Nuriddin v. Estrella et al

Filing 16

ORDER DISMISSING CERTAIN CLAIM AND DEFENDANT, Estrella FROM ACTION FOR FAILURETO STATE A COGNIZABLE CLAIM signed by Magistrate Judge Stanley A. Boone on 2/24/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MUHAMMAD NURIDDIN,
Plaintiff,
v.
ESTRELLA, et al.,
Defendants.

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Case No.: 1:11-cv-01448-SAB (PC)
ORDER DISMISSING CERTAIN CLAIM AND
DEFENDANT FROM ACTION FOR FAILURE
TO STATE A COGNIZABLE CLAIM

Plaintiff Muhammad Nuriddin is appearing pro se and in forma pauperis in this civil rights

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action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Bivens actions and actions

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under 42 U.S.C. § 1983 “are identical save for the replacement of a state actor under § 1983 by a

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federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Pursuant to 28

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U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on

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September 7, 2011. Local Rule 302.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff is currently in custody in Atwater United States Penitentiary (“AUSP”) in Atwater,

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California. The incidents described in Plaintiff’s complaint took place while he was incarcerated in

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this location. Plaintiff names Correctional Officer Estrella, Lieutenant Miller, Warden Rios, Assistant

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Warden Bell, and Does 1-2 as defendants (collectively referred to as “Defendants”).

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On September 29, 2010, Plaintiff walked through the institution’s metal detector, without any

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detection. Defendant Estrella, who was standing guard outside the dining hall, ordered Plaintiff to

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submit to a pat-down search. Plaintiff’s complied with Estrella’s order. Estrella ordered Plaintiff to

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spread his legs, and he began the search on the upper body rubbing his chest and arms softly. He then

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reached under Plaintiff’s crotch area with his forearm first. Plaintiff immediately turned around and

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asked Estrella, “what are you doing.” Estrella ordered Plaintiff to turn around in an aggressive
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manner. Estrella proceeded to pat search Plaintiff and gripped his “genitals first, then penis and

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rubbed up along the anus.” Defendant Estrella performed this act of rubbing Plaintiff’s private area in

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a sexual way. Plaintiff yanked away from Estrella and yelled “what the f… man what are you doing?”

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Following this incident, Plaintiff exercised his right to file a grievance against Defendant

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Estrella. Defendant Miller threatened Plaintiff to drop the complaint and not file further grievances or

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he would be “buried” in the security housing unit (SHU) indefinitely. Plaintiff’s declined to obey

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Defendant Miller’s request and was placed in the SHU for filing the grievance and received an

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incident report. Several days later, Plaintiff was visited by Does 1-2 who threatened Plaintiff to

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withdraw the grievance or he would remain in segregation for a long period of time. Defendants Rios

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and Bell retaliated against Plaintiff for filing a grievance against Defendant Estrella, by stating that

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could not release him unless he dropped the complaint. Plaintiff remained in the SHU for a month and

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a half.

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III.

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DISCUSSION

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A.

Eighth Amendment Excessive Force Claims

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The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners from

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the use of excessive physical force. Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010) (per curiam);

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Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995 (1992). What is necessary to show sufficient

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harm under the Eighth Amendment depends upon the claim at issue, with the objective component

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being contextual and responsive to contemporary standards of decency. Hudson, 503 U.S. at 8

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(quotation marks and citations omitted). For excessive force claims, the core judicial inquiry is

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whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically to cause harm. Wilkins, 130 S.Ct. at 1178 (quoting Hudson, 503 U.S. at 7) (quotation

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marks omitted).

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The Eighth Amendment protects inmates from repetitive and harassing searches, and from

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sexual abuse. Schwenk v. Hartford, 204 F.3d 1187, 1196-1197 (9th Cir. 2000). Rape or other sexual

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assault perpetrated by a guard against an inmate is offensive to human dignity and violates the Eighth

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amendment regardless of lasting physical injury. Id. The Ninth Circuit has also held that, under
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limited circumstances, a bodily search involving intimate touching may inflict psychological pain

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sufficient to implicate the Eighth Amendment even in the absence of sexual assault. In Jordan v.

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Gardner, 986 F.2d 1521, 1523-1531 (9th Cir. 1993) (en banc), the Ninth Circuit held that a prison

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policy requiring male guards to conduct frequent random clothed body searches of female inmates

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constituted cruel and unusual punishment when the policy was adopted despite the warnings of prison

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psychologists that the intrusive searches would severely traumatize inmates, many of whom had pre-

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incarceration histories of sexual abuse by men.

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Plaintiff’s allegations fail to give rise to a cognizable claim against Defendant Estrella.

