(PC)Perez v. Moreland ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, No. 2:17-cv-0508 AC P 12 Plaintiff, 13 v. ORDER 14 KORY L. HONEA, et al., 15 Defendants. 16 17 Plaintiff, a former pretrial detainee and current state prisoner, proceeds pro se with a civil 18 rights complaint filed pursuant to 42 U.S.C. § 1983. This matter was accordingly referred to the 19 undersigned by Local Rule 302(c)(17). 20 I. Application to Proceed In Forma Pauperis 21 Plaintiff has filed several requests for leave to proceed in forma pauperis that include 22 declarations that make the showing required by 28 U.S.C. § 1915(a). ECF Nos. 5, 9, 11, 13, 15, 23 17. The motions to proceed in forma pauperis will therefore be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, Plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from Plaintiff’s trust account and 28 forward it to the Clerk of the Court. Thereafter, Plaintiff will be obligated for monthly payments 1 of twenty percent of the preceding month’s income credited to Plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in Plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 4 § 1915(b)(2). 5 II. Statutory Screening of Prisoner Complaints 6 The court is required to screen complaints brought by prisoners1 seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 9 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 10 monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). 11 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 14 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 15 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 16 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 17 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 18 Franklin, 745 F.2d at 1227-28 (citations omitted). 19 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 20 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 21 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 22 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 24 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 25 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive dismissal for failure to state a 26 1 Plaintiff was a pretrial detainee at the time she filed the complaint. ECF No. 1 at 1. As a 27 pretrial detainee, plaintiff falls within the statutory definition of “prisoner” for purposes of screening. 28 U.S.C. § 1915A(c) (“[T]he term ‘prisoner’ means any person . . . detained in any 28 facility who is accused of . . . violations of criminal law.”). 1 claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of 2 action”; it must contain factual allegations sufficient “to raise a right to relief above the 3 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 4 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 5 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 6 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 8 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 9 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 10 content that allows the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 12 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 13 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 14 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 16 III. Facts of the Complaint 17 The complaint alleges that defendants Honea and Ahern violated plaintiff’s Fourth and 18 Fourteenth Amendment rights in relation to a pre-incarceration strip search. ECF No. 1 at 1, 3, 19 11-12. Plaintiff, formerly a pretrial detainee at the Butte County Jail, contends that the squat-and- 20 cough procedure constitutes “unconstitutional body cavity searches.” Id. at 3, 12. Specifically, a 21 female correctional officer forced plaintiff to perform the squat and cough procedure four times. 22 Id. at 12. The procedure and its repetition allegedly caused plaintiff both physical and emotional 23 stress because of her “medical incontinence issue,” pain in her right knee, and “past sexual abuse 24 in [her] life AND documented sexual abuse by various male ‘law-enforcement’ officers.” Id. 25 Further, the complaint alleges that the officer was later overheard telling a male officer that “I 26 don’t trust [plaintiff]. She was leaking.” Id. 27 Plaintiff seeks compensatory and punitive damages of an unspecified amount, and 28 injunctive relief to stop the body cavity searches. Id. at 3. 1 IV. Failure to State a Claim 2 A. Failure to Link Claims Against Defendants 3 “To state a claim under §1983, a plaintiff must allege two essential elements: (1) that a 4 right secured by the Constitution or laws of the United States was violated, and (2) that the 5 alleged violation was committed by a person acting under the color of State law.” Long v. 6 County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 7 48 (1988)). The statute requires that there be an actual connection or link between the actions of 8 the defendants and the violation of rights alleged to have been suffered by plaintiff. Rizzo v. 9 Goode, 423 U.S. 362, 370-71 (1976). “A person ‘subjects’ another to the deprivation of a 10 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 11 in another’s affirmative acts, or omits to perform an act which he is legally required to do that 12 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 13 Cir. 1978) (citation omitted). “The requisite causal connection can be established not only by 14 some kind of direct personal participation in the deprivation, but also by setting in motion a series 15 of acts by others which the actor knows or reasonably should know would cause others to inflict 16 the constitutional injury.” Id. at 743-44 (citation omitted) 17 Liability under § 1983 may not be premised on the respondeat superior or vicarious 18 liability doctrines. Taylor v List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). 