Clinton v. Pollard

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MARKEITH CLINTON, Case No.: 3:23-cv-0119-DMS-DEB

CDCR #AY1315

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ORDER:

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Plaintiff,

(1) GRANTING MOTION TO

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vs. PROCEED IN FORMA PAUPERIS

15 AND

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M. POLLARD, Warden, R. BUCKEL, S. (2) DISMISSING COMPLAINT

17 STEADMAN, ASHBURY, CORTEZ, FOR FAILING TO STATE A

NAHN, CRUZ, C. MOORE, DOES 1-10, CLAIM PURSUANT TO 28 U.S.C.

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Defendants. §§ 1915(e)(2)(B) AND 1915A(b)

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22 I. INTRODUCTION

23 Markeith Clinton (“Plaintiff” of “Clinton”), is a state inmate currently incarcerated

24 at R. J. Donovan Correctional Facility (“RJD”) in San Diego County and proceeding pro

25 se. He has filed a civil rights action pursuant to 42 U.S.C. § 1983, along with an application

26 to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. For the reasons discussed below, the

27 Court grants Plaintiff’s IFP motion but dismisses his Complaint without prejudice and with

28 leave to amend.

1 II. MOTION TO PROCEED IFP

2 All parties instituting any civil action, suit or proceeding in a district court of the

3 United States, except an application for writ of habeas corpus, must pay a filing fee of

4 $402.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the

5 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C.

6 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).

7 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit

8 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

9 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified

10 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . .

11 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

12 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial

13 payment of 20% of (a) the average monthly deposits in the account for the past six months,

14 or (b) the average monthly balance in the account for the past six months, whichever is

15 greater, unless the prisoner has no assets. See 28 U.S.C. §§ 1915(b)(1) & (4). Prisoners

16 who proceed IFP must repay the entire fee in installments regardless of whether their action

17 is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).

18 In support of his IFP Motion, Plaintiff has provided a Prison Certificate authorized

19 by an accounting officer. ECF No. 4 at 1. During the six months prior to filing suit, Plaintiff

20 had an average monthly balance of $258.51, average monthly deposits of $316.66, and an

21 available account balance of $382.25 at the time he filed suit. Id. Accordingly, Plaintiff’s

22 IFP motion is GRANTED. The Court assesses an initial partial filing fee of $63.33.

23 Plaintiff remains obligated to pay the remaining $286.67 in monthly installments even if

24 this action is ultimately dismissed. 28 U.S.C. §§ 1915(b)(1) & (2).

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of

27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee

Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to

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1 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b)

2 A. Legal Standards

3 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a

4 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,

5 malicious, fails to state a claim, or seeks damages from defendants who are immune. See

6 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,

7 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has

8 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the

9 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”

10 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a

11 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible

12 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

13 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements

14 of a cause of action, supported by mere conclusory statements, do not suffice” to state a

15 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-

16 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss

17 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

18 B. Plaintiff’s Allegations

19 In his Complaint, Clinton alleges that on January 18, 2020 he had visitation with his

20 wife. After the visit was over, Clinton, who is disabled and uses a wheelchair, had difficulty

21 leaving the visitation room because of the “narrow [a]isles.” ECF No. 1 at 2. Plaintiff told

22 Correctional Officer Ashbury that he was having trouble maneuvering through the narrow

23 passageway and asked if Ashbury could have a porter widen the pathway so he could get

24 through in his wheelchair without running into people who were seated at visiting tables.

25 Id. When Ashbury acted like he did not hear him, Plaintiff stated, “never mind, I’ll just

26 write it up as an [Americans with Disabilities Act (“ADA”)] claim. Id. at 3. Ashbury then

27 became “irate” and told Clinton he was acting like a snitch. Id.

