Gallegos v. Perez, et al.

Filing 6

ORDER DISMISSING Complaint, WITH LEAVE TO AMEND, for Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 4/18/17. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY GALLEGOS,

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Plaintiff,

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v.
MANUEL PEREZ, et al.,
Defendants.

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Case No.: 1:17-cv-00183-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff Johnny Gallegos is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on February 27, 2017. Local Rule 302.

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Currently before the Court is Plaintiff’s complaint, filed February 10, 2017.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by individuals who are proceeding in forma

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pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C. § 1915(e)(2).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff arrived at the Madera County Department of Corrections on October 8, 2016.

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Plaintiff did not receive an orientation packet which has information regarding the Prison Rape

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Elimination Act, 42 U.S.C. § 15602, and a toll-free telephone number to report misconduct.

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Plaintiff filed a grievance on December 27, 2016, regarding an ongoing pattern of verbal

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sexual abuse and/or misconduct by correctional officers. During the first week of January 2017,

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officer Dickson made a verbal comment to Plaintiff while he was bird bathing stating “man is that all

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you while looking at his groin area.” On or about January 12, 2017, officer Dickson made a second

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sexual comment stating “man that’s a heavy mustache[e].” Plaintiff notified officer J. Quick of the

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non-posting of the Prison Rape Elimination Act and then took it upon himself to call the toll-free

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number which was inoperable.
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III.

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DISCUSSION

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A.

Section 1983 Liability

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The Civil Rights Act, codified at 42 U.S.C. § 1983 “is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor,

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490 U.S. 386, 393-94 (1989) (internal quotation marks and citations omitted).

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[Section 1983] creates a cause of action against a person who, acting under color of state law,
deprives another of rights guaranteed under the Constitution. Section 1983 does not create any
substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by
governmental officials. To prove a case under section 1983, the plaintiff must first
demonstrate that (1) the action occurred “under color of state law” and (2) the action resulted
in the deprivation of a constitutional right or federal statutory right. [citation omitted].
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
At a minimum, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a

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person was acting under color of state law at the time the act complained of was committed; and (2)

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that person’s conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution

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or laws of the United States. Paratt v. Taylor, 451 U.S. 527, 535 (1981). To warrant relief under the

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Civil Rights Act, a plaintiff must allege and show that defendant’s acts or omissions caused the

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deprivation of his constitutionally protected rights. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.

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1993). Thus, the statute plainly requires that there be an actual causal connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v.

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Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976).

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B.

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“[P]re-adjudication detainees retain greater liberty protections than convicted ones.” Jones v.

Sexual Harassment Claim

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Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). As a pretrial detainee, Plaintiff is

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protected from conditions of confinement which amount to punishment. Bell v. Wolfish, 441 U.S.

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520, 535-536 (1979); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017-1018 (9th Cir. 2010).

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A pretrial detainee’s right to be free from punishment is grounded in the Due Process Clause, but

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Courts borrow from Eighth Amendment jurisprudence when analyzing the rights of pretrial detainees.

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See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008); Lolli v. Cnty. of Orange, 351 F.3d
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410, 418-19 (9th Cir. 2003). However, the legal standard for deliberate indifference is somewhat

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different for pretrial detainees. “[U]nder the Eighth Amendment, a prison official cannot be found

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liable under the Cruel and Unusual Punishment Clause for denying an inmate humane conditions of

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confinement ‘unless the official knows of and disregards an excessive risk to inmate health or safety;

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the official must both be aware of facts from which the inference could be drawn that a substantial risk

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of serious harm exists, and he must also draw the inference.’” Castro v. Cty of Los Angeles, 833 F.3d

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1060, 1068 (9th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Under the

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Fourteenth Amendment, courts look to determine whether the defendant’s conduct is “objectively

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unreasonable.” Id. at *7.

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Verbal harassment and/or abuse of prisoners by guards do not state a constitutional deprivation

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under § 1983. See Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (“[T]he exchange of verbal

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insults between inmates and guards is a constant, daily ritual observed in this nation’s prisoners” of

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which “we do not approve,” but which do not violate the Eighth Amendment.); Morgan v. Ward, 699

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F.Supp. 1025, 1055 (N.D.N.Y. 1988) (same). This is true even when the verbal harassment has sexual

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undertones. “Although prisoners have a right to be free from sexual abuse, whether at the hands of

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fellow inmates or prison guards, see Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), the

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Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin

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v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (citing Blueford v. Prunty, 108 F.3d 251, 254-55 (9th

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Cir. 1997) (holding that prison guard who engaged in “vulgar same-sex trash talk” with inmates was

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entitled to qualified immunity); Somers, 109 F.3d at 624). Plaintiff’s allegations that officer Dickson

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made derogatory sexual comments on two separate occasions fails to give rise to a constitutional

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violation. The Court will grant Plaintiff an opportunity to amend the complaint, if he can do so in

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good faith.

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C.

Prison Rape Elimination Act

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The Prison Rape Elimination Act, 42 U.S.C. § 15602, does not give rise to a private cause of

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action. See Porter v. Jennings, No. 1:10-cv-01811-AWI-DLB PC, 2012 WL 1434986, at *1 (E.D. Cal.

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Apr. 25, 2012); Law v. Whitson, No. 2:08-cv-0291-SPK, 2009 WL 5029564, at *3 (E.D. Cal. Dec. 15,

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2009) (Prison Rape Elimination Act does not create a private right of action, nor does it create a right
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enforceable under Section 1983); Inscoe v. Yates, No. 1:08-cv-01588-DLB PC, 2009 WL 3617810, at

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*3 (E.D. Cal. Oct. 28, 2009). Accordingly, Plaintiff cannot state a cognizable section 1983 claim

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based on the Prison Rape Elimination Act.

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IV.

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CONCLUSION AND ORDER

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

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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

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2.

Plaintiff’s complaint, filed February 10, 2017, is dismissed for failure to state a claim;

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

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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 for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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April 18, 2017
UNITED STATES MAGISTRATE JUDGE

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