Hopkins v. Alameda County Sheriff's Department et al

Filing 27

ORDER DISMISSING ALL CLAIMS IN AMENDED COMPLAINT AND DENYING PLAINTIFF'S PENDING MOTIONS. Signed by Judge Claudia Wilken on 3/28/2011. (ndr, COURT STAFF) (Filed on 3/28/2011)

Hopkins v. Alameda County Sheriff's Department et al

Doc. 27

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

3 KEVIN L. HOPKINS, 4 Plaintiff, 5 v. 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Kevin L. Hopkins, a state prisoner currently incarcerated at Avenal State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983 alleging constitutional violations stemming from his incarceration at Santa Rita Jail in Alameda County. On April 20, 2010, Plaintiff filed a "Motion for Temporary Injunction." At the time he filed his motion, Plaintiff stated He alleges that he ALAMEDA COUNTY DEPUTY FESMIRE, et al., Defendants. / ORDER DISMISSING ALL CLAIMS IN AMENDED COMPLAINT AND DENYING PLAINTIFF'S PENDING MOTIONS No. C 09-2164 CW (PR)

that he was still being housed at Santa Rita.

is in need of an "emergency preliminary injunction to be transferred to the Northern County Jail in Oakland to prevent reprisals for filing [this] lawsuit that alleged sexually malicious assault under color of state law by Deputy Fesmire." Temporary Injunction at 1.) (Mot. for

The Court notes that since he filed

his Motion for Temporary Injunction, Plaintiff has informed the Court that he has been transferred to Avenal State Prison. The

transfer to a different prison makes his requested relief moot. Accordingly, Plaintiff's Motion for Temporary Injunction (docket no. 15) is DENIED as moot. Following an initial review of the complaint, the Court issued an Order Dismissing Plaintiff's Complaint With Leave to Amend. The

Dockets.Justia.com

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following background relating to the exhaustion of the Plaintiff's claims in his complaint pursuant to the Prison Litigation Reform Act of 1995 (PLRA) is taken from the Court's May 7, 2010 Order: Plaintiff contends that he "presented two grievances, first one being tracking #09G-50649, 4-11-09 and 09G50670 4-15-09," both of which he has attached to his complaint. (Compl. at 2.) However, Plaintiff does not allege whether he received responses to his two grievances from the highest level of review available to him. As to grievance #09G-50649, it was "received" by Defendant Fesmire on April 11, 2009; however, it states that the grievance "can not [sic] be resolved at this level." (Attach. to Compl., Grievance #09G-50649.) There is no indication as to whether grievance #09G50649 was forwarded to the Sergeant. (Id.) Meanwhile, grievance #09G-50670 was "received" by Deputy Christensen on April 15, 2009; however, there is no further information indicating whether it was resolved by Deputy Christensen or whether it was forwarded to the Sergeant. (Attach. to Compl., Grievance #09G-50670.) It thus appears Plaintiff has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a). (May 7, 2010 Order at 3-4.) The Court dismissed Plaintiff's

15 complaint with leave to amend to show that he exhausted all of his 16 claims against each Defendant prior to filing this action. 17 Court also indicated that in his original complaint, Plaintiff only 18 named Defendants Alameda County Sheriff Gregory Ahern and Deputy 19 Fesmire. 20 desire to sue the "Classification Deputies" who placed him in 21 administrative segregation for non-disciplinary, allegedly 22 retaliatory, reasons. 23 unable to determine the names of these unnamed defendants, then he 24 may later attempt through discovery to ascertain their names and 25 then move for leave to amend his complaint to add them as 26 defendants. 27 individuals did that caused the violation of specific 28 2 Plaintiff was also directed to explain what these The Court notified Plaintiff that if he was In the body of the complaint, Plaintiff also mentioned a The

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constitutional rights. On May 12, 2010, Plaintiff filed an amended complaint, which the Court now reviews to determine whether it states cognizable claims for relief. In his amended complaint, Plaintiff alleges that "on April 10, 2009, Defendant Fesmire conducted a cell search on cell #10." Compl. at 3.) (Am.

