Opinion
CASE NO. 3:18-cv-05441-BHS-JRC
10-25-2018
RICHARD ROBINSON, Plaintiff, v. RYAN BYLSMA and LISA OLIVER-ESTES, Defendants.
REPORT AND RECOMMENDATION NOTED FOR: November 9, 2018
Plaintiff Richard Robinson filed this civil rights action pursuant to 42 U.S.C. § 1983. This civil rights matter has been referred to Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4.
Plaintiff argues that his Eighth Amendment rights were violated when defendant Ryan Bylsma conducted a pat search on plaintiff when plaintiff was using the toilet and didn't allow plaintiff to pull up his pants. He also argues that defendant Lisa Oliver-Estes violated his rights because she knew defendant Bylsma had several complaints against him pursuant to the Prison Rape Elimination Act ("PREA"), but refused to suspend or otherwise remove defendant Bylsma from plaintiff's unit. However, plaintiff has failed to show that defendant Bylsma's search, even considering plaintiff was not allowed to pull up his pants, generated the extreme psychological pain necessary to state a claim under the Eighth Amendment. Further, he has not shown that defendant Bylsma's verbal harassment, even if true, constitutes a violation of the clearly established statutory or constitutional law, and he has failed to show that defendant Oliver-Estes personally participated in the alleged constitutional violation. Therefore, the Court recommends that defendants' motion to dismiss (Dkt. 15) be granted and that plaintiff's action be dismissed with prejudice.
BACKGROUND and PROCEDURAL HISTORY
Plaintiff filed his complaint in June of 2018. Dkt. 1. He alleges that his Eighth Amendment protections against cruel and unusual punishment were violated when defendant Bylsma allegedly engaged in an inappropriate search. Dkt. 5. He alleges that he was on the toilet when defendant Bylsma threw open the stall door and ordered plaintiff to stand for a pat down search. Id. He gave verbal commands "with force" and "snapped" at plaintiff during the search. Id. After patting down plaintiff's upper body and searching plaintiff's pants, defendant Bylsma "dismissed" plaintiff and left the area. Id. Plaintiff does not allege that defendant Bylsma touched him in a sexual manner or made any sexual comments. Id. He also alleges that defendant Oliver-Estes, the head of the Larch Corrections Center, knew of several complaints made against defendant Bylsma pursuant to the PREA, but failed to suspend defendant Bylsma. Id. Plaintiff also appears to raise a private cause of action directly under the PREA.
Defendants have filed a motion to dismiss, arguing that plaintiff has not alleged objective harm so as to raise his allegations to the level of an Eighth Amendment violation. Dkt. 15. They also argue that plaintiff has failed to allege personal participation as to defendant Oliver-Estes, and argue that there is no private cause of action pursuant to the PREA. Id. Finally, defendants also claim that they are entitled to qualified immunity because their conduct, even as alleged, does not violate clearly established statutory or constitutional rights. Id. at 8. Plaintiff filed opposition to defendants' motion to dismiss, Dkt. 19, and defendants have filed a reply, Dkt. 21.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be granted only if the complaint, with all factual allegations accepted as true, fails to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
While the Court must accept all the allegations contained in the Complaint as true, the Court does not have to accept a "legal conclusion couched as a factual allegation." Id. When a plaintiff is proceeding pro se, his allegations must be viewed under a less stringent standard than allegations of plaintiffs represented by counsel. Haines v. Kerner, 404 US 519 (1972), reh'g denied, 405 U.S. 948 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc) (petitioner should be afforded the "benefit of any doubt").
DISCUSSION
In order to recover pursuant to 42 U.S.C. § 1983, a plaintiff must prove that: (1) the conduct complained of was committed by a person acting under color of state law and that (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).
I. Qualified Immunity and Eighth Amendment Cruel and Unusual Punishment
Defendants argue that they are entitled to qualified immunity for plaintiff's alleged Eighth Amendment violations. A defendant is entitled to qualified immunity if his or her conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiff bears the burden of proving that the right allegedly violated was clearly established at the time of the violation; if the plaintiff meets this burden, then the defendant bears the burden of establishing that the defendant reasonably believed the alleged conduct was lawful. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 916-17 (9th Cir. 1996); Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995); Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995), overruled in part on other grounds by L. W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996).
