McCurty v. Madsen ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL MCCURTY, Case No. 21-cv-05435-YGR 8 Plaintiff, ORDER OF SERVICE 9 v. 10 H. MADSEN, et al., 11 Defendants. 12 I. INTRODUCTION 13 Plaintiff, a state prisoner incarcerated at Correctional Training Facility (CTF), has filed a 14 pro se complaint under 42 U.S.C. § 1983. See Dkt. 1. Plaintiff’s motion for leave to proceed in 15 forma pauperis will be granted in a separate written Order. 16 Plaintiff has named the following defendants at CTF: Correctional Officer H. Madsen, 17 Correctional Officer Arlene Stephens, Warden Craig Koenig, and Does 1-3. Dkt. 1 at 5-6.1 18 Plaintiff seeks injunctive and declaratory relief and compensatory and punitive damages. Id. at 19 15-16. 20 Venue is proper because the events giving rise to the claims are alleged to have 21 occurred at CTF, which is located in this judicial district. See 28 U.S.C. § 1391(b). 22 II. DISCUSSION 23 A. Standard of Review 24 A federal court must engage in a preliminary screening of any case in which a prisoner 25 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 26 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any 27 1 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 2 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). 3 Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 4 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements, namely that: 6 (1) a right secured by the Constitution or laws of the United States was violated and (2) the 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). 9 B. Legal Claims 10 Plaintiff alleges that defendants Madsen and Stephens “conducted a retaliatory search” of 11 his cell on July 11, 2019. Dkt. 1 at 8. Plaintiff alleges that the search was retaliation for the fact 12 that his cellmate had filed a grievance concerning defendant Madsen. Id. Plaintiff alleges that 13 defendants “conducted another retaliatory cell search of Plaintiff’s cell and an unauthorized 14 retaliatory clothed body search of Plaintiff” on August 10, 2019. Id. During this August 10 15 search, plaintiff alleges that defendant Madsen ordered him to step outside of his cell, and place 16 his hands on the wall, after which she “began aggressively searching Plaintiff.” Id. at 8-9. 17 Plaintiff alleges that defendant Madsen pulled his pants down, exposing his buttocks and genitalia 18 to the 40 to 60 inmates in the dayroom, as well as to defendant Stephens, and “deliberately 19 assaulted him” when she “grabbed Plaintiff’s buttocks pushing in an upward position for a few 20 seconds, then let Plaintiff’s buttocks go,” and by “maintaining her hands inside Plaintiff’s [boxer] 21 shorts squeezing and cupping Plaintiff’s penis and scrotum in an upward motion, pulling up 22 Plaintiff’s pants causing a sharp abdominal pain.” Id. at 9-10. Plaintiff alleges that he reported the 23 incident to the on-duty sergeant the same day, who conducted a video- and audio- recorded 24 interview with him, after which defendant Madsen “took Plaintiff’s recent purchased Religious 25 Prayer Oil.” Id. at 10. 26 Plaintiff alleges that defendant Stephens “was smiling, while looking in the direction of 27 defendant Madsen and laughing with the other inmates in the wing’s dayroom,” and “was acting 1 Plaintiff alleges that defendant Koenig “knew of staff sexual misconduct and pervasive 2 abusive conduct towards the prisoner population at [CTF] by the volume of ‘complaints’ and 3 grievances,” but “failed to take disciplinary action against staff and Defendants . . . or otherwise to 4 control staff and their behavior.” Id. at 12. 5 Plaintiff attaches his own grievance and appeal regarding the August 10 incident, see dkt. 6 1-1 at 3-8, as well as paperwork related to grievances and appeals filed by four other prisoners 7 regarding sexual assault by correctional officers including defendants Madsen and Stephens, see 8 id. at 10-34. 9 Plaintiff seeks: (1) a declaration that defendants violated his constitutional rights; (2) an 10 order enjoining defendants Madsen and Stephens from conducting further “illegal clothed body 11 search[es]” on himself or others prisoners and (3) requiring them to undergo “training on 12 searching male prisoners pursuant to CDCR policies”; (4) an order requiring the California 13 Department of Corrections and Rehabilitation (CDCR) Secretary to initiate an investigation 14 regarding “allegations of physical and sexual abuse of prisoners by correction staff at the 15 Correctional Training Facility-Central within the pas[t] five years”; and (5) compensatory and (6) 16 punitive damages. Dkt. 1 at 15-16. 17 1. Doe Defendants 18 Although plaintiff listed “Does 1-3” in the caption, he has made no allegations regarding 19 any unknown defendants. Although the use of “John Doe” to identify a defendant is not favored 20 in the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. 21 Dep’t of Corrections, 406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of 22 alleged defendants cannot be known prior to the filing of a complaint. In such circumstances, the 23 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 24 unless it is clear that discovery would not uncover their identities or that the complaint should be 25 dismissed on other grounds. See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F. Supp. 26 1172, 1180 (N.D. Cal. 1986). Because plaintiff has not made any specific allegations about Does 27 1-3, the claims against these Doe defendants are DISMISSED without prejudice. Plaintiff may 1 the date scheduled in this Order. 2 2. Plaintiff’s Sexual Harassment Claim is Cognizable 3 Individuals in prison have a constitutional right under the Eighth Amendment to be free 4 from sexual harassment or abuse. Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012). 5 Conduct rises to the level of sexual harassment or assault where “a prison staff member, acting 6 under color of law and without legitimate penological justification, touched the prisoner in a 7 sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual 8 gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.” Bearchild 9 v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). 10 Strip searches are not necessarily unconstitutional, but may violate the Fourth or Eighth 11 Amendment where they are “excessive, vindictive, harassing, or unrelated to any legitimate 12 penological interest.