Martinez v. Lizarraga et al.

Filing 9

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOAQUIN MARTINEZ,

12
13
14
15

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

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

J. LIZARRAGA, et al.,
Defendants.

16
17

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

18

to 42 U.S.C. § 1983. On January 23, 2017, the undersigned dismissed plaintiff’s complaint with

19

leave to amend. (ECF No. 6.) Pending before the court is plaintiff’s amended complaint. (ECF

20

No. 8.) For the reasons stated herein, the undersigned recommends that this action be dismissed.

21
22
23

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

24

(“MCSP”) Facility A, Unit 5 from the Recreational Activity area. (Id. at 3.) Plaintiff alleges that

25

as he entered Unit 5, defendant Jenkins ordered plaintiff to turn around and spread his legs. (Id.)

26

Plaintiff complied with this order. (Id. at 3-4.) Plaintiff alleges that defendant Jenkins then

27

conducted an unauthorized “pat”search of plaintiff. (Id. at 4.) Plaintiff alleges that there was no

28

need for this search. (Id.)
1

1

Plaintiff alleges that the “pat” search was “demeaning, degrading and abusive.” (Id.)

2

Plaintiff alleges that defendant Jenkins “ran his four fingers up and down between plaintiff’s

3

buttocks.” (Id.) Plaintiff alleges that this conduct constitutes sexual conduct and an excessive use

4

of force. (Id.) Plaintiff alleges that he felt violated. (Id.)

5

Plaintiff alleges that defendants Lizarraga, Carrillo and Giovacchini denied his

6

administrative grievances challenging the pat down search conducted by defendant Jenkins. (Id.

7

at 4.)

8
9

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.

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

without sexual comment, pulled plaintiff's boxers to look at his buttocks, inserted his hand “karate

19

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

20

and around until he cupped my genitals,” id. at *4); citing Berryhill v. Schriro, 137 F.3d 1073,

21

1076 (8th Cir.1998) (affirming summary judgment for defendant on plaintiff's Eighth

22

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

23

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

24

“embarrassed” plaintiff); and Osterloth v. Hopwood, 2006 WL 3337505, *6, *7 (D. Mont. 2006)

25

(dismissing Eighth Amendment claim challenging as sexually abusive an officer's search of

26

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

27

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

28

“that was pretty much sexual assault,” and officer responded, “yah pretty much.”).
2

1

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

2

violation. Although plaintiff alleges that the search was not authorized, he has pled no facts

3

supporting this allegation. The fact that the search occurred after plaintiff returned to his housing

4

unit from the Recreational Activity area suggests that the search was authorized. In any event,

5

plaintiff’s allegations indicate that the allegedly inappropriate touching was brief and was not

6

accompanied by sexual comments. While the alleged conduct may have been unprofessional, it

7

does not state a potentially colorable Eighth Amendment claim.

8
9
10

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.

11

Plaintiff’s original complaint contained the same allegations against defendants Jenkins,

12

Lizarraga, Carrillo and Giovacchini. The January 23, 2017 screening order advised plaintiff of

13

the relevant legal standards. Because it does not appear that plaintiff can cure the pleading

14

defects discussed above, the undersigned recommends that this action be dismissed.

15

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

16

These findings and recommendations are submitted to the United States District Judge

17

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

18

after being served with these findings and recommendations, plaintiff may file written objections

19

with the court and serve a copy on all parties. Such a document should be captioned

20

“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

21

failure to file objections within the specified time may waive the right to appeal the District

22

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

23

Dated: March 27, 2017

24
25
26
27

Mart2275.dis

28
3