(PC) Price v. Sherman ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDMOND PAUL PRICE, Case No. 1:20-cv-00131-EPG (PC) 11 Plaintiff, ORDER FINDING COGNIZABLE CLAIMS 12 v. ORDER FOR PLAINTIFF TO: 13 STU SHERMAN, et al., (1) NOTIFY THE COURT THAT HE WANTS TO PROCEED ONLY ON THE 14 Defendants. CLAIMS FOUND COGNIZABLE BY THIS ORDER; 15 (2) FILE A FIRST AMENDED 16 COMPLAINT; OR 17 (3) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS COMPLAINT, SUBJECT 18 TO THIS COURT ISSUING FINDINGS AND RECOMMENDATIONS TO A DISTRICT 19 JUDGE CONSISTENT WITH THIS ORDER 20 (ECF NO. 1) 21 THIRTY (30) DAY DEADLINE 22 23 Edmond Paul Price (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 24 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 25 commencing this action on January 29, 2020. (ECF No. 1). 26 The Court has reviewed the complaint and finds that the following claims should 27 proceed past the screening stage: a claim against Defendants Alvarado and Carivao for 28 excessive force in violation of the Eighth Amendment; a claim against Defendant Martinez for 1 failure to protect in violation of the Eighth Amendment; a claim against Defendants Martinez, 2 Alvarado, and Carivao for conspiracy to violate Plaintiff’s Eighth Amendment rights; a claim 3 for deliberate indifference to serious medical needs against Defendants Alvarado and Carivao; 4 a claim for violation of the First Amendment against Defendants Alvarado and Carivao; and a 5 claim for violation of the Fourth Amendment for an unreasonable search against Defendant 6 Alvarado. 7 Plaintiff now has options as to how to move forward. Plaintiff may file an amended 8 complaint based on the legal standards in this order if he believes that additional facts would 9 state additional claims. If Plaintiff files an amended complaint, the Court will screen that 10 amended complaint in due course. Alternatively, Plaintiff may file a statement with the Court 11 saying he wants to go forward only on the claims identified above. Finally, Plaintiff may file a 12 statement with the Court that he wishes to stand on this complaint and have it reviewed by a 13 district judge, in which case the Court will issue findings and recommendations to a district 14 judge consistent with this order. 15 I. SCREENING REQUIREMENT 16 The Court is required to screen complaints brought by prisoners seeking relief against a 17 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 18 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 19 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 20 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 21 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 13), the Court may 22 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 23 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 24 determines that the action or appeal fails to state a claim upon which relief may be granted.” 25 28 U.S.C. § 1915(e)(2)(B)(ii). 26 A complaint is required to contain “a short and plain statement of the claim showing 27 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 28 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 3 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 4 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 5 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 6 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 7 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 8 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 9 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 10 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 11 pro se complaints should continue to be liberally construed after Iqbal). 12 II. SUMMARY OF PLAINTIFF’S COMPLAINT 13 Plaintiff’s complaint alleges the following: 14 At all relevant times, Plaintiff was housed at Substance Abuse Treatment Facility at 15 Corcoran (“SATF”), on D Facility in Building 1, cell 247. Plaintiff was assigned as a 2nd watch 16 porter. He had no incidents or disciplinary actions previously. 17 Plaintiff’s complaint describes several events in September 2019, where correctional 18 officer Martinez appeared to treat him unfairly. For example, she refused to allow him to 19 return to building 1 after a medical appointment. Although Martinez said there was no building 20 entry by inmates until yard recall, she immediately thereafter let in another inmate. She refused 21 to allow Plaintiff to do “mailouts” where inmates send property out that does not fit in an 22 envelope. She prohibited him from showering, while lettering several Hispanic workers 23 shower. Plaintiff describes other incidents as well. 24 On September 21, 2018, at approximately 08:00 hours, Plaintiff was let out of his cell to 25 perform his job duties. Plaintiff did those job duties and then got in line with several co- 26 workers to use one of the kiosks in the dayroom. After a couple of minutes, Plaintiff’s cell 27 mate brought him a cup of coffee. Martinez immediately called Plaintiff and asked if he was 28 going to do any work that day. Plaintiff informed Martinez that he had finished his job duties 1 and was waiting in line for the kiosk. Martinez stated that all she saw him doing was standing 2 around and drinking coffee all morning. Plaintiff stated that he had just acquired the coffee, so 3 she was obviously mistaking him for someone else. Martinez stated that she was not mistaken. 