Valle v. Obler

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 OSCAR ESTEBAN VALLE, Case No.: 3:23-cv-2128-WQH-DEB

CDCR #BT7058

12

SCREENING ORDER RE SECOND

Plaintiff,

13 AMENDED COMPLAINT

vs.

14

(1) DISMISSING DEFENDANTS

15 STANICH AND SHANNAHAN AS

PARTIES;

16

DR. RICHARD OBLER, SHANNAHAN,

17 (2) DISMISSING SPECIFIED

COLLEEN STANICH, POLICE OFFICER

CAUSES OF ACTION FOR

18 JOHN DOE,

FAILING TO STATE A CLAIM

19 Defendants. PURSUANT TO 28 U.S.C.

§§ 1915(e)(2)(B) AND 1915A(b);

20

21 (3) DIRECTING MARSHAL

SERVICE AS TO DEFENDANT

22

OBLER PURSUANT TO

23 28 U.S.C. § 1915(d) AND

Fed. R. Civ. P. 4(c)(3)

24

25 I. INTRODUCTION

26 Oscar Esteban Valle (“Plaintiff” or “Valle”), a state inmate currently housed at the

27 California Medical Facility is proceeding pro se with a civil rights action pursuant to 42

28 U.S.C. § 1983. On April 12, 2024, the Court granted Plaintiff’s Motion to Proceed In

1 Forma Pauperis (“IFP”) and dismissed the original complaint without prejudice for failure

2 to state a claim. ECF No. 10. Valle filed a First Amended Complaint (“FAC”) on May 28,

3 2024. ECF No. 13. But before the Court could screen the FAC, Valle filed a Second

4 Amended Complaint (“SAC”), which is now the operative pleading. See Ramirez v. Cnty.

5 of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established in our

6 circuit that an amended complaint supersedes the original, the latter being treated thereafter

7 as non-existent.”) (internal quotation marks omitted).

8 For the reasons discussed below, the Court dismisses Valle’s claims against

9 Defendants Stanich and Shannahan and dismisses his Eighth and Fourteenth Amendment

10 claims as to all Defendants. The Court finds Plaintiff’s Fourth Amendment claims against

11 Defendants Doe and Obler sufficient to survive screening and directs Marshal Service of

12 the SAC as to Valle’s Fourth Amendment claim against Defendant Obler.

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

14 A. Legal Standards

15 As discussed in this Court’s previous screening order, under 28 U.S.C.

16 § 1915(e)(2)(B) and § 1915A(b), the Court must screen a prisoner’s IFP amended

17 complaint and sua sponte dismiss it to the extent that it is frivolous, malicious, fails to state

18 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d

19 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th

20 Cir. 2010). “The standard for determining whether Plaintiff has failed to state a claim upon

21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

23 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint to “contain sufficient

24 factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

25 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While detailed factual

26 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action,

27 supported by mere conclusory statements, do not suffice” to state a claim. Id. The “mere

28 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me

1 accusation[s]” fall short of meeting this plausibility standard. Id.

2 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

3 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux

4 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). To state a claim under § 1983, a plaintiff

5 must plausibly allege “both (1) deprivation of a right secured by the Constitution and laws

6 of the United States, and (2) that the deprivation was committed by a person acting under

7 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

8 B. Plaintiff’s Allegations

9 In his SAC, Plaintiff alleges that on November 8, 2021, he was taken into custody

10 by National City Police officers. SAC, ECF No. 14 at 3. After his arrest, officers transported

11 Valle to Paradise Valley Hospital in National City, California because Valle had

12 complained of chest pain and difficulty breathing. Id. Once at the hospital, x-rays revealed

13 Valle had a “foreign object” in his rectum. Id. While conducting an initial exam of Valle,

14 Dr. Richard Obler made “sexual comments” about how he would “fish [the foreign object]

15 out.” Id. at 3, 5. Detective Shannahan heard Obler’s comments and laughed. Id. at 3. Valle

16 refused medical treatment for the foreign object but requested fluids and Tylenol for pain.

17 Id. When Valle asked Shannahan why he did not intervene when Obler made inappropriate

18 comments, Shannahan ignored him. Id. at 5.

