Patrick v. Johnston, et al.

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 10/6/2017 DISMISSING 4 First Amended Complaint for failure to state a cognizable claim; DENYING AS MOOT 2 Request to Proceed IFP and 6 Motion for Preliminary Injunctive Relief; and ORDERING Clerk of Court to close this case. CASE CLOSED. (Henshaw, R)

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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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Plaintiff,

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No. 2:17-cv-0854 AC P

v.
JOHNSTON, et al.,

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ORDER DISMISSING ACTION
WITHOUT LEAVE TO AMEND
FOR FAILURE TO STATE A CLAIM

Defendants.

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I.

Introduction

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Plaintiff is a state prisoner incarcerated at Mule Creek State Prison (MCSP), under the

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authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff

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proceeds pro se with a First Amended Complaint (FAC) filed pursuant to 42 U.S.C. § 1983, and a

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request for leave to proceed in forma pauperis filed pursuant to 28 U.S.C. § 1915. Plaintiff also

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seeks preliminary injunctive relief.
Plaintiff has consented to the jurisdiction of the undersigned Magistrate Judge for all

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purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). See ECF No. 5. For the reasons

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that follow, the court dismisses the FAC without leave to amend for failure to state a cognizable

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claim, designates the dismissal a “strike” under 28 U.S.C. § 1915(g), and denies as moot

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plaintiff’s request to proceed in forma pauperis and motion for preliminary injunctive relief.

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II.

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Plaintiff has submitted an affidavit and prison trust account statement that make the

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showing required by 28 U.S.C. § 1915(a). See ECF No. 2. Nevertheless, because this action will

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be dismissed without leave to amend, plaintiff’s request to proceed in forma pauperis will be

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denied as moot and plaintiff will not be required to pay the filing fee.

In Forma Pauperis Application

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III.

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The court is required to screen complaints brought by prisoners seeking relief against a

Legal Standards for Screening Prisoner Civil Rights Complaint

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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. Neitzke v.

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Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

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1984).

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

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of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v.

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

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to

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state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a

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claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged. The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

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that a defendant has acted unlawfully.” Id. (citing Twombly at 556). “Where a complaint pleads

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facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
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possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly at 557).

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A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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IV.

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Plaintiff has filed fourteen pro se civil rights cases in the Eastern District since April

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Screening of Plaintiff’s Complaint

2017.1 This court has concurrently screened each of the three cases assigned to the undersigned.2

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A.

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The Allegations of Plaintiff’s FAC

In the FAC, plaintiff names eight defendants and makes four putative claims under the

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Fourteenth Amendment’s Equal Protection Clause, each premised on the alleged sexual

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harassment of plaintiff by correctional officials in March 2017. Plaintiff asserts that he is

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harassed because he “has a large penis [and] is not a homosexual.” ECF No. 1 at 5.

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Claim One alleges that on March 3, 2017, Correctional Officer Martinez conducted a cell

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count when plaintiff was using the toilet. Martinez allegedly looked at plaintiff’s penis, walked

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away, exclaimed to a third party that plaintiff had the biggest penis he’d ever seen, then invited

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Correctional Officer Gilliam to take a look. Gilliam did so, then moved plaintiff to another cell.

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Plaintiff avers that he did not expose his penis to Gilliam.

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Claim Two alleges that on March 4, 2017, Martinez again looked at plaintiff’s penis while

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plaintiff was on the toilet, and again exclaimed to others. About 45 minutes later, while plaintiff

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was still on the toilet, Correctional Officers Martinez and Coder came by; Coder pushed a roll of

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toilet paper through the tray slot, which plaintiff took. About 10 minutes later, an “IEX [indecent

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exposure] curtain” was placed at plaintiff’s cell window. Plaintiff does not know who put up the

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This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).
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Plaintiff’s other cases assigned to the undersigned are Patrick v. Altshuler et al., Case No. 2:17cv-1046 AC P, and Patrick v. Emerson et al., Case No. 2:17-cv-1454 AC P.
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curtain and “received no kind of notification or reason as to why the IEX curtain was placed

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there.” Id. at 6.

