Lacroix v. Howard

• Court: District Court, S.D. California
• Decided: September 18, 2023
• Docket: 3:22-cv-01956
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DYLAN RIVERS LACROIX, Case No.: 3:22-cv-1956-WQH-BLM CDCR #BU-7713, 12 ORDER Plaintiff, 13 v. 14 TRAVIS HOWARD, Detective; MR. 15 MCCARTHY, Police Officer; DOES 1-X, 16 Defendants. 17 18 19 HAYES, Judge: 20 I. PROCEDURAL BACKGROUND 21 On December 8, 2022, Plaintiff Dylan Rivers Lacroix, a state inmate currently 22 incarcerated at High Desert State Prison (“HDSP”) located in Susanville, California, 23 initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF 24 No. 1.) Plaintiff sought $10 million in general and punitive damages based on claims that 25 he was unlawfully searched at the El Cajon Police Department Station on December 2, 26 2020. On the same day, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). 27 (ECF No. 2.) 28 1 On February 24, 2023, the Court issued an Order granting Plaintiff’s Motion to 2 Proceed IFP and dismissing the Complaint for failing to state a claim pursuant to 28 U.S.C. 3 § 1915(e)(2)(B) and § 1915A(b)(1). (ECF No. 5.) Plaintiff was granted leave to file an 4 amended complaint in order to correct the deficiencies of pleading identified in the Court’s 5 Order. 6 On May 30, 2023, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 9.) 7 II. SUA SPONTE SCREENING 8 A. Standard of Review 9 As the Court previously informed Plaintiff, because he is a prisoner and is 10 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C. 11 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 12 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 13 claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 14 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 15 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 16 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 17 ensure that the targets of frivolous or malicious suits need not bear the expense of 18 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 19 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 20 “The standard for determining whether a 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); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 24 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain 27 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 28 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 4 specific task that requires the reviewing court to draw on its judicial experience and 5 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 6 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 7 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 8 B. Allegations in the FAC 9 On December 20, 2020, Plaintiff was placed under arrest by Defendant McCarthy, 10 an El Cajon police officer. Plaintiff was taken to the El Cajon Police Station and escorted 11 by McCarthy and Defendant Howard, another El Cajon police officer, “into a temporary 12 holding cell” for a “full body cavity search.” (ECF No. 9 at 3.) Howard, knowing that 13 Plaintiff is a transgender individual,1 “forced [Plaintiff] to get down on the floor completely 14 naked on all fours” and “demanded” that Plaintiff “dig in deep!” Id. Plaintiff complied with 15 Howard’s commands to “stick [Plaintiff’s] fingers into [Plaintiff’s] anal cavity ‘over and 16 over,’ ‘deeper and deeper.’” Id. McCarthy “[f]acilitated” the “sexual[] assault[].” Id. 17 Plaintiff “was finally allowed to get up when [] Howard said ‘okay we are done.’” Id. 18 During the cavity search, Plaintiff “cut [himself] with [his] fingernails inside [his] 19 anus.” Id. at 5. For eight days following the search, Plaintiff had “blood in [his] sto[ol] and 20 anal leakage.” Id. Plaintiff also had mental and emotional suffering. 21 Following the cavity search, Plaintiff told Howard he intended to file a report under 22 the Prison Rape Elimination Act (PREA) against Howard for sexual assault. Howard 23 responded: “good luck with that.” Id. at 7. After arriving at “central jail,” Plaintiff 24 attempted to seek medical help and file various requests, grievances, claims, and reports 25 relating to the incident with jail officials “to no avail.” Id. When Plaintiff was “finally” 26 27 28 1 able to file a PREA report on December 25, 2021, Plaintiff’s complaint was “determined 2 to be unfounded,” despite him not having been interviewed about the incident, in violation 3 of PREA. Id. at 9. Plaintiff brings § 1983 claims against Howard and McCarthy2 for 4 violations of his Eighth and Fourteenth Amendment rights and seeks $10,000,000 in 5 compensatory damages, injunctive relief, and “anything the Court deems reasonable.” Id. 6 at 12. 7 C. Discussion 8 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 9 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 10 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 11 two essential elements: (1) that a right secured by the Constitution or laws of the United 12 States was violated, and (2) that the alleged violation was committed by a person acting 13 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 14 1030, 1035–36 (9th Cir. 2015). 15 1. Fourth Amendment 16 While Plaintiff brings the claims related to the cavity search under the Eighth 17 Amendment, the Court finds that these claims arise under the Fourth Amendment because 18 Plaintiff was a pre-trial detainee at the time the actions described in the FAC occurred. See 19 Whitley v. Albers, 475 U.S. 312, 318 (1986) (stating that the Eighth Amendment applies to 20 “those convicted of crimes”); Bull v. City of San Francisco, et al., 595 F.3d 964, 974–75, 21 982 (9th Cir. 2010) (en banc) (applying the Fourth Amendment to a jail’s policy of cavity 22 searches of detainees). 