Martinez v. Lizarraga et al.

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 1/23/17 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to amend. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN MARTINEZ,

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No. 2: 16-cv-2275 WBS KJN P

Plaintiff,
v.

ORDER

J. LIZARRAGA, et al.,
Defendants.

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

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

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

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, the request to proceed in forma pauperis is granted.
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 to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s 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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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[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.”); Franklin, 745 F.2d at

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1227.

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

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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 Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the
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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Named as defendants are Warden Lizarraga, Lieutenant Carrillo, Correctional Officer

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Jenkins and Correctional Counselor Giovacchini. Plaintiff alleges that defendant Jenkins

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conducted a pat search of plaintiff in an inappropriate sexual manner. Plaintiff alleges that

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defendant Jenkins ran his four fingers up and down between plaintiff’s buttocks. Plaintiff alleges

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that he felt violated. Plaintiff alleges that defendant Jenkins violated his Eighth Amendment

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rights.

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Plaintiff alleges that defendants Lizarraga, Carrillo and Giovacchini failed to protect him
from defendant Jenkins.
Rape or other sexual assault perpetrated by a guard against an inmate is offensive to

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human dignity and violates the Eighth Amendment regardless of lasting physical injury.

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Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 1987). Sexual harassment claims that

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allege brief inappropriate touching by a correctional official are generally found to be

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noncognizable, particularly if the alleged touching occurred pursuant to an authorized search.

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“Even if plaintiff believed that there was a sexual aspect to the search, more is needed.” Smith v.

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Los Angeles County, 2010 WL 2569232, *5 (C.D. Cal. 2010); adopted by 2010 WL 2572570

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(C.D. Cal. 2010); aff'd, 452 Fed. Appx. 768 (9th Cir. 2011) (pretrial detainee failed to state

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Fourteenth Amendment due process claim, or Fourth Amendment unreasonable search claim,

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based on plaintiff’s allegations that defendant correctional officer, pursuant to a search and

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without sexual comment, pulled plaintiff’s boxers to look at his buttocks, inserted his hand

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“karate chop” style, into “the cavity of my buttocks ... until it passed between my legs and

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reached under and around until he cupped by genitals,” id. at *4); citing Berryhill v. Schriro, 137

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F.3d 1073, 1076 (8th Cir.1998) (affirming summary judgment for defendant on plaintiff’s Eighth

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Amendment claim that prison employee’s brief touch (“mere seconds”) to plaintiff’s buttocks

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during “horseplay,” unaccompanied by sexual comments, was an improper sexual advance that

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“embarrassed” plaintiff); and Osterloth v. Hopwood, 2006 WL 3337505, *6, *7 (D.Mont. 2006)
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(dismissing Eighth Amendment claim challenging as sexually abusive an officer’s search of

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plaintiff that allegedly included the officer reaching between plaintiff’s legs, grabbing his scrotum

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and penis, and sliding his hand between plaintiff’s buttocks, wherein plaintiff stated to the officer,

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“that was pretty much sexual assault,” and officer responded, “yah pretty much.”).

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Plaintiff’s allegations against defendant Jenkins do not rise to an Eighth Amendment

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violation. Plaintiff’s allegations suggest that the allegedly inappropriate touching occurred during

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an authorized search, was brief and was not accompanied by sexual comments. While the alleged

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conduct may have been unprofessional, it does not state a potentially colorable Eighth

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Amendment claim. Accordingly, the claim against defendant Jenkins is dismissed.

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Because plaintiff has not stated a potentially colorable Eighth Amendment claim against

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defendant Jenkins, plaintiff’s related claims against defendants Lizarraga, Carrillo and

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Giovacchini for failing to protect him are also not potentially colorable. Accordingly, the claims

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against these defendants are dismissed.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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

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

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

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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.

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3. Plaintiff’s complaint is dismissed.
4. Within thirty days from the date of this order, plaintiff shall complete the attached
Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the

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dismissal of this action.

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Dated: January 23, 2017

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Mart2275.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN MARTINEZ,

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No. 2: 16-cv-2275 WBS KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

J. LIZARRAGA, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
_____________

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Amended Complaint

DATED:
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Plaintiff