Plaintiff states that the cell was occupied by both (Id.) Defendant Fesmire then "found (Id.)

himself and inmate Vanburen.

stockpiled medications in both occupants of cell bed area."

Plaintiff alleges that he was "the only inmate that [Defendant Fesmire] conducted a pat down search fondling and groping [his] penis and testicles." (Id.) Plaintiff claims that Defendant

Fesmire then handcuffed him and took him to an isolation cell where he was told to strip down. (Id.) Plaintiff alleges that the

"strip search" Defendant Fesmire conducted on him "was intrusive and had homosexual undertones." (Id.) Plaintiff further alleges

that during the "strip search," Defendant Fesmire "was aroused." (Id.) Plaintiff adds, "The search was excessive, vindictive . . . (Id.) Plaintiff claims that Defendant Fesmire

sexual harassment."

"made it obvious that he was acting in a aggressive homosexual nature." (Id.)

On April 11, 2009, Plaintiff filed a grievance against Defendant Fesmire, alleging that the search he conducted was with "flagrant disrespect" and also "humiliating." Compl., Grievance #09G-S0649.1) (Attach. to Am.

Plaintiff claims that he was

The Court notes that the grievance tracking numbers were incorrectly referred to as #09G-50649 and #09G-50670 in the Court's May 7, 2010 Order. The exhibits attached to the amended complaint 3

1

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"further outraged" because Defendant Fesmire asked him if he had "some sexual stuff going on." (Id. at 3-1.)2 Plaintiff alleges

that inmate Vanburen told Defendant Fesmire that Plaintiff "was parading around cell butt naked." (Id.)

On April 13, 2009, Plaintiff filed a second grievance, "depicting [Defendant Fesmire's] actions" during the cell and strip search. (Attach. to Am. Compl., Grievance #09G-S0670.) Plaintiff

adds that he has "exhausted all remedies as is attested by attachment of such responses." (Id. at 3-1.) Plaintiff claims

that "there was no penological concern for [Defendant Fesmire] to stripp [sic] search [him] after already giving [him] a sexually suggestive pat down search." (Id.) Plaintiff claims that jail

officials had already conducted a search of his cell and "contraband prescribed meds were found in both inmates quarters . . . ." (Id.) Finally, Plaintiff claims that because of

the strip search he suffered "outrage, humiliation, emotional[] distress and a host of reprisals, harassments from other staff members." (Id. at 3-2.)

Plaintiff alleges that he was then transferred out of Santa Rita on an unspecified date and that when he returned on April 10, 2010, he "spoke with [the] Mental Health Counselor of the abuse [he] experienced." (Id.) He also claims that on April 23, 2010,

he was housed with another inmate, Stanley Huff, who was "so despondent and so unattached with reality," that Plaintiff pressed show that the tracking numbers should be #09G-S0649 and #09G-S0670. (Attach. to Am. Compl., Grievance #09G-S0649 & #09G-S0670.) Plaintiff attached four pages to page three of his amended complaint; therefore, the Court has numbered them "3-1" through "34." 4
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the "intercom that [is] used for emergencies" and attempted to alert jail officials that inmate Huff "should not [have] been housed with another inmate." (Id.) When no one responded to his

call, Plaintiff alleges Inmate Huff "launched a physical attack" on him. (Id.) After the deputies separated the two inmates,

Plaintiff claims that he needed medical attention for his injuries. (Id.) (Id.) Finally, Plaintiff refers to the original claim involving Defendant Fesmire and generally alleges that "classification placed [him] in administrative segregation for non-disciplinary retaliatory reasons in concert with Deputy Fesmire . . . ." at 3-3.) (Id. However, Deputy Mullencaux denied him medical attention.

