Khouanmany v. United States Marshals et al

Filing 73

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/28/2019 VACATING 64 Findings and Recommendations; GRANTING in PART 68 Motion - granting request to file proposed amended complaint and denying the motion in all other respects; DIRECTING Clerk of Court to separately docket 68 Motion as "Second Amended Complaint"; DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms with Notice of Submission of Documents within 30 days of service of this order; and RECOMMENDING defendants Jones, Gaskin-Bailey, Yao, and Deppe be dismissed without prejudice for the reasons identified in this order. Service is appropriate for Alencastre. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form with instruction sheet, and 1 copies of the Amended Complaint filed on 11/26/2018. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

VILAYCHITH KHOUANMANY,

11
12
13

No. 2:17-cv-1326-TLN-EFB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

UNITED STATES MARSHALS, et al.,

14

Defendants.

15
16

Plaintiff is a federal prisoner proceeding pro se with claims arising under Bivens v. Six

17

Unknown Named Agents, 403 U.S. 388 (1971). She alleges that she was sexually assaulted by

18

male members of the United Marshal Service during transport from the Sacramento County Jail

19

to federal court.

20
21

Background
On September 19, 2017, the court screened plaintiff’s complaint and found that, although

22

she had stated a potentially cognizable claim against unnamed members of the Marshal Service,

23

these defendants could only be served if they were identified. ECF No. 31 at 3. On November

24

30, 2017, the court granted plaintiff’s request for a subpoena duces tecum in order to assist in

25

discovery of the identities of the Doe defendants. ECF No. 38 at 1-2. On February 14, 2018, the

26

court amended the subpoena submitted by plaintiff (having found it to be overbroad) and directed

27

service of the subpoena on the custodian of records for the Marshal Service in the Eastern District

28

of California and the custodian of records for the Sheriff of Sacramento County. ECF No. 42.
1

1

Although no defendant has been served, counsel representing both the United States

2

Marshal and the Sacramento County Sheriff’s Department have filed responses indicating

3

compliance with subpoenas served upon them and production of documents to plaintiff in

4

conjunction therewith. ECF Nos. 54, 55, & 56.

5

On October 19, 2018 – more than a year after the initial complaint in this action was filed

6

- the court recommended dismissal of this action for failure to identify any defendant against

7

whom a cognizable claim could be stated. ECF No. 64. On November 26, 2018, plaintiff filed a

8

lengthy filing wherein she offered objections to the court’s recommendations, asked to amend her

9

complaint, requested appointment of counsel, and made a vague request to extend time. ECF No.

10

68. As discussed below, that filing included a proposed amended complaint which, although

11

difficult to follow, names one defendant against whom this action may proceed. Accordingly, the

12

court vacates its previous findings and recommendations.

13

Amended Complaint

14

As an initial matter, the proposed amended complaint is poorly organized and often

15

difficult to follow. Plaintiff weaves new allegations with legal objections and often repeats

16

herself. Nevertheless, it is apparent that plaintiff has staked a sufficient Eighth Amendment claim

17

against defendant Alencastre. She alleges that Alencastre sexually assaulted her during two

18

searches – once on February 26, 2016 at the federal courthouse and again on March 1, 2016 at the

19

Sacramento County Jail. ECF No. 68 at 7, 13. The court will recommend that all remaining

20

defendants and claims be dismissed.

21

I.

22

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

Screening Requirements

23

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

24

court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

25

“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

26

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

27
28

A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
2

1

Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

2

meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

3

885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

4

on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

5

U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

6

has an arguable legal and factual basis. Id.

7

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

8

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

9

what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.

10

544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

11

However, in order to survive dismissal for failure to state a claim, a complaint must contain more

12

than “a formulaic recitation of the elements of a cause of action;” it must contain factual

13

allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

14

omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

15

merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

16

(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, 1216 (3d

17

ed. 2004)).

18

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

19

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

20

Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

21

that allows the court to draw the reasonable inference that the defendant is liable for the

22

misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

23

under this standard, the court must accept as true the allegations of the complaint in question,

24

Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

25

in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

26

McKeithen, 395 U.S. 411, 421 (1969).

