(PC) Erbacher v. Robles

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JUSTIN J. ERBACHER, Case No. 1:23-cv-01194-JLT-BAM (PC)

12 Plaintiff, SCREENING ORDER GRANTING

PLAINTIFF LEAVE TO FILE AMENDED

13 v. COMPLAINT

14 ROBLES, et al., (ECF No. 1)

15 Defendants. THIRTY (30) DAY DEADLINE

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18 Plaintiff Justin J. Erbacher1 (“Plaintiff”) is a state prisoner proceeding pro se and in forma

19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint is currently

20 before the Court for screening. (ECF No. 1.)

21 I. Screening Requirement and Standard

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

23 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

24 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

25 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

26 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

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1 Based on the allegations in the complaint, the Court refers to Plaintiff using feminine pronouns. If Plaintiff has

28 different preferred pronouns, Plaintiff may inform the Court in the next filing.

1 A complaint must contain “a short and plain statement of the claim showing that the

2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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

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

6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

8 To survive screening, Plaintiff’s claims must be facially plausible, which requires

9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret

11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully

12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

14 II. Plaintiff’s Allegations

15 Plaintiff is currently housed at the California Substance Abuse Treatment Facility

16 (“CSATF”) in Corcoran, California, where the events in the complaint are alleged to have

17 occurred. Plaintiff names the following defendants, all of whom are employed at CSATF: (1)

18 Correctional Officer Robles; (2) Correctional Officer Doe 1; (3) Correctional Officer Doe 2; and

19 (4) Correctional Lieutenant Williams.

20 Plaintiff alleges as follows:

21 On Tuesday, March 23, 2021, Plaintiff attended a scheduled medical appointment at the

22 Correctional Treatment Center (“CTC”) at CSATF.

23 Upon returning to A-Facility, Plaintiff and six other inmates (Inmate Montgomery, Inmate

24 Greer, Inmate Charpentier, Inmate Reyes, and unknown inmate with a cane, and an unknown

25 inmate with a walker) approached the A-Facility Work Change where Defendant Correctional

26 Officers Robles, Doe 1, and Doe 2 were in charge of processing inmates back onto the yard.

27 Plaintiff was the only transgender in the group.

28 ///

1 Inmates Greer and Montgomery were the first to enter Work Change, where Robles

2 waved them through without requiring them to “strip out” for an unclothed search or subjecting

3 them to any manner of search whatsoever. Plaintiff and the inmate with a cane next approached

4 the Work Change, each of them pushing one of the wheelchair-bound inmates. Plaintiff was

5 pushing Inmate Reyes, while the other inmate was pushing Inmate Charpentier. Neither Robles

6 nor the other Defendant C/Os required Inmate Reyes or Charpentier to strip out or subjected them

7 to any manner of search whatsoever. Robles simply told Inmates Reyes and Charpentier to go

8 through back to the yard. As Plaintiff and the inmate with the cane, along with the inmate with

9 the walker, prepared to follow suit, Robles suddenly ordered them to go back outside, stating to

10 the other officers, “Ya know what? We’re gonna strip these guys out,” and started putting on

11 latex gloves.

12 Plaintiff and the inmates with the cane and walker exited Work Change, immediately after

13 which Robles called to the inmates with the cane and walker to reenter Work Change, where they

14 were instructed to merely pull their shirts up and shake them out, after which they were waved

15 through to the yard.

16 Robles then called for Plaintiff to enter the Work Change. As Plaintiff did so, Plaintiff

17 immediately presented Robles with her transgender identification card. Robles looked at the card

18 and ordered Plaintiff to strip. Plaintiff stated that she would not strip in front of them (the male

19 C/Os), and that a female officer was to be called to strip her out per her transgender search

20 preference chrono (which had been approved on February 21, 2021). Robles picked up Plaintiff’s

21 transgender identification card and stated that it did not have a search preference on it, so it did

22 not matter. Plaintiff stated that she had not yet received her new transgender identification card

23 with the search preference, but that Robles could look up the approval chrono on the computer he

24 had right in front of him. Robles refused to do so, insisting that Plaintiff’s chrono had not yet

25 been approved, and because of such he was not required to call a female officer to strip Plaintiff

26 out. Plaintiff then requested to be taken to the A-Facility Program Office to speak to a sergeant,