A right is clearly established if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). It is not necessary that there be a prior case with identical facts showing that a right is clearly established. It is enough that there is preexisting law that provides a defendant "fair warning" that his conduct was unlawful. Kennedy, 439 F.3d at 1065. "[T]he right allegedly violated must be established, 'not as a broad general proposition,' but in a 'particularized' sense so that the 'contours' of the right are clear to a reasonable official." Reichle v. Howards, 566 U.S. 658, 665 (2012) (internal citation omitted). In 2015, the Supreme Court reiterated that courts should not define clearly established rights "at a high level of generality." Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). "The dispositive question is 'whether the violative nature of particular conduct is clearly established.'" Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)) (emphasis in original).
Here, plaintiff argues that his rights under the Eighth Amendment rights were violated by defendant Bylsma's conduct. "After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Jordan v. Gardner, 986 F.2d 1521, 1525 (9th Cir.1993) (en banc) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)) (internal quotation marks and indications of alteration omitted). The prisoner "must objectively show that he was deprived of something 'sufficiently serious.'" Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). The Supreme Court has provided prison officials with "wide-ranging deference in the adoption and execution of policies and practices," a level of deference that can only be overcome with "substantial evidence in the record" to indicate the official's actions were exaggerated relative to the situation. Bell v. Wolfish, 441 U.S. 520, 547-48 (1979); see also Willis v. Vasquez, 648 Fed. App'x 720, 723-24 (9th Cir. 2016) (noting prison officials should be provided wide-ranging deference in administering prison policy) (quoting Bell, 441 U.S. at 546-47). This is because control of prisoners and the safety of the institution are "considerations . . . peculiarly within the province and professional expertise of corrections officials . . . ." Bell, 441 U.S. at 547-548.
Therefore, to state a claim under the Eighth Amendment, plaintiff has the burden to show that: (1) an official acted with improper subjective intent; and (2) the alleged wrongdoing was objectively harmful so as to establish a constitutional violation. See Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997). However, because of the deference provided to prison officials, the cases decided in this area allow for offensive, even aggressive behavior, that has not been considered objectively, "sufficiently serious" so as to constitute an Eighth Amendment violation.
In Somers v. Thurman, for instance, the Ninth Circuit reversed the District Court's decision denying defendants' motion to dismiss an Eighth Amendment claim. The court ruled that the motion should have been granted on qualified immunity grounds. Somers, 109 F.3d at 624. That court found that there was no clearly established Eighth Amendment violation when female officers were allowed to conduct visual cavity searches on male prisoners, were allowed to observe male prisoners showering, and pointed, joked, and "gawked" at one prisoner while he was in the shower. Somers, 109 F.3d at 616. The Ninth Circuit in that case found that the prisoner had failed to show either that he was subjected to an objectively serious harm or that prison officials acted with improper subjective intent. Id. at 622-23. First, that Court found that plaintiff had completely failed to allege any subjective intent, and so had failed to properly allege any officials acted with a "'sufficiently culpable state of mind.'" Id. at 622 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The Ninth Circuit further concluded that plaintiff had not shown objective harm because "[t]he facts in which [other] courts have found Eighth Amendment violations are more severe." Id. at 623.
In Somers, the Ninth Circuit specifically noted that Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), a leading Ninth Circuit Eighth Amendment case involving prisoner searches, did not clearly establish a right against visual cavity searches or prison staff "gawking" at prisoners. Somers, 109 F.3d at 624. In Jordan, male officers were directed to engage in random, nonemergency, suspicionless searches of female inmates, including "[p]ush[ing] inward and upward when searching the crotch and upper thighs of inmates, "squeeze[ing[ and knead[ing]" the crotch and thighs, flattening inmates' breasts during the search. Id. Thus, the Ninth Circuit held that Jordan was distinguishable because the allegations in Jordan were more egregious than the allegations in Somers, and so Jordan did not place the officials in Somers on notice that their actions could be unlawful. Id. at 624. Similarly, the facts in the present case do not rise to level of egregiousness in either Somers or Jordan. Therefore, qualified immunity applies.