However, Plaintiff does not name the "Classification

Deputies" responsible for the alleged unconstitutional classification because he claims he "will later attempt to name all defendants through discovery to ascertain their names and ask for further permission for leave to amend this complaint." (Id.)

In sum, Plaintiff alleges that Defendant Fesmire violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourth Amendment right to be free from unreasonable searches. (Id. at 3-4.) Plaintiff raises new allegations stemming

from the April 23, 2010 incident involving Inmate Huff and Deputy Mullencaux. (Id. at 3-3.) Plaintiff also claims that

"Classification Deputies" violated his Fourteenth Amendment rights to procedural due process for "placing him in administrative segregation for non-disciplinary reasons." (Id. at 3-4.)

Plaintiff claims he suffered "physical, emotional and mental injury." (Id.) 5

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Finally, Plaintiff requests appointment of counsel to assist him in pursuing his claims. (Id. at 3-3.)

Also before the Court are Plaintiff's motions requesting service on Defendants (docket nos. 17, 25). DISCUSSION Exhaustion Plaintiff has submitted new information relating to exhaustion in his amended complaint -- including the administrative appeals attached as exhibits -- showing that he received responses from the highest level of review available to him, the Commanding Officer. Therefore, Court concludes that, for the purposes of review of Plaintiff's amended complaint, he has satisfactorily shown that he has exhausted the claim relating to the April 10, 2009 incident involving Defendant Fesmire. Plaintiff has not exhausted his available administrative remedies as to the new allegations in his amended complaint before filing his federal complaint, however. Specifically, as of the

time he filed his amended complaint, Plaintiff claims that the exhaustion of his "new allegations" relating to the April 23, 2010 incident involving Inmate Huff and Deputy Mullencaux is "still pending." (Am. Compl. at 3-4.) In addition, Plaintiff has not

attached to his amended complaint any of the grievances he submitted relating to the April 23, 2010 incident. Therefore,

Plaintiff seeks "leave to ammend [sic] when Plaintiff can incorporate new allegations procedurally." (Id.)

The Court stated as follows in its May 7, 2010 Order: "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or 6

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particular episodes, and whether they allege excessive force or some other wrong." (May 7, 2010 Order at 3 (citing Porter v. The Court added: "Exhaustion

Nussle, 534 U.S. 516, 532 (2002)).)

of all 'available' remedies is mandatory; those remedies need not meet federal standards, nor must they be 'plain, speedy and effective.'" (2001). Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Wyatt v. (Id.); Booth v. Churner, 532 U.S. 731, 739-40 & n.5

However, a complaint

may be dismissed by the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120.

Here, Plaintiff concedes he has not exhausted his administrative remedies as to the new allegations relating to the April 23, 2010 incident. Plaintiff has not presented any

extraordinary circumstances which might permit him to be excused from complying with PLRA's exhaustion requirement. Cf. Booth, 532

U.S. at 741 n.6 (courts should not read "futility or other exceptions" into § 1997e(a)). Accordingly, the claims in the amended complaint relating to the April 23, 2010 incident -- and specifically involving Inmate Huff and Deputy Mullencaux -- are DISMISSED without prejudice to refiling in a new action after exhausting California's prison administrative process. See McKinney v. Carey, 311 F.3d 1198,

1199-1201 (9th Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available administrative 7

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remedies before he filed suit, even if prisoner fully exhausts while the suit is pending). Therefore, Plaintiff's request for

leave to amend to add these new allegations is DENIED. II. Legal Claims A. Eighth Amendment Claim

Plaintiff claims that on April 10, 2009, Defendant Fesmire conducted a clothed body search on him after doing a cell search, and during the search began "fondling and groping [sic] his penis and testicles." (Am. Compl. at 3.)

