Fregia v. St. Clair et al

Filing 8

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, signed by Magistrate Judge Erica P. Grosjean on 3/10/17. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 MARK ANTHONY FREGIA, 8 9 10 11 Plaintiff, 1:17-cv-00039-EPG (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (ECF NO. 1) J ST. CLAIR, et al., Defendants. THIRTY DAY DEADLINE 12 13 Mark Fregia (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil 14 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this 15 action on January 11, 2017. (ECF No. 1). On February 1, 2017, Plaintiff consented to 16 Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 7), and no 17 other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local 18 Rules of the Eastern District of California, the undersigned shall conduct any and all 19 proceedings in the case until such time as reassignment to a District Judge is required. Local 20 Rule Appendix A(k)(3). 21 Plaintiff’s complaint alleges that Licensed Vocational Nurses are conducting illegal 22 cavity searches. Plaintiff believes that only custody staff has the jurisdiction and authority to 23 conduct body cavity searches. Additionally, Plaintiff states that defendant Licensed Vocational 24 Nurse (“LVN”) Alexi Medina is harassing Plaintiff. 25 standards as it applies to these claims and finds that Plaintiff’s complaint fails to set forth a 26 violation of the United States Constitution. Plaintiff does not adequately describe how each 27 named defendant personally participated in violating Plaintiff’s constitutional rights. The fact 28 section of Plaintiff’s complaint is less than a third of a page, and never mentions J. St Clair and 1 The Court has reviewed the legal 1 J. Lewis (two of the parties Plaintiff lists as defendants). While Plaintiff does attach several 2 health care 602s, appeals, and responses, he needs to include all the relevant information in the 3 complaint itself. Additionally, even if the Court were to take into account the facts alleged in 4 the 602s, Plaintiff still does not adequately describe how each named defendant personally 5 participated in violating Plaintiff’s constitutional rights. 6 7 8 The Court provides the legal standards below and provides Plaintiff leave to amend his complaint if he believes additional allegations would state a claim consistent with this law. I. SCREENING REQUIREMENT 9 The Court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 11 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 12 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 13 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 14 ' 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 15 been paid, the court shall dismiss the case at any time if the court determines that the action or 16 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. ' 1915(e)(2)(B)(ii). 17 A complaint is required to contain “a short and plain statement of the claim showing 18 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 19 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 22 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 23 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 24 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 25 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 26 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 27 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 28 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 2 1 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 2 pro se complaints should continue to be liberally construed after Iqbal). 3 II. SUMMARY OF ALLEGATIONS IN THE COMPLAINT 4 Plaintiff alleges in his complaint that custody staff have the jurisdiction and authority to 5 perform cavity searches on inmates (including in their mouth and underneath their tongue). 6 LVNs are not trained, qualified, or authorized to do these cavity searches. Despite this, LVNs 7 are checking to make sure inmates do not “cheek pills.” Additionally, Plaintiff alleges that 8 defendant Medina harasses Plaintiff and other inmates. 9 10 Plaintiff attaches several health care 602s, appeals, and responses, which deal with the policy of having LVNs conduct searches on inmates and the conduct of defendant Medina. Plaintiff brings claims for “illegal cavity searches” and “‘deliberate indifference’ 11 12 13 harassment,” and asks for $20,000 in damages. ANALYSIS OF PLAINTIFF’S EXCESSIVE FORCE AND UNREASONABLE III. 14 15 16 SEARCH CLAIMS A. Legal Standards 1. Section 1983 17 Section 1983 provides a cause of action against any person who, under color of state 18 law, “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 19 of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. “A 20 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 21 section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to 22 perform an act which he is legally required to do that causes the deprivation of which complaint 23 is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “In a § 1983 action, the 24 plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the 25 claimed injury. To meet this causation requirement, the plaintiff must establish both causation- 26 in-fact and proximate causation.” Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008) 27 (internal citations omitted). Proximate cause requires “‘some direct relation between the injury 28 asserted and the injurious conduct alleged.”’ Hemi Group, LLC v. City of New York, 559 U.S. 3 1 1, 130 (2010) (quoting Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268 (1992)). 2 The Ninth Circuit has stated: 3 7 [S]ection 1983 suits do not impose liability on supervising officers under a respondeat superior theory of liability. Instead, supervising officers can be held liable under section 1983 “only if they play an affirmative part in the alleged deprivation of constitutional rights.” [citation omitted]. The supervising officer has to “set in motion a series of acts by others . . . which he knew or reasonably should have known, would cause others to inflict the constitutional injury.” [citation omitted]. 8 Graves v. City of Coeur D’Alene, 339 F.3d 828, 848 (9th Cir. 2003); abrogated on other 9 grounds by Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177 4 5 6 10 (2004). 11 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there 12 must be an actual connection or link between the actions of the defendants and the deprivation 13 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 14 691, 695 (1978). Additionally, Plaintiff must demonstrate that each named defendant personally 15 Supervisory personnel are generally not liable under section 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisory position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 19 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 20 (1979). To state a claim for relief under section 1983 based on a theory of supervisory liability, 21 Plaintiff must allege some facts that would support a claim that the supervisory defendants 22 either: personally participated in the alleged deprivation of constitutional rights; knew of the 23 violations and failed to act to prevent them; or promulgated or “implemented a policy so 24 deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force 25 of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal 26 citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 27 supervisor may be liable for his “own culpable action or inaction in the training, supervision, or 28 control of his subordinates,” “his acquiescence in the constitutional deprivations of which the 4 For instance, a 1 complaint is made,” or “conduct that showed a reckless or callous indifference to the rights of 2 others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, 3 quotation marks, and alterations omitted). 4 2. Visual Cavity Search 5 The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 6 U.S. 520, 558 (1979); Byrd v. Maricopa County Sheriff’s Office, 629 F.3d 1135, 1140 (9th Cir. 7 2011); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The reasonableness of the 8 search is determined by the context, which requires a balancing of the need for the particular 9 search against the invasion of personal rights the search entails. Bell, 441 U.S. at 558-59 10 (quotations omitted); Byrd, 629 F.3d at 1141; Bull v. City and Cnty. of San Francisco, 595 F.3d 11 964, 974-75 (9th Cir. 2010); Nunez v. Duncan, 591 F.3d 1217, 1227 (9th Cir. 2010); 12 Michenfelder, 860 F.2d at 332-34. 13 particular intrusion, the manner in which it is conducted, the justification for initiating it, and 14 the place in which it is conducted. Bell, 441 U.S. at 559 (quotations omitted); Byrd, 629 F.3d 15 at 1141; Bull, 595 F.3d at 972; Nunez, 591 F.3d at 1227; Michenfelder, 860 F.2d at 332. Factors that must be evaluated are the scope of the 16 Plaintiff’s complaint does not appear to be challenging the searches themselves. 17 Instead, Plaintiff appears to be arguing that custody staff should have conducted the searches, 18 not an LVN. However, based on the documents provided by Plaintiff, the Inmate Medical 19 Services Policies and Procedures states that “health care staff administering medication through 20 Direct Observed Therapy (DOT) in pill call lines ‘shall verify that the medication(s) has been 21 swallowed by completing a visual mouth check and viewing the empty cup.’” (ECF No. 1, p. 22 12). Therefore, it appears that there is an official policy allowing LVNs to conduct at least a 23 limited visual search of an inmate’s mouth. Further, the Court is aware of no legal authority 24 that states that an LVN, who is apparently employed by the CDCR, violates the constitution by 25 conducting a visual check of the mouth of an inmate who just received medication. 26 Additionally, while Plaintiff’s complaint asks for $20,000 in damages, the complaint 27 does not explain what harm Plaintiff suffered by having an LVN conduct the searches instead 28 of custody staff. 5 1 2 Accordingly, based on the foregoing, the Court finds that Plaintiff has failed to state a claim under the Fourth Amendment for unreasonable searches. 3 3. Harassment 4 The Eighth Amendment protects prisoners from inhumane methods of punishment and 5 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 6 Cir. 