4 Plaintiff asked Martinez if he had done something wrong. Martinez asked why Plaintiff felt she 5 was picking on him. Plaintiff explained the earlier incidents described in his complaint and 6 pointed out that all his requests were denied, but the same requests by Hispanic inmates were 7 granted. Martinez became agitated and responded “If that’s how you feel, I’ll take care of it.” 8 She directed Plaintiff to clean the shower and stay away from the kiosks. Plaintiff did as 9 instructed. 10 After Plaintiff had cleaned the shower, all inmate workers were directed to report to the 11 building office. Once all inmate workers had arrived, correctional officers Alvarado and 12 Carivao told the workers they were having problems with Plaintiff and so, from that point on, 13 the inmate workers would not be able to use the phones or kiosks during work hours. 14 Plaintiff apologized to his co-workers and explained that the officers were mad at him. 15 Plaintiff asked Alvarado and Carivao not to punish the other inmates just because they were 16 mad at him. Alvarado stated that the punishment would ensue because she didn’t like when her 17 or her fellow officers were accused of racism. 18 A few minutes later, Plaintiff heard inmate Martinez (aka Piper) and inmate Trujillio 19 (aka Psycho) talking to Carivao in the building’s breezeway Plaintiff heard Piper state to 20 Carivao, “We will fuck that fool off, just don’t take the phones from us because of his stupid 21 ass.” Carivao replied, “We will see, let me talk to my partner.” 22 Later, Plaintiff asked Piper if there was going to be an issue. Piper said no but that 23 Plaintiff messed up. Plaintiff asked what that meant, but Piper walked away. 24 Shortly thereafter, Plaintiff noticed a group of inmates talking amongst themselves. The 25 group consisted of Piper, Psycho, Calkins (aka Rich), and Bravo (aka Grande). Plaintiff had a 26 bad feeling about the situation, so grabbed a broom and mimicked sweeping to protect himself. 27 Officer Alvarado came out of the office and handed Plaintiff a dust pan and directed 28 Plaintiff to take it to the mop closet. Plaintiff stated that this dust pan was kept in the podium, 1 not the mop closet. Alvarado asked if Plaintiff was refusing a direct order. Plaintiff said he 2 was not and started to take the dust pan to the mop closet. Alvarado stopped Plaintiff and 3 directed him to leave the broom. 4 Upon entering the mop closet, Plaintiff heard shuffling feet come toward the closet. 5 Plaintiff turned and was punched in the face by Grande. Two most inmates, Rich and Psycho, 6 joined and all beat Plaintiff. Plaintiff curled into the fetal position until the beating stopped. 7 When Plaintiff started to raise up, he received a kick to the lower left side of his back. This 8 caused excruciating pain. Plaintiff started urinating and could not stop. He believes this was 9 due to internal damage. 10 When Plaintiff was sure he was alone in the mop closet, he tried to get up. The pain 11 was too great. A couple of minutes later, Plaintiff hears boots coming up the stairs and 12 someone enter the closet. Plaintiff curled into the fetal position again. Officer Alvarado said 13 “Get the fuck up!” Plaintiff tried to get to his feet slowly. Alvarado said she would hit her 14 alarm and inform responding officers that she saw Plaintiff attack the inmates who had 15 assaulted him. 16 Plaintiff made it to his feet. He noticed Officer Carivao standing behind Alvarado. 17 Carivao instructed Plaintiff to return to his cell and remain there until instructed to do 18 otherwise. Plaintiff did as instructed. 19 While in his cell, Plaintiff spoke with his cellmate and then went to take a shower. 20 While in the shower, Officer Martinez directed Plaintiff to return to his cell. Plaintiff 21 finished his shower and returned to his cell. At approximately 09:00 hours, officer Martinez 22 made another announcement that yard program was open but dayroom program would be 23 delayed. After the other inmates were let out to yard, officers Alvarado and Carivao went to 24 Plaintiff’s cell. They ordered Plaintiff’s cellmate to leave. 25 Then Alvarado took a step inside the cell and Carivao remained just behind her. 26 Alvarado asked whether or not Plaintiff heard when Carivao ordered Plaintiff to remain in his 27 cell until he was told to leave. Plaintiff responded that he had heard him. Alvarado stated that 28 since Plaintiff could not follow simple instructions, he needed to strip out. Plaintiff told her a 1 female officer should not being doing this. She said she could have one of Plaintiff’s buddies 2 do it instead. Plaintiff states that she was clearly referring to the inmates who just assaulted 3 him. 4 Plaintiff removed his shoes, socks, shorts, and shirt. Alvarado then said “completely 5 naked, lose the boxers too.” Plaintiff complied and was told to turn around. Plaintiff faced the 6 other direction so his back was facing the officers. Carivao said that the inmates did a good 7 job. Alvarado then directed Plaintiff to turn around and face her. Plaintiff complied but 8 covered his private parts. Alvarado told him to move his hands out of the way. 9 Plaintiff asked the officers why they didn’t just leave him alone and wasn’t it enough 10 that they had just had him assaulted. Alvarado stated that it would be enough when she felt it 11 was enough and when she felt Plaintiff had learned his lesson. 