28 Clinton left the visiting area to be processed before returning to his housing facility.

1 Ashbury, who was still visibly upset by Clinton’s threat to file an ADA complaint, followed

2 Clinton while making “derogatory remarks.” Id. Ashbury then asked the correctional

3 officer assigned to search inmates after visitation to step aside so he could search Clinton.

4 During the process, Ashbury “tore the seat cushion” of Clinton’s wheelchair. Ashbury then

5 pushed Plaintiff toward “the window where visitors . . . could view [Clinton’s] naked

6 disabled body as he tore [Clinton’s] clothes off.” Id.

7 Correctional Officer Cortez then arrived and assisted Ashbury by using “physical

8 force” to hold Clinton against the window. Cortez ordered Plaintiff to squat and expose his

9 buttocks. Id. at 4. Clinton, who weighs approximately 300 pounds, had difficulty balancing

10 and had to use his “face and neck” against the wall as support. Neither Cortez nor Ashbury

11 used a curtain to protect Plaintiff’s privacy during the search. Id. Clinton filed an inmate

12 grievance about the incident on January 22, 2020. Id.

13 In the days the followed, Cortez conducted at least three more strip searches of

14 Plaintiff. On January 25, 2020, Cortez took Clinton to the search area, where he stripped

15 him of his clothing, stepped “chest to chest” with Plaintiff while Plaintiff was naked, and

16 stated, “Show me something.” Id. Cortez did not search under Plaintiff’s arms or the inside

17 of his mouth but focused on having Plaintiff expose his buttocks. On February 1, 2020,

18 Clinton was in the rear search area and Cortez approached him. Cortez was “irate and

19 boisterous,” yelling at Plaintiff to “strip out.” Id. As Clinton began removing his clothing,

20 Cortez “snatched [Clinton’s] shirt, pulling [him] off balance” and causing Clinton’s back

21 to “spasm.” Id. On February 9, 2020, after Plaintiff had visitation with his wife, he was

22 being processed by Correctional Officer Nahn. Id. at 4–5. After Plaintiff had stripped down,

23 Cortez approached and told Nahn to move out of the way so he could conduct the search

24 of Plaintiff. Id. In doing so, Cortez “continuously and purposefully put his body against

25 [Clinton’s], making contact with [Clinton’s] naked body parts.” Id. at 5.

26 C. Discussion

27 In his Complaint, Clinton alleges his Eighth Amendment right to be free from

28 excessive force was violated by all Defendants; his Equal Protection and Due Process rights

1 were violated by Pollard, Buckel, Steadman, Ashbury, Cortez, and Nahn; and his First

2 Amendment right to be free from retaliation was violated by Ashbury, Cortez, and Nahn.

3 ECF No. 1 at 5–6. He also raises a state tort law claim of “assault and battery against

4 Pollard, Buckel, Steadman, Ashbury, Cortez, and Nahn. Id. at 6. Clinton seeks

5 compensatory and punitive damages. Id. at 7.

6 1. Official Capacity Claims

7 As an initial matter, the Court notes that Plaintiff brings this action against the named

8 Defendants in their individual and official capacities.2 A suit brought against prison

9 officials in their official capacity is generally equivalent to a suit against the prison itself.

10 McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986). Therefore, prison officials may be

11 held liable only if “‘policy or custom’. . .played a part in the violation of federal law.” Id.

12 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). The official may be liable where

13 the act or failure to respond reflects a conscious or deliberate choice to follow a course of

14 action when various alternatives were available. Clement v. Gomez, 298 F.3d 898, 905 (9th

15 Cir. 2002) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989); see Long v. County

16 of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Waggy v. Spokane County

17 Washington, 594 F.3d 707, 713 (9th Cir. 2010). To prove liability for an action policy the

18 plaintiff “must . . . demonstrate that his deprivation resulted from an official policy or

19 custom established by a . . . policymaker possessed with final authority to establish that

20 policy.” Waggy, 594 F.3d at 713. Here, Clinton has failed to include factual allegations that

21 the violations at issue in this action were the result of a policy or custom of the CDCR. As

22 such, Plaintiff fails to state an official capacity claim against any named Defendant, and

23 his official capacity claims must be dismissed.

