# Butler v. Landeros

> District Court, S.D. California · March 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10087366

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087366

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to amend which are not 26 re-alleged in an amended pleading may be “considered waived if not repled.”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DERRICK BUTLER, Case No. 22cv1602-JO (LR)
CDCR #AV-6839,
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ORDER (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
vs. PAUPERIS [ECF No. 2];
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(2) DENYING MOTION TO

15 APPOINT COUNSEL [ECF No. 5];
P. LANDEROS, et al.,
and (3) DISMISSING COMPLAINT
16 Defendants. PURUSANT TO 28 U.S.C.
17 § 1915(e)(2)(B)(ii) and § 1915A(b)(1)
18
19 Plaintiff Derrick Butler is a state prisoner incarcerated at Centinela State Prison in
20 Imperial, California (“Centinela”). Proceeding pro se, he has filed a civil rights action
21 pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff has also filed a Motion
22 for Leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) and a
23 Motion to Appoint Counsel. ECF Nos. 2, 5. For the reasons stated below, the Court grants
24 Plaintiff’s motion to proceed IFP, denies his motion to appoint counsel, and dismisses his
25 complaint with leave to amend.
26 I. Motion to Proceed IFP
27 A party may institute a civil action without prepaying the required filing fee if the
28 Court grants leave to proceed IFP based on indigency. 28 U.S.C. § 1915(a); Andrews v.
1 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed IFP must
2 establish their inability to pay by filing an affidavit regarding their income and assets. See
3 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to establish an
4 inability to pay, the Prison Litigation Reform Act requires submission of “a certified copy
5 of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . the 6-
6 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);
7 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).
8 According to the Prison Litigation Reform Act, even when the Court grants a motion
9 for IFP, a prisoner must still repay the filing fee. The Court must assess an initial partial
10 filing fee of 20% of the greater of the average monthly deposits or average. Bruce v.
11 Samuels, 577 U.S. 82, 84 (2016). After paying the initial partial fee, prisoners who proceed
12 IFP must pay the remaining balance in “increments” or “installments,” regardless of
13 whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577
14 U.S. at 84.
15 In support of his IFP motion, Plaintiff submitted a Prison Certificate issued by
16 Centinela containing information about his prison trust activity. See ECF No. 3 at 1. This
17 certificate indicates that Plaintiff had an available balance of $149.84 at the time of filing,
18 has an average monthly balance of $170.24, and an average of $160.00 in monthly deposits.
19 Id. Based on this financial information, the Court GRANTS Plaintiff’s motion to proceed
20 IFP and assesses an initial partial filing fee of $34.04. Plaintiff remains obligated to pay
21 the remaining $315.96 in monthly installments collected from his trust account as set forth
22 in 28 U.S.C. § 1915(b)(2).
23 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)
24 A. Legal Standards
25 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must screen a prisoner’s IFP
26 complaint and sua sponte dismiss it to the extent it is frivolous, malicious, fails to state a
27 claim upon which relief may be granted, or seeks damages from defendants who are
28 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); see also
1 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (same with respect to 28 U.S.C.
2 § 1915A(a) & (b)(1)). “The standard for determining whether a plaintiff has failed to state
3 a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the
4 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.
5 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113,
6 1121 (9th Cir. 2012) (“Failure to state a claim under § 1915A incorporates the familiar
7 standard applied in the context of failure to state a claim under Federal Rule of Civil
8 Procedure 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual
9 matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
10 662, 678 (2009) (internal quotation marks omitted). While detailed factual allegations are
11 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
12 conclusory statements, do not suffice” to state a claim. Iqbal, 556 U.S. at 678. “A claim
13 has facial plausibility when the plaintiff pleads factual content that allows the court to draw
14 the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
15 B. Discussion
16 Plaintiff alleges that Defendants Control Booth/Tower Operator P. Landeros, C-1
17 Floor Officer Lopez, Correctional Lieutenant R. Martinez, and Program/Patio Officer I.
18 Rosalez (“Defendants”) violated his federal constitutional rights while incarcerated at
19 Centinela State Prison. See Compl., ECF No. 1 at 2-5. He claims Defendants violated his
20 right to be free from cruel and unusual punishment under the Eighth Amendment when
21 Defendants (1) laughed at, threatened, harassed, disrespected, and taunted him with rude,
22 vulgar, and racist remarks and (2) caused great bodily injury when they handcuffed him.