12 Plaintiff moved his hand and said he had learned his lesson. Alvarado told Plaintiff to 13 shut up and said she would determine when he had learned his lesson. She and Carivao then 14 made racial jokes about Plaintiff’s genitalia. At one point, Plaintiff said he was not going to 15 just stand around for their ridicule. 16 Alvarado then told Plaintiff to turn around and put his hands behind his back. Alvarado 17 whispered to Carivao something that sounded like “Take him down.” Carivao shoved Plaintiff 18 to the ground. Plaintiff hurt his left knee on a mounted steel stool. Carivao yanked one of 19 Plaintiff’s wrists behind his back. Plaintiff was in extreme pain. Carivao put his knee on 20 Plaintiff’s back and wrenched Plaintiff’s arms up. Plaintiff’s face was on a mattress and he 21 could not call out. 22 Alvarado then put a metal baton between his butt cheeks. She asked Carivao if he 23 thought Plaintiff learned his lesson. Carivao said he did not know. Carivao told Plaintiff not to 24 leave his cell for two weeks and not to file any grievances or go to medical for his injuries. He 25 told Plaintiff he could be “got” from anywhere in the prison and all the officers would have his 26 back and Plaintiff wouldn’t make it out of prison alive. He asked if Plaintiff understood. 27 Plaintiff replied “Fine, just get the fuck off of me.” 28 1 Alvarado said “This motherfucker just don’t get it!’ and pushed the metal baton inside 2 Plaintiff’s rectum. Alvarado pressured the baton while telling Plaintiff not to tell anyone what 3 happened. Plaintiff agreed and begged them to stop. Alvarado took the baton out and stated, 4 “We better not hear anything else about this.” 5 Plaintiff did not leave his cell or report the issue. Plaintiff was injured and bleeding. 6 On September 24, 2019, Alvarado came to Plaintiff’s cell, conducted another unclothed 7 body search, and told Plaintiff that if he ever said anything about the prior incident, she would 8 write him up saying he exposed himself to her. This body search was directed by c/o Alvarado 9 and was accompanied by c/o Jaminez. 10 On October 1, 2019, Alvarado conducted another unclothed body search and said 11 Plaintiff could come out now that the marks on the back of his head had healed, but that he had 12 to keep his shirt on at all times. 13 Plaintiff’s job was changed, but Plaintiff was not let out for his new job. Correctional 14 Officer Hinajosa said it was her choice who would be let out. Plaintiff filled out a request 15 form, but never received a response. 16 On November 28, 2019, there was a search of all cells in building 1. Plaintiff was 17 directed to take his mattress down to the metal scanner, being operated by Officer Hinajoa. 18 Hinajoa asked if Plaintiff only had a week left. Plaintiff said about that, give or take a couple 19 of days. Hinjosa said “That’s not too long to go without your things,” and then directed 20 Plaintiff to sit at a table. When Plaintiff returned to his cell, he saw an officer taking his T.V. 21 Plaintiff asked why it was being removed. The Officer said he had not make sure it belonged 22 to Plaintiff and if it did, it would be returned. When Plaintiff reached his cell, he realized the 23 officers had also taken his fan, hot pot, hair trimmers and battery charger. 24 Approximately an hour later, Sergeant Valazquez came to the cell and stated that all 25 Plaintiff’s property was altered. He asked if Plaintiff wanted to send his property home or 26 donate it. Plaintiff said his property was not altered and Plaintiff would like it returned. 27 Sergeant Valazquez stepped close to the closed cell door to make sure the Plaintiff could hear 28 and stated that he thought plaintiff would have learned his lesson with the “ass whoopen” he 1 took last time Plaintiff decided to mess with officers, so maybe Plaintiff would now leave 2 officer Hinajosa alone if he lost all his shit. 3 Plaintiff alleges on information and belief that Warden Stu Sherman failed to properly 4 train defendants Alvarado and Carivao to ensure they did not use excessive force against 5 prisoners, and failed to train Defendant Martinez to ensure the safety of all prisoners. 6 III. ANALYSIS OF PLAINTIFF’S CLAIMS 7 A. Excessive Force and Failure to Protect in Violation of the Eighth Amendment 8 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 9 restraints on prison officials, who may not... use excessive physical force against prisoners.” 10 Farmer, 511 at 832. “[W]henever prison officials stand accused of using excessive physical 11 force in violation of the [Eighth Amendment], the core judicial inquiry is... whether force was 12 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 13 cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). 14 When determining whether the force was excessive, the court looks to the “extent of 15 injury suffered by an inmate..., the need for application of force, the relationship between that 16 need and the amount of force used, the threat ‘reasonably perceived by the responsible 17 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 18 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of 19 physical force generally do not implicate the Eighth Amendment, significant injury need not be 20 evident in the context of an excessive force claim, because “[w]hen prison officials maliciously 21 and sadistically use force to cause harm, contemporary standards of decency always are 22 violated.” Hudson, 503 U.S. at 9. 