24 2. Eighth Amendment

25 Clinton alleges his Eighth Amendment rights were violated when Defendants used

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1 excessive force against him and/or failed to intervene during the four strip searches that

2 took place between January 18, 2020 and February 9, 2020. ECF No. 1 at 4–5.

3 a. Respondeat Superior – Pollard, Steadman, Buckel, Cruz, Moore

4 Clinton fails to state an Eighth Amendment excessive force claim against Warden

5 Pollard, Deputy Warden Buckel, Associate Warden Steadman, Sergeant Cruz, and

6 Lieutenant Moore. There is no respondeat superior liability under § 1983. Jones v.

7 Williams, 297 F.3d 930, 934 (9th Cir. 2002). Specifically, liability may not be imposed on

8 supervisory personnel for the actions or omissions of their subordinates. Iqbal, 556 U.S. at

9 676–77. Supervisors may be held liable only if they “participated in or directed the

10 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880

11 F.2d 1040, 1045 (9th Cir. 1989); Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011).

12 As to Pollard Buckel and Steadman, Plaintiff merely alleges they “failed to

13 interven[e] to prevent the misuse of force” against him. ECF No. 1 at 6. Plaintiff, however,

14 fails to set forth any specific facts to demonstrate Pollard, Buckel and/or Steadman

15 participated in or directed the alleged excessive force or knew of the incidents when they

16 occurred and failed to act to prevent them. See Taylor, 880 F.3d at 1045. Likewise, Clinton

17 fails to state a claim Sergeant Cruz and Lieutenant Moore because he fails to provide any

18 factual allegations whatsoever as to Cruz’s and/or Moore’s conduct, much less any specific

19 facts which plausibly allege personal participation on their parts. See Iqbal, 556 U.S. at 676

20 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that

21 each Governmental-official defendant, through the official’s own individual actions, has

22 violated the Constitution.”). Therefore, Clinton has failed to state a plausible Eighth

23 Amendment excessive force claim against Pollard, Buckel, Steadman, Cruz, and Moore.

24 See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); see also Lopez, 203 F.3d at 1126–27.

25 b. Doe Defendants

26 Clinton also fails to state an Eighth Amendment claim against Doe Defendants 1–

27 10. The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious

28 parties, but Rule 10 does require a plaintiff to include the names of all parties in his

1 complaint. See Fed. R. Civ. P. 10(a). Courts especially disfavor Doe defendants in IFP

2 cases because in the event the plaintiff’s complaint alleges a plausible claim for relief, it is

3 effectively impossible for the United States Marshal Service to fulfill its duty to serve an

4 unnamed defendant. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); Walker v. Sumner,

5 14 F.3d 1415, 1422 (9th Cir. 1994) (stating that in order to properly effect service under

6 Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to

7 identify the defendant”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL

8 3580764, at *6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United

9 States Marshal cannot serve a summons and complaint on an anonymous defendant.”).

10 “A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe

11 2, John Doe 3, and so on, but he must allege specific facts showing how each particular

12 doe defendant violated his rights.” Cuda v. Employees/Contractors/Agents OCCC, 2019

13 WL 2062945, at *3–4 (D. Haw. May 9, 2019). A plaintiff may also seek discovery to obtain

14 the names of the Does and later amend his pleading to substitute the true names of those

15 defendants, unless it is clear discovery will not uncover their identities, or that his

16 complaint is subject to dismissal on other grounds. See Wakefield v. Thompson, 177 F.3d

17 1160, 1163 (9th Cir. 1999) (emphasis added) (citing Gillespie v. Civiletti, 629 F.2d 637,

18 642 (9th Cir. 1980)).

