Claiborne v. California Department of Corrections and Rehabilitation, et al.

Filing 9

ORDER, FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/18/15 DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms within 30 days. Service is appropriate for Butler, Davies. Clerk to send plaintiff: 1 Summo ns, 2 USM-285 Forms, and 1 copy of the Complaint filed on 3/30/15. IT IS HEREBY RECOMMENDED that defendants CDCR, Major, Wamble, and Young be dismissed from this action with prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS G. CLAIBORNE,

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Plaintiff,

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v.

No. 2:15-cv-0710 JAM CKD P

ORDER AND

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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I. Screening Standard

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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II. Allegations
Plaintiff alleges that he is a mobility-impaired inmate who uses a cane and an arm sling.

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(ECF No. 1 at 4.) The events giving rise to this suit were summarized in a March 2015 response

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to plaintiff’s administrative appeal:

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The appellant states that on October 10, 2014, he was instructed by
staff to get down on the ground during an alarm. [He] states that he
cannot comply with the institution’s get down policy based upon
his medical limitation. He adds that following the incident he was
placed in a ‘detention cage’ and subjected to an unnecessary
unclothed body search.

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The appellant believes he is being discriminated against because he
is a black Americans with Disabilities Act inmate. He also believes
that the unclothed body search was a form of sexual harassment.

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(Id. at 39.)

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In his complaint, plaintiff asserts that these actions violated his rights under the ADA, as

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well as other federal constitutional rights. He states he is in “imminent danger “of harm, though

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the allegations do not indicate this. He seeks over $6 million in damages and injunctive relief.

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(Id. at 3, 14.)

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Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA),

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provides that “no qualified individual with a disability shall, by reason of such disability, be

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excluded from participation in or be denied the benefits of the services, programs, or activities of

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a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To

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state a claim under Title II of the ADA, the plaintiff must allege four elements: (1) the plaintiff is

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an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive

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the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either

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excluded from participation in or denied the benefits of the public entity’s services, programs or

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activities, or was otherwise discriminated against by the public entity; and (4) such exclusion,

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denial of benefits, or discrimination was by reason of the plaintiff’s disability. Thompson v.

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Davis, 295 F.3d 890, 895 (9th Cir. 2002).

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Here, plaintiff has not alleged that he was excluded from participation or denied the
benefits of the services, programs or activities of the prison, or subject to any discrimination by
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reason of his alleged disability. See Armstrong v. Wilson, 124 F.3d 1019, 1024 (9th Cir. 1997).

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Rather, records attached to the complaint indicate that plaintiff was not wearing the “mobility

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impaired vest” that signaled an inmate could not get on the ground, as it was determined by the

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medical department that he did not meet the criteria for such a vest. (ECF No. 1 at t 49-50, 56-

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59.)

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Nor has plaintiff made out a colorable equal protection claim, as his allegations do not

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show that defendants intentionally discriminated against him based on his membership in a

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protected class. See Washington v. Davis, 426 U.S. 229, 239–42 (1976). His assertion that “a

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white prison inmate, with the same . . . circumstances, was allowed to sit on a bench” without

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being “bothered [or] harassed” (ECF No. 1 at 9) is not sufficient to allege intentional

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discrimination.

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As to plaintiff’s claim that he was subject to an unreasonable strip search, the Fourth

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Amendment applies to the invasion of bodily privacy in prisons and jails. Bull v. San Francisco,

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595 F.3d 964, 974–75 (9th Cir. 2010) (en banc). To analyze a claim alleging a violation of this

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privacy right, the court must apply the test set forth in Turner v. Safley, 482 U.S. 78, 89 (1987),

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and determine whether a particular invasion of bodily privacy was reasonably related to

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legitimate penological interests. See Bull, 595 F.3d at 973. Prisoners may be subjected to strip

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searches and body cavity searches if they are conducted in a reasonable manner. See Bell v.

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Wolfish, 441 U.S. 520, 561 (1979). The Fourth Amendment right to be secure against

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unreasonable searches extends to incarcerated prisoners, but the reasonableness of a particular

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search must be determined by reference to the prison context. See Michenfelder v. Sumner, 860

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F.2d 328, 332 (9th Cir. 1988).

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Plaintiff alleges that, shortly after he failed to comply with defendant Davies’ order,

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Davies and defendant Butler took him to the program office, demanded he strip, and ordered him

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to “pull my butt open” in order to conduct a visual cavity search. (ECF No. 1 at 4-5.) He alleges

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that the search was “founded on a (CDCR) unreasonable policy” and was an undue punishment

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for plaintiff’s handicapped condition. (Id. at 7.) Nothing in the records attached to the complaint

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explain why it was reasonable to conduct a cavity search of plaintiff after he failed to comply
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with an order to get on the ground. Based on the totality of the complaint, plaintiff has

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sufficiently alleged that defendants invaded his bodily privacy without a reasonable relationship

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to a legitimate penological interest, so as to state a Fourth Amendment claim against Davies and

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Butler.

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Plaintiff names three other individual defendants in the complaint: Major, Wamble, and

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Young. (ECF No. 1 at 12.) Plaintiff has not sufficiently alleged the personal involvement of

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these defendants in any constitutional violation so as to state a § 1983 claim. Thus the court will

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recommend that they be dismissed from this action.

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Finally, defendant California Department of Corrections and Rehabilitation (CDCR) is

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immune from suit under the doctrine of sovereign immunity. The Eleventh Amendment serves as

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a jurisdictional bar to suits brought by private parties against a state or state agency unless the

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state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v.

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Pugh, 438 U.S. 781 (1978)( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir.

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1982). The State of California has not consented to suit. Thus plaintiff’s claims against this

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defendant are frivolous and must be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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will be assessed an initial partial filing fee. All fees shall be collected and paid in accordance

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with this court’s order to the Director of the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. Service is appropriate for the following defendants: Davies and Butler.

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4. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an

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instruction sheet and a copy of the complaint filed March 30, 2015.
5. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;
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c. One completed USM-285 form for each defendant listed in number 3 above;
and

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d. Three copies of the endorsed complaint filed March 30, 2015.

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6. Plaintiff need not attempt service on defendants and need not request waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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IT IS HEREBY RECOMMENDED that defendants CDCR, Major, Wamble, and Young
be dismissed from this action with prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: May 18, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / clai710.1.new

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS G. CLAIBORNE,

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Plaintiff,

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No. 2:15-cv-0710 JAM CKD P

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff hereby submits the following documents in compliance with the court's order
filed _____________________:

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completed summons form

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completed USM-285 forms

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copies of the ___________________
Complaint

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DATED:

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________________________________

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Plaintiff

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