Hardney v. Moncus, et al.
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/28/2016 GRANTING plaintiff's 6 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. IT IS RECOMMENDED that the 1 complaint be dismissed without leave to amend. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHN HARDNEY,
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Plaintiff,
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No. 2:15-cv-1842 KJM AC P
v.
ORDER and FINDINGS AND
RECOMMENDATIONS
L. MONCUS, et al.,
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Defendants.
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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and
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has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding
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was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
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I.
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.
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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 this order, plaintiff will be assessed an initial partial filing fee in
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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.
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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §
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1915(b)(2).
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II.
Statutory Screening of Prisoner Complaints
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 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.
Complaint
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Plaintiff alleges that on February 9, 2014, he and his cellmate, Zamora, were standing in
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their cell eating when an officer approached the cell, restrained plaintiff, and escorted him to the
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program office. ECF No. 1 at 8. Plaintiff was informed he was going to Administrative
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Segregation because defendant Moncus had observed plaintiff masturbating in the top bunk as she
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walked by conducting standing count. Id. at 9. A prison disciplinary hearing was postponed at
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plaintiff’s request while the Amador County District Attorney’s office investigated. Id. at 35-36.
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The District Attorney’s office initiated criminal charges against plaintiff, but later dismissed the
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charges in the interest of justice, because defendant Moncus renounced her statements. Id. at 10,
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35-37.
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After the criminal charges were dismissed, a disciplinary hearing was held. Id. at 35-36.
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At the disciplinary hearing, defendant Moeckly served as the hearing officer over plaintiff’s
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objection that he was biased, due to the fact that Moeckly had failed to perform his duties as an
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investigating officer in plaintiff’s unrelated excessive force complaint. Id. at 10.
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Plaintiff requested Zamora and defendant Moncus be called as witnesses at the
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disciplinary hearing. Id. at 10-11, 37. His request as to Zamora was denied because it was
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determined Zamora had no relevant or additional information other than the answers he had
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already provided to plaintiff’s questions in the investigating officer’s report. Id. at 37. During the
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hearing, defendant Moncus stated she observed plaintiff masturbating on the date in question. Id.
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However, plaintiff complains that defendant Moeckly failed to document plaintiff’s statement that
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the case had been dismissed by the D.A. because Moncus had renounced her statement. Id. at 11.
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Plaintiff was found guilty of violating California Code of Regulations, Title 15, § 3007
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based on the written Rules Violation Report (“RVR”) authored by defendant Moncus which
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stated that she witnessed plaintiff lying on the upper bunk exposing himself and masturbating. Id.
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at 12, 35, 38. As punishment for receiving the RVR, plaintiff was sentenced to ten days loss of
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yard and one hundred eighty (180) days loss of canteen, appliances, vendor packages, telephone,
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and personal property privileges. Id. Plaintiff was not assessed any loss of behavior credits as a
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result of the RVR. Id.
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Plaintiff alleges defendant Moncus violated his Eighth Amendment rights when she
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entered the male housing unit without first announcing her presence which constituted sexual
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harassment in violation of the Prison Rape Elimination Act (“PREA”). Id. at 13-15. Plaintiff
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alleges defendant Moeckly violated his Fourteenth Amendment rights by failing to provide
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plaintiff with a fair disciplinary hearing. Id. at 16. He further alleges defendants Lizarraga and
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Beard violated his Fourteenth Amendment rights because, as top administrative employees, they
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were aware or should have been aware of the due process violations when plaintiff brought them
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to their attention through the appeals process. Id. at 17.
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IV.
Failure to State a Claim
A. Legal Standard for the Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishment of a person convicted of a
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crime. U.S. Const. amend. VIII. “The Constitution . . . ‘does not mandate comfortable prisons,’
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and only those deprivations denying ‘the minimal civilized measure of life’s necessities’ are
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sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501
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U.S. 294, 298 (1991) (internal citations omitted) (quoting Rhodes v. Chapman, 452 U.S. 337,
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347, 349). Whether a specific act constitutes cruel and unusual punishment is measured by “‘the
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evolving standards of decency that mark the progress of a maturing society.’” Rhodes, 452 U.S.