23 Plaintiff also claims Defendants violated his Fourteenth Amendment right to due process
24 by denying his request to call a witness at a disciplinary hearing. Finally, Plaintiff claims
25 Defendants violated his Fourteenth Amendment right to privacy by observing him naked.
26 The Court will address the legal sufficiency of each of these claims in turn.
27 / / /
28 1. Eighth Amendment
1 First, Plaintiff’s claims based on the mocking, threatening, and taunting nature of
2 Defendant’s communications, see Compl., ECF No. 1 at 3, fail as a matter of law because
3 such conduct does not rise to the level of cruel and unusual punishment. The Eighth
4 Amendment prohibits “the unnecessary and wanton infliction of pain.” Whitley v. Albers,
5 475 U.S. 312, 319 (1986). A violation of this amendment only occurs where the
6 deprivation is “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834
7 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). The Ninth Circuit has held
8 that “it trivializes the eighth amendment to believe a threat constitutes a constitutional
9 wrong.” Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Likewise, “disrespectful and
10 assaultive comments” fail to state an Eighth Amendment claim, Keenan v. Hall, 83 F.3d
11 1083, 1092 (9th Cir. 1996), and “[v]erbal harassment or abuse . . . is not sufficient to state
12 a constitutional deprivation under 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d
13 136, 139 (9th Cir. 1987). Here, Plaintiff bases his Eighth Amendment claim on
14 Defendants’ vulgar and racist threats, taunts, and remarks. This alleged conduct consists
15 solely of disrespectful and harassing verbal statements and threats. Because such
16 comments and threats do not give rise to an objectively serious wanton infliction of pain
17 as a matter of law, Plaintiff fails to state a claim for cruel and unusual punishment based
18 on these allegations. Accordingly, the Court dismisses the Eighth Amendment claim
19 arising from Defendants’ threats and taunts.
20 Second, Plaintiff’s claim that Defendants violated the Eighth Amendment when they
21 handcuffed him fails because he does not allege that he was injured as a result. See Compl.,
22 ECF No. 1 at 4. “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments
23 necessarily excludes from constitutional recognition de minimis uses of physical force,
24 provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’”
25 Hudson v. McMillian, 503 U.S. 1, 9–10 (1992), quoting Whitley, 475 U.S. at 327;
26 Accordingly, “[a]n inmate who complains of a ‘push or shove’ that causes no discernible
27 injury almost certainly fails to state a valid excessive force claim.” Wilkins v. Gaddy, 559
28 U.S. 34, 38 (2010), quoting Hudson, 503 U.S. at 9. Here, Plaintiff’s handcuffing allegation
1 shows only a de minimis use of physical force that has not caused a discernible bodily
2 injury. For example, Plaintiff alleges that Defendants Landeros and Lopez acted with the
3 intent to cause great bodily injury when they handcuffed him, but he makes no mention of
4 any physical injury arising from their actions. See Comp., ECF No. 1 at 4. Plaintiff also
5 alleges no facts to show that the handcuffing was so repugnant to the conscience that the
6 de minimis force was unconstitutional. For the above reasons, the Court finds Plaintiff fails
7 to state a claim for cruel and unusual punishment based the handcuffing incident and
8 dismisses Plaintiff’s Eighth Amendment claim arising from these allegations.
9 2. Due Process
10 The Court next turns to Plaintiff’s claim that Defendants violated his right to due
11 process when he was not allowed to question a witness at a disciplinary hearing. See
12 Compl., ECF No. 1 at 4-5. A prisoner is entitled to procedural due process protections
13 during a disciplinary hearing such as the right to call witnesses where protected liberty
14 interests are at stake during a hearing. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.
15 2003). To show that a disciplinary hearing implicates a liberty interest protected by the
16 Due Process Clause, a prisoner must show that his sentence was exceeded in “an
17 unexpected manner” or resulted in “atypical and significant hardship on the inmate in
18 relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
19 (1995). Otherwise, a prisoner is only granted minimum due process which requires only
20 that the outcome be “supported by some evidence in the record.” Superintendent v. Hill,
21 472 U.S. 445, 454-55 (1985). Here, Plaintiff failed to allege facts to show that he was
22 entitled to procedural due process protections because his disciplinary hearing implicated
23 a liberty interest. For example, Plaintiff does not allege that he was subject to a longer
24 sentence as a result of the disciplinary proceeding. Nor does he allege any atypical or
25 significant hardships imposed upon him based on the outcome of the proceeding. Thus,
26 Plaintiff has failed to plausibly allege a protected liberty interest giving rise to a right to
27 call witnesses at his disciplinary hearing. His complaint also contains no allegations that
28 the disciplinary board findings were wholly unsupported by the evidence in the record;
1 thus, he also fails to plausibly allege a denial of the minimum requirements of due process.
2 For the above reasons, the Court concludes that he has failed to state a due process claim.
3 3. Right to Privacy
4 Finally, the Court addresses Plaintiff’s allegation that Defendants violated his right
5 to privacy by seeing him naked on a single occasion. See Compl., ECF No. 1 at 4. The
6 Ninth Circuit has held that prisoners have “a right to privacy in their naked body.” Ioane
7 v. Hodges, 939 F.3d 945, 953 (9th Cir. 2018). However, that right is not violated where
8 “the officials’ view of the inmates was ‘restricted by distance,’ ‘casual in nature,’ and
9 justified by security needs.” Id., quoting Grummett v. Rushen, 779 F.3d 491, 495-96 (9th
10 Cir. 1985). Here, Plaintiff alleges he heard an “inmate siren indicating the officers(s) is
11 coming,” and when he emerged from behind a curtain in his cell Defendants were standing
12 outside and saw him naked inside his cell. See Compl., ECF No. 1 at 4. These allegations
13 indicate that Defendants only saw Plaintiff’s naked body from a distance and that the view
14 may have been casual or incidental in nature. Plaintiff has also failed to allege facts to
15 show that Defendants’ view of his naked body was not justified by security needs.