19 Nevertheless, direct participation is not always necessary. Starr v. Baca, 652 F.3d 1202, 1207 20 (9th Cir. 2011). “A defendant may be held liable as a supervisor under § 1983 ‘if there exists 21 either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 22 causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” 23 Id. (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). Supervisory liability may also 24 exist without any personal participation if the official implemented “a policy so deficient that the 25 policy itself is a repudiation of the constitutional rights and is the moving force of the 26 constitutional violation.” Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) 27 (citations and quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 28 U.S. 825 (1994). “Vague and conclusory allegations” concerning the involvement of official 1 personnel in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 2 (9th Cir. 1982) (citations omitted). 3 The complaint names two defendants: (1) Butte County Sheriff Kory L. Honea and (2) 4 Alameda County Sheriff Gregory J. Ahern. The complaint does not contain any facts that create 5 a “specific causal link” between either Honea or Ahern and the single, allegedly unconstitutional 6 act of the officer who conducted the search at issue. Accordingly, plaintiff has not stated a claim 7 against either defendant. 8 The failure to state a claim against Ahern is particularly glaring, as plaintiff does not 9 allege that she suffered any injury to her constitutional rights at the Alameda County Jail. The 10 complaint is based on a search at the Butte County Jail. Constitutional violations at the Alameda 11 County Jail would not come within the jurisdiction of this court, as Alameda County lies within 12 the Northern District of California.2 13 Without proffering any facts to reasonably show that either of the named defendants 14 caused some violation of her rights, plaintiff has not stated a cognizable claim against either of 15 them. However, Plaintiff may be able to allege additional facts linking these defendants to the 16 alleged constitutional violations, and so she will be given leave to amend. 17 B. Fourth Amendment Claim 18 The Fourth Amendment protects against unreasonable searches, and that right is not lost 19 to convicted inmates. Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir. 1993). Furthermore, 20 “pretrial detainees . . . retain at least those constitutional rights that [the courts] have held are 21 enjoyed by convicted prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). However, 22 “incarcerated prisoners retain a limited right to bodily privacy.” Michenfelder v. Sumner, 860 23 F.2d 328, 333 (9th Cir. 1988) (emphasis added). The “restrictions and limitations” on a prisoner 24 2 Plaintiff attaches declarations from other individuals claiming to have been subject to 25 unconstitutional searches at the Alameda County Jail (ECF No. 1 at 6-8). However, as plaintiff 26 was previously advised, she may bring suit only on the basis of injuries to herself. See ECF No. 10 at 2. Declarations from other individuals may serve to support plaintiff’s claims regarding the 27 search policy, but they do not form the factual basis for additional claims against the defendants. And declarations about searches in other counties are not relevant to establishing the policies or 28 customs of Butte County Jail. 1 or detainee’s rights are “based on ‘institutional needs and objectives.’” Bull v. City and County 2 of San Francisco, 595 F.3d 964, 972 (9th Cir. 2010) (quoting Bell, 441 U.S. at 546). Any 3 restrictions that infringe upon a constitutional right “must be ‘evaluated in light of . . . 4 safeguarding institutional security’” and the courts must give “wide ranging deference” to prison 5 officials in the adoption of policies and practices. Id. (quoting Bell, 441 U.S. at 547). 6 “Correctional officials have a significant interest in conducting a thorough search as a standard 7 part of the intake process,” and the Supreme Court has held that all detainees, when joining a 8 general detained population, can be subject to strip searches even without reasonable suspicion 9 that a specific individual is concealing weapons or other contraband. Florence v. Bd. of Chosen 10 Freeholders, 566 U.S. 318, 30-39 (2012); see also Bell, 441 U.S. at 558 (holding strip searches 11 that required exposure of body cavities for visual inspection after every contact visit did not 12 violate Fourth Amendment). 13 A detention facility’s strip-search policy is analyzed using the test for reasonableness 14 outlined in Bell v. Wolfish, as “[t]he Fourth Amendment prohibits only unreasonable searches.” 15 Bull, 595 F.3d at 971-72 (alteration in original) (internal quotation marks omitted) (quoting Bell, 16 441 U.S. at 558). Under Bell, the court must balance “the need for the particular search against 17 the invasion of personal rights that the search entails.” Bell, 441 U.S. at 559. In order to do so, 18 courts must consider “the scope of the particular intrusion, the manner in which it is conducted, 19 the justification for initiating it, and the place in which it is conducted.” Id. Further, strip 20 searches that are limited to “visual inspection,” even if “invasive and embarrassing,” can be 21 resolved in favor of the institution. Bull, 595 F.3d at 975 (holding that visual strip searches that 22 are held in a “professional manner and in a place that afforded privacy” and done to prevent the 23 smuggling of contraband did not violate Fourth Amendment); see also Florence, 566 U.S. at 330- 24 39 (holding that visual strip searches at intake for prisoners joining general population did not 25 violate Fourth Amendment). However, any searches done for the purpose of harassment are not 26 constitutionally valid—the Supreme Court has held that “intentional harassment of even the most 27 hardened criminals cannot be tolerated.” Hudson v. Palmer, 468 U.S. 517, 528 (1984). 