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at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). In evaluating a
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prisoner’s claim, courts consider whether “‘the officials act[ed] with a sufficiently culpable state
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of mind’ and if the alleged wrongdoing was objectively ‘harmful enough’ to establish a
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constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (alteration in original)
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(quoting Wilson, 501 U.S. at 298, 303).
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“Although prisoners have a right to be free from sexual abuse, [. . .] the Eighth
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Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v.
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Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted); Schwenk v. Hartford,
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204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and most absolute of terms” prisoners have
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a clearly established Eighth Amendment right to be free from sexual abuse.). While “the Ninth
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Circuit has recognized that sexual harassment may constitute a cognizable claim for an Eighth
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Amendment violation, the Court has specifically differentiated between sexual harassment that
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involves verbal abuse and that which involves allegations of physical assault, finding [only] the
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latter to be in violation of the constitution.” Minifield v. Butikofer, 298 F. Supp. 2d 900, 904
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(N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198)); Austin, 367 F.3d at 1171-72 (officer’s
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conduct was not sufficiently serious to violate the Eighth Amendment where officer exposed
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himself to prisoner but never physically touched him); Patrick v. Martin, 402 F. App’x 284, 285
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(9th Cir. 2010) (sexual harassment claim based on verbal harassment insufficient to state a claim
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under § 1983) (citing Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)).
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In general, allegations of verbal harassment or abuse do not state a cognizable claim under
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§ 1983. Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997); Somers v. Thurman, 109 F.3d
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614 (9th Cir. 1997) (found inmate failed to state a claim where female correction officers pointed,
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joked, and “gawked” at an inmate while he showered). Plaintiff’s only allegation is that
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defendant Moncus did not announce her presence as she walked into the housing unit. The
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complaint makes clear that at all times plaintiff was in his cell and defendant Moncus was outside
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of plaintiff’s cell, and she did not say anything as she conducted standing count. ECF No. 1 at 9.
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Based on the facts alleged, plaintiff cannot state a claim for sexual harassment in violation of the
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Eighth Amendment because there was no physical contact or even verbal exchange between
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plaintiff and defendant Moncus.
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B. PREA Violation
“Section 1983 imposes liability on anyone who, under color of state law, deprives a
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person ‘of any rights privileges, or immunities secured by the Constitution and laws.’” Blessing
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v. Freestone, 520 U.S. 329, 340 (1997). “In order to seek redress through § 1983, however, a
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plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Id.
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(emphasis in original) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106
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(1989). The PREA, 42 U.S.C. § 15601-15609, “authorizes the reporting of incidents of rape in
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prison, allocation of grants, and creation of a study commission,” but there is nothing in the
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PREA to indicate that it created a private right of action, enforceable under § 1983. Porter v.
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Jennings, No. 1:10-cv-01811-AWI-DLB PC, 2012 WL 1434986, at *1, 2012 U.S. Dist. LEXIS
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58021, at *3 (E.D. Cal. Apr. 25, 2012); see also Law v. Whitson, No. 2:08-cv-0291-SPK, 2009
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WL 5029564, at *4, 2009 U.S. Dist. LEXIS 122791, at *9 (E.D. Cal. Dec. 15, 2009); Bell v.
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County of Los Angeles, No. CV 07-8187-GW(E), 2008 WL 4375768, at *6, 2008 U.S. Dist.