The conduct alleged by Plaintiff does not rise to the level of an Eighth Amendment violation. Sexual assault, coercion and

harassment certainly may violate contemporary standards of decency and cause physical and psychological harm. See Jordan v. Gardner, However, not

986 F.2d 1521, 1525-31 (9th Cir. 1993) (en banc).

every malevolent touch by a prison guard or official gives rise to an Eighth Amendment violation -- the Eighth Amendment's prohibition against cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of force. See Hudson v.

McMillian, 503 U.S. 1, 9-10 (1992); Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (no Eighth Amendment violation where employees briefly touched inmate's buttocks with apparent intent to embarrass him). A prisoner therefore must establish that the

alleged sexual harassment was egregious, pervasive and/or widespread in order to state a claim under the Eighth Amendment. See, e.g., Jordan, 986 F.2d at 1525-31 (prison policy requiring male guards to conduct body searches on female prisoners); Watson v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (correctional officer sexually harassed two inmates on almost daily basis for two 8

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months by conducting deliberate examination of genitalia and anus). Here, according to Plaintiff, Defendant Fesmire handled Plaintiff's penis and genitals during a clothed body search. Plaintiff has not indicated that there was any more than a de minimis injury resulting from the isolated brief incident. Accordingly, Plaintiff's Eighth Amendment claim against Defendant Fesmire is DISMISSED for failure to state a claim for relief. B. Fourth Amendment Claim

The Fourth Amendment applies to the invasion of bodily privacy in prisons and jails. Bull v. San Francisco, 595 F.3d 964, 974-75 To analyze a claim alleging a violation

(9th Cir. 2010) (en banc).

of this privacy right, the court must apply the test set forth in Turner v. Safley, 482 U.S. 78, 89 (1987), and determine whether a particular invasion of bodily privacy was reasonably related to legitimate penological interests. See Bull, 595 F.3d at 973.

Prisoners and pretrial detainees in institutional settings may be subjected to strip searches and body cavity searches if they are conducted in a reasonable manner. 520, 561 (1979). See Bell v. Wolfish, 441 U.S.

The Fourth Amendment right to be secure against

unreasonable searches extends to incarcerated prisoners, but the reasonableness of a particular search must be determined by reference to the prison context. F.2d 328, 332 (9th Cir. 1988). Here, the search at issue involved a strip search at a jail. However, Plaintiff does not claim that the search by Defendant Fesmire was unreasonable or conducted in an abusive manner. Plaintiff alleges that he was transferred to an isolation cell and told to strip down. In his grievance, he specifically states that 9 See Michenfelder v. Sumner, 860

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Defendant Fesmire "conduct[ed] a humiliating strip search to view [his] anatomy." (Attach. to Am. Compl., Grievance No. 09G-S0649.)

While he claims such a search was "intrusive and had homosexual undertones," (Am. Compl. at 3), such conclusory allegations do not amount to a constitutional violation. Moreover, Plaintiff seems to

allege that it was only a visual strip search that was conducted by Defendant Fesmire. The record shows that the visual strip search

was conducted after Defendant Fesmire had found "stockpiled medications" in Plaintiff's cell. As noted above, the Court must consider the reasonableness of the search under Bell to determine if the search was reasonably related to legitimate penological interests under Turner. prisoner bears the burden of showing that prison officials intentionally used exaggerated or excessive means to enforce security in conducting a search. 694, 700 (9th Cir. 1997). See Thompson v. Souza, 111 F.3d The

In Thompson, the Ninth Circuit held that

visual strip searches and urine tests to search for drugs were reasonably related to the prison officials' legitimate penological interest in keeping drugs out of prison. Id. Therefore, here, as

in Thompson, the Court finds that Defendant Fesmire's visual strip search -- directly after finding "stockpiled medications" in Plaintiff's cell -- was reasonably related to the legitimate penological interest in keeping drugs out of Santa Rita. Therefore, there is no evidence that the strip search conducted here violated Plaintiff's Fourth and Fourteenth Amendment rights. C. Claims Against "Classification Deputies" and Defendant Ahern

In its May 7, 2010 Order, the Court conducted an initial 28 10

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screening of Plaintiff's due process claim against the "Classification Deputies" pursuant to 28 U.S.C. § 1915A(a), and also of his claim against Defendant Ahern. In his amended

complaint, Plaintiff again asserts that the "Classification Deputies" placed him in administrative segregation for nondisciplinary reasons. However, Plaintiff does not amend his claim Therefore, all claims against Defendant

against Defendant Ahern.

