(PC) Lachoy Roychelle Davis v. Andrade

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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LACHOY ROYCHELLE DAVIS, 1:18-cv-01719-LJO-GSA-PC

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Plaintiff, SCREE NING ORDER

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v. ORDE R DISMISSING COMPLAINT FOR

14 FAILU RE TO STATE A CLAIM, WITH LEAVE

J. ANDRADE, et al., TO AMEND

15 (ECF No. 1.)

Defendants.

16 THIRTY-DAY DEADLINE TO FILE FIRST

AMENDED COMPLAINT

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18 I. BACKGROUND

19 Lachoy Roychelle Davis (“Plaintiff”) is a state prisoner proceeding pro se and in forma

20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On December 19, 2018,

21 Plaintiff filed the Complaint commencing this action, which is now before the court for

22 screening. 28 U.S.C. § 1915A. (ECF No. 1.)

23 II. SCREENING REQUIREMENT

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

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

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

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

28 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

1 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

2 paid, the court shall dismiss the case at any time if the court determines that the action or

3 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

4 A complaint is required to contain “a short and plain statement of the claim showing

5 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

6 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are

9 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart

10 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

11 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to

12 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S.

13 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as

14 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting

15 this plausibility standard. Id.

16 III. SUMMARY OF PLAINTIFF’S COMPLAINT

17 Plaintiff is presently incarcerated at the California Correctional Institution in Tehachapi,

18 California. The events at issue in the Complaint allegedly occurred at Wasco State Prison in

19 Wasco, California, when Plaintiff was incarcerated there. Plaintiff names as defendants

20 Correctional Officer (C/O) J. Andrade, C/O T. Miller, and C/O M. Sturges (collectively

21 “Defendants”).

22 Plaintiff allegations follow:

23 On Sunday, May 6, 2018, while returning from A-yard visiting at Wasco State Prison,

24 Plaintiff underwent a low dose body scan at 2:30 p.m. conducted by defendant C/O L. Andrade

25 to determine if he was in possession of any contraband. At the completion of the body scan,

26 Plaintiff was instructed by defendant Andrade to step to the side because the body scan that he

27 underwent was positive for contraband being held in his person. Defendant Andrade then

28 contacted defendants ISU Officer T. Miller, and ISU Officer M. Sturges, and the two responded

1 to the area behind A-yard visiting where all the body scans are conducted when inmates are

2 leaving A-yard visiting. Plaintiff was instructed to follow defendants Miller and Sturges to

3 another room adjacent to the body scan area where he was directed to a white bucked that

4 smelled like urine and feces. Plaintiff was instructed by defendants Miller and Sturges to

5 provide an unauthorized bowel movement in the bucket for inspection while both officers stood

6 and watched. Upon inspection of the stool that Plaintiff provided in the bucket, it was

7 determined that Plaintiff had no contraband in his person, followed by a second body scan.

8 Plaintiff alleges that he was subject to the most humiliating, embarrassing, indecent, and

9 inhumane treatment that he has ever witnessed in prison by correctional staff, and he suffers

10 from recurring mental and emotional stress.

11 Plaintiff requests monetary damages, injunctive relief, filing fees, and court expenses.

12 IV. PLAINTIFF’S CLAIMS

13 A. 42 U.S.C. § 1983

14 The Civil Rights Act under which this action was filed provides:

15 Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes

16 to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

17 secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

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19 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

20 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor,

21 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see

22 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los

23 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir.

24 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

25 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

26 under color of state law and (2) the defendant deprived him of rights secured by the

27 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

28 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing

1 “under color of state law”). A person deprives another of a constitutional right, “within the

2 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or

3 omits to perform an act which he is legally required to do that causes the deprivation of which

4 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th

5 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite

6 causal connection may be established when an official sets in motion a ‘series of acts by others

7 which the actor knows or reasonably should know would cause others to inflict’ constitutional

8 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of

9 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.”

10 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City

11 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

12 B. Due Process Claim -- Fourteenth Amendment

13 The Due Process Clause protects against the deprivation of liberty without due process

14 of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005). In order to

15 invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of

16 a liberty interest for which the protection is sought. Id. Liberty interests may arise from the

17 Due Process Clause itself or from state law. Id.

18 “[L]awfully incarcerated persons retain only a narrow range of protected liberty

19 interests.” Hewitt v. Helms, 459 U.S. 460, 467 (1983). Thus, “[a]s long as the conditions or

20 degree of confinement to which the prisoner is subjected is within the sentence imposed upon

21 him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself

22 subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v.

23 Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543 (1976).

24 In order to find that Plaintiff was entitled to due process protections before being placed

25 on contraband watch, this court must find he had a liberty interest triggering those protections.

26 The Ninth Circuit has held that a seven-day contraband watch “is the type of condition of

27 confinement that is ordinarily contemplated by the sentence imposed.” Chappell v. Mandeville,

28 706 F.3d 1052, 1063 (9th Cir. 2013). Accordingly, placement on temporary contraband watch

1 does not implicate a liberty interest, nor trigger due process protections. Id. at 1063-65. Only

2 the most extreme changes in the conditions of confinement have been found to directly invoke

3 the protections of the Due Process Clause, such as involuntary commitment to a mental

4 institution, see Vitek v. Jones, 445 U.S. 480, 493–94 (1980), or the forced administration of

5 psychotropic drugs, Washington v. Harper, 494 U.S. 210, 221–22 (1990)—neither of which

6 occurred here. Therefore, Plaintiff fails to state a cognizable due process claim.