19 Here, Plaintiff names “Does 1–10” as Defendants but makes no specific allegations

20 against any individual Doe in relation to the constitutional violations which form the basis

21 of his suit. Simply put, Clinton fails to link any specific constitutional violation to any

22 specific, individual state actor, and he fails to even minimally explain how each individual

23 Doe party he seeks to sue personally caused a violation of his constitutional rights. See

24 ECF No. 1 at 3–5; see also Iqbal, 556 U.S. at 677. As noted above, “[a] plaintiff must

25 allege facts, not simply conclusions, t[o] show that [each defendant] was personally

26 involved in the deprivation of his civil rights.” Barren, 152 F.3d at 1194 (9th Cir. 1998);

27 see also Estate of Brooks ex rel. Brooks, 197 F.3d at 1248. As it stands, Plaintiff’s

28 Complaint fails to “plead[] factual content that [would] allow[] the court to draw the

1 reasonable inference that [any] defendant is liable for the misconduct alleged.” Iqbal, 556

2 U.S. at 678. Therefore, Plaintiff has failed to state an Eighth Amendment claim against

3 Does 1–10. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); see also Lopez, 203 F.3d at

4 1126–27.

5 c. Ashbury, Cortez and Nahn

6 As for the remaining Defendants, Ashbury, Cortez and Nahn, Clinton alleges they

7 violated his Eighth Amendment rights by using excessive force against him during a series

8 of strip searches that occurred in January and February 2020. ECF No. 1 at 3–5. The Eighth

9 Amendment prohibits the imposition of cruel and unusual punishments. Estelle v. Gamble,

10 429 U.S. 97, 102 (1976). The use of force by a prison official is “excessive” in violation of

11 the Eighth Amendment where the force was not applied in a good-faith effort to maintain

12 or restore discipline but, rather, maliciously and sadistically to cause harm. Hudson v.

13 McMillian, 503 U.S. 1, 6–7 (1992). A prisoner alleging excessive force under the Eighth

14 Amendment must show that “the officials involved acted with ‘deliberate indifference’ to

15 the inmates’ health or safety.” Hope v. Pelzer, 536 U.S. 730, 738 (2002).

16 This standard has both an objective and subjective component. The objective

17 component asks whether “the alleged wrongdoing was objectively harmful enough to

18 establish a constitutional violation.” Husdson, 503 U.S. at 8. A “serious injury” is not

19 required, but de minimis force is not actionable so long as it is not “of a sort repugnant to

20 the conscience of mankind.” Id. at 10. Under the subjective inquiry, a plaintiff must show

21 the prison official acted with a “sufficiently culpable state of mind.” Id. at 8 (internal

22 quotation marks omitted); Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020). This

23 “turns on whether force was applied in a good faith effort to maintain or restore discipline

24 or maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at

25 6; Bearchild, 947 F.3d at 1140. In determining whether the force used was excessive, the

26 Court must consider “the extent of any injury, the need for the use of force, and whether

27 that need supports the amount of force used,” as well as “any efforts made to temper the

28 severity of a forceful response.” Hudson, 503 U.S. at 7. Finally, in evaluating the use of

1 force, the Court must be mindful to accord to “prison administrators . . . wide-ranging

2 deference in the adoption and execution of policies and practices that in their judgment are

3 needed to preserve internal order and discipline and to maintain institutional security.”

4 Whitley v. Albers, 475 U.S. 312, 321–22 (1986)).

5 First, to the extent Clinton alleges Ashbury, Cortez and Nahn violated his Eighth

6 Amendment rights by subjecting him to strip searches without sufficient privacy from other

7 inmates, causing him to feel “upset and embarrass[ed],” he fails to state a claim.3 ECF No.