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual 7 Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) 8 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials 9 must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal 10 safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted). For claims of 11 excessive physical force, the issue is “whether force was applied in a good-faith effort to 12 maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 13 U.S. at 7. Although de minimis uses of force do not violate the Constitution, the malicious and 14 sadistic use of force to cause harm always violates the Eighth Amendment, regardless of 15 whether or not significant injury is evident. Hudson, 503 U.S. at 9-10; Oliver v. Keller, 289 16 F.3d 623, 628 (9th Cir. 2002). 17 Verbal harassment or abuse alone is not sufficient to state a constitutional deprivation 18 under section 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); accord 19 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). It is possible that harassment constitutes a 20 state law claim, but such a claim is not before this Court under section 1983. 21 Plaintiff has stated that defendant Medina harassed him, but Plaintiff gives little to no 22 detail as to what form this harassment took, or how many times it happened. Accordingly, 23 Plaintiff has failed to state a claim for excessive force in violation of the Eighth Amendment. 24 IV. CONCLUSION AND ORDER 25 The Court finds that Plaintiff=s complaint fails to state any cognizable claim upon which 26 relief may be granted under section 1983. The Court will dismiss this complaint and give 27 Plaintiff leave to file an amended complaint addressing the issues described above. 28 Under Rule 15(a) of the Federal Rules of Civil Procedure, “leave to amend shall be 6 1 freely given when justice so requires.” Accordingly, the Court will provide Plaintiff with leave 2 to file an amended complaint that cures the deficiencies identified above. Lopez v. Smith, 203 3 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended complaint 4 within thirty days of the date of service of this order if he chooses to do so. 5 Should Plaintiff choose to file an amended complaint, the amended complaint should be 6 brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the 7 deprivation of Plaintiff’s constitutional or other federal rights, Iqbal, 556 U.S. at 676; Jones v. 8 Williams, 297 F.3d 930, 934 9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . 9 . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting 10 Twombly, 550 U.S. at 555). There is no respondeat superior liability, and each defendant is 11 only liable for his or her own misconduct. Id. at 676. Plaintiff must demonstrate that each 12 defendant personally participated in the deprivation of her rights. Jones, 297 F.3d at 934. 13 Plaintiff is advised that a short, concise statement of the allegations in chronological order will 14 assist the court in identifying his claims. Plaintiff should name each defendant and explain 15 what happened, describing personal acts by the individual defendant that resulted in the 16 violation of Plaintiff’s rights. Plaintiff should also describe any harm she suffered as a result of 17 the violation. Plaintiff should note that although she has been given the opportunity to amend, 18 it is not for the purpose of adding new defendants for unrelated issues. 19 If Plaintiff decides to file an amended complaint, he is advised that an amended 20 complaint supersedes the original complaint, Lacey v. Maricopa County, 693 F. 3d 896, 907 21 n.1 (9th Cir. 2012) (en banc), and it must be complete in itself without reference to the prior or 22 superseded pleading, Local Rule 220. 23 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 24 an original complaint, each claim and the involvement of each defendant must be sufficiently 25 alleged. 26 Complaint,” refer to the appropriate case number, and be an original signed under penalty of 27 perjury. 28 Once an amended complaint is filed, the original The amended complaint should be clearly and boldly titled “Second Amended Based on the foregoing, it is HEREBY ORDERED that: 7 1 1. 2 Plaintiff’s complaint is DISMISSED for failure to state a claim, with leave to amend; 3 2. The Clerk’s Office is directed to send Plaintiff a civil rights complaint form; 4 3. Plaintiff may file a First Amended Complaint curing the deficiencies identified 5 by the Court in this order if he believes additional true factual allegations would 6 state a claim, within thirty (30) days from the date of service of this order; 7 4. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the 8 amended complaint “First Amended Complaint” and refer to the case number 9 1:17-cv-00039-EPG; and 10 5. If Plaintiff fails to file an amended complaint within 30 days of the date of 11 service of this order, the Court will dismiss Plaintiff’s case for failure to state a 12 claim and failure to comply with a Court order. 13 14 15 IT IS SO ORDERED. Dated: March 10, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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