7 C. Conditions of Confinement -- Eighth Amendment Claim

8 The Eighth Amendment’s prohibition against cruel and unusual punishment protects

9 prisoners not only from inhumane methods of punishment but also from inhumane conditions

10 of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

11 Brennan, 511 U.S. at 847 and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981))

12 (quotation marks omitted). While conditions of confinement may be, and often are, restrictive

13 and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465

14 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions

15 which are devoid of legitimate penological purpose or contrary to evolving standards of

16 decency that mark the progress of a maturing society violate the Eighth Amendment. Morgan,

17 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737,

18 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346. Prison officials have a duty to ensure that

19 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal

20 safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations

21 omitted), but not every injury that a prisoner sustains while in prison represents a constitutional

22 violation, Morgan, 465 F.3d at 1045 (quotation marks omitted).

23 To maintain an Eighth Amendment claim, a prisoner must show that prison officials

24 were deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer,

25 511 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels,

26 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731;

27 Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard

28 involves an objective and a subjective prong. First, the alleged deprivation must be, in

1 objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834. “[R]outine discomfort

2 inherent in the prison setting” does not rise to the level of a constitutional violation. Johnson,

3 217 F.3d at 731. Rather, extreme deprivations are required to make out a conditions of

4 confinement claim, and only those deprivations denying the minimal civilized measure of life’s

5 necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Farmer,

6 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). The

7 circumstances, nature, and duration of the deprivations are critical in determining whether the

8 conditions complained of are grave enough to form the basis of a viable Eighth Amendment

9 claim. Johnson, 217 F.3d at 731. Second, the prison official must “know[] of and disregard[]

10 an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 837. Thus, a prison

11 official may be held liable under the Eighth Amendment for denying humane conditions of

12 confinement only if he knows that inmates face a substantial risk of harm and disregards that

13 risk by failing to take reasonable measures to abate it. Id. at 837-45. Mere negligence on the

14 part of the prison official is not sufficient to establish liability, but rather, the official’s conduct

15 must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128.

16 The Ninth Circuit has held that the normal conditions of contraband watch do not

17 amount to an Eighth Amendment violation. Chappell, 706 F.3d at 1057-62 (9th Cir. 2013.) He

18 does not allege sufficient facts to show that any of the Defendants were deliberately indifferent

19 to a “risk of serious harm” to plaintiff. Farmer, 511 U.S. at 847. Therefore, the court finds that

20 Plaintiff fails to state a cognizable claim regarding the conditions of his confinement on

21 contraband body watch.

22 D. No Monetary Damages Available Without Physical Injury

23 To the extent plaintiff is attempting to assert this claim based on the humiliation he

24 suffered from being forced to endure the contraband watch procedure, Plaintiff’s is not entitled

25 to monetary damages. The Prison Litigation Reform Act provides that “[n]o Federal civil

26 action may be brought by a prisoner confined in jail, prison, or other correctional facility, for

27 mental and emotional injury suffered while in custody without a prior showing of physical

28 injury.” 42 U.S.C. § 1997e(e). The physical injury “need not be significant but must be more

1 than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ) (back and leg pain and

2 canker sore de minimis); see also Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir.

3 2008) (bladder infections and bed sores, which pose significant pain and health risks to

4 paraplegics such as the plaintiff, were not de minimis). The physical injury requirement applies

5 only to claims for mental or emotional injuries and does not bar claims for compensatory,

6 nominal, or punitive damages. Id. at 630. Therefore, Plaintiff is not entitled to monetary

7 damages in this case for emotional distress unless he also shows a physical injury.

8 V. CONCLUSION AND ORDER

9 The court finds that Plaintiff’s Complaint fails to state any claim upon which relief may

10 be granted under § 1983. Therefore, the court will dismiss the Complaint for failure to state a

11 claim and grant Plaintiff leave to file a First Amended Complaint addressing the issues

12 described above.

13 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely

14 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an

15 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v.

16 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First

17 Amended Complaint within thirty days.

18 The First Amended Complaint must allege facts showing what each named defendant

19 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal,

20 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must demonstrate that each defendant

21 personally participated in the deprivation of his rights by their actions. Iqbal, 556 U.S. at 676-

22 77 (emphasis added).

23 Plaintiff should note that although he has been given the opportunity to amend, it is not

24 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith,

25 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff should also note that

26 he is not granted leave to add allegations of events occurring after the date he filed the

27 Complaint, December 19, 2018.

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1 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey

2 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete

3 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an

4 amended complaint, as in an original complaint, each claim and the involvement of each

5 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly

6 titled “First Amended Complaint,” refer to the appropriate case number, and be an original

7 signed under penalty of perjury.

8 Based on the foregoing, it is HEREBY ORDERED that:

9 1. Plaintiff’s Complaint, filed on December 19, 2018, is DISMISSED for failure to

10 state a claim under § 1983, with leave to amend;

11 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form;

12 3. Plaintiff is granted leave to file a First Amended Complaint curing the

13 deficiencies identified by the court in this order, within thirty (30) days from

14 the date of service of this order;

15 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and

16 refer to the case number 1:18-cv-01719-GSA-PC; and

17 5. If Plaintiff fails to file a First Amended Complaint within thirty days, this case

18 shall be dismissed for failure to state a claim.

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IT IS SO ORDERED.

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21 Dated: October 2, 2019 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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