8 1 at 4. Subjecting inmates to strip searches generally does not rise to the level of an Eighth

9 Amendment violation. See, e.g., Somers v. Thurman, 109 F.3d 614, 622–24 (9th Cir.)

10 (concluding cross-gender visual body cavity searches of male inmates, as well as watching

11 the inmate shower, was not objectively harmful enough to serve as basis of Eighth

12 Amendment claim); Foster v. Triplett, 2019 WL 452683, at *6 (C.D. Cal. Jan. 3, 2019)

13 (weekly strip searches did not violate the Eighth Amendment where plaintiff did not allege

14 any facts suggesting the strip searches, in themselves, were so egregiously harmful as to

15 violate the Eighth Amendment), report and recommendation adopted, 2019 WL 450671

16 (C.D. Cal. Feb. 5, 2019); Wilson v. Soto, 2016 WL 825194, at *5 (C.D. Cal. Jan. 21, 2016)

17 (allegations of strip search in the presence of other inmates and female officers insufficient

18 to state an Eighth Amendment claim), report and recommendation adopted, 2016 WL

19 827747 (C.D. Cal. Mar. 2, 2016).

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22 3 While Plaintiff does not raise a Fourth Amendment claim in his Complaint, the Court notes the

Ninth Circuit has held that prisoners retain rights to bodily privacy under the Fourth Amendment.

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Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 974–75 (9th Cir. 2010). Strip searches,

24 however, do not per se violate prisoners’ Fourth Amendment rights. See id. at 974. Rather, a strip

search is unreasonable under the Fourth Amendment where it is “‘excessive, vindictive, harassing,

25 or unrelated to any legitimate penological interest.’” Thompson v. Souza, 111 F.3d 694, 700 (9th

26 Cir. 1997) (quoting Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988)). In reviewing

such a claim, the Court must consider “‘. . . the scope of the particular intrusion, the manner in

27 which it is conducted, the justification for initiating it, and the place in which it is conducted.’”

Thompson, 111 F.3d at 700 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)); see United States

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1 Next, to the extent Clinton alleges Ashbury, Cortez and Nahn used unnecessary

2 physical force in conducting the strip searches, he also fails to state a claim. As to the

3 January 18, 2020 search, Plaintiff alleges that Ashbury and Cortez “[held] him against the

4 glass window.” ECF No. 1 at 3. Without more, this is insufficient to plausibly allege the

5 purported force used by Ashbury and Cortez was “repugnant to the conscience of

6 mankind.” Hudson, 503 U.S. at 10. Likewise, as to the January 25, 2020 search, Clinton

7 merely alleges Cortez “stepped chest to chest” with him. ECF No. 1 at 4. Plaintiff again

8 fails to state sufficient facts to plausibly allege show Cortez’s conduct was “objectively

9 harmful enough to establish a constitutional violation.” Husdson, 503 U.S. at 8. Such de

10 minimis force is not actionable under the Eighth Amendment. Id.

11 Similarly, the allegation that Cortez used excessive force during his February 1, 2020

12 search of Plaintiff falls short of stating a plausible excessive force claim. Plaintiff states

13 Cortez “snatched” his shirt from him, causing him to lose his balance. ECF No. 1 at 4.

14 While Clinton alleges he suffered back spasms as a result of losing his balance, without

15 more, this is insufficient to state a plausible claim that Cortez used force with “a knowing

16 willingness that [harm] occur.” See Farmer v. Brennan, 511 U.S. 825, 836 (1994) (quoting

17 Whitney, 475 U.S. at 321); see also Hart v. Celaya, 548 F. Supp. 2d 789, 804 (N.D. Cal.

18 2008) (granting summary judgment on excessive force claims where plaintiff alleged

19 officer “pushed” him into a door and “jerked” his arm because such conduct constituted

20 only “rough handling,” and “the Eighth Amendment does not protect against such de

21 minimis use of physical force”).

