Rowe v. Banks et al

Filing 10

ORDER DISMISSING Plaintiff's 8 First Amended Complaint with Prejudice; Clerk shall CLOSE THE CASE; Case shall COUNT AS A STRIKE signed by Magistrate Judge Michael J. Seng on 5/18/2011. CASE CLOSED.(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL ROWE,

1:08-cv-00472-AWI-MJS (PC)

ORDER DISMISSING PLAINTIFF’S FIRST
AMENDED COMPLAINT WITH PREJUDICE

Plaintiff,

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v.

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CASE No.

(ECF No. 8)
R. BANKS, ,
CLERK SHALL CLOSE THE CASE

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Defendant.

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/

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CASE SHALL COUNT AS A STRIKE FOR
PURPOSES OF 28 U.S.C. § 1915(g)

SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On April 4, 2008, Plaintiff Daniel Rowe, a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1).

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Plaintiff has consented to a Magistrate Judge handling all aspects of this case. (ECF No.

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5). An order dismissing Plaintiff’s First Complaint with leave to amend was issued on
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February 5, 2010. (ECF No. 7). Plaintiff’s First Amended Complaint is before the Court
for screening.

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II.

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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility

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demands more than the mere possibility that a defendant committed misconduct and, while

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factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

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III.

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PLAINTIFF’S CLAIM
Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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Plaintiff alleges that the following occurred on August 7, 2007. He was placed in a

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holding cage in order to be strip searched before entering morning yard. During the search

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Defendant instructed Plaintiff to squat and cough, to which Plaintiff complied. As Plaintiff

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was putting on his clothes, Defendant commanded Plaintiff “to bend over, put [Plaintiff’s]

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hands on [Plaintiff’s] buttocks and open [Plaintiff’s] cheeks wide so [Defendant] could see

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inside.” (Compl. at 5). Plaintiff refused to comply and was denied access to morning yard

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as a result. (Compl. at 6).

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Based on these allegations, Plaintiff claims that Defendant violated his Eighth
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Amendment rights. However, Plaintiff was previously informed he could not state an

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Eighth Amendment claim based on alleged verbal sexual harassment. Austin v. Terhune,

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367 F.3d 1167, 1171 (9th Cir. 2004) ( “Although prisoners have a right to be free from

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sexual abuse, whether at the hands of fellow inmates or prison guards, the Eight

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Amendment's protections do not necessarily extend to mere verbal sexual harassment.”)

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(Citations omitted). Specifically, “[a]lthough the Ninth Circuit has recognized that sexual
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harassment may constitute a cognizable claim for an Eighth Amendment violation, the
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Court has specifically differentiated between sexual harassment that involves verbal abuse

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and that which involves allegations of physical assault, finding the later to be in violation

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of the constitution.” Minifield v. Butikofer, 298 F.Supp.2d 900, 904 (2004) (citing Schwenk

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v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000)).

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The Court previously informed Plaintiff that he could not state an Eighth Amendment

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claim unless he alleged that there was some physical contact between himself and

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Defendant. Despite this guidance, Plaintiff’s First Amended Complaint fails to allege that

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Defendant made physical contact in any way. The First Amended Complaint fails to state

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a claim for which relief can be granted. See Ornelas v. Giurbino, 358 F.Supp.2d 955, 963

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(S.D. Cal. 2005) (verbal offer made by correctional officer to prisoner for sex in exchange

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for privileges did not state an Eighth Amendment claim for lack of physical contact);

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Leinweber v. Moore, 2006 WL 3489359, *3 (E.D. Cal. Dec. 4, 2006) (sexually derogatory

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remarks made by correctional officers and directed toward plaintiff prisoner, without

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physical contact, were insufficient to state an Eighth Amendment claim).

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IV.

CONCLUSION AND ORDER

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Plaintiff’s First Amended Complaint does not set forth a cognizable claim. Because

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the Court previously pointed out the deficiency in Plaintiff’s claim and Plaintiff failed to cure

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that deficiency in his amended pleading, the Court finds that further leave to amend is

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unwarranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s claim is dismissed with prejudice.

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The Clerk shall close the case.

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This case shall count as a strike for purposes of 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.

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Dated:

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ci4d6

May 18, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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