27

/////

28

/////
3

1

II.

2

Other than defendant Alencastre, plaintiff has sued: (1) Sacramento County Sheriff Scott

Analysis

3

Jones; (2) Anne Gaskin-Bailey, Supervising Deputy United States Marshal; (3) United States

4

Marshal Alan Yao; and (4) United States Marshal Sara Deppe. The claims against these

5

individuals are not suitable to proceed in this action.

6
7

A.

Sheriff Jones

As the court explained in its previous findings and recommendations, Sheriff Jones cannot

8

be held responsible for plaintiff’s sexual assault merely because he allowed law enforcement

9

officers of the opposite sex to transport her. There is no legal precedent which demands that a

10

supervisor automatically suspect or assume – absent some specific knowledge that he has or has

11

reason to have – that his subordinates will sexually abuse inmates of the opposite sex. And, in

12

any event, there is no indication that Jones had any control over the United States Marshals

13

accused of wrongdoing in this case.

14

Plaintiff appears to concede as much, but now argues that Jones had control over who

15

entered the county jail and “if he had trained and supervised who goes in and out of his County

16

[jail] . . . the males (sic) Marshals would not [have been] allowed inside Sacramento Jail.” ECF

17

No. 68 at 8. This argument is unconvincing. Nothing in plaintiff’s complaint indicates that Jones

18

had reason to know that any marshal would sexually assault her. Thus, he would have had no

19

reason to interfere with federal law enforcement agents who were, by all appearances, discharging

20

their duty to transport inmates to federal court.

21

Plaintiff alleges that Jones is in violation of the Prison Rape Elimination Act (“PREA”)

22

insofar as sexual assault against inmates is prohibited. Id. It is undeniably true that it is unlawful

23

for law enforcement to sexually assault inmates in their custody. But, again, nothing in the

24

complaint indicates that Jones had any reason to know that plaintiff would be sexually assaulted.

25

The PREA does not provide for automatic liability for prison supervisors whenever an inmate is

26

sexually mistreated. In fact, the majority of courts to consider the issue have determined that the

27

PREA does not actually provide for a private cause of action. See, e.g., Hatcher v. Harrington,

28

2015 U.S. Dist. LEXIS 13799, 2015 WL 474313, at *4-*5 (D. Haw. Feb. 5, 2015) (finding the
4

1

plaintiff's claims under PREA failed, because “[n]othing in the PREA explicitly or implicitly

2

suggests that Congress intended to create a private right of action for inmates to sue prison

3

officials for noncompliance with the Act,” and although there appears to be no federal appellate

4

decision addressing this issue, “district courts nationwide have found that PREA does not create a

5

private cause of action that can be brought by an individual plaintiff”).

6

B.

Defendant Gaskin-Bailey

7

Similar to her allegations against Sheriff Jones, plaintiff claims that Gaskin-Bailey should

8

have ensured that there was at least one female marshal engaged in plaintiff’s transport. ECF No.

9

68 at 5. The court is unaware of any case or statutory law requiring as much.1

10

Next, plaintiff alleges that Gaskin-Bailey should have trained marshals under her

11

supervision to avoid sexually assaulting inmates in their custody. Id. This vague claim is

12

insufficient to implicate wrongdoing. In a Bivens action, a supervisor is only liable if she

13

personally participated in the alleged violations or knew of the violations and failed to act to

14

prevent them. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Thus, it is wholly

15

insufficient for a claimant to offer an unadorned allegation that a supervisor should have trained

16

her subordinates not to act unlawfully.

17
18

Finally, plaintiff appears to allege that Gaskin-Bailey violated the PREA. As described
above, there is no private action under that act.

19

C.

