Patrick v. Ross et al

Filing 11

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/26/2018 ORDERING the Clerk to assign a district court judge to this case and RECOMMENDING this action be dismissed for failure to state a claim upon which relief can be granted. Assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 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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NICHOLAS PATRICK,

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No. 2:17-cv-0720 CKD P

Plaintiff,
v.

ORDER AND

ROSS, et al.,

FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. On August 16, 2017, the court screened plaintiff’s original complaint as the court is

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required to do under 28 U.S.C. § 1915A(a). The court dismissed plaintiff’s complaint with leave

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to amend. Plaintiff filed an amended complaint on August 31, 2017.

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During the screening process, the court must dismiss a complaint or portion thereof if the

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prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2).

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As plaintiff has been already been informed, in order to avoid dismissal for failure to state

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a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a

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formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of
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action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). Furthermore, a claim upon which the court can grant relief has 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, 93-94 (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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In his amended complaint, plaintiff again alleges he was subjected to unwanted sexual

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advances and taunting by female Correctional Officer Ross and was ultimately verbally goaded

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by her into exposing himself, which resulted in plaintiff’s being placed in segregated housing for

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some unspecified period of time. As plaintiff was informed in the court’s original screening

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order, prisoners have a right to be free of physical sexual abuse from correctional officers, but the

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Eighth Amendment protection generally does not apply to verbal harassment even when sexual in

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nature. Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). All of plaintiff’s allegations in

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his amended complaint which are sexual in nature concern verbal harassment and, in any case, do

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not rise to the level of cruel and unusual punishment forbidden by the Eighth Amendment.

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With respect to the hearing that resulted in plaintiff being disciplined, plaintiff does not

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state a cognizable claim for violation of due process because he does not allege facts which

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suggest that he was deprived of a protected liberty interest. Such liberty interests are “generally

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limited to freedom from restraint which, while not exceeding the sentence in such an unexpected

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manner as to give rise to protection by the Due Process Clause of its own force, [citations

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omitted], nonetheless imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). Plaintiff has not

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alleged that he has suffered atypical and significant hardship as a result of a temporary

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assignment to a higher level of custody.

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Finally, plaintiff alleges he has been retaliated for filing prisoner grievances. However,

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the court does not identify any facts which suggest a defendant took any adverse action against
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plaintiff in retaliation for plaintiff’s exercise of his First Amendment rights which also did not

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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68

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(9th Cir. 2005).

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For all of the foregoing reasons, plaintiff’s amended complaint fails to state a claim upon

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which relief can be granted. Because plaintiff’s amended complaint contains essentially the same

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content as the original, despite the court providing guidance to plaintiff in the court’s August 16,

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2017 screening order concerning the deficiencies of plaintiff’s claims, leave to amend will not be

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granted a second time.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district
court judge to this case.

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IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a
claim upon which relief can be granted.

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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 after

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

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: January 26, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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patr0720.14(2)

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