Ahern are DISMISSED for failure to state a claim. Reviewing Plaintiff's original claim against the "Classification Deputies," the Court found that he failed to provide any additional facts and that his allegations were not sufficient to state a plausible claim that his constitutional rights were violated. Therefore, the Court dismissed this claim In amending,

with leave to amend to cure this pleading deficiency.

Plaintiff was directed to "explain what these individuals did that caused the violation of specific constitutional rights." (May 7,

2010 Order at 5 (citing Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988)).) The Court added, "Conclusory allegations of wrongdoing,

similar to his allegations in the instant complaint, will not do." Id. Finally, Plaintiff was directed to show that he exhausted his

administrative remedies with respect to any claim against the "Classification Deputies" before he filed his suit. The amended

complaint simply reiterates the same vague allegations against the "Classification Deputies" that were stated in the original complaint, including his conclusory allegations of being placed in administrative segregation for "non-disciplinary" reasons. Compl. at 3-3.) (Am.

Nowhere in his amended complaint does Plaintiff

allege additional facts sufficient to show that the "Classification 11

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Deputies'" actions rose to the level of constitutional violations. While Plaintiff states that he "exhausted all grievance remedies," (id. at 3-4), he has failed to explain how he exhausted his administrative remedies with respect to his claims against the "Classification Deputies." Finally, the Court finds that Plaintiff

has failed to name the individually responsible defendants and to link them specifically to his due process claim. Accordingly, the

Court finds that Plaintiff's amended complaint does not cure the pleading deficiency identified in the Court's Order dismissing his due process claim with leave to amend. Therefore, his due process

claim against the "Classification Deputies" is DISMISSED without leave to amend, but without prejudice to refiling in a new complaint after exhausting administrative remedies. Any new,

exhausted complaint must name the defendants and include sufficient facts to state a claim. CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff's Motion for Temporary Injunction (docket no.

15) is DENIED as moot. 2. Plaintiff's claims in the amended complaint relating to

the April 23, 2010 incident -- and specifically involving Inmate Huff and Deputy Mullencaux -- are DISMISSED without prejudice to refiling in a new action after exhausting California's prison administrative process. His request for leave to amend to add

these new allegations is DENIED. 3. Plaintiff's remaining claims against Defendant Fesmire in

his amended complaint are DISMISSED with prejudice and without

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leave to amend. 4. Plaintiff's claim against the "Classification Deputies"

is DISMISSED without leave to amend, but without prejudice to refiling in a new complaint after exhausting administrative remedies. 5. Because the Court has dismissed all claims in his amended

complaint, Plaintiff's motion for appointment of counsel and his motions requesting service on defendants (docket nos. 17, 25) are DENIED. 6. The Clerk of the Court shall enter judgment in accordance

with this Order, terminate all pending motions and close the file. 7. This Order terminates Docket nos. 15, 17 and 25.

IT IS SO ORDERED. Dated: 3/28/2011 CLAUDIA WILKEN United States District Judge

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1 2 3 KEVIN L. HOPKINS, 4 Plaintiff, 5 v. 6

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-02164 CW CERTIFICATE OF SERVICE ALAMEDA COUNTY SHERIFFS DEPT. et al,

7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Kevin L. Hopkins V76611 Bldg. 510 / 40U Avenal State Prison P.O. Box 9 Avenal, CA 93204 Dated: March 28, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 28, 2011, 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.