Perna-Schwartz v. San Francisco Sheriff's Department et al

Filing 3

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint, filed by Melissa Perna-Schwartz. Signed by Judge James Donato on 3/17/16. (lrcS, COURT STAFF) (Filed on 3/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELISSA PERNA-SCHWARTZ,
Plaintiff,

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SAN FRANCISCO SHERIFF'S
DEPARTMENT, et al.,

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United States District Court
Northern District of California

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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Case No. 16-cv-00427-JD

Defendants.

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

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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 states that while at San Francisco County Jail she was the victim of excessive

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force, she was sexually harassed, and forced to expose herself to other inmates. The Due Process

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Clause of the Fourteenth Amendment protects a post-arraignment pretrial detainee from the use of

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excessive force that amounts to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)

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(citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)); cf. Pierce v. Multnomah County, Oregon, 76

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F.3d 1032, 1043 (9th Cir. 1996) (Fourth Amendment reasonableness standard applies to

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allegations of use of excessive force against pre-arraignment detainee). To prevail under 42

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U.S.C. section 1983, a pretrial detainee must show only that the “force purposely or knowingly

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used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473

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(2015). “A court must make this determination from the perspective of a reasonable officer on the

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scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. “A

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court (judge or jury) cannot apply this standard mechanically.” Id. “[O]bjective reasonableness

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turns on the ‘facts and circumstances of each particular case.’” Id. (quoting Graham v. Connor,

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490 U.S. at 396). A non-exhaustive list of considerations that may bear on the reasonableness of

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the force used include “the relationship between the need for the use of force and the amount of

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force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit

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the amount of force; the severity of the security problem at issue; the threat reasonably perceived
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by the officer; and whether the plaintiff was actively resisting.” Id.
A cross-gender strip search that involves touching the inmate’s genitalia and searching
inside his anus is unreasonable as a matter of law in a non-emergency situation. Byrd v. Maricopa

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Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc). Although a cross-gender

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strip search is unreasonable, that does not mean that all cross-gender searches are unreasonable, or

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that prisoners of one gender may not be guarded by guards of the other gender. Thus, the holding

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in Byrd is not inconsistent with the earlier holding in Grummett v. Rushen, 779 F.2d 491, 494 (9th

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Cir. 1985), that upheld a system of assigning female officers within a correctional facility such

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that they occasionally viewed male inmates in various states of undress and conducted routine pat-

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downs of fully clothed inmates. See Byrd, 629 F.3d at 1142. Assigned positions of female guards

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United States District Court
Northern District of California

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that require only infrequent and casual observation, or observation at a distance, of unclothed male

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prisoners and that are reasonably related to prison needs are not so degrading as to warrant court

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interference. See Michenfelder v. Summer, 860 F.2d 328, 334 (9th Cir. 1988); Grummett, 779

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F.2d at 494-95; see also Jordan v. Gardner, 986 F.2d 1521, 1524-25 (9th Cir. 1993) (en banc)

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(privacy interest in freedom from cross-gender clothed body searches not “judicially recognized”).

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The issue is whether officers regularly or frequently observe unclothed inmates of the opposite sex

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without a legitimate reason for doing so. See Michenfelder, 860 F.2d at 334.

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Plaintiff states that she was the victim of excessive force that resulted in bruised wrists, a

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black eye, and sprained finger. She also states that she was forced to remove her pants in front of

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other inmates and she was sexually harassed by a deputy. The only defendant is Lt. Krol, though

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plaintiff does not identify his specific actions in the complaint.

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The complaint is dismissed with leave to amend to identify the specific actions of the

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defendant and to describe how her constitutional rights were violated in more detail. Plaintiff has

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also attached a grievance she filed with the jail that provides additional information and names

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additional jail deputies. However, the grievance describes several incidents and it is not clear

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which incident is the subject of the complaint. Plaintiff should be clear in an amended complaint

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regarding the underlying facts of her action and if she wants to proceed against these other

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deputies she must name them as defendants in an amended complaint and identify their specific
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actions.
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). She 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 case.

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2.

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

United States District Court
Northern District of California

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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: March 17, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELISSA PERNA-SCHWARTZ,

Case No. 16-cv-00427-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SAN FRANCISCO SHERIFF'S
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 March 17, 2016, 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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Melissa Perna-Schwartz
#15668342
425 7th Street
San Francisco, CA 94103

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Dated: March 17, 2016

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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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