Johnson v. Chanan et al

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 9/12/2016 GRANTING plaintiff's 6 request to proceed IFP. Plaintiff's complaint is DISMISSED with leave to amend within 30 days. The Clerk shall send plaintiff a prisoner complaint form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACKIE M. JOHNSON,

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Plaintiff,

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No. 2:15-cv-1606 AC P

v.

ORDER

S. CHANAN, et al.,

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Defendants.

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Plaintiff, a former state prisoner1 proceeding pro se, 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.

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Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for all purposes

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pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 4.
I.

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Application to Proceed In Forma Pauperis

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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). ECF No. 6. Accordingly, the request to proceed in forma pauperis will be granted.
II.

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

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Statutory Screening of Prisoner Complaints

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

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Plaintiff was released from prison sometime after filing the complaint. ECF No. 5.
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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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This standard also applies to complaints brought by non-prisoners that are proceeding pro se. 28

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U.S.C. § 1915(e)(2).

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A claim “is [legally] frivolous where 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). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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

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has an arguable legal and factual basis. Id.

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

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Complaint
In the complaint, plaintiff alleges that defendant Chanan has subjected him to sexual

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harassment in the form of sexual comments and gesturing and exposing himself to plaintiff. ECF

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No. 1 at 4. Defendant Ortega was allegedly aware of Chanan’s behavior, but told investigators

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that he does not know anything and had not seen anything. Id. Plaintiff identifies Warden Fox as

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a defendant (id. at 2), but does not make any allegations against him (id. at 3-4).

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IV.

Failure to State a Claim
A.

Eighth Amendment
1. Verbal Sexual Harassment

The Eighth Amendment proscribes the infliction of cruel and unusual punishment on

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prisoners. “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes

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cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S.

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312, 319 (1986) (alteration in original) (internal quotation marks omitted) (quoting Ingraham v.

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Wright, 430 U.S. 651, 670 (1977)). “The alleged pain may be physical or psychological.”

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Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citing Jordan v. Gardner, 986 F.2d 1521

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(9th Cir. 1993)). However, “‘[v]erbal harassment or abuse . . . is not sufficient to state a

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constitutional deprivation under 42 U.S.C. § 1983.’” Oltarzewski v. Ruggiero, 830 F.2d 136, 139

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(9th Cir. 1987) (alteration in original) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.

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1979)); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (stating that “verbal

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harassment generally does not violate the Eighth Amendment”), amended on other grounds by

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135 F.3d 1318 (9th Cir. 1998). This includes verbal harassment of a sexual nature, and exposure.

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Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (officer’s conduct was not sufficiently

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serious to violate the Eighth Amendment where officer exposed himself to prisoner but never
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physically touched him); Patrick v. Martin, 402 F. App’x 284, 285 (9th Cir. 2010) (sexual

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harassment claim based on verbal harassment insufficient to state a claim under § 1983) (citing

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Oltarzewski, 830 F.2d at 139).

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Plaintiff’s allegations against defendant Chanan are limited to verbal harassment,

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exposure, and gesturing. ECF No. 1 at 3-4. While the alleged actions are certainly inappropriate,

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they do not rise to the level of a constitutional violation and the claims must be dismissed.

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However, since there may be additional facts that plaintiff can assert that would state a claim, he

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will be given an opportunity to amend.

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2. Failure to Protect
An officer is not liable under the Eighth Amendment unless he “knows of and disregards

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an excessive risk to inmate health or safety; the official must both be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

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the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Therefore, before plaintiff can

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state a claim for relief against defendant Ortega, he must first allege facts that demonstrate that

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defendant Chanan’s actions caused or put him at risk for serious harm. Additionally, failing to

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report an incident that has already taken place, without more, does not constitute a disregard for

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an excessive risk to inmate health or safety. Plaintiff alleges that defendant Ortega lied to

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investigators about whether he had witnessed the alleged sexual harassment by defendant Chanan.

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ECF No. 1 at 4. Failing to report the incident is insufficient to state a claim under the Eighth

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Amendment absent facts showing that by failing to report the incident, defendant knowingly

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disregarded an excessive risk to plaintiff’s health or safety. Plaintiff’s claims regarding defendant

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Ortega’s failure to report will therefore be dismissed with leave to amend.

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B. Supervisory Liability

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v.

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).
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Additionally, “[t]here is no respondeat superior liability under section 1983.” Taylor v

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List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A defendant may be held liable as a supervisor under

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§ 1983 ‘if there exists either (1) his or her personal involvement in the constitutional deprivation,

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or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989)). A supervisor may be liable for the constitutional

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violations of his subordinates if he “knew of the violations and failed to act to prevent them.”

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Taylor, 880 F.2d at 1045. Finally, supervisory liability may also exist without any personal

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participation if the official implemented “a policy so deficient that the policy itself is a

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repudiation of the constitutional rights and is the moving force of the constitutional violation.”

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Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations

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marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). Plaintiff

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has failed to allege sufficient personal involvement by defendant Fox.

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Since the complaint contains no allegations against defendant Fox, the court can only

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assume that he was named because of his position as warden, which is insufficient to state a claim

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for relief. Because plaintiff does not make any allegations against defendant Fox, he must be

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dismissed. However, since plaintiff may be able to amend the complaint to state a cognizable

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claim, he will be given an opportunity to amend.

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V.

Leave to Amend

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If plaintiff chooses to file a first amended complaint, he must demonstrate how the

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conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo,

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423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant

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is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can

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be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official participation in

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civil rights violations are not sufficient.” Ivey, 673 F.2d at 268 (citations omitted).

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Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

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his first amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims

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dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent

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amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the

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original complaint no longer serves any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.
VI.

Summary

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

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The complaint is dismissed with leave to amend because the facts plaintiff has alleged are

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not enough to state a claim for relief. In order to state a claim against defendant Chanan, plaintiff

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must allege facts that show defendant Chanan did more than verbally harass him or make

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suggestive gestures at him. In order to state a claim against defendant Ortega, plaintiff must show

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that Ortega’s failure to report Chanan put plaintiff at risk of serious harm. Finally, to state a

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claim against defendant Fox, plaintiff must explain what Fox did and how it violated his rights.

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The fact that Fox was the warden, without more, is not enough to state a claim.

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If plaintiff chooses to amend his complaint, the first amended complaint must include all

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of the claims plaintiff wants to make because the court will not look at the claims or information

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in the original complaint. In other words, any claims not in the first amended complaint will not

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be considered.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 6) is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend.

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3. Within thirty days from the date of service of this order, plaintiff may file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

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number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an

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original and two copies of the amended complaint. Failure to file an amended complaint in

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accordance with this order will result in dismissal of this action.

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4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

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form used in this district.

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DATED: September 12, 2016

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