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LEXIS 74763, *16 (C.D. Cal. Aug. 25, 2008); Inscoe v. Yates, No. 1:08-cv-001588 DLB PC,
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2009 WL 3617810, at *3, 2009 U.S. Dist. LEXIS 108295, *8 (E.D. Cal. Oct. 28, 2009); see also
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Blessing, 520 U.S. at 340-41 (statutory provision gives rise to federal right enforceable under §
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1983 where the statute “unambiguously impose[d] a binding obligation on the States” by using
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“mandatory, rather than precatory, terms”). Since the Act itself contains no private right of
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action, nor does it create a right enforceable under §1983, defendant Moncus’ alleged PREA
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violation fails to state a claim for relief.
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Plaintiff appears to allege that defendant Moncus failed to comply with a national standard
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set by the PREA, 28 C.F.R. § 115.15(d), which requires prisons to implement policies and
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procedures requiring “staff of opposite gender to announce their presence when entering an
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inmate housing unit.” He alleges that defendant Moncus’s failure to follow that policy amounted
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to sexual harassment in violation of the Eighth Amendment. However, as set forth above,
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plaintiff has not alleged facts sufficient to support an Eighth Amendment claim and because the
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PREA does not provide a private right of action enforceable under § 1983, alleging a violation of
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that act does not state a claim.
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C. Legal Standard for the Fourteenth Amendment
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Under the Due Process Clause of the Fourteenth Amendment, the government cannot
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deprive a person of “life, liberty, or property” without due process of law. U.S. Const. amend.
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XIV. A due process claim requires a constitutionally protected liberty or property interest.
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Ingraham v. Wright, 430 U.S. 651, 672 (1977). “Constitutionally protected liberty interests can
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arise under either state law or the Due Process Clause.” Duffy v. Riveland, 98 F.3d 447, 456-57
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(9th Cir. 1996) (citing Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987)). The
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Constitution itself does not confer on inmates a liberty interest in the more adverse conditions of
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confinement. Wilkinson v. Austin, 545 U.S. 209, 221(2005). However, “a liberty interest in
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avoiding particular conditions of confinement may arise from state policies or regulations.” Id. at
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222.
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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full
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panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
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U.S. 539, 556 (1974). However, an inmate subject to disciplinary sanctions that include the loss
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of good time credits must receive (1) twenty-four-hour advanced written notice of the charges
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against him, id. at 563-64; (2) a written statement by the fact finder as to the evidence relied on
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and the reasons for the action, id. at 564-65; (3) an opportunity to call witnesses and present
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documentary evidence where doing so “will not be unduly hazardous to institutional safety or
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correctional goals,” id. at 566; (4) assistance at the hearing if he is illiterate or if the matter is
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complex, id. at 570; and (5) a sufficiently impartial fact finder, id. at 570-71. A finding of guilt
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must also be “supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445,
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454 (1985).
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In this case, plaintiff did not lose any good time credits and the Wolff court noted that its
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decision was not meant to “suggest . . . that the procedures required . . . for the deprivation of
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good time would also be required for the imposition of lesser penalties such as the loss of
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privileges.” Wolff, 418 U.S. at 571 n.19. Therefore, in order to demonstrate that he is entitled to
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the due process outlined in Wolff, plaintiff must show that the disciplinary caused a change in
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confinement that “impose[d] atypical and significant hardship on [him] in relation to the ordinary
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incidents of prison life.” Sandin v. O’Conner, 515 U.S. 472, 484 (1995). In determining if the
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deprivation imposes an atypical and significant hardship, the court considers:
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“1) whether the challenged condition ‘mirrored those conditions
imposed upon inmates in administrative segregation and protective
custody,’ and thus comported with the prison’s discretionary
authority; 2) the duration of the condition, and the degree of
restraint imposed; and 3) whether the state’s action will invariably
affect the duration of the prisoner’s sentence.”
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Brown v. Oregon Dept. of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (quoting Ramirez v. Galaza,
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334 F.3d 850, 861 (9th Cir. 2003)).