23 To establish a failure to protect claim, the prisoner must establish that prison officials 24 were deliberately indifferent to a sufficiently serious threat to the prisoner’s safety. Farmer v. 25 Brennan, 511 U.S. 825, 837 (1994). “‘Deliberate indifference’ has both subjective and 26 objective components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). 27 The prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to 28 inmate... safety; the official must both be aware of facts from which the inference could be 1 drawn that a substantial risk of serious harm exists, and [the official] must also draw the 2 inference.” Farmer, 511 U.S. at 837. “Liability may follow only if a prison official ‘knows 3 that inmates face a substantial risk of serious harm and disregards that risk by failing to take 4 reasonable measures to abate it.’” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 5 847). 6 The Court finds that Plaintiff has stated a cognizable claim against Defendants Alvarado 7 and Carivao for excessive force in violation of the Eighth Amendment. Plaintiff has alleged 8 that Defendants Alvarado and Carivao used force maliciously and sadistically to cause harm. 9 The Court finds that Plaintiff has also stated a cognizable claim against Defendant 10 Martinez for failure to protect in violation of the Eighth Amendment. Construing all facts in 11 his favor at this screening stage, Plaintiff has sufficiently alleged that Defendant Martinez knew 12 that Plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to take 13 reasonable measures to abate it. 14 B. Conspiracy 15 To state a claim for conspiracy under § 1983, Plaintiff must show the existence of an 16 agreement or meeting of the minds to violate constitutional rights, Avalos v. Baca, 596 F.3d 17 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an 18 “actual deprivation of his constitutional rights resulted from the alleged conspiracy,” Hart v. 19 Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, 20 Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the 21 conspiracy need not know the exact details of the plan, but each participant must at least share 22 the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United 23 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir.1989)). 24 Additionally, Plaintiff must present evidence that Defendants “conspired or acted jointly in 25 concert and that some overt act [was] done in furtherance of the conspiracy.” Sykes v. State of 26 California, 497 F.2d 197, 200 (9th Cir. 1974). 27 Plaintiff’s complaint alleges facts that would constitute a conspiracy claim against 28 Defendants Martinez, Alvarado and Carivao by alleging facts indicating that they had a 1 meeting of the minds to share the objective of having Plaintiff attacked by inmates and 2 Alvarado and Carivao. 3 C. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth 4 Amendment 5 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 6 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 7 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 8 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 9 prisoner’s condition could result in further significant injury or the unnecessary and wanton 10 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 11 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 12 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 13 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 14 Deliberate indifference is established only where the defendant subjectively “knows of 15 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 16 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 17 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 18 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 19 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 20 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 21 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 22 836-37 & n.5 (1994) (citations omitted). 23 A difference of opinion between an inmate and prison medical personnel—or between 24 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 25 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 26 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 27 physician has been negligent in diagnosing or treating a medical condition does not state a valid 28 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 1 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 2 106. To establish a difference of opinion rising to the level of deliberate indifference, a 3 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 4 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 5 The Court finds that Plaintiff has stated a cognizable claim based on deliberate 6 indifference to serious medical needs against Defendants Alvarado and Carivao by alleging that 7 they prohibited him from seeking medical care for injuries caused by them and other inmates. 