27 lieutenant, or higher officer. Robles refused. Plaintiff then requested that a supervisor be called

28 to the Work Change. Robles again refused. He pointed to Plaintiff’s breasts and stated, “Those

1 things on your chest don’t make you special! You’re not leaving this room until you take your

2 clothes off – all of them, all the way!” Plaintiff was crying and shaking, but she still refused,

3 stating to Robles that what he was doing was wrong. At this point Defendants Doe 1 and Doe 2

4 stood up and came around from behind their desks with their hands on their pepper spray

5 cannisters. Robles continued to berate Plaintiff, stating, “There’s twenty other girls on the yard

6 that come through here and have to do the same thing and they don’t give me any problems about

7 it!”

8 Because Plaintiff realized that she was neither going to be taken to the Program Officer to

9 speak to a supervisor, nor was a supervisor going to be called, and because Plaintiff was in fear of

10 the immediate threat to her personal safety, she turned to Doe 2 who, by the stripes on his arm,

11 had seniority and started to remove her clothes. When she got down to her bra and panties Doe 2

12 told her, “Okay, now just squat and cough.” As Plaintiff did so, however, Robles interjected,

13 saying “No! I said everything needs to come off.” Plaintiff responded, “This C/O just told me

14 that I didn’t need to,” to which Robles responded, “No offense to my partner, even though he has

15 seniority, he’s only here for the day. What I’m telling you is what you need to do.” Doe 2

16 remained silent. So Plaintiff removed her bra and panties and squatted and coughed, with Robles

17 leering at her the entire time. As Plaintiff gathered her clothes and started to dress, she told

18 Robles that she was going to report him to the Program Office. Robles just laughed and said,

19 “Don’t be mad at me. Ask Mia and China. They’ll tell you that what I’m doing is okay.”

20 As Plaintiff exited the Work Change, she discovered that her podmate, Inmate Reyes, was

21 still waiting for her in his wheelchair to be pushed back to the building. Plaintiff did so and then

22 went to Medical to receive her noontime medication. After returning to her building, Plaintiff

23 immediately emailed her mother, Melody Erbacher, to apprise her of what happened and

24 instructed her to call all of the sexual misconduct helpline numbers. Plaintiff then got on the

25 phone with her and listened as she spoke to the helpline people. She received a message back

26 from them that it would be looked into.

27 On Wednesday, March 24, 2021, at approximately 9:00 a.m., Plaintiff was called to the

28 front of her housing unit to speak to Sergeant Palafox of the Investigative Services Unit (“ISU”),

1 who is not named as a defendant. Despite the sensitive nature of the issue, Sgt. Palafax did not

2 conduct Plaintiff to a private office, but, rather, conducted his “interview” (sans taking notes for

3 recording Plaintiff’s statements) directly in front of the building, in full view and earshot of

4 passersby. Sgt. Palafox’s “interview” consisted of having Plaintiff recount the events of the

5 previous day and asking Plaintiff if she could prove that not all the inmates going through Work

6 Change at the time were made to strip out and/or witnesses that could support Plaintiff’s

7 “version” of events. Plaintiff responded that there were witnesses (inmates who had gone through

8 Work Change at the same time), all of whom could be identified by the log book. Sgt. Palafox

9 stated that he would look through the log book. That was the extent of the “interview.”

10 On the same day (3/23/21),2 Plaintiff was seen by psychological clinician Savanna Bailey,

11 with whom Plaintiff discussed the events that occurred the day before and how violated and

12 threatened Plaintiff had been made to feel. During their encounter Ms. Bailey confirmed that

13 Plaintiff’s search preference chrono had been approved on 2/21/21 and that such information was

14 readily available on the computer.

15 On Wednesday, April 21, 2021, Plaintiff submitted a CDCR 602 Inmate Appeal (Log #

16 110883) concerning Robles’ sexual harassment.

17 On Thursday, April 22, 2021, Plaintiff was summoned to the A-Facility Program Office

18 where she was interviewed by two ISU officers, a lieutenant and a sergeant. They asked Plaintiff

19 to recount the events of 3/23/21, and asked several questions, recording the entire conversation.

20 They stated that there was no record of Sgt. Palafox’s “interview” and that they had not been

21 informed of it. They also stated that there were definitely procedural errors in Robles’ actions.