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Plaintiff alleges his Fourteenth Amendment due process rights were violated when
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defendant Moeckly failed to provide him with a fair disciplinary hearing because he had
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predetermined plaintiff’s guilt, depriving him of a sufficiently impartial fact finder. ECF No. 1 at
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16. Plaintiff also appears to argue that there was not “some evidence” on which to base the guilty
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finding. Id. at 11-12. However, the attachments to the complaint demonstrate that plaintiff was
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assessed only a temporary loss of privileges as punishment for being found guilty of the RVR. Id.
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at 38. Specifically, plaintiff was assessed ten days loss of yard and one hundred eighty days loss
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of canteen, appliances, vendor packages, telephone, and personal property privileges. Id.
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Considering that the duration of plaintiff’s sentence was not affected, the nature of the privileges
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lost, and the defined and temporary duration of the loss, the revocation of privileges does not
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constitute a dramatic departure from ordinary conditions of prison life, and therefore does not
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establish the existence of a liberty interest sufficient to warrant due process protections. See
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Sandin, 515 U.S. at 485 (“Discipline by prison officials in response to a wide range of misconduct
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falls within the expected perimeters of the sentence imposed by a court of law.”); Keenan v. Hall,
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83 F.3d 1083, 1092 (9th Cir. 1996) (no constitutional right to canteen items); Baker v. Walker,
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No. CIV S-08-1370 DAD P, 2008 WL 2705025, at *3, 2008 U.S. Dist. LEXIS 54808, at *9 (E.D.
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Cal. July 9, 2008) (“A temporary loss of privileges . . . does not ‘present a dramatic departure
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from the basic conditions’ of prison life.” (quoting Sandin, 515 U.S. at 486)); see also Borcsok v.
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Early, 299 F. App’x 76, 78 (2nd Cir. 2008) (ninety-day “confinement and loss of privileges did
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not rise to a liberty interest, warranting procedural due process protection”); Carter v. Tucker, 69
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F. App’x 678, 679-80 (6th Cir. 2003) (nine-month loss of package privileges not an atypical and
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significant hardship); Smith v. Roper, 12 F. App’x 393, 396 (7th Cir. 2001) (six-month loss of
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privileges does not implicate a liberty interest).
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D. Supervisory Liability
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“Under Section 1983, supervisory officials are not liable for actions of subordinates on
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any theory of vicarious liability.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). A
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supervisor may be liable only if (1) he or she is personally involved in the constitutional
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deprivation, or (2) there is “a sufficient causal connection between the supervisor’s wrongful
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conduct and the constitutional violation.” Id. at 646. A supervisor may be liable if the supervisor
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“knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045
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(9th Cir. 1989). However, claims based solely on a defendant’s position as a supervisor do not
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state a claim under § 1983. Id. Supervisory liability may also exist without any personal
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participation if the prison official implemented “a policy so deficient that the policy itself is a
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repudiation of 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) (citation and internal
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quotation marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825
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(1970).
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Because plaintiff has failed to state claims against defendants Moncus and Moeckly, any
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supervisory claims against Lizarraga and Beard must fail because their subordinates did not
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violate his rights. However, even if plaintiff was entitled to and denied the due process outlined
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in Wolff, his allegations against Lizarraga and Beard fail to state facts showing defendants
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personally participated in, directed, or had knowledge of and failed to prevent the due process
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violations. Plaintiff alleges defendants Lizarraga and Beard violated his Fourteenth Amendment
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rights because he brought due process violations to their attention through the appeals process and
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they did not correct his conviction. ECF No. 1 at 17. In order to be liable under § 1983 a prison
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official must have done something more than fail to correct an alleged violation brought to their
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attention in a grievance after the violation has occurred. See Taylor, 880 F.2d at 1045 (upholding
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dismissal of defendant when plaintiff failed to provide facts showing defendant knew of and
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failed to prevent constitutional violations); Anaya v. CDCR, No. 1:16-cv-00040-MJS (PC), 2016
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WL 7178527, at *5, 2016 U.S. Dist. LEXIS 170202, at *12 (E.D. Cal. Dec. 8, 2016) (“[T]he
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denial of a prisoner’s administrative appeal generally does not cause or contribute to the
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underlying violation.” (citing George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007))). Alleging that
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defendants violated his rights by failing to correct a due process violation that had already
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occurred when he brought it to their attention through the grievance process does not state a
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claim. To state a claim under § 1983 plaintiff must state facts showing that the defendant
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personally participated in or knew of and failed to stop an ongoing violation.