19 Later that same day, police officers transported Valle to the San Diego County Jail

20 where staff took another x-ray which, again, revealed the presence of the foreign object in

21 Plaintiff’s rectum. Id. at 3. Jail staff refused to accept Valle in his condition, so Shannahan

22 transported Valle back to Paradise Valley Hospital. Id. Shortly after Valle arrived at the

23 hospital the second time, Shannahan was relieved by Officer John Doe. Id. While Valle

24 was in restraints, Obler examined him again and made more inappropriate jokes about

25 Valle’s condition. Valle asked Officer Doe to “keep Doctor Obler away from him” but Doe

26 ignored Valle’s request. Id. Obler then asked Officer Doe if he “could conduct a search on

27 [Valle] [for] the contraband.” Id. Doe responded that Obler could “search anything to get

28 [Valle] to jail faster.” Id.

1 Obler then put on a “glove while cornering Plaintiff . . . saying he [was] going [to]

2 get it out.” Valle yelled for Officer Doe to intervene, but he did not. Id. Obler then put his

3 hand down Valle’s pants, grabbed Valle’s “penis foreskin ejaculated him 3 time [sic] while

4 licking his lips and [asking] if he like[d] it, reach[ed] around for [Valle’s] testicle [and]

5 forc[ed] his finger inside Plaintiff’s rectum.” Id. Shortly thereafter, Obler stated that it was

6 alright to give Valle water and food.1 When Valle asked Officer Doe “why he let [ ] Obler

7 do what he did,” Doe responded, “he is [the] doctor and [he] knows.” Id. Nurse Torres then

8 brought Valle water and food. Valle told Torres he had been sexually assaulted by Dr.

9 Obler. Id.

10 The next day, while still at the hospital, Valle reported to National City Police

11 Detective Stanich that he had been “sexually assaulted” by Obler. Id. at 4. Stanich

12 responded that she did not care. Id. Stanich came back to Valle’s room later and told him

13 that she would “investigate the sexual assault” “if he help[s] them get the object out [of

14 his] rectum.” Id. Plaintiff agreed to her “proposition.” While being observed by a nurse,

15 Plaintiff attempted to remove the object himself “for about 15 minutes,” but was

16 unsuccessful. Stanich ultimately refused to investigate Valle’s claim against Obler. Id.

17 Valle later told his new physician, Dr. Rodolfo, and a nurse, Cesar Cardenas, that Obler

18 had sexually assaulted him. Id.

19 C. Discussion

20 Valle raises claims under the Fourth, Eighth and Fourteenth Amendments and seeks

21 compensatory damages and punitive damages. Id. at 3–5, 7. While Plaintiff fails to clearly

22 identify the legal basis for his specific claims against each individual Defendant, the Court

23 liberally construes the SAC as raising the following claims: (1) Plaintiff’s Eighth

24 Amendment rights were violated when Obler conducted a digital cavity search and Stanich,

25 Shannahan and Doe failed to interceded; (2) his Fourteenth Amendment rights were

26

27

28

1 violated when Stanich failed to investigate his claim that Obler had sexually assaulted him;

2 (3) his constitutional rights were violated when Shannahan failed to intervene after Obler

3 made inappropriate comments to Valle; and (4) his Fourth and Fourteenth Amendment

4 rights were violated when Obler conducted a digital cavity search at Doe’s behest. See

5 generally ECF No. 14.

6 1. Eighth Amendment

7 First, to the extent Valle alleges Defendants violated his rights under the Eighth

8 Amendment, he fails to state a claim. The Eighth Amendment’s protections are specifically

9 concerned with unnecessary and wanton infliction of pain in penal institutions. See Whitley

10 v. Albers, 475 U.S. 312, 327, (1986). Because Valle was not imprisoned at any time during

11 the relevant period at issue, the protections of the Eighth Amendment do not apply. The

12 Court therefore DISMISSES Valle’s Eighth Amendment claims with prejudice for failure

13 to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678;

14 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A

15 district court may deny leave to amend when amendment would be futile.”)