8 D. First Amendment 9 The First Amendment protects a prisoner’s right to seek redress of grievances from 10 prison authorities and a prisoner’s right of meaningful access to the courts. Jones v. Williams, 11 791 F.3d 1023, 1035 (9th Cir. 2015). In the context of prisons, a First Amendment retaliation 12 claim is comprised of five basic elements: “(1) An assertion that a state actor took some 13 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 14 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 15 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 16 567–68 (9th Cir. 2005). 17 While prisoners have no freestanding right to a prison grievance process, see Ramirez v. 18 Galaza, 334 F.3d 850, 860 (9th Cir.2003), “a prisoner’s fundamental right of access to the 19 courts hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d 20 1276, 1279 (9th Cir.1995) overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 21 n.2 (2001). Because filing administrative grievances and initiating civil litigation are protected 22 activities, it is impermissible for prison officials to retaliate against prisoners for engaging in 23 these activities. Rhodes, 408 F.3d at 567. 24 Moreover, the Ninth Circuit has held that “the mere threat of harm can be an adverse 25 action, regardless of whether it is carried out because the threat itself can have a chilling 26 effect.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). “The power of a threat lies not 27 in any negative actions eventually taken, but in the apprehension it creates in the recipient of 28 the threat.” Id. at 1271. 1 Plaintiff has stated a cognizable claim for violation of the First Amendment against 2 Defendants Alvarado and Carivao based on their alleged threats against him if he filed a 3 grievance against them. 4 E. Fourth Amendment Unreasonable Search 5 The Fourth Amendment provides a limited right to bodily privacy in prison. See Bull v. 6 City & Cty. of San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010); Mitchenfelder v. Sumner, 7 860 F.2d 328, 332 (9th Cir. 1988). In general, courts evaluate the reasonableness of a bodily 8 search of a prisoner under the Fourth Amendment by considering: (1) the scope of the 9 particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating 10 it, and (4) the place in which it was conducted. Bell v. Wolfish, 441 U.S. 520, 559 11 (1979); Mitchenfelder, 860 F.2d at 332; Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 12 1985). Cross-gender pat-down searches that “are done briefly and while the inmates are fully 13 clothed, and thus do not involve intimate contact with the inmates,” and are performed “in a 14 professional manner,” do not violate the Fourth Amendment. Grummett, 779 F.2d at 15 496; see Byrd v. Maricopa Cty. Sheriff’s Dep't, 629 F.3d 1135, 1141 (9th Cir. 2011). However, 16 a strip search, even if conduct with all due courtesy, is a “frightening and humiliating” 17 experience. Byrd, 629 F.3d at 1142. “The desire to shield one’s clothed figure from [the] view 18 of strangers, and particularly strangers of the opposite sex, is impelled by elementary self- 19 respect and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). The Ninth 20 Circuit has upheld policies regarding cross-gender observation of a prisoner’s intimate body 21 areas where the cross-gender participation was infrequent, irregular, or from a 22 distance. See Byrd, 845 F.3d at 922 (discussing Mitchenfelder, 860 F.2d at 334; Grummett, 23 779 F.2d at 495). Consistent with Mitchenfelder and Grummett, the Ninth Circuit has approved 24 the observation of the First Circuit: “inadvertent, occasional, casual, and/or restricted 25 observations of inmate’s naked body by a guard of the opposite sex [does] not violate 26 the Fourth Amendment, [but] if the observation was other than inadvertent, occasional, casual, 27 and/or restricted, such observation would (in all likelihood) violate the Fourth Amendment, 28 1 except in an emergency situation.” Byrd, 629 F.3d at 1144 (quoting Cookish v. Powell, 945 2 F.2d 441, 447 (1st Cir. 1991)). 3 Plaintiff’s complaint states a cognizable claim against Defendant Alvarado for 4 conducting a cross-gender strip search that was unreasonable under these legal standards. 5 F. Claims Against Warden Sherman 6 A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if 7 he does an affirmative act, participates in another's affirmative act, or omits to perform an act 8 which he is legally required to do that causes the deprivation of which complaint is made.’” 9 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 10 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 11 established when an official sets in motion a ‘series of acts by others which the actor knows or 12 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 13 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely 14 resembles the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. 15 Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 16 F.3d 1010, 1026 (9th Cir. 2008). 