22 Lastly, Clinton fails to allege excessive force as to the February 9, 2020 search. He

23 alleges that he was visiting with his wife and Cortez “stared him down,” causing Clinton

24 “fear and concern.” Id. at 4–5. After the visit concluded, Defendant Nahn had begun

25 processing Clinton in the search area when Cortez arrived and told Nahn to move so Cortez

26 could finish the searching process. Id. During the search, Cortez “put his body against

27 [Clinton’s,] making contact with [Clinton’s] body parts. Id. at 5. First, Plaintiff fails to

28 allege Nahn used any force whatsoever. Second, as to Cortez, Clinton states only that

1 Cortez brushed up against his body during the search. Plaintiff fails to plausibly allege

2 Cortez used force “maliciously and sadistically” to cause harm. As such, he has not stated

3 an excessive force claim.4 Hudson, 503 U.S. at 6–7.

4 Based on the foregoing, Clinton has failed to state an Eighth Amendment claim

5 against Ashbury, Cortez and Nahn. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); see

6 also Lopez, 203 F.3d at 1126–27.

7 3. Equal Protection

8 Clinton also alleges he was “denied equal protection of law” by Pollard, Buckel,

9 Steadman, Ashbury, Cortez, Nahn and Does 1–10. See ECF No. 1 at 6–7. The Equal

10 Protection Clause requires that persons who are similarly situated be treated alike. City of

11 Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Shakur v. Schriro,

12 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by either

13 (1) showing defendants intentionally discriminated against a plaintiff based on his

14 membership in a protected class, Comm. Concerning Cmty. Improvement v. City of

15 Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082

16 (9th Cir. 2003), or (2) showing that similarly situated individuals were intentionally treated

17 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon

18 Department of Agr., 553 U.S. 591, 601–02 (2008); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d

19 580, 592 (9th Cir. 2008).

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22 4 The Court notes that a prisoner may be able to present “a viable Eighth Amendment claim where

23 he or she proves that a prison staff member, acting under color of law and without legitimate

penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual

24 conduct for the staff member’s own sexual gratification, or for the purpose of humiliating,

degrading, or demeaning the prisoner.” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020).

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Here, however, even if the Court liberally construed Clintons claim as one of sexual harassment,

26 he fails to allege Cortez touched him in a sexual manner for the purpose of his own sexual

gratification or to humiliate and demean Clinton. See id.

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1 Here, Clinton has failed to allege specific facts to show how Defendants

2 discriminated against him because of his membership in that class. Plaintiff also fails to

3 plausibly allege that similarly situated prisoners received different treatment such that

4 Defendants’ actions towards him were irrational and arbitrary. Plaintiff’s conclusory

5 allegations do not suffice. See Iqbal, 556 U.S. at 678. Therefore, he has failed to state an

6 equal protection claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S.

7 at 678; Lopez, 203 F.3d at 1126–27.

8 4. Due Process

9 Next, Clinton alleges he was denied his right to due process when Pollard, Buckel

10 and Steadman failed to take disciplinary action against Ashbury, Cortez and Nahn after

11 Plaintiff filed grievances against them. ECF No. 1 at 6. Plaintiff, however, has no stand-

12 alone due process rights related to the administrative grievance process. Ramirez v. Galaza,

13 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)

14 (holding that there is no protected liberty interest to a grievance procedure). California’s

15 regulations grant prisoners a purely procedural right: the right to have a prison appeal. See

16 Cal. Code Regs. tit. 15, §§ 3084-3084.9 (2014). In other words, prison officials are not

17 required under federal law to process inmate grievances in a certain way. Thus, the denial,

18 rejection, screening out of issues, review, or cancellation of a grievance does not constitute

19 a due process violation. See, e.g., Evans v. Skolnik, 637 F. App’x 285, 288 (9th Cir. 2015)

20 (stating a prison official’s denial of a grievance does not itself violate the constitution);

21 Towner v. Knowles, No. S-08-cv-2823-LKK-EFB, 2009 WL 4281999 at *2 (E.D. Cal.

22 Nov. 20, 2009) (finding allegations that prison officials screened out inmate appeals

23 without any basis failed to indicate a deprivation of federal rights); Williams v. Cate, 1:09-

24 CV-00568-OWW-YNP PC, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff

25 has no protected liberty interest in the vindication of his administrative claims.”).

