Reed v. Racklin, et al.

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 6/9/2017 GRANTING 5 Motion to Proceed IFP and DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms within 30 days of service of this order. Plaintiff to pay statutory filing fee of & #036;350. All payments collected in accordance with notice to CDCR filed concurrently herewith. Allegations in pleading sufficient to state potentially cognizable Eighth Amendment claim against defendant Racklin. Service is appropriate for E. Rack lin. DISMISSING all other claims with leave to amend within 30 days of service of this order. Clerk to send plaintiff: 1 Summons, 1 USM-285 Forms and instructions for service, and 1 copies of the Complaint filed on 4/17/2017. Plaintiff to return Notice of Submission of Documents with completed service documents within 30 days of service of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER J. REED, 12 Plaintiff, 13 14 No. 2:17-cv-00799 AC P v. ORDER E. RACKLIN, et. al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), plaintiff has filed an application to 19 proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 5. 20 I. Application to Proceed In Forma Pauperis The court has reviewed plaintiff’s application and finds that it makes the showing required 21 22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 25 26 II. Screening Requirements The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 6 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 7 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 8 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 9 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 10 11 has an arguable legal and factual basis. Id. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 12 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 14 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 16 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 17 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 18 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 19 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 20 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d 21 ed. 2004)). 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 24 Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 27 under this standard, the court must accept as true the allegations of the complaint in question, 28 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 2 1 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 III. Screening Order 4 A. 5 Plaintiff alleges that on April 4, 2016, while incarcerated at California State Prison – Background 6 Solano (Solano), he was summoned to defendant Racklin’s office for a “pre-committee 7 interview.” ECF No. 1 at 6. Plaintiff alleges that upon his arrival, Racklin sexually harassed him 8 by asking whether plaintiff could “jack him off in the blink of an eye.” Id. Plaintiff informed 9 Racklin that he would be filing a complaint, and Racklin stated that his comment was intended as 10 a joke. Id. 11 After the meeting with Racklin, plaintiff approached defendant Easterling and told him 12 about the incident. Id. Easterling brusquely told him to file a grievance form. Id. Eventually, 13 plaintiff filed a complaint and an investigation into the incident was conducted. Plaintiff claims 14 that defendant White acted improperly when he closed a Prison Rape Elimination Act (PREA) 15 investigation into the incident without interviewing plaintiff or a mental health professional to 16 whom plaintiff had spoken about the incident. Id. at 7. 17 On April 13, 2016, plaintiff was directed to attend a committee meeting. Id. He asked 18 several staff members whether Racklin would be present at the meeting, and each told him that he 19 would not be. Id. at 7-8. Plaintiff attended the meeting and spotted Racklin, which caused him to 20 suffer an anxiety attack and nervous breakdown. Id. at 8. Plaintiff was subsequently excused 21 from the meeting by defendant Popvich. Id. Plaintiff alleges that defendants Easterling, Arnold, 22 White, and Popvich violated his rights under the PREA by forcing him to confront Racklin on 23 that date. Id. at 10. 24 Plaintiff alleges that, since the incident with Racklin, he suffers from nightmares, 25 troubling thoughts, and feelings of anger and helplessness. Id. at 9. He also claims that he now 26 has difficulty adjusting to new environments and people. Id. Finally, he states that he has 27 developed a deep homophobia and has homicidal feelings toward homosexual individuals. Id. 28 //// 3 1 B. 2 After review of the complaint, the court finds that plaintiff has stated a potentially 3 cognizable Eighth Amendment Claim against defendant Racklin. Generally, allegations of verbal 4 harassment do not state a viable claim under section 1983. See Oltarzewski v. Ruggiero, 830 5 F.2d 136, 139 (9th Cir. 1987). This is true even where the verbal harassment is of a sexual 6 nature. Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (holding that “the Eighth 7 Amendment's protections do not necessarily extend to mere verbal sexual harassment.”). A claim 8 based on verbal harassment can succeed, however, if the offending comments were “gross even 9 for a prison setting and were calculated to and did cause [plaintiff] psychological damage.” Analysis 10 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Here plaintiff alleges that Racklin’s 11 comments caused him psychological damage. The court does not decide whether the comments 12 were gross in the context of a prison setting or calculated to cause plaintiff psychological damage. 