Flores v. Correctional Corp. of America

Full title: ANTONIO GALEANA FLORES, Plaintiff, v. CORRECTIONAL CORP. OF AMERICA, et…

Court: United States District Court, E.D. California

Date published: Aug 9, 2007

CV F 05 1074 AWI WMW P (E.D. Cal. Aug. 9, 2007)

Opinion

CV F 05 1074 AWI WMW P.

August 9, 2007

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

WILLIAM WUNDERLICH, Magistrate Judge

Plaintiff is a federal prisoner proceeding pro se in a civil rights action. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).

This action proceeds on October 11, 2005, amended complaint. Plaintiff, an inmate in the custody of the U.S. Bureau of Prisons at the Correctional Institution at California City, brings this civil rights action against Defendant Correctional Corporation of America, along with individual defendants. Plaintiff sets forth claims of sexual harassment, violation of privacy, denial of rehabilitative programs and deliberate indifference to his safety.

Plaintiff's privacy claim stems from his allegation that female correctional officers are able to view him while in the shower. The Ninth Circuit has recognized that prisoners retain a limited right to bodily privacy grounded in the Fourth Amendment. Michenfelder v. Sumner, 860 F.2d 328, 333 (9^th Cir. 1988). However, limitations on the exercise of a prisoner's constitutional rights arise both from the fact of incarceration and from valid penological objectives. Id. at 331 (citing O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)). As such, a rational relationship test to determine whether the impingement on an inmate's right to privacy claim must be analyzed using a rational relationship test to determine whether the impingement on an inmate's right to privacy is "reasonably related to legitimate penological interests."Michenfelder v. Sumner, 860 F.2d at 333-34 (citing Turner v. Safley, 482 U.S. 78 (1987)).

The Ninth Circuit has held that the assignment of guards to positions that require only "infrequent and casual observation" of prisoners of the opposite sex, or "observation at a distance," that is reasonably related to prison needs is not so degrading as to warrant court interference. Id. (finding no constitutional violation where female correctional officers were assigned shower duty and could view inmates being strip searched); Grummett v. Rushen, 779 F.2d 491, 494 (9^th Cir. 1985) (permitting female officers to view male prisoners while disrobing, showering, and using toilet facilities where the officer's view of the prisoners was infrequent and casual); compare Sepulveda v. Ramirez, 967 F.2d 1413 (9^th Cir. 1992) (finding violation of parolee's constitutional rights where male parole officer walked into bathroom stall where female parolee was urinating as part of the required drug test). Assuming defendants' conduct is as alleged, plaintiff has not suffered a constitutional deprivation. This claim must therefore be dismissed.

As to Plaintiff's claim of sexual harassment, he has alleged facts that state a claim for relief, but he does not identify the individuals involved. The Ninth Circuit has held that sexual harassment can constitute an Eighth Amendment violation, but not in a case without physical contact. Bowie v. California Dept. of Corrections, 99 F.3d 1145 (9^th Cir. 1991), citing Jordan v. Gardner, 986 F.2d 1521 (9^th Cir. 1993); Hernandez v. Denton, 861 F.2d 1421 (9^th Cir.), cert. denied, 112 S.Ct. 75 (1991). Plaintiff has alleged that he was touched "in his genitalias," but he does not identify the individuals involved. In order to serve the individuals involved, Plaintiff must identify them.

Plaintiff claims that he is not offered any rehabilitative or leisure activity. "Idleness and the lack of [vocational and rehabilitative] programs does not violate the Eighth Amendment.See Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9^th Cir. 1982); see also Toussaint v. McCarthy, 801 F.2d 1080, 1106-08 (9^th Cir. 1986). This claim therefore fails.