23 Determining if a search is reasonable under the Fourth Amendment requires that a 24 court conduct a case-by-case “balancing of the need for the particular search against the 25 26 27 2 While Plaintiff includes Doe Defendants in the caption of the FAC, he does not otherwise allege any facts concerning such Defendants. To the extent that Plaintiff intends to bring his claims against unnamed 28 1 invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 2 (1979). “The required factors for courts to consider include: (1) the scope of the particular 3 intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and 4 (4) the place in which it is conducted.” Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 5 1135, 1141 (9th Cir. 2011) (en banc) (internal quotation marks omitted). 6 Based on the government’s “strong interest in preventing contraband from entering 7 its prisons and jails, . . . visual body cavity searches may be performed without a warrant 8 during the jail intake process.” United States v. Fowlkes, 804 F.3d 954, 961 (9th Cir. 2015). 9 However, “searches that require intrusion into a person’s body implicate greater 10 constitutional concerns.” Id. “Therefore, while visual cavity searches that do not require 11 physical entry into a prisoner’s body are generally permissible without a warrant during 12 the jail intake process, physical cavity searches generally are not.” United States v. 13 Fowlkes, 804 F.3d 954, 961 (9th Cir. 2015). 14 In this case, Plaintiff alleges that Defendant Howard required Plaintiff to “get down 15 on the floor” of a holding cell “completely naked on all fours” and to “stick [Plaintiff’s] 16 fingers into [Plaintiff’s] anal cavity ‘over and over,’ ‘deeper and deeper.’” (ECF No. 9 at 17 3.) Although Plaintiff does not allege that Howard physically touched him, the allegations 18 that Howard compelled Plaintiff to physically intrude on his own body in the manner 19 alleged are sufficient for Plaintiff’s Fourth Amendment claim against Howard to survive 20 the “low threshold” for screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 21 Wilhelm, 680 F.3d at 1123. 22 Defendant McCarthy’s liability for the alleged Fourth Amendment violation under 23 § 1983 must be predicated on his “integral participation” in the alleged violation. Chuman 24 v. Wright, 76 F.3d 292, 294–95 (9th Cir. 1996). This does not require that McCarthy’s 25 “actions themselves rise to the level of a constitutional violation,” Boyd v. Benton County, 26 374 F.3d 773, 780 (9th Cir. 2004), but he must have “some fundamental involvement in 27 the conduct that allegedly caused the violation.” Blankenhorn v. City of Orange, 485 F.3d 28 463, 481 n.12 (9th Cir. 2007). 1 2 McCarthy’s alleged involvement in the cavity search was limited to escorting 3 Plaintiff to the temporary holding cell where the search was conducted, being present 4 during the course during the search while Howard ordered Plaintiff to repeatedly penetrate 5 himself, and “[f]acilitat[ing]” Howard’s conduct. (ECF No. 9 at 3.) While “the integral 6 participant doctrine does not implicate government agents who are mere bystanders to an 7 unconstitutional search,” Bravo v. City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011) 8 (internal quotations omitted), the allegations in the FAC are sufficient to support an 9 inference at this stage that McCarthy was an integral participant based on his alleged role 10 as Plaintiff’s escort before and during the search and his failure to object to Powell’s 11 allegedly repeated and ongoing unconstitutional conduct. See Peck v. Montoya, 51 F.4th 12 877, 889 (9th Cir. 2022) (holding that the integral participation requirement is satisfied 13 when “the defendant knows about and acquiesces in the constitutionally defective conduct 14 as part of a common plan with those whose conduct constitutes the violation”); Boyd, 374 15 F.3d at 780 (holding that officers who acted as backup during a search were integral 16 participants to another officer’s use of excessive force during the search because they were 17 “aware of the decision to use [force], did not object to it, and participated in the search 18 operation knowing [force] was to be deployed”); Cunningham v. Gates, 229 F.3d 1271, 19 1289–90 (9th Cir. 2000) (holding that “officers can be held liable for failing to intercede 20 only if they had an opportunity to intercede”); cf. Hopkins v. Bonvicino, 573 F.3d 752, 770 21 (9th Cir. 2009) (holding that an officer who stood in the front yard of a house interviewing 22 a witness while other officers conducted an unlawful search of the house was not an integral 23 participant because he “participated in neither the planning nor the execution of the 24 unlawful search”). The Court concludes that the Fourth Amendment claim against 25 26 27 28 1 McCarthy survives the “low threshold” for screening pursuant to 28 U.S.C. §§ 1915(e)(2) 2 and 1915A(b).3 Wilhelm, 680 F.3d at 1123. 3 2. Fourteenth Amendment 4 Plaintiff claims his Fourteenth Amendment due process right was violated by 5 Defendants’ interference with his attempts to file a PREA report and other requests, 6 grievances, and claims, and inadequate response to the PREA report he eventually filed. 