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The fact that a 13 body search is conducted by someone of another gender may make it more likely to rise to the 14 level of a constitutional violation. See Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) 15 (prison policy requiring clothed body searches of female prisoners by male guards violated Eighth 16 Amendment because of the “psychological trauma” caused). But “routine pat-down searches” 17 conducted by guards of another gender are not per se unconstitutional. See Grummett v. Rushen, 18 779 F.2d 491, 495 (9th Cir. 1985). 19 A prison staff member violates the Eighth Amendment by “converting a routine pat-down 20 search into a humiliating and abusive sexual assault.” Bearchild, 947 F.3d at 1142. This is 21 precisely what plaintiff alleges against defendants Madsen and Stephens. In addition, plaintiff has 22 alleged that this type of conduct has been pervasive at CTF and that defendant Koenig “knew of 23 the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 24 1989). The Court finds that plaintiff’s Eighth Amendment sexual harassment/unconstitutional 25 body search claim against defendants Madsen, Stephens, and Koenig, when liberally construed, is 26 cognizable under section 1983 and shall proceed. 27 3. Plaintiff’s Claim of Inciting Violence is Not Cognizable 1 engage in physical violence with his cellmate for filing grievances against defendant Madsen” and 2 “an effort to cause physical violence with his cellmate.” Dkt. 1 at 13-14. While “[d]eliberate 3 indifference to the risk that an inmate will be harmed by other prisoners constitutes a violation of 4 the Eighth Amendment,” Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001), plaintiff’s claim 5 that defendants were deliberately indifferent to his own potential violence against his cellmate is 6 not cognizable. If plaintiff intends to allege that defendants’ conduct was intended to cause his 7 cellmate or other prisoners to harm him, he may file an amended complaint explaining how. 8 4. Plaintiff Can Only Seek Relief for Himself 9 Plaintiff should be aware that although the documents he attached to his complaint from 10 other prisoners may tend to show a pattern of conduct at CTF, he does not represent any other 11 prisoner in this case, and cannot seek injunctive relief on behalf of anyone else. See Russell v. 12 United States, 308 F.2d 78, 79 (9th Cir. 1962) (“a litigant appearing in propria persona has no 13 authority to represent anyone other than himself”); see also 18 U.S.C.A. § 3626(a)(1)(A) 14 (“Prospective relief in any civil action with respect to prison conditions shall extend no further 15 than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”). 16 To the extent plaintiffs seeks injunctive relief on behalf of anyone else, those allegations are 17 stricken. 18 5. State-Law Claims 19 Plaintiff should also be aware that although his complaint references violations of his 20 “State and Federal Constitutional Rights,” dkt. 1 at 4, he lists only violations of the Eighth 21 Amendment in his causes of action. See id. at 13-15. If plaintiff wishes to bring state-law causes 22 of action, he may file an amended complaint including them. The Court does not construe the 23 complaint as including any state claims. 24 6. Retaliation 25 Although Plaintiff’s complaint references retaliation, he has not listed a retaliation cause of 26 action. If plaintiff wishes to include a First Amendment retaliation cause of action in his 27 complaint, he may file an amended complaint including it. III. CONCLUSION 1 For the foregoing reasons, the Court orders as follows: 2 1. Plaintiff’s claims against the Doe Defendants are DISMISSED without prejudice. 3 2. If plaintiff chooses to file a first amended complaint (“FAC”) with additional 4 allegations about the Doe Defendants, a retaliation claim, and/or state-law claims, he must file the 5 FAC within twenty-eight (28) days of the date of this Order. The FAC must include the caption 6 and civil case number used in this order, Case No. 21-cv-05435-YGR (PR) and the words “FIRST 7 AMENDED COMPLAINT” on the first page. Plaintiff must use the Court’s complaint form and 8 answer all the questions on the form in order for the action to proceed. Because the FAC 9 completely replaces the previous complaint, plaintiff must include in his FAC all the claims he 10 wishes to present, including any amended claims against Doe defendants, retaliation claims 11 against defendants Madsen, Stephens, and Koenig, and the Eighth Amendment claims against 12 defendants Madsen, Stephens, and Koenig, which the Court has already found cognizable. See 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material 14 from the prior complaints by reference. If plaintiff chooses not to file an FAC within the time 15 provided, the case will not proceed against the Doe defendants and the case will proceed against 16 defendants Madsen, Stephens, and Koenig only for the Eighth Amendment claim. 17 3. Plaintiff’s claim of sexual harassment/unconstitutional body search under section 18 1983 against defendants Madsen, Stephens, and Koenig has been found cognizable, as described 19 above. 20 4. Defendants Correctional Officer H. Madsen, Correctional Officer Arlene Stephens, 21 and Warden Craig Koenig shall be served at CTF. Service shall proceed under the California 22 Department of Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases 23 from prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 24 on CDCR via email the following documents: the Complaint, this Order, a CDCR Report of E- 25 Service Waiver form, and a summons. The clerk also shall serve a copy of this order on the 26 plaintiff. 27 1 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 2 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 3 listed in this order will be waiving service of process without the need for service by the United 4 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 5 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 6 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 7 service of process for the defendant(s) who are waiving service. 8 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 9 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 10 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 11 of this order, the summons, and the operative complaint for service upon each defendant who has 12 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 13 Service Waiver. 14 5. