Silva v. Nathu

Filing 17

ORDER signed by Magistrate Judge Deborah Barnes on 9/26/2017 DISMISSING plaintiff's amended complaint and plaintiff has 30 days to file an amended complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE SILVA,

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Plaintiff,

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No. 2:15-cv-1721 KJM DB P

v.

ORDER

P. NATHU,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1). On April 21, 2016, plaintiff’s complaint was dismissed with

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leave to amend for failure to state a potentially cognizable claim. (ECF No. 9.) On May 26,

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2016, plaintiff filed a “motion to amend,” which consisted of an emended complaint. (ECF No.

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14.) The court previously granted plaintiff leave to amend and deemed the amended complaint

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timely filed. (ECF No. 16.)

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I.

Screening Requirement
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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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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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II.

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Plaintiff’s Allegations
Plaintiff is a transgendered inmate who was housed at Mule Creek State Prison in Ione,

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California, during all times relevant to this action. On January 8, 2015, plaintiff had a “one-on-

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one” with defendant psychiatrist, Dr. P. Nathu, in a holding cage. During this meeting, Dr. Nathu

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“started massaging his penis … while asking me to perform for him, and he would provided [sic]

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any medications for me.” When plaintiff became angry because he got propositioned, Dr. Nathu

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left. Plaintiff seeks damages for the psychological and emotional distress that he suffered as a

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result of Dr. Nathu’s improper conduct.

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III.

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Discussion
The Eighth Amendment prohibits cruel and unusual punishment in penal institutions.

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Whether a specific act constitutes cruel and unusual punishment is measured by “the evolving

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standards of decency that mark the progress of a maturing society.” Hudson v. McMillian, 503

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U.S. 1, 8 (1992). “Sexual harassment or abuse of an inmate by a corrections officer is a violation

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of the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1045-46 (9th Cir. 2012) (citing

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Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and most absolute of

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terms...prisoners [have a clearly established Eighth Amendment right] to be free from sexual

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abuse....”)). This is so even without evidence of physical injury because “at its core, the Eighth

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Amendment protects ‘the basic concept of human dignity’ and forbids conduct that is ‘so totally

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without penological justification that it results in the gratuitous infliction of suffering.’ ... We

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have previously held that a sexual assault on a prisoner by a prison guard is always ‘deeply

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offensive to human dignity’ and is completely void of penological justification.” Id. at 1050-51.

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Because there was no allegation that Dr. Nathu touched plaintiff and also no allegation

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that defendant acted in an effort to cause plaintiff psychological damage, the court found that

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plaintiff failed to state an Eighth Amendment claim in the original complaint. (ECF No. 9.) In

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the initial screening order, the court stated that plaintiff must allege facts that would raise Dr.

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Nathu’s conduct beyond the isolated incident of verbal harassment identified in the complaint.

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(Id.)

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In his amended complaint, plaintiff alleges that Dr. Nathu propositioned him during a one-

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on-one meeting, but, again, there is no allegation that Dr. Nathu actually touched plaintiff.

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“[V]erbal harassment generally does not violate the Eighth Amendment.” Keenan v. Hall, 83

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F.3d 1083, 1092 (9th Cir. 1996) (implying that harassment “calculated to . . . cause [the prisoner]

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psychological damage” might state an Eighth Amendment claim) (citing Oltarzewski v. Ruggiero,

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830 F.2d 136, 139 (9th Cir. 1987)), amended by 135 F.3d 1318 (9th Cir. 1998); see also Austin v.

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Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (explaining that “the Eighth Amendment’s

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protections do not necessarily extend to mere verbal sexual harassment.”). Plaintiff has not

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submitted any additional facts beyond those in the original complaint, which were deemed
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insufficient to state a claim. Because there is no allegation that Dr. Nathu touched plaintiff and

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also no allegation that the defendant acted in an effort to cause plaintiff psychological damage,

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the court finds that plaintiff fails to state an Eighth Amendment claim.

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IV.

Conclusion

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As discussed supra, plaintiff’s amended complaint fails to state a claim. In the interest of

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justice, the court will provide plaintiff with one more opportunity to state a cognizable claim. If

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plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conduct complained

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of has resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant

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

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link or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode,

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423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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

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Plaintiff’s amended complaint (ECF No. 14) is dismissed; and

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2.

Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

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of Civil 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 “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 a recommendation that this action be dismissed.

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Dated: September 26, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL.RIGHTS / silv.1721.scrn.fac

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