cannot be cured by 8 | amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now 9 | has the following choices: (1) plaintiff may file an amended complaint which does not allege the 10 || claims identified herein as incurable, in which case such claims will be deemed abandoned and 11 | the court will address the remaining claims; or (2) plaintiff may file an amended complaint which 12 | continues to allege claims identified as incurable, in which case the court will issue findings and 13 || recommendations that such claims be dismissed from this action, as well as such other orders 14 | and/or findings and recommendations as may be necessary to address the remaining claims. 15 Finally, plaintiff is warned that failure to file an amended complaint within the 16 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 17 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 18 | with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 19 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s complaint is dismissed with leave to amend; and 22 2. Plaintiff shall file a first amended complaint within 30 days of the date of 23 || service of this order. 24 25 | Dated: April 1, 2020 Sx