26 Accordingly, Plaintiff cannot and does not state a cognizable claim based on the processing

27 and/or denial of any inmate grievance. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1);

28 Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27.

1 5. First Amendment Retaliation

2 Next, Clinton alleges Ashbury, Cortez and Nahn violated his First Amendment

3 rights by retaliating against him for telling Ashbury he was going to file an ADA complaint.

4 ECF No. 1 at 6. “Within the prison context, a viable claim of First Amendment retaliation

5 entails five basic elements: (1) An assertion that a state actor took some adverse action

6 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action

7 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

8 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

9 567–68 (9th Cir. 2005).

10 First, an adverse action taken need not constitute an independent constitutional

11 violation. Watison, 668 F.3d 1114. Indeed, “the mere threat of harm” may be sufficient.

12 See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). Courts have found searches,

13 even the prison context, may constitute an adverse action under certain circumstances. See

14 Cejas v. Paramo, 2017 WL 1166288, *6 (S.D. Cal. 2017) (“[A]lthough cell searches are a

15 routine part of prison life, a cell search may nonetheless constitute an adverse action,” if

16 performed with a retaliatory motive and lacking a legitimate correctional goal.”); see also

17 Lankford v. Taylor, No. 17-cv-02797-PHX-DWL-JZB, 2019 WL 4600369, at *7 (D. Ariz.

18 Sept. 23, 2019). Thus, a search of a prisoner may constitute an adverse action if the impetus

19 was retaliatory and the search served no penological interest.

20 Second, a plaintiff’s threat to sue is protected conduct under the First Amendment.

21 Entler, 872 F.3d at 1039–40 (There is “no distinction between a threat to initiate litigation

22 and the litigation.”). Moreover, “[p]risoners have a First Amendment right to file

23 grievances against prison officials and to be free from retaliation for doing so.” Watison v.

24 Carter, 668 F.3d at 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

25 Cir. 2009)). Consistent with these principles, courts in this Circuit have repeatedly found

26 protected conduct where a plaintiff makes a verbal threat to file a suit or grievance or even

27 request a grievance form. See e.g. Garcia v. Strayhorn, No. 13-cv-807-BEN-KSC, 2014

28 WL 4385410, at *7 (S.D. Cal. Sept. 3, 2014) (finding prisoner’s verbal threat to file a

1 grievance was protected conduct); Irvin v. Roldan, No. 19-cv-1418-AG (KK), 2019 WL

2 8105897, at *3 (C.D. Cal. Dec. 23, 2019) (finding threats to file a grievance protected

3 conduct); Hunter v. Harr, No. 14-cv-9886 R(JC), 2018 WL 6113098, at *6 (C.D. Cal. July

4 19, 2018), report and recommendation adopted, No. 14-cv-9886 R-JC, 2018 WL 6118555

5 (C.D. Cal. Aug. 27, 2018) (rejecting argument that an ADA appeal was not protected

6 conduct, stating “[a]n inmate complaint need not expressly seek access to the courts or

7 pursue civil rights litigation or be brought through a prison’s formal grievance process for

8 it to be considered a constitutionally protected ‘grievance’”).

9 Next, a plaintiff must allege a causal connection between the adverse action and the

10 protected conduct. Because direct evidence of retaliatory intent rarely can be pleaded in a

11 complaint, allegation of a chronology of events from which retaliation can be inferred is

12 sufficient to survive dismissal. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).

13 Here, Clinton alleges the first improper strip search came right after he told Ashbury he

14 was going to file an ADA complaint. See id. (stating “timing can properly be considered

15 as circumstantial evidence of retaliatory intent”).