22 Approximately a week to two weeks later, Plaintiff was summoned to the Program Office

23 where she was ushered into the office of Defendant Lieutenant Williams. He explained that he

24 had called Plaintiff in regarding her appeal claiming Robles sexually harassed her. He stated, “I

25 don’t even know how this landed on my desk. This is above my pay grade.” Plaintiff informed

26 Defendant Williams that she had already discussed the events with ISU officers. Williams

27 responded, “If that’s true, then why did this land on my desk?” He then added, “You know that

28 2 Plaintiff may have intended to write “3/24/21” as the date of his appointment with his clinician.

1 no one is going to get into trouble over this.”

2 On Thursday, May 13, 2021, Inmate Charpentier, one of the wheelchair-bound inmates

3 who went through Work Change with their group on 3/23/21, signed a declaration stating that he

4 was not made to strip out upon their return from CTC, nor subjected to any manner of search

5 whatsoever.

6 In late June of 2021, Plaintiff received from the Office of Grievances a Grievance Claims

7 Decision Response, dated 6/19/2021, indicating that Plaintiff’s Inmate Appeal on Defendant

8 Robles’ sexual harassment had been “disapproved.” The response stated that the disapproval was

9 in part based on the “interview” conducted on March 21, 2021 by Internal Affairs Sergeant

10 Palafox. Not only was the date of the “interview” incorrect, but there was no mention of the

11 second interview on April 22, 2021, which had been more in depth than Sgt. Palafox’s, and had

12 been recorded to preserve evidence and statements. It also incorrectly stated that, at the time of

13 the incident (March 23, 2021) Plaintiff’s search preference had not been approved when her

14 search preference chrono had been approved on February 21, 2021, a fact easily ascertained by a

15 simple review of Plaintiff’s ERMS file.

16 Plaintiff immediately submitted her Inmate Appeal to the CDCR Office of Appeals in

17 Sacramento for a higher level response.

18 In late September of 2021, Plaintiff received from the CDCR Office of Appeals an

19 Appeals Claims Decision Response, dated September 18, 2021. The response and an attached

20 memorandum stated that since the 60-day time limit for a response from the Office of Appeals

21 had expired, no actual higher level response would be given and the answer provided by the

22 Office of Grievances at CSATF remained unchanged.

23 Defendant Robles committed sexual misconduct upon Plaintiff when he sexually harassed

24 Plaintiff, a transgender inmate, by forcing Plaintiff to submit to an illegal unclothed search in

25 defiance of Plaintiff’s registered search preference by a female officer, and under duress of the

26 threat of physical violence, in violation of 15 CCR § 3401.5, Penal Code § 2606, the U.S.

27 Constitution’s Fourth Amendment and the California Constitution’s Article 1 § 13 prohibition

28 against unreasonable searches, and the U.S. Constitution’s Eighth Amendment and the California

1 Constitution’s Article 1 § 17 prohibition against cruel and unusual punishment and deliberate

2 indifference to Plaintiff’s constitutional rights and personal safety.

3 Defendant Doe 1 acted in violation of the U.S. Constitution’s Eighth Amendment and the

4 California Constitution’s Article 1 § 17 prohibition on cruel and unusual punishment when he

5 was deliberately indifferent to the violation of Plaintiff’s constitutional rights by Defendants

6 Robles and Doe 2 in their actions of committing sexual misconduct upon Plaintiff, a transgender

7 inmate, personally acted to place Plaintiff under duress of the threat of physical violence, and

8 deliberately chose to not report the incident to the highest-ranking officer on duty in violation of

9 15 CCR § 3401.5.

10 Defendant Doe 2 committed sexual misconduct upon Plaintiff when he sexually harassed

11 Plaintiff, a transgender inmate, when he participated with Defendant Robles in forcing Plaintiff to

12 submit to an illegal unclothed search in defiance of Plaintiff’s registered search preference by a

13 female officer, and under duress of the threat of physical violence, in violation of 15 CCR §

14 3401.5, Penal Code § 2606, the U.S. Constitution’s Fourth Amendment and the California

15 Constitution’s Article 1 § 13 prohibition against unreasonable searches, and the U.S.

16 Constitution’s Eighth Amendment and California Constitution’s Article 1 § 17 prohibition against

17 cruel and unusual punishment and deliberate indifference to Plaintiff’s constitutional rights and

18 personal safety.

