Anderson v. San Francisco Sheriff Department et al

Filing 11

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Alfred J. Anderson. Signed by Judge James Donato on 11/17/15. (lrcS, COURT STAFF) (Filed on 11/17/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALFRED J. ANDERSON,

Case No. 15-cv-03737-JD

Plaintiff,
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v.

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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SAN FRANCISCO SHERIFF
DEPARTMENT, et al.,
Defendants.

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United States District Court
Northern District of California

Re: Dkt. No. 7

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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He has been granted leave to proceed in forma pauperis.
DISCUSSION

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I.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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United States District Court
Northern District of California

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II.

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LEGAL CLAIMS
Plaintiff alleges that a jail guards assaulted him and pepper sprayed him and an X-ray

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technician inappropriately touched his thigh, leg, and buttock. When a pretrial detainee challenges

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conditions of his confinement, the proper inquiry is whether the conditions amount to punishment

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in violation of the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441

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U.S. 520, 535 n.16 (1979). The Due Process Clause protects a post-arraignment pretrial detainee

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from the use of excessive force that amounts to punishment. See Graham v. Conner, 490 U.S.

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386, 395 n. 10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535–39 (1979)); see also Gibson v.

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County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002). The Ninth Circuit has stated the

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factors a court should consider in resolving a due process claim alleging excessive force. White v.

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Roper, 901 F.2d 1501, 1507 (9th Cir. 1990). These factors are (1) the need for the application of

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force, (2) the relationship between the need and the amount of force that was used, (3) the extent

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of the injury inflicted, and (4) whether force was applied in a good faith effort to maintain and

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restore discipline. Id.

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A prisoner may state an Eighth Amendment claim under § 1983 for sexual harassment if

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the alleged sexual harassment was sufficiently harmful, i.e., a departure from “the evolving

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standards of decency that mark the progress of a maturing society,” and the defendant acted with

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intent to harm the prisoner. See Thomas v. District of Columbia, 887 F. Supp. 1, 3-4 (D.D.C.
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1995) (citing Hudson v. McMillian, 503 U.S. 1, 6, 8 (1992)) (internal quotations and citation

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omitted). Sexual assault, coercion and harassment certainly may violate contemporary standards

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of decency and cause physical and psychological harm, see Jordan v. Gardner, 986 F.2d 1521,

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1525-31 (9th Cir. 1993) (en banc); Women Prisoners of the District of Columbia Dep’t of

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Corrections v. District of Columbia, 877 F. Supp. 634, 664-67 (D.D.C. 1994); however, not every

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malevolent touch by a prison guard or official gives rise to an Eighth Amendment violation--the

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Eighth Amendment’s prohibition against cruel and unusual punishment necessarily excludes from

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constitutional recognition de minimis uses of force. See Hudson, 503 U.S. at 9-10; Watison v.

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Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (no Eighth Amendment violation against officer
who was alleged to have rubbed his thigh against plaintiff’s thigh while plaintiff was on toilet and

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United States District Court
Northern District of California

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to have begun smiling before leaving cell laughing).

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In the complaint, plaintiff briefly describes various acts committed against him on June 11,

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2015, July 1, 2015, and July 10, 2015. This action was filed on July 31, 2015. Plaintiff has also

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filed a letter that describes other incidents in August 2015. While plaintiff describes informal

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appeals filed related to these incidents, it is not clear if the claims have been fully exhausted and if

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plaintiff seeks to amend the complaint with additional allegations. The complaint will be

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dismissed with leave to amend to address these issues. Plaintiff should provide a clearer statement

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of his allegations and describe the actions of each individual defendant and more information to

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support his claim of sexual harassment including the name of the defendant medical technician.

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He should present all of his claims in the amended complaint.
CONCLUSION

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1.

The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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and civil case number used in this order and the words AMENDED COMPLAINT on the first

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this action.
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2.

Plaintiff’s motion for permission for electronic case filing (Docket No. 7) is

DENIED because plaintiff is incarcerated.
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It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: November 17, 2015

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________________________
JAMES DONATO
United States District Judge

United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALFRED J. ANDERSON,

Case No. 15-cv-03737-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SAN FRANCISCO SHERIFF
DEPARTMENT, et al.,
Defendants.
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on November 17, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Alfred J. Anderson ID: #15669262
c/o PLS
555 7th Street
Suite 201
San Francisco, CA 94103

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Dated: November 17, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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