16 2. Stanich

17 Valle alleges Stanich violated his rights under the Fourteenth Amendment when she

18 failed to adequately investigate his report that Obler had sexually assaulted him. ECF No.

19 14 at 4. But there is no constitutional right to receive a satisfactory response to a citizen’s

20 complaint. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e

21 can find no instance where the courts have recognized inadequate investigation as

22 sufficient to state a civil rights claim unless there was another recognized constitutional

23 right involved.”); see also Best v. Sonoma Cnty. Sheriffs Dep’t, 2020 WL 5517192, at *6

24 (“Failure to conduct an internal affairs investigation or properly investigate complaints

25 against law enforcement do[es] not amount to a violation of the due process clause of the

26 Fourteenth Amendment.”); Page v. Stanley, 2013 WL 2456798, at *8–9 (C.D. Cal. June 5,

27 2013) (dismissing Section 1983 claim alleging that officers failed to conduct thorough

28 investigation of plaintiff’s complaints because plaintiff “had no constitutional right to any

1 investigation of his citizen’s complaint, much less a ‘thorough’ investigation or a particular

2 outcome”). Valle has therefore failed to state a Fourteenth Amendment claim against

3 Stanich. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. And

4 because amendment would be futile, the claim is DISMISSED with prejudice. See

5 Hartmann, 707 F.3d at 1130.

6 3. Shannahan

7 Plaintiff alleges Shannahan failed to intervene when Obler made inappropriate

8 sexual comments and jokes during Valle’s first visit to the hospital.2 “[P]olice officers have

9 a duty to intercede when their fellow officers violate the constitutional rights of a suspect.”

10 See Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000). But here, Valle falls to

11 point to a constitutional violation. Mere verbal “harassment” is not a constitutional

12 violation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also Garrison

13 v. Fisher, No. 10-cv-1441-JSW, 2010 WL 4735995, at *2 (N.D. Cal. Nov. 15, 2010)

14 (stating verbal harassment or abuse is not sufficient to state a constitutional violation under

15 section 1983). As such, Shannahan had no duty to intervene. Nor can Valle state a claim

16 based on Shannahan’s purported failure to prevent Obler from conducting a cavity search

17 because Valle concedes that Shannahan was not present at that time. See ECF No. 14 at 3.

18 Therefore, the Court finds Plaintiff has failed to state a claim against Shannahan, see 28

19 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678, and that further

20 amendment would be futile. See Hartmann, 707 F.3d at 1130. Accordingly, the Court

21 DISMISSES the claim with prejudice.

22 4. Obler and Doe

23 Valle alleges his Fourth and Fourteenth Amendment rights were violated when

24 Obler conducted a nonconsensual cavity search with the permission of Officer Doe. ECF

25

26

2 Shannahan transported Valle back to the hospital after jail staff refused to accept Valle for booking. ECF

27 No. 14 at 3. Valle acknowledges, however, that Shannahan was relieved by Officer Doe shortly after Valle

arrived at the hospital the second time. See id. Plaintiff does not allege Shannahan was present during

28

1 No. 14 at 3.

2 a. Fourteenth Amendment

3 First, to the extent Valle also seeks to raise a Fourteenth Amendment substantive

4 due process claim premised on Obler’s purported cavity search and/or Doe’s assent to the

5 search, he fails to state a claim. “Where a plaintiff premises a Fourth Amendment claim

6 and a substantive due process claim on the same offending conduct, the due process claim

7 cannot go forward.” Loftis v. Ramos, 491 F. Supp. 3d 753, 768 (S.D. Cal. 2019) (citing

8 Graham v. O’Connor, 490 U.S. 386, 394 (1989) (“Because the Fourth Amendment

9 provides an explicit textual source of constitutional protection against . . . physically

10 intrusive governmental conduct, that Amendment, not the more generalized notion of

11 ‘substantive due process,’ must be the guide for analyzing these claims . . ..”). The Fourth

12 Amendment specifically addresses the search at issue in this case, and thus Plaintiffs’

13 claims must be considered under the Fourth Amendment. Therefore, the Court

14 DISMISSES Valle’s Fourteenth Amendment claims against Obler and Doe without leave

15 to amend. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678,

16 Hartmann, 707 F.3d at 1130.

17 b. Fourth Amendment

18 As to the Fourth Amendment, however, the Court finds Valle has alleged sufficient

19 facts to state plausible claims against Obler and Doe.3 The Fourth Amendment requires