19 Defendant Williams acted with deliberate indifference to Plaintiff’s complaint when he

20 failed to meaningfully investigate Plaintiff’s claims and declined to follow the protocol for

21 reporting and investigating the incident, in violation of 15 CCR § 3401.5. Defendant Williams

22 also acted with deliberate indifference to Plaintiff’s claim of sexual harassment at the hands of

23 officers under his supervision when he flatly stated that “no one is going to get in trouble over

24 this,” in violation of Penal Code § 182(a)(5)’s prohibition against conspiring to obstruct.

25 Plaintiff requests actual and punitive damages.

26 III. Discussion

27 Plaintiff’s complaint fails state a cognizable claim for relief. As Plaintiff is proceeding

28 pro se, she will be granted leave to amend her complaint to the extent that she can do so in good

1 faith. To assist Plaintiff, the Court will provide the pleading and legal standards that appear

2 relevant to her claims.

3 A. Supervisory Liability

4 Insofar as Plaintiff is attempting to Defendant Correctional Lieutenant Williams, or any

5 other defendant, based solely upon his supervisory role, she may not do so. Liability may not be

6 imposed on supervisory personnel for the actions or omissions of their subordinates under the

7 theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609

8 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.

9 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

10 Supervisors may be held liable only if they “participated in or directed the violations, or

11 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045

12 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v.

13 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established

14 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably

15 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at

16 570. Supervisory liability may also exist without any personal participation if the official

17 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional

18 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942

19 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other

20 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory

21 position, the causal link between such defendant and the claimed constitutional violation must be

22 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld,

23 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement

24 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents,

25 673 F.2d 266, 268 (9th Cir. 1982).

26 B. Fourth and Eighth Amendments – Strip Searches

27 “The Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish, 441 U.S.

28 520, 558 (1979). Courts regularly recognize the importance and difficulty of keeping detention

1 facilities free from drugs, weapons, and other contraband. Id. at 559; see also Way v. Cty. of

2 Ventura, 445 F.3d 1157, 1161 (9th Cir. 2006). However, courts also recognize the “frightening

3 and humiliating invasion” occasioned by a strip search “even when conducted with all due

4 courtesy.” Way, 445 F.3d at 1160 (internal quotation marks omitted); Byrd v. Maricopa Cty.

5 Sheriff’s Dep’t, 629 F.3d 1135, 1143 (9th Cir. 2011). Although some visual body cavity searches

6 of prisoners may be reasonable, others can “be excessive, vindictive, harassing, or unrelated to

7 any legitimate penological interest.” Michenfelder v. Sumner, 860 F.2d 328, 322 (9th Cir. 1988).

8 There is no precise definition to assess reasonableness, and each case “requires a balancing of the

9 need for the particular search against the invasion of personal rights that the search entails.” Bell,

10 441 U.S. at 559. The prisoner “bears the burden of showing that [prison] officials intentionally

11 used exaggerated or excessive means to enforce security.” Thompson v. Souza, 111 F.3d 694,

12 700 (9th Cir. 1997) (quoting Michenfelder, 860 F.2d at 333) (finding visual body cavity search

13 conducted in full view of other inmates and intended to detect illicit drugs was reasonably related

14 to a legitimate penological interest).

15 Cross-gender searches are viewed differently. An Eighth Amendment violation has been

16 found where the female prisoner plaintiffs, found to be particularly vulnerable to a severe

17 psychological injury from the search, are subjected to random cross-gender clothed body searches

18 unrelated to prison security. Jordan v. Gardner, 986 F.2d 1521, 1525–28 (9th Cir. 1993) (finding

19 cross-gender body search policy constituted unnecessary “infliction of pain” under the Eighth

20 Amendment where women inmates had “shocking histories of verbal, physical, and, in particular,

21 sexual abuse” by men). In the Fourth Amendment context, the Ninth Circuit concluded that a

22 cross-gender strip search of a pretrial detainee in a non-emergency situation where same-sex

23 guards were available was an unreasonable intrusion on the detainee’s Fourth Amendment rights.

24 Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc); see also

25 Shorter v. Baca, 895 F.3d 1176, 1189 (9th Cir. 2018) (under Fourteenth Amendment challenge,

26 court concluded that county’s search practices were not entitled to deference where county did

27 not offer reason for leaving mentally ill female inmates shackled to their cell doors for hours,

28 virtually unclothed, and without access to meals, water or a toilet, visible to both male and female

1 prison guards on patrol).

