Hubbard v. Woods, et al.

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 3/18/15: Thirty-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
9

ZANE HUBBARD,

10
11
12

Plaintiff,
v.
D. WOODS, et al.,

13

Defendants.

14

)
)
)
)
)
)
)
)
)
)
)

1:14-cv-00874-AWI-BAM (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
THIRTY-DAY DEADLINE

15
16

I.

Screening Requirement and Standards

17

Plaintiff Zane Hubbard (“Plaintiff”) is a state prisoner proceeding pro se and in forma

18

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on

19

June 9, 2014, is currently before the Court for screening.

20

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

21

governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

22

1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

23

malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

24

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

25

U.S.C. § 1915(e)(2)(B)(ii).

26

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

27

pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

28

required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
1

1

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

2

1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

3

(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

4

unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

5

(internal quotation marks and citation omitted).

6

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

7

liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

8

342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

9

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

10

named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

11

(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

12

2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

13

consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

14

678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

15

II.

16

Plaintiff is currently housed at California State Prison, Corcoran. Plaintiff alleges as

17

follows: On May 6, 2014, after being attacked by a correctional officer, Plaintiff was being

18

medically evaluated by Defendant RN Woods in the presence of ISU Officer Woodrow at

19

Corcoran’s main treatment hospital. While Plaintiff was in restraints in a wheelchair, Defendant

20

RN Woods touched Plaintiff’s ass. Plaintiff told Defendant RN Woods to back up and that the

21

behavior was unethical and unnecessary for a medical evaluation. Officer Woodrow, T. Franco,

22

J. Ramirez, J. Medina and J. Almaguer did and said nothing. Prior to this alleged invasion of

23

privacy, Plaintiff contends that these officers threatened to sodomize him and orally copulate

24

with him. Plaintiff alleges that these officers stated that this was the purpose for Plaintiff to be

25

housed at Corcoran. The officers also alleged that Plaintiff was being held captive and tortured

26

until he “jack[s] off” to Graciela Moreno of ABC Action News while watching Plaintiff through

27

electroconvulsive therapy.

28

Plaintiff seeks damages and injunctive relief.
2

1

III.

2
3

Discussion
A. Eighth Amendment

The unnecessary and wanton infliction of pain violates the Cruel and Unusual

4

Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct.

5

995 (1992) (citations omitted). The objective component of an Eighth Amendment claim is

6

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

7

(quotation marks and citation omitted). A sexual assault on a prisoner by a correctional officer is

8

“deeply offensive to human dignity.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)

9

(quotation and citation omitted). However, not every malevolent touch by a prison guard gives

10

rise to a federal cause of action. Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178

11

(2010) (per curiam). Necessarily excluded from constitutional recognition is the de minimis use

12

of force, provided that the use of force is not of a sort repugnant to the conscience of mankind.

13

Wilkins, 559 U.S. at 37-8, 130 S.Ct. at 1178 (citing Hudson, 503 U.S. at 9-10) (quotations marks

14

omitted).

15

Here, Plaintiff’s allegations do not include any evidence of undue force. At best, Plaintiff

16

alleges a single touch of his buttocks by RN Woods during a medical evaluation following an

17

asserted assault. This does not rise to the level of a constitutional violation. See, e.g., Berryhill

18

v. Schiro, 137 F.3d 1073, 1076 (8th Cir. 1998) (brief touch of prisoner’s buttocks by prison

19

employees did not constitute Eighth Amendment violation).

20
21

B. Failure to Intervene
The failure to intervene can support an excessive force claim where the bystander-

22

officers had a realistic opportunity to intervene but failed to do so. Lolli v. County of Orange,

23

351 F.3d 410, 418 (9th Cir. 2003); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000);

24

Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995); see also Motley v. Parks, 383 F.3d

25

1058, 1071 (9th Cir. 2004) (neither officers who participated in the harassing search nor officers

26

who failed to intervene and stop the harassing search were entitled to qualified immunity).

27
28

Here, Plaintiff has failed to state a cognizable claim against Officer Woodrow, T. Franco,
J. Ramirez, J. Medina and J. Almaguer for failure to intervene. There is no indication that these
3

1

individuals failed to intervene in any alleged sexual assault or abuse of Plaintiff during the

2

medical evaluation. As noted above, Plaintiff has not stated a cognizable constitutional claim

3

arising from the alleged touching of his buttocks during a medical evaluation.

4
5

C. Threats and Harassment
Plaintiff also fails to state a cognizable claim arising out his allegations that defendants

6

made threatening statements. Verbal harassment and threats do not constitute a violation of the

7

Eighth Amendment. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (harassment);

8

Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (harassment and vulgar language);

9

Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (threats).

10

IV.

11

Plaintiff’s complaint fails to state a cognizable claim. However, Plaintiff will be given

Conclusion and Recommendation

12

leave to amend his complaint and cure the identified deficiencies to the extent he is able to do so

13

in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

14

Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

15

each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal,

16

556 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations

17

must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S.

18

at 555 (citations omitted).

19

Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

20

claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

21

“buckshot” complaints).

22

Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

23

Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended

24

complaint must be “complete in itself without reference to the prior or superseded pleading.”

25

Local Rule 220.

26

Based on the foregoing, it is HEREBY ORDERED that:

27

1.

The Clerk’s Office shall send Plaintiff a complaint form;

28

2.

Plaintiff’s complaint is dismissed with leave to amend;
4

1
2
3
4

3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

first amended complaint; and
4.

If Plaintiff fails to file a first amended complaint in compliance with this order,

this action will be dismissed for failure to obey a court order and failure to state a claim.

5
6
7

IT IS SO ORDERED.
Dated:

/s/ Barbara

March 18, 2015

8

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5