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Although Plaintiff’s contends that Defendant Estrella conducted the search in a “sexual way,” the

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complaint does not contain any facts to support such characterization. There is no allegation that

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Defendant Estrella made any sexual comments or fondled or touched Plaintiff in a sexual manner.

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Plaintiff merely alleges that during a presumably “clothed” body search, Defendant Estrella “gripped”

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his genitals, then penis, and rubbed along his anus. Without more factual detail such as comments by

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the defendant and/or further action, these facts are entirety consistent with a body search to maintain

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and assure proper security within the prison facility. Such factual circumstances do not give to a

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plausible claim that the search was conducted in a sexually abusive manner. Contrast Watson v.

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Jones, 980 F.2d 1165, 116501166 (8th Cir. 1992) (triable issue as to sexual harassment when two

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inmates alleged that female correctional officer fondled them during almost daily pat-down searches

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of their genital area); Bromell v. Idaho Dep’t of Corrections, No. CV 05-419-N-LMB, 2006 WL

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3197157, * 1, *4 (D. Idaho Oct. 31, 2006) (allegations that officer pressed his penis against plaintiff’s

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buttocks and made sexual comments stated an Eighth Amendment claim); Rodriguez v. McClenning,

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399 F.Supp.2d 228, 232, 237-238 (S.D.N.Y. 2005) (triable issue as to Eighth Amendment violation

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when plaintiff contended that guard caressed his chest and groped his genitals and buttocks during a

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pat-frisk search, saying “this way, it’s more fun” when plaintiff objected); Houston v. Buck, No. CIV

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S 03-1625 FCD JFM P, 2005 WL 1378964, *3 (E.D. Cal. 2005), adopted by 2005 WL 1561530 (E.D.

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Cal. June 29, 2005) (triable issue as to Eighth Amendment violation when plaintiff alleged that guard

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said “let me feel on you” before conducting a patdown search during which he squeezed parts of

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plaintiff’s body).
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Even if Plaintiff believed there was a sexual aspect to the search, more is needed. See

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Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (plaintiff’s belief that prison employee’s

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brief touch to plaintiff’s buttocks, unaccompanied by sexual comments, was a sexual advance did not

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create a triable issue as to Eighth Amendment violation when the evidence did not support

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characterization); Smith v. Los Angeles County, No. CV 07-7028-VAP (MAN), 2005 WL 2569232,

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*5 (C.D. Cal. 2010), adopted by 2010 WL 2572570 (C.D. Cal. 2010), aff’d, 452 Fed. Appx. 768 (9th

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Cir. 2011) (pretrial detainee failed to state Fourteenth Amendment due process claim, or Fourth

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Amendment unreasonable search claim, based on plaintiff’s allegations that defendant correctional

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officer, pursuant to a search and without sexual comment, pulled plaintiff’s boxers to look at his

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buttocks, inserted his hand “karate chop” style, into “the cavity of my buttocks . . . until it passed

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between my legs and reached under and around until he cupped my genitals.” (citing Berryhill v.

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Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (affirming summary judgment for defendant on

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plaintiff’s Eighth Amendment claim that prison employee’s brief touch (“mere seconds”) to plaintiff’s

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buttocks during “horseplay,” unaccompanied by sexual comments, was an improper sexual advance

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that “embarrassed” plaintiff); and Osterloth v. Hopwood, No. CV 06 152 M JCL, 2006 WL 3337505,

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*6,*7 (D. Mont. 2006) (dismissing Eighth Amendment claim challenging as sexually abusive an

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officer’s search of plaintiff that allegedly included the officer reaching between plaintiff’s legs,

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grabbing his scrotum and penis, and sliding his hand between plaintiff’s buttocks, wherein plaintiff

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stated to the officer, “that was pretty much sexual assault,” and officer responded, “yah pretty much.”).

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B.

First Amendment—Retaliation Claims

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition

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the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

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1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d

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802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord
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Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269

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(9th Cir. 2009).

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The Court finds that Plaintiff’s allegations are sufficient to state a claim against Defendants

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Miller, Rios, Bell, and Does 1-2 for retaliation, in violation of the First Amendment, and the Court has

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forwarded Plaintiff the necessary service document by way of separate order issued January 24, 2014.
IV.

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CONCLUSION AND ORDER

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Plaintiff’s complaint fails to state a cognizable Eighth Amendment violation against Defendant
Estrella, and this claim and defendant must be dismissed from the action with prejudice.

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Accordingly,

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IT IS HEREBY ORDERED that:

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Plaintiff’s claim for sexual assault in violation of the Eighth Amendment against

Defendant Estrella is DISMISSED.

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IT IS SO ORDERED.
Dated:

February 24, 2014
UNITED STATES MAGISTRATE JUDGE

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