13 It finds only that plaintiff could potentially be entitled to relief on this claim and that the claim 14 should proceed past screening. 15 Plaintiff’s other claims based on violations of the PREA will be dismissed with leave to 16 amend. The PREA does not give rise to a private cause of action. See Miller v. Brown, No. 1:12- 17 CV-01589-LJO, 2014 U.S. Dist. LEXIS 15116, 2014 WL 496919, at *8 (E.D. Cal. Feb. 6, 2014), 18 report and recommendation adopted, No. 1:12-CV-01589-LJO, 2014 U.S. Dist. LEXIS 26171, 19 2014 WL 806957 (E.D. Cal. Feb. 28, 2014); Porter v. Jennings, NO. 1:10-cv-01811-AWI-DLB 20 PC, 2012 U.S. Dist. LEXIS 58021, 2012 WL 1434986, *1 (E.D. Cal. Apr. 25, 2012). 21 IV. 22 Leave to Amend Plaintiff may either continue only with his Eighth Amendment claim against defendant 23 Racklin or he may choose to file an amended complaint which attempts to remedy the 24 deficiencies with his other claims. If plaintiff chooses to file an amended complaint it should 25 observe the following: 26 Any amended complaint must identify as a defendant only persons who personally 27 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 28 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 4 1 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 2 legally required to do that causes the alleged deprivation). 3 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 4 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 5 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 6 Any amended complaint must be written or typed so that it so that it is complete in itself 7 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 8 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 9 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 10 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 11 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 12 1967)). 13 Finally, the court notes that any amended complaint should be as concise as possible in 14 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 15 procedural or factual background which has no bearing on his legal claims. He should also take 16 pains to ensure that his amended complaint is as legible as possible. This refers not only to 17 penmanship, but also spacing and organization. Lengthy, unbroken paragraphs can be difficult to 18 read when handwritten and plaintiff would do well to avoid them wherever possible. 19 IV. 20 21 Plain Language Summary of the Order for a Pro Se Litigant You have been granted in forma pauperis status and will not have to pay the entire filing fee immediately. 22 The court has found that your complaint states an Eighth Amendment claim against 23 defendant Racklin. Your claims against the other defendants are being dismissed because there is 24 no private cause of action under the PREA. 25 You can either go forward with just your claim against Racklin or you can submit an 26 amended complaint which fixes the problems with your other claims. 27 //// 28 //// 5 1 2 VI. Conclusion Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 5) is granted. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. The allegations in the pleading are sufficient to state a potentially cognizable 8 Eighth Amendment claim against defendant Racklin. All other claims are 9 dismissed with leave to amend within 30 days of service of this order. Plaintiff is 10 not obligated to amend his complaint. 11 4. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a 12 copy of the April 17, 2017 complaint, and one USM-285 form and instructions for 13 service of process on defendant Racklin. Within 30 days of service of this order 14 plaintiff may return the attached Notice of Submission of Documents with the 15 completed summons, the completed USM-285 form, and two copies of the 16 endorsed complaint. The court will transmit them to the United States Marshal for 17 service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure. 18 Defendant Racklin will be required to respond to plaintiff’s allegations within the 19 deadlines stated in Rule 12(a)(1) of the Federal Rules of Civil Procedure. 20 21 5. Failure to comply with this order may result in dismissal of this action. DATED: June 9, 2017 22 23 24 25 26 27 28 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER J. REED, 12 No. 2:17-cv-00799 AC P 13 14 Plaintiff, v. NOTICE OF SUBMISSION OF DOCUMENTS E. RACKLIN, et. al., 15 Defendants. 16 17 In accordance with the court’s Screening Order, plaintiff hereby elects to: 18 (1) ______ 19 proceed only with the Eighth Amendment claims against defendant Racklin, and submits the following documents: 20 1 completed summons form 21 1 completed forms USM-285 22 2 copies of the April 17, 2017 complaint 23 OR 24 (2) ______ delay serving any defendant and files an amended complaint in accordance 25 with the court’s Screening Order. 26 DATED: _________________________________ Plaintiff 27 28 1

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