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Claim Three alleges that on March 15, 2017, plaintiff was escorted by Correctional

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Officer Crozier to a CDCR 7219 (medical report of injury or unusual occurrence) examination by

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Psych-Tech B. Fitzgerald. Correctional Lamb was also there. Fitzgerald refused to change

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plaintiff’s statement that his neck pain was a “10” rather than “OK.” Plaintiff was then escorted

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to the Lieutenant’s office to be interviewed by Johnston, Altshuler and Vega about an excessive

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force charge at another facility. Plaintiff’s requests to change his statement were again refused,

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and the officers failed to fully videotape the interview. After plaintiff was returned to his cell,

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Coder opened the IEX curtain, looked at plaintiff’s penis, then said he was writing him up.

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“Later Lt. Altshuler found Patrick guilty of IEX.” Id. at 8. The remainder of this claim notes

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additional disciplinary actions and lock up orders against plaintiff, naming various correctional

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officials.

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Claim Four alleges that on March 15, 2017, Correctional Officer Coder appeared at

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plaintiff’s cell door, “opened the IEX curtain, looked in, down at plaintiff’s penis and said ‘I’m

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writing you up.’” Id. at 9. Plaintiff explained that he was using the bathroom, to no avail.

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B.

Failure to State Cognizable Claim

As a general rule, allegations of verbal harassment do not state a viable claim under

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section 1983. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). This is true even

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where the verbal harassment is of a sexual nature. Austin v. Terhune, 367 F.3d 1167, 1171 (9th

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Cir. 2004) (“the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual

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harassment.”). “To hold that gawking, pointing, and joking violates the prohibition against cruel

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and unusual punishment would trivialize the objective component of the Eighth Amendment test

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and render it absurd.” Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997). “We are mindful

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of the realities of prison life, and while we do not approve, we are ‘fully aware that the exchange

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of verbal insults between inmates and guards is a constant, daily ritual observed in this nation’s

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prisons.’” Id. at 622 (quoting Morgan v. Ward, 699 F. Supp. 1025, 1055 (N.D.N.Y. 1988)). Nor

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does a “mere threat” state a cause of action, even if it is “a threat to do an act prohibited by the
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Constitution.” Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam) (mere threat of

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bodily harm did not state cognizable civil rights claim).

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Verbal harassment intended to humiliate or endanger an inmate may, on the other hand,

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violate the Constitution. A cognizable claim for verbal harassment may succeed if the offending

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comments were “gross even for a prison setting and were calculated to and did cause [plaintiff]

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psychological damage.” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135

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F.3d 1318 (9th Cir. 1998); cf. Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986) (finding

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Eighth Amendment claim under the alleged extreme circumstance that a correctional officer

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“pointed a lethal weapon at the prisoner, cocked it, and threatened him with instant death. . . .

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immediately after the prisoner had given testimony against another guard in a § 1983 action . . .

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[and] [t]he death threat was accompanied by racial epithets which strongly suggest that the

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prisoner would have been treated differently had he not been black”).

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In the present case, plaintiff alleges verbal harassment in the form of comments about his

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penis. These allegations do not appear to be particularly gross for a prison setting; nor do they

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appear intended to humiliate plaintiff. Plaintiff repeatedly alleges that he is concerned for his

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safety, has experienced fear, pain and the betrayal of his trust and privacy, and that defendants’

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conduct exhibits an abuse of power. See ECF No. 4 at 5-7, 9. However, plaintiff’s factual

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allegations do not reasonably support these assertions. The court finds that plaintiff’s allegations

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fail to state a cognizable claim for verbal sexual harassment.

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Nor does plaintiff state a cognizable claim premised on disciplinary write-ups, RVR

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proceedings or housing decisions based on the (allegedly false) assessment of correctional staff

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that plaintiff was gratuitously exposing his genitalia. Prisoners have no constitutional right to be

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free from wrongfully issued disciplinary reports. See Buckley v. Gomez, 36 F. Supp. 2d 1216,

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1222 (S.D. Cal. 1997), aff’d without opinion, 168 F.3d 498 (9th Cir. 1999); accord, Sprouse v.