The Ninth Circuit applied Somers in a case very similar to the present case in Watison v. Carter, 668 F.3d 1108 (9th Cir. 2012) when affirming a dismissal pursuant to 28 U.S.C. § 1915A. There, the Ninth Circuit examined a situation where a prisoner's allegations stated that an officer entered a prisoner's cell when the prisoner was on the toilet, searched the cell, refused requests to leave, brushed his thigh against the prisoner's thigh, smiled sexually at the prisoner, and left the cell laughing. Id. at 1112. In applying Somers, that court found the prisoner had failed to state a claim because the "humiliation" he suffered did not rise to the level of "severe psychological pain required to state an Eighth Amendment claim." Id. at 1113. In so finding, the Ninth Circuit held that if the facts in Somers were not sufficient to constitute an Eighth Amendment violation, then certainly the officials in the Watison case could not be found to violate any clearly established Eight Amendment standard. Id. The Ninth Circuit also reiterated that Jordan did not clearly establish that the alleged conduct violated the prisoner's rights, and thus affirmed the district court on the merits. Id.
The Court finds similar circumstances here. Plaintiff has alleged that he was subjected to a search on March 19, 2018. Dkt. 5. He states that defendant Bylsma ripped open the door to plaintiff's stall while he was sitting on the toilet. Id. at p. 5. He was allegedly ordered to stand for a search "with force." Id. at pp. 5-6. Defendant Bylsma ordered plaintiff not to flush, and "snapped" at plaintiff when plaintiff attempted to retrieve toilet paper and when he bent down to pull his pants and underwear back on. Id. As plaintiff stood with his pants still on the ground and his "arms out and palms up," defendant Bylsma allegedly "walked behind [him] and pat searched [him] aggressively on the top part of [his] body." Id. at p. 6. "He then went and started to feel around [plaintiff's] pants and check[ed] [his] pockets." Id. When defendant Bylsma found nothing, "he then said [plaintiff] was dismissed and could go back to doing what [he] was doing." Id. Plaintiff characterizes this interaction as "sexual misconduct," but he has not provided any allegation that defendant Bylsma touched him sexually or made any sexual comments to plaintiff. Id. Further, plaintiff does not allege the pat search itself was an unlawful touching, but rather appears to challenge the alleged immodesty of being required to stand without pants. Id. Though he does not state so explicitly in his complaint, it appears that plaintiff's alleged injury was the humiliation from the allegedly immodest search. Id. at p. 8.
However, as in Somers, plaintiff has included no allegations that defendant Bylsma acted with improper subjective intent. See Somers, 109 F.3d at 623. Taking plaintiff's allegations as true, plaintiff was interrupted while he was going to the bathroom. Defendant Bylsma aggressively ordered plaintiff to stand for a search and did not allow plaintiff to pull his pants up before defendant Bylsma did a pat search of plaintiff's (presumably clothed) upper body. Defendant Bylsma then searched plaintiff's pockets, finding nothing, and dismissed plaintiff to finish what he was doing. Plaintiff has included nothing more to suggest that the search was not in furtherance of a penological interest. See Somers, 109 F.3d at 622 (finding a prisoner failed to sufficiently allege subjective intent when he failed to allege defendants' "searches occurred without any penological justification" and when "[h]e d[id] not allege that any of the Officials intended to humiliate him"). Thus, plaintiff has failed to allege defendant Bylsma acted in violation of plaintiff's clearly established Eight Amendment rights as to subjective intent. See id. at 624.