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 15 requires defendants to cooperate in saving unnecessary costs of service of the summons and 16 complaint. If service is waived, this action will proceed as if defendants had been served on the 17 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), defendants will not be 18 required to serve and file an answer before sixty (60) days from the date on which the CDCR 19 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 20 Office. (This allows a longer time to respond than would be required if formal service of 21 summons is necessary.) If defendants have not waived service and have instead been served by 22 the USMS, then defendants shall serve and file an answer within twenty-one (21) days after being 23 served with the summons and complaint. 24 6. Defendants shall answer the complaint in accordance with the Federal Rules of Civil 25 Procedure. The following briefing schedule shall govern dispositive motions in this action: 26 a. No later than sixty (60) days from the date their answer is due, defendants 27 shall file a motion for summary judgment or other dispositive motion. The motion must be 1 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 2 the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice 3 so that plaintiff will have fair, timely, and adequate notice of what is required of him in order to 4 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 5 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 6 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 7 However, the Court notes that under the law of the circuit, in the rare event that a failure to 8 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 9 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 10 motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. 11 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available 12 administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), 13 should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to 14 exhaust is not clear on the face of the complaint, defendants must produce evidence proving 15 failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence 16 viewed in the light most favorable to plaintiff shows a failure to exhaust, defendants are entitled to 17 summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment 18 should be denied and the district judge, rather than a jury, should determine the facts in a 19 preliminary proceeding. Id. at 1168. 20 If defendants are of the opinion that this case cannot be resolved by summary judgment, 21 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 22 filed with the Court shall be promptly served on plaintiff. 23 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 24 and served on defendants no later than twenty-eight (28) days after the date on which 25 defendants’ motion is filed. 26 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 27 1 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 2 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 3 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 4 any fact that would affect the result of your case, the party who asked for summary judgment is 5 entitled to judgment as a matter of law, which will end your case. When a party you are suing 6 makes a motion for summary judgment that is supported properly by declarations (or other sworn 7 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 8 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 9 as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 10 documents and show that there is a genuine issue of material fact for trial. If you do not submit 11 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 12 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 13 F.3d at 962-63. 14 Plaintiff also is advised that—in the rare event that defendants argue that the failure to 15 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 16 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 17 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 18 exhaust your available administrative remedies before coming to federal court. Such evidence 19 may include: (1) declarations, which are statements signed under penalty of perjury by you or 20 others who have personal knowledge of relevant matters; (2) authenticated documents— 21 documents accompanied by a declaration showing where they came from and why they are 22 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 23 in your complaint insofar as they were made under penalty of perjury and they show that you have 24 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 25 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 26 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 27 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. ] (The notices above do not excuse defendants’ obligation to serve similar notices again 2 || concurrently with motions to dismiss for failure to exhaust available administrative remedies and 3 || motions for summary judgment. Woods, 684 F.3d at 935.) 4 d. Defendants shall file a reply brief no later than fourteen (14) days after the 5 date plaintiffs opposition is filed. 6 e. The motion shall be deemed submitted as of the date the reply brief is due. 7 || No hearing will be held on the motion unless the Court so orders at a later date. 8 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 9 || Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 10 || plaintiff and any other necessary witnesses confined in prison. 11 8. All communications by plaintiff with the Court must be served on defendants or 12 || their counsel, once counsel has been designated, by mailing a true copy of the document to them. 13 9. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 14 || wnformed of any change of address and must comply with the Court’s orders in a timely fashion. 3 15 || Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 16 || while an action is pending must promptly file a notice of change of address specifying the new i 17 || address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail Zz 18 directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) 19 || the Court fails to receive within sixty days of this return a written communication from the pro se 20 || party indicating a current address. See L.R. 3-11(b). 21 10. Upona showing of good cause, requests for a reasonable extension of time will be 22 || granted provided they are filed on or before the deadline they seek to extend. 23 IT IS SO ORDERED. 24 Dated: December 20, 2021 25 if E YVONNE G@)IZAIGZ □□□□□□□ 27 inyfed States District Judge 28