2 Although a cross-gender strip search that involves touching the inmate’s genitalia and

3 searching inside his anus is unreasonable, Byrd, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc),

4 that does not mean that all cross-gender searches are unreasonable, or that prisoners of one gender

5 may not be guarded by guards of the other gender. Uvalles v. Jaquez, No. C 09-5221 RMW PR,

6 2013 WL 1283390, at *8–9 (N.D. Cal. Mar. 27, 2013). In Grummett v. Rushen, 779 F.2d 491,

7 494 (9th Cir. 1985), the Ninth Circuit upheld a system of assigning female officers within a

8 correctional facility such that they occasionally viewed male inmates in various states of undress

9 and conducted routine pat-downs of fully clothed inmates. Id., citing Byrd, 629 F.3d at 1142.

10 Assigned positions of female guards that required only infrequent and casual observation, or

11 observation at a distance, of unclothed male prisoners and that are reasonably related to prison

12 needs are not so degrading as to warrant court interference. Id., citing Michenfelder v. Sumner,

13 860 F.2d 328, 334 (9th Cir. 1988) (held that routine visual body cavity searches conducted in

14 hallways did not violate the Fourth Amendment after situations where inmates had been presented

15 with the opportunity to obtain contraband or a weapon); see also Jordan, 986 F.2d at 1524–25 (en

16 banc) (privacy interest in freedom from cross-gender clothed body searches not “judicially

17 recognized”). The issue is whether officers regularly or frequently observe unclothed inmates of

18 the opposite sex without a legitimate reason for doing so. Uvalles, 2013 WL 1283390, at *8–9,

19 citing Michenfelder, 860 F.2d at 334.

20 Based on the allegations in the complaint, Plaintiff fails to state a cognizable claim for

21 violation of the Fourth or Eighth Amendments related to the cross-gender strip search. Plaintiff

22 alleges that she was subjected to a single, unclothed, visual body cavity search and does not

23 allege that she was touched by any defendant during the search. Plaintiff also does not allege that

24 the search was excessive or unrelated to a legitimate penological purpose, even though other

25 inmates in her group were not searched. In addition, Plaintiff does not allege that even with her

26 status as a transgender inmate with a female officer search preference she was particularly

27 vulnerable to a severe psychological injury from a search by a male officer.

28 ///

1 C. Eighth Amendment – Sexual Harassment

2 “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the

3 Eighth Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (‘In the

4 simplest and most absolute of terms . . . prisoners [have a clearly established Eighth Amendment

5 right] to be free from sexual abuse. . . .’); see also Women Prisoners of the Dist. of Columbia

6 Dep’t of Corr. v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994) (‘[U]nsolicited

7 touching of … prisoners’ [genitalia] by prison employees are “simply not part of the penalty that

8 criminal offenders pay for their offenses against society”‘ (quoting Farmer v. Brennan, 511 U.S.

9 825, 834 . . . (1994))), aff’d in part and vacated in part, 93 F.3d 910 . . . (D.C. Cir. 1996).” Wood

10 v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012.) “In evaluating a prisoner’s claim, courts

11 consider whether ‘the officials act[ed] with a sufficiently culpable state of mind’ and if the

12 alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” Id.

13 However, while “the Ninth Circuit has recognized that sexual harassment may constitute a

14 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated

15 between sexual harassment that involves verbal abuse and that which involves allegations of

16 physical assault, finding the later to be in violation of the constitution.” Minifield v. Butikofer,

17 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (citation omitted). Here, Plaintiff does not clearly

18 allege that any defendant physically touched her in a sexual manner. Somers v. Thurman, 109

19 F.3d 614, 624 (9th Cir. 1997) (“To hold that gawking, pointing, and joking violates the

20 prohibition against cruel and unusual punishment would trivialize the objective component of the

21 Eighth Amendment test and render it absurd.”).

22 Further, to the extent Plaintiff seeks to impose liability against Defendant Robles arising

23 out of his verbal conduct, she may not do so. Allegations of verbal abuse or harassment fail to

24 state a constitutional claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)

25 (finding that “verbal harassment generally does not violate the Eighth Amendment”); Gaut v.