7 However, the FAC does not allege that McCarthy had any involvement in responding to 8 Plaintiff’s requests. Likewise, Howard’s involvement was limited to telling Plaintiff “good 9 luck with that,” when told that Plaintiff intended to file a report. (ECF No. 9 at 7.) These 10 allegations are not sufficient to support an inference that either Defendant interfered with 11 Plaintiff’s attempts to report the incident or otherwise violated Plaintiff’s right to due 12 process. Further, numerous district courts nationwide have determined that PREA does not 13 create a private right of action or give rise to a due process claim. See, e.g., Pressler v. Elko 14 County Jail, 2020 WL 12583408, at *3 (D. Nev. Apr. 22, 2020); Hatcher v. Harrington, 15 2015 WL 474313, at *5 (D. Haw. Feb. 5. 2015); Chapman v. Willis, 2013 WL 2322947, at 16 *4 (W.D. Va. May 28, 2013); Pope v. Or. Dep’t of Corr., 2012 WL 1866601, at *4 (D. Or. 17 May 22, 2012); Porter v. Jennings, 2012 WL 1434986, at *1 (E.D. Cal. Apr. 25, 2012); 18 Bell v. Cnty. of L.A., 2008 WL 4375768, at *6 (C.D. Cal. Aug. 25, 2008). Plaintiff’s 19 Fourteenth Amendment claims are dismissed for failing to state a claim upon which relief 20 may be granted. 21 III. CONCLUSION 22 IT IS HEREBY ORDERED that Plaintiff’s claims against the Doe Defendants are 23 dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 24 1915A(b)(1). 25 26

27 3 The Court’s rulings do not preclude Defendants from challenging the sufficiency of the allegations under 28 1 IT IS FURTHER ORDERED that Plaintiff’s § 1983 claims against Defendants 2 Howard and McCarthy for violation of the Fourteenth Amendment are dismissed for failure 3 to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 4 IT IS FURTHER ORDERED that the Clerk of the Court is directed to issue a 5 summons as to Plaintiff’s FAC (ECF No. 9) upon Defendants Howard and McCarthy and 6 forward it to Plaintiff, along with a blank U.S. Marshal Form 285. In addition, the Clerk is 7 instructed to provide Plaintiff with a copy of the February 24, 2023, Order granting IFP 8 status, a certified copy of his FAC, and the summons, so that he may serve Defendants 9 Howard and McCarthy. Upon receipt of this “IFP Package,” Plaintiff must complete the 10 U.S. Marshal Form 285 as completely and accurately as possible, include an address where 11 Defendants Howard and McCarthy may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return 12 it to the United States Marshal according to the instructions the Clerk provides in the letter 13 accompanying his IFP package. 14 IT IS FURTHER ORDERED that the U.S. Marshal shall serve a copy of Plaintiff’s 15 FAC and summons upon Defendants Howard and McCarthy at the addresses provided by 16 Plaintiff on the USM Form 285 provided, and to file executed waivers of personal service 17 upon Defendants Howard and McCarthy with the Clerk of Court as soon as possible after 18 their return. Should Defendants Howard or McCarthy fail to return the U.S. Marshal’s 19 request for waiver of personal service within 90 days, the U.S. Marshal must instead file 20 the completed Form USM 285 Process Receipt and Return with the Clerk of Court, include 21 the date the summons, FAC and request for waiver was mailed to such Defendant, and 22 indicate why service remains unexecuted. All costs of service will be advanced by the 23 United States; however, if Defendant Howard or McCarthy are located within the United 24 States, and fail without good cause to sign and return the waiver requested by the Marshal 25 on Plaintiff’s behalf, the Court will impose upon such Defendant any expenses later 26 incurred in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 27 IT IS FURTHER ORDERED that Defendants Howard and McCarthy shall, once 28 served, respond to the FAC, and any subsequent pleading Plaintiff may file in this matter 1 |}in which Howard or McCarthy is named as a Defendant, within the time provided by the 2 || applicable provisions of Federal Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. 3 1997e(g)(2) (stating that while a defendant may occasionally be permitted to “waive the 4 ||right to reply to any action brought by a prisoner confined in any jail, prison, or other 5 correctional facility under section 1983,” once the Court has conducted its sua sponte 6 ||screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and thus, has made a 7 || preliminary determination based on the face on the pleading that Plaintiff has a “reasonable 8 || opportunity to prevail on the merits,” defendant is required to respond). 9 IT IS FURTHER ORDERED that Plaintiff shall, after service has been effected by 10 || the U.S. Marshal, serve upon Defendants Howard and McCarthy, or if appearance has been 11 entered by counsel, upon Defendants’ counsel(s), a copy of every further pleading, motion, 12 || or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). 13 || Plaintiff must include with every original document he seeks to file with the Clerk of the 14 || Court, a certificate stating the manner in which a true and correct copy of that document 15 || was served on Defendants’ or their counsel, and the date of that service. See S.D. Cal. 16 ||CivLR 5.2. Any document received by the Court which has not been properly filed with 17 || the Clerk, or which fails to include a Certificate of Service upon Defendants Howard and 18 ||McCarthy, may be disregarded. 19 20 ||Dated: September 18, 2023 BME: Me Z. Ma 21 Hon. William Q. Hayes 9 United States District Court 23 24 25 26 27 28 9 ee oe