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Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (“Sprouse’s claims based on the falsity of the charges

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. . . do not state constitutional claims.”); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986)

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(“The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly

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accused of conduct which may result in the deprivation of a protected liberty interest.”).
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For these reasons, the court finds that the FAC fails to state a cognizable claim, and that

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amendment would be futile. “It is not an abuse of discretion to deny leave to amend when any

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proposed amendment would be futile.” Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.

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1990).

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C.

This Dismissal Counts as a “Strike” Under 28 U.S.C. § 1915(g)

This court further finds that the dismissal of this case constitutes a “strike” under 28

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U.S.C. § 1915(g). Under this statute, if a prisoner has, on three or more occasions, brought an

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action or appeal “that was dismissed on the grounds that it is frivolous, malicious, or fails to state

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a claim upon which relief may be granted,” the prisoner is precluded from proceeding in forma

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pauperis in case unless he demonstrates that he was “under imminent danger of serious physical

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injury” when he filed his complaint. 28 U.S.C. § 1915(g); see also Andrews v. Cervantes, 493

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F.3d 1047, 1053 (9th Cir. 2007). If this showing cannot be made, the prisoner’s only option for

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proceeding with a new action is to pay the full filing fee.

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IV.

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On August 11, 2017, three months after filing his FAC, plaintiff filed a “motion for

Motion for Preliminary Injunctive Relief

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injunction,” in which he requests that “the court stop misconduct concerning RVR #2460625;”

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plaintiff contends that his appeal challenging the RVR was rejected on the ground that plaintiff

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had “exceeded the allowable number of appeals filed in a 14 day calendar period.” ECF No. 6 at

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1. Plaintiff also appears to seek the court’s intervention in a separate challenge (a “complaint”) to

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the “Board of Nursing” concerning the credibility of “Psych. Tech. B. Fitzgerald” in reporting on

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the subject RVR. Id. at 1-2. Finally, plaintiff “is requesting the court to stop mail mishandling,”

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noting that his “quarterly package [was] returned to me four months later,” with documentation.

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Id. at 2.

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“A preliminary injunction is an ‘extraordinary and drastic remedy,’ 11A C. Wright, A.

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Miller, & M. Kane, Federal Practice and Procedure § 2948, p. 129 (2d ed.1995) [] (footnotes

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omitted); it is never awarded as of right, Yakus v. United States, 321 U.S. 414, 440 (1944).”

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Munaf v. Geren, 553 U.S. 674, 689-90 (2008). “The sole purpose of a preliminary injunction is

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to “preserve the status quo ante litem pending a determination of the action on the merits.” Sierra
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Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009) (citing L.A. Memorial Coliseum

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Comm’n v. NFL, 634 F.2d 1197, 1200 (9th Cir.1980)). Additionally, in cases brought by

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prisoners involving conditions of confinement, any preliminary injunction “must be narrowly

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drawn, extend no further than necessary to correct the harm the court finds requires preliminary

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relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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Plaintiff’s motion for preliminary injunctive relief is only tangentially related, if at all, to

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his putative sexual harassment claims. Moreover, a district court may not issue preliminary

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injunctive relief without primary jurisdiction over the underlying cause of action, Sires v. State of

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Washington, 314 F.2d 883, 884 (9th Cir. 1963), or parties, Zenith Radio Corp. v. Hazeltine

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Research, Inc., 395 U.S. 100 (1969) (an injunction against individuals who are not parties to the

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action is strongly disfavored). Because this action will be dismissed, there is no status quo to

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maintain pursuant to preliminary injunctive relief. Therefore, plaintiff’s motion will be denied as

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moot.

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V.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s First Amended Complaint, ECF No. 4, is dismissed without leave to amend

Conclusion

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for failure to state a cognizable claim; this dismissal shall count as a “strike” under 28 U.S.C. §

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1915(g).

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2. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, and motion for preliminary
injunctive relief, ECF No. 6, are denied as moot.

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3. The Clerk of Court is directed to close this case.

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SO ORDERED.

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DATED: October 6, 2017

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