26 Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (holding that prisoner’s allegations of threats allegedly

27 made by guards failed to state a cause of action). However, verbal harassment may violate the

28 constitution when it is “‘unusually gross even for a prison setting and [is] calculated to and [does]

1 cause [plaintiff] psychological damage.” Cox v. Kernan, 2019 WL 6840136, at *5 (E.D. Cal.

2 Dec. 16, 2019) (alterations in original) (quoting Keenan, 83 F.3d 1083 at 1092).

3 As alleged, Plaintiff’s complaint fails to state a cognizable claim against any defendant for

4 sexual harassment based on the search or any verbal conduct.

5 D. Failure to Investigate

6 To the extent Plaintiff alleges that Defendant Williams, or any other defendant, violated

7 her rights for an inadequate investigation, Plaintiff’s claims are not a basis for a plausible § 1983

8 claim. Baker v. Beam, 2019 WL 1455321, at *6 (E.D. Cal. 2019); Drake v. Ibal, No. 1:22-CV-

9 01149 BAM PC, 2022 WL 18027808, at *8 (E.D. Cal. Dec. 30, 2022) (no claim for faulty

10 investigation for removal of evidence from the investigative file). To the degree Plaintiff is trying

11 to hold the individuals or others liable for an independent, unspecified constitutional violation

12 based upon an allegedly inadequate investigation, there is no such claim. See Gomez v. Whitney,

13 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e can find no instance where the courts

14 have recognized inadequate investigation as sufficient to state a civil rights claim unless there was

15 another recognized constitutional right involved.”); Page v. Stanley, 2013 WL 2456798, at *8–9

16 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim alleging that officers failed to conduct

17 thorough investigation of plaintiff's complaints because plaintiff “had no constitutional right to

18 any investigation of his citizen's complaint, much less a ‘thorough’ investigation or a particular

19 outcome”); Tirado v. Santiago, No. 1:22-CV-00724 BAM PC, 2022 WL 4586294, at *5 (E.D.

20 Cal. Sept. 29, 2022), report and recommendation adopted, No. 1:22-CV-00724 JLT BAM PC,

21 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) (no constitutional claim for failing to investigate an

22 appeal).

23 E. Processing Grievances

24 Plaintiff alleges that Defendant Williams failed to follow protocol for reporting and

25 investigating the incident and violated Penal Code § 182(a)(5)’s prohibition against conspiring to

26 obstruct. However, Plaintiff cannot pursue any claims against prison staff based solely on the

27 processing and review of her inmate appeals. Plaintiff does not have a constitutionally protected

28 right to have her appeals accepted or processed. Ramirez v. Galaza, 334 F.3d 850, 860 (9th

1 Cir.2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.19 88). The prison grievance procedure

2 does not confer any substantive rights upon inmates and actions in reviewing appeals cannot

3 serve as a basis for liability under section 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th

4 Cir.1993); see also Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 WL 445203, at

5 *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegations that prison officials denied or ignored his

6 inmate appeals failed to state a cognizable claim under the First Amendment). Denial or refusal

7 to process a prison grievance is not a constitutional violation. Rushdan v. Gear, No. 1:16-cv-

8 01017-BAM (PC), 2018 WL 2229259, at *6 (E.D. Cal. May 16, 2018). Accordingly, Plaintiff

9 fails to state a cognizable claim arising out of the screening or processing of her grievances or

10 complaints.

11 F. Prison Regulations

12 To the extent that Plaintiff attempts to bring any claims solely based on a defendant’s

13 violation of prison rules and policies, she may not do so, as alleged violations of prison rules and

14 policies do not give rise to a cause of action under § 1983. Section 1983 provides a cause of

15 action for the deprivation of federally protected rights. “To the extent that the violation of a state

16 law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by

17 the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada Cty., Idaho, 119 F.3d

18 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th

19 Cir. 1996)); see Davis v. Kissinger, No. CIV S–04–0878-GEB-DAD-P, 2009 WL 256574, *12

20 n.4 (E.D. Cal. Feb. 3, 2009). Nor is there any liability under § 1983 for violating prison policy.

21 Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 109 F.3d

22 427, 430 (8th Cir. 1997)). Thus, the violation of any prison regulation, rule or policy does not

23 amount to a cognizable claim under federal law, nor does it amount to any independent cause of

24 action under section 1983.