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The complaint also alleges that defendants Lizarraga and Beard’s failure to require
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officers to comply with the PREA allowed officers to sexually abuse and harass inmates. ECF
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No. 1 at 17. As explained above, plaintiff’s allegations that Moncus sexually harassed and
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abused him by not announcing herself prior to conducting count are insufficient to rise to the
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level of an Eighth Amendment violation and violations of the PREA do not state a claim for
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relief, so even if Lizarraga and Beard could be held responsible for Moncus’ actions, any failure
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to train Moncus or correct her behavior also fails to state a claim for relief.
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Because the actions of defendants Moncus and Moeckly did not violate plaintiff’s
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constitutional rights, plaintiff cannot show that defendants Lizarraga or Beard knew of ongoing
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constitutional violations and failed to stop or prevent them or that they were personally involved
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in a violation of his constitutional rights. For these reasons plaintiff has failed to state a claim
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against defendants Lizarraga and Beard.
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V.
No Leave to Amend
If the Court finds that a complaint should be dismissed for failure to state a claim, the
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Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122,
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1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that
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the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31;
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see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be
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given leave to amend his or her complaint, and some notice of its deficiencies, unless it is
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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) (citing
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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it
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is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to
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amend. Cato, 70 F.3d at 1005-06.
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The undersigned finds that, as set forth above, plaintiff’s complaint fails to state a claim
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upon which relief may be granted. Moreover, given the nature of plaintiff’s claims, there is no
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way for plaintiff to amend the complaint to state a claim for which relief can be granted and leave
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to amend would be futile. “A district court may deny leave to amend when amendment would be
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futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).
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VI.
Summary
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Plaintiff’s request to proceed in forma pauperis is granted.
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It is recommended that the complaint be dismissed without leave to amend because
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amendment would be futile. Plaintiff’s allegations fail to state a claim for sexual harassment in
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violation of the Eighth Amendment because defendant Moncus did not touch plaintiff or make
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any harassing comments. Amendment would be futile because plaintiff alleges he was in his cell
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when Moncus walked by and she did not touch him or say anything when she walked by.
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Without a touching or a harassing comment plaintiff cannot state a claim for sexual harassment in
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violation of the Eighth Amendment.
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Plaintiff’s Fourteenth Amendment claim against defendant Moeckly also fails to state a
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claim for relief. In order to state a claim, plaintiff must allege facts showing he had a liberty
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interest in maintaining his privileges and he did not receive the benefit of proper procedures
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during the disciplinary hearing. Based on the privileges plaintiff lost and the temporary nature of
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the loss, plaintiff was not subject to an atypical and significant hardship and therefore had no
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liberty interest at stake.
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Because he has failed to state claims against defendants Moncus and Moeckly, plaintiff’s
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claims against defendants Beard and Lizarraga are also dismissed. The claims are also dismissed
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because he must allege facts showing some affirmative act on the part of defendants that deprived
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him of a constitutional right. It is not enough to state that they knew or should have known of the
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alleged constitutional violations because they reviewed his appeal after the alleged constitutional
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violations occurred. Further, since defendant Moncus’ behavior did not violate his constitutional
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rights, he cannot show that an unconstitutional policy existed that was implemented by the named
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defendants.
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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 is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §
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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
In accordance with the above, IT IS HEREBY RECOMMENDED that the complaint be
dismissed without leave to amend.
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)(1). Within twenty-one 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 and serve a copy on all parties. Such a document should be captioned “Objections
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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: December 28, 2016
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12
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