Further, plaintiff has failed to demonstrate that the alleged objective harm he experienced was in violation of clearly established federal law. In contrast, the Ninth Circuit has found dismissal for failure to state a claim appropriate in at least two cases involving allegedly unlawful searches that caused humiliation. See Somers, 109 F.3d at 616; Watison, 668 F.3d at 1112; see also Easley v. Pinnell, 182 F.3d 924, 1999 WL 311390, at *1 (9th Cir. 1999) (affirming dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and finding humiliation caused by visual anal cavity search of male prisoner within view of female officer did not amount to cruel and unusual punishment) (citing Somers, 109 F.3d at 623); Alverto v. Dep't of Corr., 2012 WL 6025617, at *21 (W.D. Wash. Nov. 15, 2012) (granting summary judgment and stating, without analyzing plaintiff's evidence, that plaintiff's allegations did not state an Eighth Amendment claim because he only alleged that an officer made sexual comments and stared at him "lustfully," and another officer failed to investigate). Further, other courts have come to different conclusions regarding the level of "seriousness" to which an Eighth Amendment allegation must rise in order to state a claim. See, e.g., Solan v. Ranck, 326 Fed. App'x 97, 100 (3d Cir. 2009) (affirming a grant of qualified immunity on summary judgment and noting that courts disagree on the question of whether psychological harm from the humiliation being seen naked constitutes an Eighth Amendment violation) (citing Somers, 109 F.3d at 622-23); George v. City of New York, 2013 WL 5943206, at *9-*10 (S.D.N.Y. Nov. 6, 2013) (granting motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) because allegation that prisoner was forced to strip naked and squat in the mess hall in front of other prisoners and officers was not sufficiently serious to constitute an Eighth Amendment violation under Second Circuit law).
In addition, "verbal harassment generally does not violate the Eighth Amendment." Kennan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citing Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)). Even disparaging comments about a plaintiff's racial or ethnic background generally will not rise to the level of a constitutional violation. See, e.g., Zavala v. Barnik, 545 F. Supp. 2d 1051, 1058-59 (C.D. Cal. 2008). As noted by the court in Somers, "the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation's prisons" of which the Ninth Circuit "do[es] not approve," but which does not violate the Eighth Amendment without more. 109 F.3d at 622 (internal quotation marks omitted).
Plaintiff cites to several out of circuit cases to support his assertion that the humiliation he experienced was a violation of the Eighth Amendment under clearly established federal law. See Dkt. 21. However, those cases and the humiliation described in them are far more egregious than the one-time pat down of plaintiff's upper body while he was not wearing pants. First, plaintiff cites Ross v. Gossett, 2016 WL 335991 (S.D. Ill. Jane. 28, 2016), a case he describes as showing searches conducted for the purpose of humiliation constitute Eighth Amendment violations. Dkt. 19, p. 7. However, that case dealt with prison guards who would spontaneously ambush entire units, making whooping noises while beating the walls with their batons, commanding prisoners to get "asshole naked," forcing the prisoners to turn around and spread their buttocks in front of the rest of the officers, some of whom were female, and finally forcing them to lift their genitals with their hands and then spread their mouths open with the same hands without being allowed to wash. Ross, 2016 WL 335991, at *1-*2. Thus, the misconduct in that case is significantly more egregious than plaintiff's allegations, and the Court finds that it is distinguishable.
Plaintiff also cites Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015), stating that in that case "the plaintiff was searched with clothes on[,] [but] plaintiff's case is much worse [because] plaintiff . . . was searched with clothes off and fecal matter still clinging to him." Dkt. 19, pp. 7-8. However, the allegations in Crawford were not merely that a prisoner was searched with his clothes on - they included allegations that an officer purposefully groped and fondled two prisoners' genitals through their clothes during a search while making demeaning sexual comments. 796 F.3d at 255. The Court finds the purposeful fondling of a prisoner's groin against his will is objectively more egregious conduct than a non-sexual pat down search, even taking into account plaintiff's state of undress.
Finally, plaintiff cites Merriweather v. Cissenero, 2017 WL 476951 (N.D. Ind. Feb. 6, 2017), stating it supports his contention that intent to humiliate a prisoner can constitute a violation of the Eighth Amendment. Dkt. 19, p. 8. However, that case involved allegations of a prison guard raping a prisoner, not allegations of an improper search. Merriweather, 2017 WL 476951, at *1. Again, the court finds this case distinguishable from plaintiff's allegations.
The Court does not condone conduct that humiliates a prisoner. And the Court recognizes that the search in this case, as alleged, would have been humiliating and uncomfortable, but the Court has found no clearly established law, either in the Ninth Circuit or in the Supreme Court, indicating that the alleged conduct clearly violates the prisoner's Eighth Amendment rights. Thus, qualified immunity applies to the defendants' conduct.