16 Plaintiff’s allegations therefore do not rise to the level of a right-to-privacy violation.
17 Accordingly, the Court dismisses this claim based on Defendants’ brief view of his naked
18 body from outside his cell.
19 For the reasons discussed above, the Court sua sponte dismisses all claims in the
20 Complaint for failure to state a claim upon which relief may be granted pursuant to 28
21 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Watison, 668 F.3d at 1112; Wilhelm, 680
22 F.3d at 1121.
23 / / /
24 C. Leave to Amend
25 In light of Plaintiff’s pro se status, the Court grants him leave to amend his
26 Complaint to attempt to sufficiently allege a § 1983 claim if he can. See Rosati v. Igbinoso,
27 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint
28 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely
1 clear that the deficiencies of the complaint could not be cured by amendment.’”), quoting
2 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
3 III. Motion to Appoint Counsel
4 Plaintiff argues that the Court should appoint him counsel because his claims are
5 meritorious and he has been unable to obtain counsel for himself. ECF No. 5 at 1-4. While
6 the United States Constitution provides no right to appointment of counsel in civil cases,
7 see Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980), the Court may, in its discretion,
8 appoint counsel for an individual who is unable to afford counsel. See 28 U.S.C. §
9 1915(e)(1). Such requests are granted only in “exceptional circumstances,” after an
10 evaluation of (1) “the likelihood of success on the merits,” and (2) “the ability of the
11 petitioner to articulate his claims pro se in light of the complexity of the legal issues
12 involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986), quoting Weygandt
13 v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Plaintiff bears the burden of showing that
14 exceptional circumstances exist. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
15 Plaintiff has not demonstrated that these exceptional circumstances are present in
16 this case. For the reasons discussed above, Plaintiff has not demonstrated he is likely to
17 succeed on the merits of any claim. Furthermore, upon review of Plaintiff’s Complaint
18 and his Motion to Appoint Counsel, the Court finds that Plaintiff has demonstrated his
19 ability to articulate his legal claims. For example, in the instant case, Plaintiff has clearly
20 articulated why he believes his privacy rights were violated when he was observed naked
21 in his cell and identified which witness he was prevented from calling at his disciplinary
22 hearing and why he needed their testimony. See Comp. ECF No. 1 at 3-5. Moreover, the
23 Court finds that Plaintiff’s claims are not factually or legally complex. Because Plaintiff
24 has neither demonstrated his likelihood of success nor his inability to articulate the legal
25 basis and factual circumstances relevant to his claims, neither the interests of justice nor
26 any exceptional circumstances warrant the appointment of counsel at this time. La Mere
27 v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); see also Terrell v. Brewer, 935 F.2d 1015,
28 1017 (9th Cir. 1991). Accordingly, the Court DENIES Plaintiff’s motion for appointment
1 of counsel without prejudice to its renewal at a later stage of these proceedings.
2 IV. Conclusion and Order
3 For the reasons set forth above, the Court:
4 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2);
5 2) ORDERS the Secretary of the CDCR, or his designee, to collect from
6 Plaintiff’s prison trust account the $34.04 initial filing fee as well as the remaining $315.96
7 balance of the $350 filing fee owed in this case by collecting monthly payments from the
8 account in an amount equal to twenty percent (20%) of the preceding month’s income and
9 forward payments to the Clerk of the Court each time the amount in the account exceeds
10 $10 in accordance with 28 U.S.C. § 1915(b)(2);
11 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
12 on Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-
13 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov;
14 4) DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 5);
15 5) DISMISSES Plaintiff’s Complaint sua sponte and with leave to amend in its
16 entirety based on his failure to state a claim upon which relief may be granted pursuant to
17 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).
18 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
19 which to file a First Amended Complaint which cures the deficiencies of pleading noted in
20 this Order. Plaintiff’s First Amended Complaint must be complete by itself without
21 reference to his original Complaint. Defendants not named and any claims not re-alleged
22 in the First Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1;
23 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
24 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d
25 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not
26 re-alleged in an amended pleading may be “considered waived if not repled.”).
27 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final
28 Order dismissing this civil action based both on Plaintiff’s failure to state a claim upon
1 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1),
2 and his failure to prosecute in compliance with a court order requiring amendment. See
3 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage
4 of the opportunity to fix his complaint, a district court may convert the dismissal of the
5 complaint into dismissal of the entire action.”)
6 IT IS SO ORDERED.
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8 DATE: March 22, 2023
9 Hon. Jinsook Ohta
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087366. Public record. Not legal advice.