Martinez v. Lizarraga et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/27/17 recommending that this action be dismissed. Referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, 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.
FINDINGS AND RECOMMENDATIONS
J. LIZARRAGA, et al.,
Defendants.
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
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to 42 U.S.C. § 1983. On January 23, 2017, the undersigned dismissed plaintiff’s complaint with
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leave to amend. (ECF No. 6.) Pending before the court is plaintiff’s amended complaint. (ECF
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No. 8.) For the reasons stated herein, the undersigned recommends that this action be dismissed.
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Again named as defendants are Warden Lizarraga, Correctional Lieutenant Carrillo,
Correctional Officer Jenkins and Appeals Coordinator Giovacchini. (Id. at 2-3.)
Plaintiff alleges that on April 22, 2016, plaintiff walked into Mule Creek State Prison
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(“MCSP”) Facility A, Unit 5 from the Recreational Activity area. (Id. at 3.) Plaintiff alleges that
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as he entered Unit 5, defendant Jenkins ordered plaintiff to turn around and spread his legs. (Id.)
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Plaintiff complied with this order. (Id. at 3-4.) Plaintiff alleges that defendant Jenkins then
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conducted an unauthorized “pat”search of plaintiff. (Id. at 4.) Plaintiff alleges that there was no
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need for this search. (Id.)
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Plaintiff alleges that the “pat” search was “demeaning, degrading and abusive.” (Id.)
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Plaintiff alleges that defendant Jenkins “ran his four fingers up and down between plaintiff’s
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buttocks.” (Id.) Plaintiff alleges that this conduct constitutes sexual conduct and an excessive use
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of force. (Id.) Plaintiff alleges that he felt violated. (Id.)
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Plaintiff alleges that defendants Lizarraga, Carrillo and Giovacchini denied his
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administrative grievances challenging the pat down search conducted by defendant Jenkins. (Id.
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at 4.)
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Rape or other sexual assault perpetrated by a guard against an inmate is offensive to
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 “karate
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chop” style, into “the cavity of my buttocks ... until it passed between my legs and reached under
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and around until he cupped my genitals,” id. at *4); citing Berryhill v. Schriro, 137 F.3d 1073,
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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. Although plaintiff alleges that the search was not authorized, he has pled no facts
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supporting this allegation. The fact that the search occurred after plaintiff returned to his housing
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unit from the Recreational Activity area suggests that the search was authorized. In any event,
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plaintiff’s allegations indicate that the allegedly inappropriate touching was brief and was not
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accompanied by sexual comments. While the alleged conduct may have been unprofessional, it
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does not state a potentially colorable Eighth Amendment claim.
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Because plaintiff has not stated a potentially colorable Eighth Amendment claim against
defendant Jenkins, plaintiff’s related claims against defendants Lizarraga, Carrillo and
Giovacchini are also not potentially colorable.
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Plaintiff’s original complaint contained the same allegations against defendants Jenkins,
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Lizarraga, Carrillo and Giovacchini. The January 23, 2017 screening order advised plaintiff of
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the relevant legal standards. Because it does not appear that plaintiff can cure the pleading
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defects discussed above, the undersigned recommends that this action be dismissed.
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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.
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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)(l). Within fourteen 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
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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: March 27, 2017
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Mart2275.dis
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