16 But even assuming Clinton’s exercise of his right to pursue an ADA grievance was

17 “chilled” by the subsequent strip searches, he has not stated a retaliation claim because he

18 has failed to plausibly allege the searches lacked any legitimate penological purpose. See

19 Rhodes, 408 F.3d at 567–68 (noting it is the plaintiff’s burden to establish the absence of a

20 legitimate penological purpose). The Ninth Circuit has stated that “so long as a prisoner is

21 presented with the opportunity to obtain contraband or a weapon while outside of his cell,

22 a visual strip search has a legitimate penological purpose.” Michenfelder, 860 F.2d at 332–

23 33. Here, the searches occurred after Clinton had finished visitation sessions. See ECF No.

24 1 at 3, 5. Because Plaintiff has the burden to prove the absence of a legitimate penological

25 purpose and he has offered no evidence of that, the Court finds that he has not met his

26 burden here. See Hartman v. Moore, 547 U.S. 250, 260 (2006) (stating causation is but-

27 for; that is, action colored by a bad motive is not a constitutional violation if the action

28 would have been taken anyway). Therefore, Plaintiff has failed to state a first Amendment

1 retaliation claim against Ashbury, Cortez and Nahn. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),

2 1915A(b)(1); see also Lopez, 203 F.3d at 1126–27.

3 6. State Tort Claims

4 Lastly, Plaintiff alleges Ashbury, Cortez, Nahn and Does 1–10 are liable under

5 California Civil Code for “assault and battery.” ECF No. 6. The Court may “decline to

6 exercise supplemental jurisdiction” over any supplemental state law claim if it “has

7 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford

8 v. Member Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which

9 all federal-law claims are eliminated before trial, the balance of factors to be considered

10 under the pendent jurisdiction doctrine . . . will point toward declining to exercise

11 jurisdiction over the remaining state-law claims.”). Because the Court has dismissed all of

12 Plaintiff’s federal claims, the Court declines to exercise supplemental jurisdiction over any

13 state law claims at this time. Accordingly, the Court sua sponte dismisses Plaintiff’s state

14 tort claims. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112.

15 D. Leave to Amend

16 Given Plaintiff’s pro se status, the Court grants him leave to amend to attempt to

17 sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.

18 2015) (“A district court should not dismiss a pro se complaint without leave to amend

19 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies

20 of the complaint could not be cured by amendment.”) (internal quote marks omitted).

21 IV. CONCLUSION AND ORDER

22 For the reasons set forth above, the Court hereby:

23 1. GRANTS Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a)

24 (ECF No. 2).

25 2. ORDERS the Secretary of the CDCR, or his designee, to collect from

26 Plaintiff’s prison trust account the $63.33 initial filing fee as well as the remaining balance

27 of the $350 filing fee owed in this case by collecting monthly payments from the account

28 in an amount equal to twenty percent (20%) of the preceding month’s income and forward

1 payments to the Clerk of the Court each time the amount in the account exceeds $10 in

2 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST CLEARLY

3 IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO THIS ACTION.

4 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff

5 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by

6 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

7 4. DISMISSES the Complaint without prejudice and with leave to amend

8 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

9 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

10 which to file a First Amended Complaint which cures the deficiencies of pleading noted in

11 this Order. Plaintiff’s Amended Complaint must be complete by itself without reference to

12 any previous version of his pleading; Defendants not named and any claims not re-alleged

13 in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal

14 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed

15 with leave to amend which are not re-alleged in an amended pleading may be “considered

16 waived if not repled”); Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

17 1546 (9th Cir. 1989). If Plaintiff fails to timely amend, the Court will enter a final Order

18 dismissing this civil action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If

19 a plaintiff does not take advantage of the opportunity to fix his complaint, a district court

20 may convert the dismissal of the complaint into dismissal of the entire action.”)

21 IT IS SO ORDERED.

22 Dated: May 16, 2023

23 Hon. Dana M. Sabraw, Chief Judge

United States District Court

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