Defendants Yao and Deppe

20

Plaintiff claims that these defendants failed to prevent another inmate who was

21

transported alongside her – Caesar – from sexually assaulting her on the drive from the county

22

jail to the federal courthouse.2 ECF No. 68 at 15, 17. These claims are potentially cognizable,

23

but are legally and factually separate from her claims against defendant Alencastre. Pursuant to

24
1

25
26
27
28

In a perplexing objection, plaintiff disputes this conclusion by stating that sexual abuse
has no penological justification. ECF No. 68 at 5. This statement is correct, plaintiff’s
conclusion from it is a non-sequitur. The transport of an inmate by opposite-sex correctional
officers is not, standing alone, sexual abuse.
2

The court is unable to discern any allegation that either Yao or Deppe was positioned to
intervene during the alleged assaults by Alencastre.
5

1

Federal Rule of Civil Procedure 20(a)(2), individuals may be joined in one action as defendants if

2

any right to relief asserted against them arises out of the same transaction, occurrence or series of

3

transactions and occurrences and any question of law or fact common to all defendants arises in

4

the action. See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims

5

against unrelated defendants belong in different suits”). Whether Alencastre sexually assaulted

6

her during two abusive searches is a question that bears no relation to whether Yao and Deppe

7

took sufficient steps to protect her from a male inmate. Accordingly, the court recommends that

8

these defendants and the claims against them be dismissed.

9

D.

Leave to Amend

10

Given how long this case has persisted without any defendant being served, the court

11

declines to grant plaintiff further leave to amend. Instead, it will direct her to submit service

12

documents for defendant Alencastre and recommend dismissal of all other defendants and claims.

13

Miscellaneous Relief

14

Plaintiff’s request to file her proposed amend complaint is granted. Her request for

15

appointment of counsel is denied for the same reasons identified in the court’s previous order.

16

See ECF No. 67. It is unclear what plaintiff’s request for extension of time relates to and,

17

consequently, that request is denied.

18

Conclusion

19

Based on the foregoing, IT IS HEREBY ORDERED that:

20

1. The findings and recommendations filed on October 19, 2018 (ECF No. 64) are

21

vacated;

22

2. Plaintiff’s motion (ECF No. 68) is GRANTED in part – her request to file her

23

proposed amended complaint is granted and the motion is denied in all other respects;

24

3. The Clerk of Court is directed to separately docket plaintiff’s motion (ECF No. 68) as

25

“Second Amended Complaint”;

26

4. The operative complaint contains allegations sufficient to state a potentially

27
28

cognizable Eighth Amendment claim against defendant Alencastre;
/////
6

1

5. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a

2

copy of the November 26, 2018 complaint, a USM-285 form and instructions for

3

service of process on defendant Ben Alencastre. Within 30 days of service of this

4

order plaintiff may return the attached Notice of Submission of Documents with the

5

completed summons, the completed USM-285 form, and two copies of the endorsed

6

complaint. The court will transmit them to the United States Marshal for service of

7

process pursuant to Rule 4 of the Federal Rules of Civil Procedure. Defendant

8

Alencastre will be required to respond to plaintiff’s allegations within the deadlines

9

stated in Rule 12(a)(1) of the Federal Rules of Civil Procedure;

10

6. Failure to comply with this order may result in dismissal of this action.

11

Further, IT IS HEREBY RECOMMENDED that defendants Jones, Gaskin-Bailey, Yao,

12
13

and Deppe be DISMISSED without prejudice for the reasons identified above.
These findings and recommendations are submitted to the United States District Judge

14

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

15

after being served with these findings and recommendations, any party may file written

16

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

17

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

18

within the specified time may waive the right to appeal the District Court’s order. Turner v.

19

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20

DATED: March 28, 2019.

21
22
23
24
25
26
27
28
7

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

VILAYCHITH KHOUANMANY,

12

Plaintiff,

13
14

No. 2:17-cv-1326 TLN EFB P

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

UNITED STATES MARSHALS, et al.,

15

Defendants.

16
17
18

In accordance with the court’s Screening Order, plaintiff hereby submits the following
forms:

19

1

completed summons form

20

1

completed forms USM-285

21

2

copies of the November 26, 2018 complaint

22
23
24

_________________________________

25
26

Plaintiff
Dated:

27
28
8