Plaintiff's claim for deliberate indifference stems from injuries that he suffered as a result of a fall on the soccer field. Plaintiff alleges that as a result of the condition of the field, he was scratched over times due to falls. The Eighth Amendment provides that "cruel and unusual punishment [shall not be] inflicted." "An Eighth Amendment claim that a prison official has deprived inmates of humane conditions of confinement must meet two requirements, one objective and the other subjective."Allen v. Sakai, 48 F.3d 1082, 1087 (9^th Cir.) cert. denied, 514 U.S. 1065, (1995).

The objective requirement is met if the prison official's acts or omissions deprived a prisoner of "the minimal civilized measure of life's necessities.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To satisfy the subjective prong, a plaintiff must show more than mere inadvertence or negligence. Neither negligence nor gross negligence will constitute deliberate indifference. Farmer, 511 U.S. at 833, n. 4; Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Farmer court concluded that "subjective recklesness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause" and adopted this as the test for deliberate indifference under the Eighth Amendment. Farmer, 511 U.S. at 839-40.

Here, Plaintiff alleges, at most, negligence, which fails to state a claim for relief under the Eighth Amendment. Plaintiff must allege facts indicating that a named defendant knew of and disregarded a serious risk to Plaintiff's safety, resulting in more than de minimis injury to Plaintiff. The court finds thea the allegations in plaintiff's amended complaint vague fail to allege facts sufficient to state a claim for relief. The complaint must therefore be dismissed. Plaintiff will, however, be granted leave to file an amended complaint. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved.

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's complaint first amended complaint is dismissed; and

2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint." Failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER UNDER BIVENS V. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS , 403 U.S. 388 (1971)

I. Scope of Bivens Action

A Bivens action is available to challenge violations of the federal constitution or federal statutes which affect the conditions of your confinement or your treatment by government employees while in custody. Although you may ask for and obtain money damages or an injunction, the court cannot issue an order which could affect the length of your sentence in any way. Those types of claims may be raised only through a petition for a writ of habeas corpus. If you want to file a petition for a writ of habeas corpus, you must do so on the correct forms, which are provided by the Clerk of the Court on request.

A. Exhaustion of Administrative Remedies If there is an inmate appeal or administrative remedy process available at your institution, you may not file a Bivens action, or an action under any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process before filing suit, regardless of the relief offered by the process. Booth v. Churner, 532 U.C. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth, 532 U.S. at 734.

II. Packet

A copy of a complaint form is attached to this instruction sheet. In addition, included in the packet is an information sheet for prisoners seeking leave to proceed in forma pauperis (without prepayment of filing fees) and a copy of an application to proceed in forma pauperis. To file an action, you must send all the following items to the court:

1. An original and one copy of the complaint. You must keep an additional copy of the complaint for your own records. All copies of the complaint must be identical to the original. If you wish to have a conformed copy of your complaint returned to you, you must send, in addition to the original, two extra copies and provide the court with a self-addressed postage paid envelope

2. Either a completed in forma pauperis application or the $350.00 filing fee.

NOTICE: pre-payment See 28 U.S.C. § 1915

Leave to proceed in forma pauperis allows a case to proceed without of the filing fee. However, a prisoner who brings a civil action in forma pauperis shall nevertheless be required to pay the full amount of the filing fee. The court shall collect the filing fee through deductions from the prisoner's trust account. Dismissal of the case does not excuse payment of the full filing fee. .

III. Complaint Form

Your complaint must be legibly handwritten or typewritten. You must sign the complaint and declare under penalty of perjury that the facts stated in the complaint are correct. If you need additional space to answer a question, you should attach an additional blank page. You are required to state facts in support of each claim. The complaint should refer to the provision of the federal constitution or federal law on which you are relying, but should not contain legal arguments or citations.

IV. Venue

Your complaint should be filed in the Fresno Division of this court only if one or more of the named defendants is located in the Fresno Division of the Eastern District of California, or if your claim arose in the Fresno Division of this district. The Fresno Division of the Eastern District of California is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.

Your complaint should be filed in the Sacramento Division of this court only if one or more of the named defendants is located in the Sacramento Division of the Eastern District of California, or if your claim arose in the Sacramento Division of this district. The Sacramento Division of the Eastern District of California is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba.