Therefore, the Court recommends that defendant's motion to dismiss (Dkt. 15) be granted and that plaintiff's claims against defendant Bylsma be dismissed.
II. Personal Participation as to Defendant Oliver-Estes
Plaintiff also alleges defendant Oliver-Estes violated plaintiff's constitutional rights because she failed to remove defendant Bylsma from plaintiff's unit during a PREA investigation. To state a claim under 42 U.S.C. § 1983, plaintiff must allege facts showing how a defendant caused or personally participated in causing the harm alleged in the complaint. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold, 637 F.2d at 1355. A person subjects another to a deprivation of a constitutional right when committing an affirmative act, participating in another's affirmative act, or failing to perform an act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Here, plaintiff alleges defendant Oliver-Estes knew that defendant Bylsma "had multiple PREA accusations filed on him for similar incidences," but she did not take him off duty. Dkt. 5, p. 7. He states "[i]f [defendant] Oliver-Estes would have taken proper action and at least removed [defendant Bylsma] from the unit while his other PREA investigations were going on," the allegedly unconstitutional search of plaintiff would not have happened. Id. He also states defendant Oliver-Estes "is legally responsible for the operation of Larch Corrections Center . . . ." Id. at p. 3. However, plaintiff has provided no other allegations as to defendant Oliver-Estes's actions. Thus, plaintiff's claims against defendant Oliver-Estes rest solely on plaintiff's argument that defendant Oliver-Estes should have provided better supervision over her subordinate.
Even if plaintiff had shown he was subjected to a constitutional violation, he has not shown how defendant Oliver-Estes was personally involved in defendant Bylsma's alleged unconstitutional search. Plaintiff has not alleged defendant Bylsma's search of plaintiff's person constituted sexual harassment or other sexual misconduct. Thus, even if defendant Bylsma had other, non-related PREA allegations against him, plaintiff has not shown how defendant Oliver- Estes's knowledge of those PREA allegations has bearing on defendant Bylsma's alleged conduct here. Further, plaintiff does not allege that plaintiff informed defendant Oliver-Estes of the alleged conduct and she failed to act. Thus, plaintiff has not shown that defendant Oliver-Estes affirmatively acted to deprive plaintiff of any constitutional protections or that she failed to act in violation of the Constitution. Therefore, the Court recommends plaintiff's claims against defendant Oliver-Estes be dismissed.
III. Claims Pursuant to the PREA
Read liberally, plaintiff also attempts to raise claims, based on the above noted conduct, directly under the PREA. Neither the Ninth Circuit nor the Supreme Court have ruled on whether a private cause of action may be brought pursuant to the PREA. However, as noted by the District of Hawaii, "although this court has not discovered any appellate decision addressing this issue, district courts nationwide have found that the PREA does not create a private cause of action that can be brought by an individual plaintiff." Hatcher v. Harrington, 2015 WL 474313, at *5 (D. Haw. Feb. 5, 2015) (collecting cases). Subsequent district court cases support the conclusion that prisoners have no private cause of action pursuant to the PREA. See Denton v. Pastor, 2017 WL 5068329, at *1 (W.D. Wash. Nov. 2, 2017); Reed v. Racklin, 2017 WL 2535388, at *2 (E.D. Cal. June 12, 2017); Gonzalez v. Chriese, 2016 WL 3231284, at *4 (N.D. Cal. June 13, 2016); Grindling v. Diana, 2016 WL 6080825, at *3-*4 (D. Haw. Sept. 12, 2016). Although not binding precedent, these cases are persuasive on the issue. Thus, the Court concludes that the PREA does not provide a private cause of action in itself. Therefore, the Court recommends that plaintiff's claims arising directly under the PREA be dismissed.
CONCLUSION
For the reasons set forth above, the Court recommends that defendants' motion to dismiss (Dkt. 15) be granted and that plaintiff's action be dismissed with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on November 9, 2018 as noted in the caption.
Dated this 25th day of October, 2018.
/s/_________
J. Richard Creatura
United States Magistrate Judge