17 Supervisory personnel are generally not liable under section 1983 for the actions of 18 their employees under a theory of respondeat superior and, therefore, when a named defendant 19 holds a supervisory position, the causal link between him and the claimed constitutional 20 violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 21 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 22 claim for relief under section 1983 based on a theory of supervisory liability, Plaintiff must 23 allege some facts that would support a claim that the supervisory defendants either: personally 24 participated in the alleged deprivation of constitutional rights; knew of the violations and failed 25 to act to prevent them; or promulgated or “implemented a policy so deficient that the policy 26 ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional 27 violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 28 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may 1 be liable for his “own culpable action or inaction in the training, supervision, or control of his 2 subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is 3 made,” or “conduct that showed a reckless or callous indifference to the rights of 4 others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (citations, internal 5 quotation marks, and alterations omitted). 6 Plaintiff has failed to plead a cognizable claim against Warden Sherman. Plaintiff 7 alleges that “on information and belief” that Warden Sherman failed to adequately train 8 Defendants not to use excessive force and to ensure the safety of prisoners. However, there are 9 no facts that Warden Sherman participated in them, knew about them, or created a policy that 10 was the moving force behind the violation. Plaintiff’s allegations are also only conclusory 11 statements, rather than facts that Warden Sherman failed to train defendants. 12 IV. CONCLUSION AND ORDER 13 The Court finds that the following claims should proceed past the screening stage: a 14 claim against Defendants Alvarado and Carivao for excessive force in violation of the Eighth 15 Amendment; a claim against Defendant Martinez for failure to protect in violation of the Eighth 16 Amendment; a claim against Defendants Martinez, Alvarado, and Carivao for conspiracy to 17 violate Plaintiff’s Eighth Amendment rights; a claim for deliberate indifference to serious 18 medical needs against Defendants Alvarado and Carivao; a claim for violation of the First 19 Amendment against Defendants Alvarado and Carivao; and a claim for violation of the Fourth 20 Amendment for an unreasonable search against Defendant Alvarado. The Court also finds that 21 Plaintiff’s complaint fails to state any other cognizable claims. 22 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely 23 give leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff 24 with time to file an amended complaint curing the deficiencies identified above. Lopez v. 25 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended 26 complaint within thirty days. 27 28 1 Plaintiff should note that although he has been given the opportunity to amend, it is not 2 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 3 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 4 Additionally, Plaintiff is advised that an amended complaint supersedes the original 5 complaint, Lacey v. Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and 6 must be complete in itself without reference to the prior or superseded pleading, Local Rule 7 220. Therefore, in an amended complaint, as in an original complaint, each claim and the 8 involvement of each defendant must be sufficiently alleged. The amended complaint should be 9 clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and 10 be an original signed under penalty of perjury. 11 Alternatively, Plaintiff may choose to stand on this complaint, in which case the Court 12 will issue findings and recommendations to a district court judge consistent with this order. 13 Finally, Plaintiff may choose to notify the Court in writing that he does not wish to file 14 an amended complaint, and instead wants to proceed only on the claims found cognizable by 15 the Court. 16 Based on the foregoing, it is HEREBY ORDERED that: 17 1. Within thirty (30) days from the date of service of this order, Plaintiff shall 18 either: 19 a. File a First Amended Complaint, which the Court will screen in due course; 20 b. Notify the Court in writing that he does not want to file an amended 21 complaint, and instead wants to proceed only on the following claims: a 22 claim against Defendants Alvarado and Carivao for excessive force in 23 violation of the Eighth Amendment; a claim against Defendant Martinez for 24 failure to protect in violation of the Eighth Amendment; a claim against 25 Defendants Martinez, Alvarado, and Carivao for conspiracy to violate 26 Plaintiff’s Eighth Amendment rights; a claim for deliberate indifference to 27 serious medical needs against Defendants Alvarado and Carivao; a claim for 28 violation of the First Amendment against Defendants Alvarado and Carivao; 4: EVER SY MMIC 2 POI ee PAY tN I A 1 and a claim for violation of the Fourth Amendment for an unreasonable 2 search against Defendant Alvarado; or 3 c. Notify the Court in writing that he does not want to go forward on only the 4 claims found cognizable by this order or file an amended complaint, in 5 which case the Court will issue findings and recommendations to a district 6 judge consistent with this order. 7 2. Should Plaintiff choose to amend his complaint, Plaintiff shall caption the 8 amended complaint “First Amended Complaint” and refer to the case number 9 1:20-cv-00131-EPG; and 10 3. Failure to comply with this order may result in the dismissal of this action. 11 IT IS SO ORDERED. 13 || Dated: _-May 19, 2020 [sf ey — 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16