Klein v. Gravance

Filing 16

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 3/3/2015. Amended Complaint due by 4/6/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

MICHAEL JOSEPH KLEIN,

12

Plaintiff,

13
14

vs.
C. GRAVANCE,

15

Defendant.

)
)
)
)
)
)
)
)
)
)

1:14cv01431 DLB PC
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
THIRTY-DAY DEADLINE

16

Plaintiff Michael Joseph Klein (“Plaintiff”) is a state prisoner proceeding pro se and in

17
18

forma pauperis in this civil rights action. Plaintiff commenced this action by writing a letter to

19

the United States District Court for the Northern District of California on July 30, 2014. He filed

20
21
22

a complaint on August 18, 2014, and it was transferred to this Court on September 11, 2014. He
names Correctional Officer C. Gravance as the sole Defendant.1
A.

LEGAL STANDARD

23

The Court is required to screen complaints brought by prisoners seeking relief against a
24
25
26

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

27
28

1

Plaintiff consented to the jurisdiction of the United States Magistrate Judge on September 25, 2014.
1

1
2
3
4
5

legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that . . . the action or
appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C.

6
7
8
9

§ 1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

10

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

11

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing

12

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient

13

factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting

14

Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

15

not. Id.

16
17
18
19

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or
other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the

20
21
22
23

actions or omissions of each named defendant to a violation of his rights; there is no respondeat
superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County,
Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235

24

(9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to

25

state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

26

F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

27

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

28
2

1

B.

2
3

Plaintiff is currently incarcerated at Avenal State Prison in Avenal, California, where the
events at issue occurred.

4
5

SUMMARY OF PLAINTIFF’S ALLEGATIONS2

Plaintiff contends that on July 10, 2014, he was sexually assaulted by Defendant
Gravance in retaliation for attempting to “educate [him] on proper procedure of outgoing

6
7
8
9
10

confidential mail.” ECF No. 6, at 3. Plaintiff alleges that as he asked to see a sergeant,
Defendant pushed him up against the wall and leaned his body against Plaintiff’s. Plaintiff
contends that he felt Defendant’s erection. Defendant whispered into Plaintiff’s ear that if he
didn’t behave, he would make Plaintiff “suck [his] cock.” ECF No. 6, at 3.

11

Based on these allegations, Plaintiff contends that Defendant violated the Eighth

12

Amendment by sexually assaulting him in retaliation for educating Defendant on proper

13

outgoing mail procedures.

14
15
16

Plaintiff requests monetary damages. He also requests that Defendant be terminated from
his duties.
C.

17
18

DISCUSSION
The Eighth Amendment protects prisoners from inhumane methods of punishment and

from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

19

2006). Extreme deprivations are required to make out a conditions of confinement claim, and
20
21
22
23

only those deprivations denying the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,
503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of

24

the Eighth Amendment, Plaintiff must allege facts sufficient to support a claim that prison

25

officials knew of and disregarded a substantial risk of serious harm to him. E.g., Farmer v.

26
2

27
28

Plaintiff may not have exhausted his administrative remedies. However, the failure to exhaust in compliance with
section 1997e(a) is an affirmative defense, and the defendant bears the burden of raising and proving the absence of
exhaustion. Jones v. Bock, 549 U.S. 199 at 216 (2007); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en
banc), cert. denied, 135 S.Ct. 403 (2014).
3

1
2
3

Brennan, 511 U.S. 825, 847 (1994); Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010);
Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Frost v. Agnos, 152 F.3d 1124, 1128
(9th Cir. 1998).

4

While the sexual abuse of prisoners violates the Eighth Amendment, Wood v. Beauclair,

5

692 F.3d 1041, (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112-13 (9th Cir. 2012),
6
7
8
9

Plaintiff’s allegations do not support a finding that the incident at issue rose to the level of sexual
abuse, Watison, 668 F.3d 1113-14 (citing Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th
Cir.1998) (no Eighth Amendment violation because “there is no evidence that Berryhill suffered

10

anything more than a brief unwanted touch on his buttocks” and “[i]t would be a distortion ... to

11

characterize the conduct in this case as a sexual assault.”)).
Therefore, Plaintiff fails to state a claim against Defendant Gravance for violation of the

12
13

Eighth Amendment.

14

D.

15
16
17
18
19

CONCLUSION AND ORDER
Plaintiff does not state any cognizable claims. The Court will provide Plaintiff with the

opportunity to file an amended complaint, if he believes, in good faith, he can cure the identified
deficiencies. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d
1122, 1130-31 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If
Plaintiff amends, he may not change the nature of this suit by adding new, unrelated claims in his

20

amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
21
22
23
24
25

If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but under
section 1983, it must state what each named defendant did that led to the deprivation of
Plaintiff’s constitutional rights and liability may not be imposed on supervisory personnel under
the mere theory of respondeat superior, Iqbal, 556 U.S. at 676-77; Starr v. Baca, 652 F.3d 1202,

26

1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). Although accepted as true, the

27

“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . .”

28

Twombly, 550 U.S. at 555 (citations omitted).
4

1

Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa

2

County, 693 F.3d 896, 907 (9th Cir. 2012) (en banc), and it must be “complete in itself without

3

reference to the prior or superceded pleading,” Local Rule 220.

4
5

Based on the foregoing, it is HEREBY ORDERED that:
1.

Plaintiff’s complaint is dismissed with leave to amend;

2.

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

3.

6

Within thirty (30) days from the date of service of this order, Plaintiff must

7
8

file an amended complaint curing the deficiencies identified by the Court in this

9

order, and

10
11
12

4.

If Plaintiff fails to comply with this order, this action will be dismissed, without

prejudice, for failure to obey a court order.
IT IS SO ORDERED.

13
14
15

Dated:

/s/ Dennis

March 3, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
5