Osolinski v. Bigot et al

Filing 26

ORDER Dismissing First Amended Complaint, with Leave to Amend, for Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 2/23/15. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID N. OSOLINSKI,

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Plaintiff,
v.
MARISA BIGO, et al.,
Defendants.

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Case No.: 1:14-cv-01895-AWI-SAB (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A COGNIZABLE CLAIM
FOR RELIEF
[ECF No. 23]

Plaintiff David N. Osolinski is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s first amended complaint, filed February 17, 2015.

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I.

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SCREENING REQUIREMENT

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The in forma pauperis statutes provides that “the court shall dismiss the case at any time if the

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court 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). A complaint must contain “a short and plain statement of the

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claim showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a)(2). Detailed factual

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

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by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge
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unwarranted inferences,” Doe I v. Walmart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal

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quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated in

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the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at

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678-679; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of

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misconduct falls short of meeting this plausibility standard. Id.

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II.

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SUMMARY OF COMPLAINT

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Defendants have invaded Plaintiff’s privacy by entering his sleeping area while he is asleep on

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two or more occasions. Plaintiff would awaken from his sleep and find Defendants going through his

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personal property. Plaintiff yelled, “Get the hell away from my bed area while I’m sleeping.”

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Plaintiff would further state, “you can’t keep invading my sleeping space while I’m sleeping and

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you[’re] not trying to announce or mak[e] any attempts to awaken plaintiff to let him know you[’re] in

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his bed area.” Defendant Marisa Bigot told Plaintiff, “she was the unit 18 supervisor, therefore, she

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could do whatever she wanted no matter what.” Marisa Bigot acts out in a negative and hateful way

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towards Plaintiff and others who have been committed as a sexually violent predator.

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III.

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DISCUSSION

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A.

Civil Rights Section 1983

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“[C]ivil detainees retain greater liberty protections than individuals detained under criminal

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process, and pre-adjudication detainees retain greater liberty protections than convicted ones. . . .”

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Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). Treatment is presumptively

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punitive when a civil detainee is confined in conditions identical to, similar to, or more restrictive than

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his criminal counterparts, and when a pre-adjudication civil detainee is detained under conditions more

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restrictive than a post-adjudication civil detainee would face. Id. at 932-33.

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Civil detainees “are entitled to more considerate treatment and conditions of confinement than

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criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S.

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307, 322 (1982) (citation omitted).

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B.

Unreasonable Search of Room

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The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 U.S. 520,

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558 (1979); Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011);

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Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The reasonableness of the search is

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determined by the context, which requires a balancing of the need for the particular search against the

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invasion of personal rights the search entails. Bell, 441 U.S. at 558-59 (quotations omitted); Byrd, 629

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F.3d at 1141; Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010); Nunez v.

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Duncan, 591 F.3d 1217, 1227 (9th Cir. 2010); Michenfelder, 860 F.2d at 332-34. Factors that must be

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evaluated are “the scope of the particular intrusion, the manner in which it is conducted, the

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justification for initiating it, and the place in which it is conducted. Bell, 441 U.S. at 559; Byrd, 639

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F.3d at 1141.

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Civil detainees have “a diminished expectation of privacy after commitment to a custodial

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facility. Bell, 441 U.S. at 557. Legitimate concerns justifying searches and seizures are “the safety

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and security of guards and others in the facility, order within the facility and the efficiency of the

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facility’s operations.” Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007) (internal quotation marks

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omitted). However, “a search or seizure that is arbitrary, retaliatory, or clearly exceeds the legitimate

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purpose of detention” violates the Fourth Amendment. Id.

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Plaintiff claims that the search of his room was motivated by Defendant Bigot’s “hatred”

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toward sexually violent predators, such as Plaintiff. However, Plaintiff fails to provide sufficient

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factual support for his allegation, such as when, how, and why the searches were conducted; what

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harm he suffered as a result of the searches; and whether property was seized and, if so, why.

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Accordingly, Plaintiff fails to state a cognizable Fourth Amendment claim, and the Court will grant

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Plaintiff one final opportunity to amend the complaint to cure the deficiencies. If Plaintiff chooses to

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amend, he must demonstrate that the Defendants conducted an unreasonable search of his living area,

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causing him harm.
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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s amended complaint fails to state a claim upon which relief

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may be granted. Plaintiff is one final opportunity file an amended complaint within thirty (30) days.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) (no “buckshot” complaints).

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

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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

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

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff an amended civil rights complaint form;

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2.

Plaintiff’s amended complaint, filed February 17, 2015, is dismissed for failure to state
a claim;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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February 23, 2015
UNITED STATES MAGISTRATE JUDGE

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