Gardner v. Reille ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 EUREKA DIVISION 4 5 MARIO D. GARDNER, Case No. 20-cv-01148-RMI 6 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 7 v. TO AMEND 8 ALEX REILLE, et al., 9 Defendants. 10 11 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. He 12 has been granted leave to proceed in forma pauperis and he has consented to the jurisdiction of a 13 Magistrate Judge. 14 DISCUSSION 15 Standard of Review 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 18 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 19 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 21 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 22 Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 24 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement 25 need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 26 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state a 27 claim a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to provide 1 formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must 2 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 4 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 5 recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can 6 provide the framework of a complaint, they must be supported by factual allegations. When there 7 are well-pleaded factual allegations, a court should assume their veracity and then determine 8 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 9 (2009). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 11 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 12 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 13 487 U.S. 42, 48 (1988). 14 Legal Claims 15 Plaintiff alleges that he was sexually assaulted, sexually harassed, and physically assaulted 16 by several correctional officers. 17 The treatment a convicted prisoner receives in prison and the conditions under which he is 18 confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 19 31 (1993). “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes 20 cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 21 312, 319 (1986) (ellipsis in original) (internal quotation and citation omitted). When prison 22 officials stand accused of using excessive force in violation of the Eighth Amendment, the core 23 judicial inquiry is whether force was applied in a good-faith effort to maintain or restore 24 discipline, or to maliciously and sadistically cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 25 (1992); Whitley, 475 U.S. at 320-21. 26 Claims arising from sexual assault are distinct from other Eighth Amendment excessive 27 force claims. Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). “[S]exual assault serves 1 sexual assault, there is a presumption that the guard acted maliciously and sadistically for the very 2 purpose of causing harm, satisfying the subjective prong of an Eighth Amendment claim. Id.; see 3 Wood v. Beauclair, 692 F.3d 1041, 1049 (9th Cir. 2012) (malicious and sadistic intent may be 4 presumed because there is no legitimate penological purpose for sexual contact between prisoner 5 and guard). “[A]n inmate need not prove that an injury resulted from sexual assault” because “any 6 sexual assault is objectively ‘repugnant to the conscience of mankind’ and therefore not de 7 minimis.” Bearchild, 947 F.3d at 1144 (quoting Hudson, 503 U.S. at 10); see Wood, 692 F.3d at 8 1050-51 (prisoner-plaintiff need not produce evidence of specific psychological or physical harm 9 from non-consensual sexual contact). 10 “[A] prisoner presents a viable Eighth Amendment claim where he or she proves that a 11 prison staff member, acting under color of law and without legitimate penological justification, 12 touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff 13 member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the 14 prisoner.” Bearchild, 947 F.3d at 1144. “[A]ll of the elements of a Section 1983 sexual assault 15 claim are established if a prisoner proves that a sexual assault occurred.” Id. at 1145. 16 There are occasions when legitimate penological concerns require invasive searches, and 17 the courts owe prison staff deference because of prisons’ “unique security concerns.” Id. Thus, 18 when the assault begins as a legitimate, albeit invasive, penological procedure, the prisoner must 19 show that the official’s “conduct exceeded the scope of what was required to satisfy whatever 20 institutional concern justified the initiation of the procedure.” Id. 21 Allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. 22 § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part on other 23 grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); see, e.g., Keenan v. Hall, 83 24 F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and 25 assaultive comments by prison guard not enough to implicate 8th Amendment). Mere verbal 26 sexual harassment does not necessarily amount to an Eighth Amendment violation. Austin v. 27 Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary judgment dismissal of 8th 1 control booth for no more than 30-40 seconds). A prisoner therefore must establish that the alleged 2 sexual harassment was egregious, pervasive and/or widespread in order to state a claim under the 3 Eighth Amendment. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1525-31 (9th Cir. 1993) (prison 4 policy requiring male guards to conduct body searches on female prisoners); Watson v. Jones, 980 5 F.2d 1165, 1165-66 (8th Cir. 1992) (correctional officer sexually harassed two inmates on almost 6 daily basis for two months by conducting deliberate examination of genitalia and anus). 7 Plaintiff states that Defendant Reille was performing a clothed body search of Plaintiff and 8 inappropriately touched Plaintiff’s buttocks and anal area. Plaintiff was then escorted to a different 9 area to receive an X-Ray body scan. Plaintiff had to strip for the X-ray and alleges that Reille 10 ogled his body and looked at him with lust in his eyes. Then Reille and Defendants Maldonado 11 and Alter made sexual and lewd comments towards Plaintiff while they searched his clothing. 12 When Plaintiff was getting dressed, he made a comment to Defendants and then Maldonado 13 punched Plaintiff in the stomach, Alter punched plaintiff in the face and upper torso, Reille pushed 14 plaintiff to the ground, and then Plaintiff felt multiple punches and hits. 15 Thereafter, Plaintiff requested to see a doctor, but Defendant Shrag ordered Plaintiff to go 16 through the X-Ray machine which was operated by Defendant Maylin. Later, Plaintiff filed inmate 17 appeals regarding the assault. Plaintiff also alleges that Defendant Powers wrote a false incident 18 report to justify placing him in Administrative Segregation. Plaintiff states that Defendants 19 Powers, Shrag, and Maylin were not present during the assault. 20 As currently pled, Plaintiff states a claim of excessive force against Defendants Reille, 21 Maldonado and Alter. However, Plaintiff’s other allegations fail to state a claim, and thus, the 22 complaint is dismissed with leave to amend to provide more information. Plaintiff must provide 23 more information regarding the alleged sexual assault with respect to the legal standards set forth 24 above. Defendants’ mere verbal harassment fails to state a claim as currently pled. With respect to 25 Defendants Shrag, Powers, and Maylin, Plaintiff must further describe their actions and how they 26 violated his constitutional rights. Failure to follow prison regulations or procedures fails to state a 27 federal claim. Simply that one of these defendants is a supervisor also fails to state a claim. 1 CONCLUSION 2 The complaint is DISMISSED with leave to amend in accordance with the standards set 3 forth above. The amended complaint must be filed within twenty-eight (28) days of the date this 4 || order is filed and must include the caption and civil case number used in this order and the words 5 AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces 6 || the original complaint, Plaintiff must include in it all the claims he wishes to present. See Ferdik v. 7 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original 8 complaint by reference. Failure to amend within the designated time will result in the dismissal of 9 || this case. In an amended complaint, Plaintiff must still include the allegations of excessive force 10 || that the court has found cognizable. 11 Additionally, it is Plaintiff’s responsibility to prosecute this case. Therefore, Plaintiff must 12 || keep the court informed of any change of address by filing a separate paper with the clerk headed 13 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 14 || Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 3 15 Federal Rule of Civil Procedure 41(b). a 16 IT IS SO ORDERED. 5 17 || Dated: March 30, 2020 18 Mn Z □ 19 RGBERT M. ILLMAN 20 United States Magistrate Judge 21 22 23 24 25 26 27 28