25 G. Criminal Statutes

26 Plaintiff alleges that defendants violated or failed to comply with the requirements of

27 various provisions of the California Penal Code. However, Plaintiff has no constitutional right to

28 have another person criminally prosecuted. See Linda R.S. v. Richard D., 410 U.S. 614, 619

1 (1973) (“a private citizen lacks a judicially cognizable interest in the prosecution or

2 nonprosecution of another”). Criminal statutes generally do not provide a private cause of action

3 or a basis for civil liability. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (18

4 U.S.C. §§ 241 and 242 provide no private right of action and cannot form basis for civil suit).

5 When a criminal statute is violated, the question of whether to prosecute and what criminal

6 charges to file or bring are decisions that generally rest in the discretion of the prosecutor, not the

7 Court. United States v. Batchelder, 442 U.S. 114, 124 (1979). Plaintiff therefore fails to state

8 any cognizable claims based on defendants’ alleged violation of California criminal statutes.

9 H. State Law Claims

10 California’s Government Claims Act3 requires that a claim against the State4 or its

11 employees “relating to a cause of action for death or for injury to person” be presented to the

12 Department of General Services’ Government Claims Program no more than six months after the

13 cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation

14 of a written claim, and action on or rejection of the claim, are conditions precedent to suit. State

15 v. Super. Ct. of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1245 (Cal. 2004); Mangold v. Cal. Pub.

16 Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public entity

17 or employee, a plaintiff must allege compliance with the Government Claims Act. Bodde, 32 Cal.

18 4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,

19 627 (9th Cir. 1988).

20 Further, pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has

21 original jurisdiction, the district court “shall have supplemental jurisdiction over all other claims

22 in the action within such original jurisdiction that they form part of the same case or controversy

23 under Article III,” except as provided in subsections (b) and (c). “The district court may decline

24 to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has

25 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The

26

3 This Act was formerly known as the California Tort Claims Act. City of Stockton v. Super. Ct., 42 Cal. 4th 730,

741–42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act).

27

4 “‘State’ means the State and any office, officer, department, division, bureau, board, commission or agency of the

28 State claims against which are paid by warrants drawn by the Controller.” Cal. Gov’t Code § 900.6.

1 Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . . the state

2 claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715,

3 726 (1966).

4 Here, Plaintiff’s complaint fails to state any cognizable federal claims, and Plaintiff has

5 not alleged compliance with the Government Claims Act. The Court therefore declines to

6 exercise jurisdiction over Plaintiff’s state law claims at this time.

7 I. Doe Defendants

8 Plaintiff names several Doe defendants, and states that she has endeavored to ascertain the

9 full names of the defendants in the complaint, but has been thwarted as staff refused to divulge

10 the information or look it up. “As a general rule, the use of ‘John Doe’ to identify a defendant is

11 not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is advised that

12 John Doe or Jane Doe defendants (i.e., unknown defendants) cannot be served by the United

13 States Marshal until Plaintiff has identified them as actual individuals and amended her complaint

14 to substitute names for John Doe or Jane Doe. If Plaintiff files an amended complaint and is

15 found to state cognizable claims against any of the Doe defendants, Plaintiff will be provided an

16 opportunity to provide additional information to identify those defendants for service.

17 IV. Conclusion and Order

18 For the reasons stated, Plaintiff’s complaint fails state a cognizable claim for relief. As

19 Plaintiff is proceeding pro se, the Court will grant Plaintiff an opportunity to amend her

20 complaint to cure the above-identified deficiencies to the extent she is able to do so in good faith.

21 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

22 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

23 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

24 U.S. at 678–79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

25 a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

26 Plaintiff’s amended complaint may not exceed twenty-five (25) pages, exclusive of exhibits.

27 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

28 claims in her first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

1 “buckshot” complaints).

2 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

3 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended

4 complaint must be “complete in itself without reference to the prior or superseded pleading.”

5 Local Rule 220.

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

7 1. The Clerk’s Office shall send Plaintiff a complaint form;

8 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first

9 amended complaint curing the deficiencies identified by the Court in this order (or file a

10 notice of voluntary dismissal). Plaintiff’s amended complaint may not exceed twenty-

11 five (25) pages, exclusive of exhibits; and

12 3. If Plaintiff fails to comply with this order, the Court will recommend dismissal of

13 this action, with prejudice, for failure to obey a court order and for failure to state a

14 claim.

15

IT IS SO ORDERED.

16

17 Dated: September 21, 2023 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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