Jackson v. Gibbs et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/4/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS RENEE JACKSON,

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No. 2:16-cv-0685-KJM-EFB P

Plaintiff,

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v.

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D. GIBBS, et al.,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND PURSUANT TO 28
U.S.C. § 1915A
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He seeks leave to proceed in forma pauperis.
I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 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.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it

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must be dismissed for failure to state a claim. According to the complaint, defendant Gibbs

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stopped and searched plaintiff when plaintiff was leaving the exercise yard, which was shared by

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“high risk” inmates. Gibbs allegedly told plaintiff, who is confined to a wheelchair, to lean

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forward so he could search the bottom back side of the wheelchair. Gibbs placed his hand down
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the back side of plaintiff’s wheelchair and discovered a small plastic bottle, which plaintiff

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claimed contained soap. Gibbs continued his search by inserting his hand “down the back side of

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plaintiff’s underwear, placing his fingers deeply down the center of plaintiff’s buttocks, nearly

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touching the anal area . . . .” ECF No. 1 ¶ 11. This sent plaintiff into a “verbal rage,” and

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plaintiff asked “what the fuck are you doing?” Id. Gibbs allegedly responded, “I needed to go

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deep,” and then said “I need some of that soap to wash my hands.” Id. Defendant Reece, who

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was also present during the search, then said, “You never had a man on your ass.” Id. ¶ 12.

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Plaintiff claims that defendants Gibbs and Reece, through their “sexual” abuse and comments,

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violated plaintiff’s Eighth and Fourteenth Amendment rights. As set forth below, the allegations

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fail to state a cognizable claim under the applicable standards.
A prison official violates the Eighth Amendment’s proscription of cruel and unusual

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punishment where he or she deprives a prisoner of the minimal civilized measure of life’s

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necessities with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834

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(1994). To state such an Eighth Amendment claim, a prisoner must allege facts showing that (1)

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the defendant prison official’s conduct deprived him or her of the minimal civilized measure of

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life’s necessities and (2) that the defendant acted with deliberate indifference to the prisoner’s

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health or safety. Id. at 834.

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Although prisoners have a right to be free from sexual abuse, the Eighth Amendment’s

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protections do not necessarily extend to mere verbal sexual harassment. Austin v. Terhune, 367

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F.3d 1167, 1171 (9th Cir. 2004); Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012) (“the

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exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this

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nation's prisons of which we do not approve, but which do not violate the Eighth Amendment.”

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(internal quotation marks omitted)). A guard’s physical sexual assault of an inmate, however, is

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“offensive to human dignity” and may violate the Eighth Amendment. Schwenk v. Hartford, 204

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F.3d 1187, 1196-97 (9th Cir. 1987). For an allegedly inappropriate body search to violate the

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Eighth Amendment, the plaintiff must demonstrate that the search amounted to the unnecessary

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and wanton infliction of pain. Jordan v. Gardner, 986 F.2d 1521, 1525-26 (9th Cir. 1993)

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(concluding that “momentary discomfort” is not enough). In the absence of a preexisting mental
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condition or a particularly invasive search, the humiliation allegedly suffered because of

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unwanted physical contact from a correctional officer “does not rise to the level of severe

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psychological pain required to state an Eighth Amendment claim.” Watison, 668 F.3d at 1112-14

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(affirming dismissal of Eighth Amendment claim against correctional officer who allegedly

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entered inmate’s cell while on the toilet, and rubbed his thigh against the inmate’s thigh, while

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smiling and laughing).

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For purposes of the Fourth Amendment, searches of prisoners must be reasonable to be

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constitutional. Nunez v. Duncan, 591 F.3d 1217, 1227 (9th Cir. 2010). “The test of

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reasonableness under the Fourth Amendment is not capable of precise definition or mechanical

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application. In each case it requires a balancing of the need for the particular search against the

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invasion of personal rights that the search entails. Courts must consider the scope of the

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particular intrusion, the manner in which it is conducted, the justification for initiating it, and the

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place in which it is conducted.” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 559, (1979)).

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Here, plaintiff alleges that Gibbs’s initial search consisted of searching behind plaintiff’s

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back when plaintiff was leaving the yard, which was shared by high risk inmates. When this

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initial search produced a small bottle, Gibbs searched further, reaching into plaintiff’s underwear

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and “down the center of plaintiff’s buttocks,” which sent plaintiff into a “verbal rage.” Gibbs and

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Reece then made several “sexual” comments to plaintiff. These allegations fail to demonstrate

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that the conduct of either defendant amounted to the unnecessary and wanton infliction of pain or

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that either had the requisite mental state for an Eighth Amendment violation. In addition, the

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allegations do not suggest that the search was otherwise unreasonable under the circumstances.

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Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable

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legal theory against a proper defendant and sufficient facts in support of that cognizable legal

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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set

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forth the claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also adhere to the following requirements:
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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

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Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order will result in dismissal of this

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action for failure to prosecute. If plaintiff files an amended complaint stating a
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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: October 4, 2017.

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