V. Mailing the Forms

When all of the forms described in part II are completed, if you are filing your case in the Fresno Division, mail the original and copies to:

Clerk of the U.S. District Court

for the Eastern District of California

2500 Tulare Street, Room 1501

Fresno, California 93721

If you are filing your case in the Sacramento Division, mail the original and copies to:

Clerk of the U.S. District Court

for the Eastern District of California

501 "I" Street, Suite 4-200

Sacramento, California 95814

VI. After the Complaint is Filed

Once the complaint is filed, the court will review it and decide whether to order service of the complaint on the defendants. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your complaint.

You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. This could result in the dismissal of your suit.

The Clerk of the Court cannot provide copies of documents to litigants, except at a charge of fifty cents ($0.50) per page. This charge also applies to litigants proceeding in forma pauperis. Therefore you must keep copies of all documents submitted to the court for your own records.

VII. Submission of Original Paper Exhibits

The Eastern District of California converted to an electronic filing, service, and storage system, effective January 3, 2005. Pro se litigants are exempt from the electronic filing requirement and must submit all documents to the court in paper. Local Rule 5-133(b)(2). Paper documents submitted by pro se litigants for filing will be scanned into the electronic court file by the Clerk's Office. After being scanned into the electronic court file, the paper documents will be retained in the Clerk's Office for a limited period of time and then discarded. Local Rule 39-138(d). For this reason, pro se litigants are cautioned not to send original exhibits to the court. If pro se litigants choose to submit exhibits to the court, the litigants shall retain their original exhibits and send photocopies to the court. Bivens 403 U.S. 388 I. Previous Lawsuits (list all other previous or pending lawsuits on back of this form) II. Exhaustion of Administrative Remedies ALL NOTICE: 42 U.S.C. § 1983 42 U.S.C. § 1997ebefore Booth v. Churner 532 U.S. 731 741 McKinney v. Carey 311 F.3d 1198 1999 Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth 532 U.S. at 734

Plaintiff's Name ________________________ Inmate No. ______________________________ Address _________________________________ _________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ______________________________________________________________________________________________ (Name of Plaintiff) (Case Number) vs. COMPLAINT ____________________________________ Action [ (1971)] ____________________________________ ____________________________________ ____________________________________ (Names of all Defendants) : A. Have you brought any other lawsuits while a prisoner? Yes ___ No ___ B. If your answer to A is yes, how many? ______________ Describe previous or pending lawsuits in the space below. (If more than one, use back of paper to continue outlining all lawsuits.) 1. Parties to this previous lawsuit: Plaintiff ____________________________________________________________________________________________ Defendants ___________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) _____________________________________________________________________________________________________ 3. Docket Number _________________________ 4. Assigned Judge ___________________________________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) _____________________________________________________________________________________________________ 6. Filing date (approx.) _________________ 7. Disposition date (approx.) ______________________ A. Is there an inmate appeal or administrative remedy process available at your institution? Yes ___ No ___ B. Have you filed an appeal or grievance concerning of the facts contained in this complaint? Yes ___ No ___ If your answer is no, explain why not ____________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ C. Is the process completed? Yes ___ If your answer is yes, briefly explain what happened at each level. _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ No ___ If your answer is no, explain why not. _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (a). If there is an inmate appeal or administrative remedy process available at your institution, you may not file an action under Section 1983, or any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process filing suit, regardless of the relief offered by the process. , , (2001); , , (9th Cir. 2002). , .

III. Defendants

(In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.)

A. Defendant ___________________________________________ is employed as ________________________________ ____________________________ at _____________________________________________________________________ B. Additional defendants _______________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________

IV. Statement of Claim

(State here as briefly as possible the facts of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.)

_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

V. Relief.

(State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.)

_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

I declare under penalty of perjury that the foregoing is true and correct.

Date ________________________ Signature of Plaintiff __________________________________________________