Osolinski v. Bigot et al

Filing 28

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to State a Cognizable Claim Upon Which Relief May be Granted, signed by Magistrate Judge Stanley A. Boone on 4/8/15. Referred to Judge Ishii; 30-Day Deadline. (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)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM UPON WHICH RELIEF MAY BE
GRANTED
[ECF No. 27]

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Plaintiff David N. Osolinski is a civil detainee appearing pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare

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and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the

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Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000

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Now pending before the Plaintiff’s amended complaint, filed March 12, 2015. (ECF No. 27.)

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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
On April 28, 2014, at approximately 9:00 a.m. and 11:00 a.m., Defendants Bigot, Alekhoughie,

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and Rivera entered Plaintiff’s sleeping area while he was asleep and began rummaging through his

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personal property, conducting a routine general search. Plaintiff is aware of no authority which

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permits Defendants to perform a routine general search while the person is asleep in the area being

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searched. The aforementioned action was taken by Defendants on at least two other occasions. The

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routine general searches were performed in a manner solely for harassment and invasion of Plaintiff’s

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privacy.

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Plaintiff would awaken from his sleep and find Defendants going through his personal

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property. Plaintiff yelled, “Get the hell away from my bed area while I am sleeping.” Plaintiff would

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further state, “You can’t keep invading my sleeping space while I am asleep! You’re not trying to

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announce [your intent] or making any attempts to awaken me to let me know you are in my bed

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space!” Defendant Marisa Bigot told Plaintiff, “I am the Unit 18 Supervisor. I can do whatever I

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want no matter what.”
Defendants, and each of them, have a pattern, policy, and practice of making up new rules as

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they go, while nothing whatsoever is codified, and frequently changed to fit the situation.

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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.
Plaintiff’s bare allegations that his living area was subject to a routine general search solely for

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harassment and invasion of privacy fails to state a cognizable claim for relief. Plaintiff’s allegations

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simply do not demonstrate or support a plausible finding that the April 28, 2014, search and

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subsequently two searches were unreasonable. Thus, even if a reasonable expectation of privacy in

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Plaintiff’s room can be established, Plaintiff has failed to allege sufficient consistent facts to reflect an

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unreasonable search of his living area. See, e.g., Bell, 441 U.S. 520, 557 (1979) (“No one can

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rationally doubt that room searches represent an appropriate security measure ….”) Accordingly,

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Plaintiff fails to state a cognizable Fourth Amendment claim.

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C.

Violation of California Constitution and State Law

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Plaintiff contends that under California law, he has a constitutional right to privacy and to

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acquire and protect property, a statutory right to property, and a regulatory right to privacy, dignity,

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respect, and human care. Violations of state law do not give rise to a claim for relief under section

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1983. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Ove v. Gwinn, 264 F.3d 817, 824-25

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(9th Cir. 2001); Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997).

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D.

Further Leave to Amend

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The Court previously notified Plaintiff of the deficiencies and granted leave to amend, and

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because Plaintiff has failed to cure the deficiencies further amendment is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th Cir.

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1987).

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IV.

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CONCLUSION AND RECOMMENDATION

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Based on the foregoing, Plaintiff’s amended complaint fails to state any cognizable claims for

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relief under section 1983. As Plaintiff has had previously opportunities to cure the deficiencies

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identified by the Court and has failed to do so, further leave to amend shall not be granted. Lopez v.

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Smith, 203 F.3d at 1130.

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Accordingly, it is HEREBY RECOMMENDED that his action be DISMISSED based on

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Plaintiff’s failure to state a cognizable section 1983 claim.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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April 8, 2015
UNITED STATES MAGISTRATE JUDGE

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