20 that a nonconsensual physical search of a suspect’s body, like any other nonconsensual

21 search, be reasonable. See Winston v. Lee, 470 U.S. 753, 759–60 (1985). However, “[a]n

22

23

24

3 Valle alleges Obler was under contract with National City to provide medical services to arrestees. See

25 Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding state action where

hospital “contract [ed] with the state . . . to provide medical services to indigent citizens”). In addition, a

26 private individual or entity may be considered to be acting under color of state law if a private party

intentionally engages in joint action with a state official to deprive someone of a constitutional right. See

27 United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989) (en banc)

(“Private parties act under color of state law if they willfully participate in joint action with state officials

28

1 intrusion into the human body implicates an individual’s ‘most personal and deep-rooted

2 expectations of privacy.’” United States v. Fowlkes, 804 F.3d 954, 960-61 (9th Cir. 2015)

3 (quoting Winston, 470 U.S. at 760); Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988)

4 (stating “digital rectal searches are highly intrusive and humiliating”); Kennedy v. Los

5 Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1989). (“The intrusiveness of a body-

6 cavity search cannot be overstated.”). As such, “Fourth Amendment analysis thus

7 require[s] a discerning inquiry into the facts and circumstances to determine whether the

8 intrusion[s] [are] justifiable.” Winston, 470 U.S. at 760; see Fowlkes, 804 F.3d at 961

9 (searches involving intrusion into a person’s body implicate “greater constitutional

10 concerns”); George v. Edholm, 752 F.3d 1206, 1217 (9th Cir. 2014) (stating that a body

11 search, requires “a more substantial justification” than other searches). Here, Valle alleges

12 Obler conducted a nonconsensual cavity search and a sexual assault. Taking the facts

13 alleged in the SAC as true, the Court finds Valle has stated a plausible Fourth Amendment

14 claim against Obler.

15 The Court further finds Valle’s allegations are sufficient to state a plausible Fourth

16 Amendment claim against Doe. See George v. Edholm, 752 F.3d 1206, 1215 (9th Cir.

17 2014) (“[O]fficers may not avoid the requirements of the Fourth Amendment by inducing,

18 coercing, promoting, or encouraging private parties to perform searches they would not

19 otherwise perform.”); Norwood v. Harrison, 413 U.S. 455, 465 (1973) (“[I]t is . . .

20 axiomatic that a state may not induce, encourage or promote private persons to accomplish

21 what it is constitutionally forbidden to accomplish.”); Skinner v. Ry. Labor Execs.’ Ass’n,

22 489 U.S. 602, 614 (1989) (stating a search may be attributed to the state when “the private

23 party acted as an instrument or agent of the Government” in conducting the search).

24 5. Summary of Claims Surviving Screening

25 In sum, the Court finds only Plaintiff’s Fourth Amendment claims involving

26 Defendant Obler and Doe are “sufficient to warrant . . . an answer.” Wilhelm, 680 F.3d at

27 1123. But because Plaintiff’s SAC identifies only Obler by name, it will direct U.S.

28

1 Marshal service upon Obler only at this time. See 28 U.S.C. § 1915(d) (“The officers of

2 the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R.

3 Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal or

4 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

5 U.S.C. § 1915.”).

6 All remaining allegations in Plaintiff’s SAC fail to state a claim upon which § 1983

7 can be granted and are therefore DISMISSED sua sponte pursuant to 28 U.S.C.

8 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

9 III. CONCLUSION AND ORDER

10 For the above reasons, the Court hereby:

11 1. DISMISSES Defendants Stanich and Shannahan and DIRECTS the Clerk of

12 the Court to terminate them as parties to this matter based on Plaintiff’s failure to state a

13 claim against them pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

14 2. DISMISSES all claims and causes of action in Plaintiff’s Second Amended

15 Complaint as alleged against Defendants Obler, and Doe for failing to state a claim upon

16 which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

17

18

4 While the Court finds Plaintiff’s Fourth Amendment allegations involving Doe sufficiently pleaded to

19 survive initial screening pursuant to 28 U.S.C. §§ 1915(e) and 1915A(b), he must first identify Officer

Doe, submit an amended pleading and/or file a motion to substitute Doe’s true name, and request U.S.