28 //// 1 Plaintiff has alleged that her Fourth Amendment right to privacy was violated by the 2 squat-and-cough search conducted by a female correctional officer as part of the intake process. 3 ECF No. 1 at 12. However, she currently does not state a viable Fourth Amendment claim. Even 4 if the court assumes the search violated Plaintiff’s rights under the Fourth Amendment, she has 5 complained of only a single incident involving an individual, allegedly unprofessional officer, but 6 has not named the officer as a defendant. Nor does a single unprofessional search establish a 7 violation attributable to either named defendant or demonstrate the existence of a policy that 8 violates the Fourth Amendment. As addressed above, there are insufficient facts to demonstrate a 9 connection between the officer’s conduct and either defendant, and to the extent the complaint 10 seems to be challenging the search policy itself, there are insufficient facts regarding what the 11 policy entails. 12 With respect to the constitutionality of the search itself, there are no facts alleged that 13 show that the search was done for the purpose of harassment. Moreover, the particular search 14 seems to have been limited in scope—per the facts of the complaint, no touching appears to have 15 been involved, the search was conducted as part of the intake process, and it was a limited strip 16 search. ECF No. 1 at 11-12. Plaintiff has not alleged any facts that show that the search or 17 possible associated policy were unreasonable. There are no claims that Plaintiff’s search, let 18 alone searches as a general matter, involved invasive touching or was done in a public place. To 19 the extent Plaintiff claims that the officer was unprofessional, those allegations appear to relate to 20 the officer’s comments after the fact rather than to the search itself, as there are no facts to 21 suggest that Plaintiff was required to squat and cough any more times than was necessary to 22 complete the search in a satisfactory manner. 23 As currently written, Plaintiff’s complaint does not allege facts that state a claim under the 24 Fourth Amendment, because the strip search does not itself seem to be unconstitutional and there 25 are no facts linking the search to defendants. However, since Plaintiff may be able to allege 26 additional facts that could give rise to a cognizable claim, she will be given leave to amend. 27 //// 28 //// 1 C. Fourteenth Amendment Claim 2 Although Plaintiff has alleged a constitutional violation under the Eighth Amendment, 3 because she was a pretrial detainee at the time of the incident, her claims are more appropriately 4 analyzed under the Fourteenth Amendment’s Due Process Clause. Castro v. County of Los 5 Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (citing Bell, 441 U.S. at 535). The Supreme 6 Court has consistently held “that the due process rights of a pretrial detainee are ‘at least as great 7 as the Eighth Amendment protections available to a convicted prisoner.’” Id. at 1067 (quoting 8 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). In examining the conditions of 9 pretrial detention, the question “is whether those conditions amount to punishment of the 10 detainee.” Bell, 441 U.S. at 535. “[U]nder the Due Process Clause, a detainee may not be 11 punished prior to an adjudication of guilt in accordance with due process of law.” Id. (citations 12 omitted). “Absent a showing of an expressed intent to punish,” a court must consider whether “a 13 particular condition or restriction of pretrial detention is reasonably related to a legitimate 14 governmental objective,” and thus, without more, non-punitive. Id. at 538-39 (citations omitted). 15 A court may infer punitive intent if the challenged condition is “arbitrary or purposeless.” Id. at 16 539 (citation omitted). 17 A pretrial detainee can show that there was a constitutional violation under the Fourteenth 18 Amendment’s Due Process Clause if an official acted with “deliberate indifference.” Castro, 833 19 F.3d at 1068. Under the Fourteenth Amendment, deliberate indifference is “more than negligence 20 but less than subjective intent—something akin to reckless disregard.” Id. at 1070. To state a 21 claim for deliberate indifference, a pretrial detainee must establish the following four elements: 22 “(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 23 (2) Those conditions put the plaintiff at substantial risk of suffering 24 serious harm; 25 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances 26 would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 27 (4) By not taking such measures, the defendant caused the plaintiff’s 28 injuries.” 1 Id. “With respect to the third element, the defendant’s conduct must be objectively 2 unreasonable.” Id. (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)). 3 From the facts alleged in the complaint, it is not clear that elements two and three are 4 established. In this case, because the Plaintiff is not suing the individual officer, but is instead 5 suing the sheriff in charge of the officer and the sheriff of another county, she must allege facts 6 showing that defendants should have reasonably known that the search procedure in general, or 7 the officer conducting the search in particular, put plaintiff at substantial risk of suffering serious 8 harm. The conduct of the officer during the allegedly unconstitutional search seems to be limited 9 to the bounds of the search and the statement afterward, which is not enough to establish personal 10 involvement of either defendant since there are no facts that show that either defendant had any 11 day-to-day supervisory capacity over the jail, aside from the implied creation of policy, or that 12 they had any knowledge of the officer’s conduct during squat-and-cough searches. King v. 13 County of Los Angeles, 885 F.3d 548, 559 (9th Cir. 2018) (holding that the sheriff could not 14 reasonably have known that others would have caused a constitutional injury if the record did not 15 establish that he supervised the “day-to-day operations” of the jail), see also Starr, 652 F.3d at 16 1208 (holding that the sheriff’s “knowledge of the unconstitutional conditions in the jail, 17 including his knowledge of the culpable actions of his subordinates, coupled with his inaction, 18 amounted to acquiescence in the unconstitutional conduct of his subordinates”). The Supreme 19 Court has held that a “‘mere lack of due care by a state official’ does not ‘deprive an individual of 20 life, liberty, or property under the Fourteenth Amendment.’” Castro, 833 F.3d at 1071 (some 21 internal quotation marks omitted) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). 22 Plaintiff has therefore failed to state a claim for relief under the Fourteenth Amendment and the 23 claims will be dismissed with leave to amend. 24 V. Leave to Amend 25 If Plaintiff chooses to file a first amended complaint, she must demonstrate how the 26 conditions about which she complains resulted in a deprivation of her constitutional rights. Rizzo 27 v. Goode, 423 U.S. 362, 370-71 (1976). She must also allege in specific terms how each named 28 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 1 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 2 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson, 588 F.2d at 3 743. Furthermore, “[v]ague and conclusory allegations of official participation in civil rights 4 violations are not sufficient.” Ivey, 673 F.2d at 268 (citations omitted). Plaintiff must allege 5 facts that show her constitutional rights were, in fact, violated by the squat-and-cough search and 6 that the violation was either directly caused by defendants or that it was a policy defendants 7 implemented that violated her rights. 8 Also, the amended complaint must not refer to a prior pleading in order to make Plaintiff’s 9 amended complaint complete. An amended complaint must be complete in itself without 10 reference to any prior pleading. L.R. 220. This is because, as a general rule, an amended 11 complaint supersedes the original complaint. See Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 12 555 U.S. 438, 456 n.4 (2009) (“Normally, an amended complaint supersedes the original 13 complaint.” (citation omitted)). Once plaintiff files a first amended complaint, the original 14 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 15 an original complaint, each claim and the involvement of each defendant must be sufficiently 16 alleged. 17 VI. Plain Language Summary of this Order for a Pro Se Litigant 18 The complaint is dismissed with leave to amend because the facts you have alleged are not 19 enough to state a claim for relief. To state a claim for relief, you must explain what each 20 defendant did or did not do that violated your rights. If you want to challenge a policy or practice 21 of the county or its officials, you must identify that policy or practice and explain how it violated 22 your rights. 23 In order to show a violation of your rights based on a policy, you must show that the 24 policy in question was not reasonable and that your rights were violated because of the policy. 25 You must also show that the defendants were in charge of crafting, creating, or implementing the 26 policy. To state a claim against defendants not based on a policy, you must show that they were 27 directly involved in the action that violated your rights. 28 //// 1 If you choose to amend your complaint, the first amended complaint must include all of 2 || the claims you want to make because the court will not look at the claims or information in the 3 || original complaint. Any claims not in the first amended complaint will not be considered. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s requests for leave to proceed in forma pauperis (ECF Nos. 5, 9, 11, 13, 15, 6 || 17) are granted. 7 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 8 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 9 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 10 | Director of the California Department of Corrections and Rehabilitation filed concurrently 11 | herewith. 12 3. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend. 13 4. Within thirty days from the date of service of this order, Plaintiff may file an amended 14 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 15 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 16 || number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 17 || original and two copies of the amended complaint. Failure to file an amended complaint in 18 || accordance with this order will result in a recommendation that this action be dismissed. 19 5. The Clerk of the Court is directed to send Plaintiff a copy of the prisoner complaint 20 || form used in this district. 21 | DATED: October 16, 2019 ~ 22 ththien— Chane ALLISON CLAIRE 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 11