20

Mashal service upon Doe as required by Federal Rule of Civil Procedure 4 before any claim alleged

21 against him may proceed. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (stating Doe

defendants must be identified and served within [90] days of the commencement of the action against

22 them); Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored, Gillespie v. Civiletti,

629 F.2d 637, 642 (9th Cir. 1980), and in most instances it is impossible for the United States Marshal to

23 serve a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (stating

that in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the

24

information necessary to identify the defendant.”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates,

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

Marshal cannot serve a summons and complaint on an anonymous defendant.”). However, where the

26 identity of parties is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff the

opportunity to pursue appropriate discovery to identify unknown Does, unless it is clear that discovery

27 would not uncover their identities, or his pleading requires dismissal for other reasons. See Wakefield v.

Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642).

28

1 1915A(b)(1), except the Fourth Amendment claims against Obler and Doe.

2 3. DIRECTS the Clerk to issue a summons as to Plaintiff’s Second Amended

3 Complaint upon Defendant OBLER only, and forward it to him along with a blank U.S.

4 Marshal Form 285 for Defendant OBLER. In addition, the Clerk will provide Plaintiff with

5 a certified copy of this Order and certified copy of his Second Amended Complaint (ECF

6 No. 14), and the summons so that he may serve Defendant OBLER. Upon receipt of this

7 “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately as

8 possible, include an address where Defendant OBLER may be found and/or subject to

9 service, and return them to the United States Marshal according to the instructions the Clerk

10 provides in the letter accompanying his IFP package.

11 4. ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Second Amended

12 Complaint and summons upon Defendant OBLER at the address provided by Plaintiff on

13 the USM Form 285 provided, and to file an executed waiver of personal service upon

14 Defendant OBLER with the Clerk of Court as soon as possible after its return. Should

15 Defendant fail to return the U.S. Marshal’s request for waiver of personal service within

16 90 days, the U.S. Marshal must instead file the completed Form USM 285 Process Receipt

17 and Return with the Clerk of Court, include the date the summons, Amended Complaint,

18 and request for waiver were mailed to Defendant OBLER, and indicate why service

19 remains unexecuted. All costs of service will be advanced by the United States; however,

20 if a Defendant located within the United States fails without good cause to sign and return

21 the waivers requested by the Marshal on Plaintiff’s behalf, the Court will impose upon that

22 Defendant any expenses later incurred in making personal service. See 28 U.S.C.

23 § 1915(d); Fed. R. Civ. P. 4(c)(3).

24 5. ORDERS Defendant OBLER, once served, to reply to the claims found

25 sufficient to survive screening in Plaintiff’s Second Amended Complaint, and any

26 subsequent pleading Plaintiff may file in this matter in which they are named as parties,

27 within the time provided by the applicable provisions of Federal Rule of Civil Procedure

28 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

1 || permitted to “waive the right to reply to any action brought by a prisoner confined in any

2 prison, or other correctional facility under section 1983,” once the Court has conducted

3 sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has

4 || made a preliminary determination based on the face of the pleading alone that Plaintiff has

5 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and

6 6. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

7 serve upon Defendant(s), or if appearance has been entered by counsel, upon Defendant’s

8 ||counsel, a copy of every further pleading, motion, or other document submitted for the

9 ||Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

10 || original document he seeks to file with the Clerk of the Court, a certificate stating the

11 manner in which a true and correct copy of that document has been served on Defendants

12 their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document

13 ||received by the Court which has not been properly filed with the Clerk or which fails to

14 include a Certificate of Service upon the Defendants, or their counsel, may be disregarded.

15 IT IS SO ORDERED.

16 || Dated: September 24, 2024 BE: eg Ze. A a

17 Hon, William Q. Hayes

18 United States District Court

19

20

21

22

23

24

25

26

27

28

11