1 2 3 4 5 6 7 10 11 MELVIN A. PARKER, No. 2:23-cv-0503 KJN P 12 Plaintiff, 13 v. ORDER 14 JEFF LYNCH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On January 26, 2023, plaintiff filed an 18 amended complaint which the court construed as plaintiff’s complaint against defendants Lynch, 19 Burkeheart and Connelly and filed in this action.1 (ECF No. 3.) Plaintiff seeks relief pursuant to 20 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 21 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 22 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 23 Accordingly, the request to proceed in forma pauperis is granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 1 Allegations pertaining to the October 31, 2019 incident allegedly perpetrated by Officer N. 28 West are proceeding in Case No. 2:22-cv-2015 KJN P (E.D. Cal.). 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 4 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 5 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 6 § 1915(b)(2). 7 Screening Standards 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 22 1227. 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 24 statement of the claim showing that the pleader is entitled to relief,’ to ‘give the defendant fair 25 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. 26 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To 27 survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic 28 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 1 raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. However, 2 “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair 3 notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 4 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks 5 omitted). In reviewing a complaint under this standard, the court must accept as true the 6 allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in 7 the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled 8 on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 9 Plaintiff’s Complaint 10 Plaintiff claims that over a two-year time span, defendants Burkeheart and Connelly 11 engaged in a campaign of harassment by threatening phone calls and emails to plaintiff’s family. 12 Plaintiff alleges defendant Burkeheart sexually assaulted plaintiff on February 20, 2022, while 13 plaintiff was in his cell via “computer technology called ‘touch reality,’” via synthetic media 14 applications with reality goggles/glasses.” (ECF No. 1 at 4.) Plaintiff claims defendant Connelly, 15 via such virtual reality glasses, committed voyeurism for pleasure reasons when he commented 16 “let him see me really good while touching me on my penis and buttocks.” (ECF No. 1 at 4-5.) 17 Plaintiff contends these violations caused him to attempt suicide, engage in cutting behavior, and 18 he was admitted to a crisis bed and placed in the EOP program. Further, plaintiff claims that 19 upon his arrival to each housing unit, defendants Burkeheart and Connelly used this “Air- 20 technology / touch reality to communicate with other officers escorting other prisoners, and 21 “using a low husky whisper,” ordered officers to engage in sexual assault “by rubbing up against 22 the buttocks, stroking inmates’ hands, and committing battery upon [plaintiff].” (Id. at 5.) 23 As to defendant Lynch, plaintiff claims he sent countless grievances to Warden Lynch 24 complaining that defendants Burkeheart and Connelly were sexually assaulting plaintiff by use of 25 foreign object or instrument on plaintiff’s body, penetrating the anus and touching the penis for 26 sexual pleasure. (ECF No. 1 at 3-4.) Plaintiff wrote Lynch on June 21, 2022, advising Lynch that 27 plaintiff continued to suffer daily rape and harassment from defendants Burkeheart and Connelly 28 using the “computer generated touch reality synthetic technology” which caused plaintiff to 1 attempt suicide. (ECF No. 1 at 5.) Plaintiff seeks money damages.
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1 2 3 4 5 6 7 10 11 MELVIN A. PARKER, No. 2:23-cv-0503 KJN P 12 Plaintiff, 13 v. ORDER 14 JEFF LYNCH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On January 26, 2023, plaintiff filed an 18 amended complaint which the court construed as plaintiff’s complaint against defendants Lynch, 19 Burkeheart and Connelly and filed in this action.1 (ECF No. 3.) Plaintiff seeks relief pursuant to 20 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 21 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 22 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 23 Accordingly, the request to proceed in forma pauperis is granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 1 Allegations pertaining to the October 31, 2019 incident allegedly perpetrated by Officer N. 28 West are proceeding in Case No. 2:22-cv-2015 KJN P (E.D. Cal.). 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 4 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 5 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 6 § 1915(b)(2). 7 Screening Standards 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 22 1227. 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 24 statement of the claim showing that the pleader is entitled to relief,’ to ‘give the defendant fair 25 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. 26 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To 27 survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic 28 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 1 raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. However, 2 “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair 3 notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 4 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks 5 omitted). In reviewing a complaint under this standard, the court must accept as true the 6 allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in 7 the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled 8 on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 9 Plaintiff’s Complaint 10 Plaintiff claims that over a two-year time span, defendants Burkeheart and Connelly 11 engaged in a campaign of harassment by threatening phone calls and emails to plaintiff’s family. 12 Plaintiff alleges defendant Burkeheart sexually assaulted plaintiff on February 20, 2022, while 13 plaintiff was in his cell via “computer technology called ‘touch reality,’” via synthetic media 14 applications with reality goggles/glasses.” (ECF No. 1 at 4.) Plaintiff claims defendant Connelly, 15 via such virtual reality glasses, committed voyeurism for pleasure reasons when he commented 16 “let him see me really good while touching me on my penis and buttocks.” (ECF No. 1 at 4-5.) 17 Plaintiff contends these violations caused him to attempt suicide, engage in cutting behavior, and 18 he was admitted to a crisis bed and placed in the EOP program. Further, plaintiff claims that 19 upon his arrival to each housing unit, defendants Burkeheart and Connelly used this “Air- 20 technology / touch reality to communicate with other officers escorting other prisoners, and 21 “using a low husky whisper,” ordered officers to engage in sexual assault “by rubbing up against 22 the buttocks, stroking inmates’ hands, and committing battery upon [plaintiff].” (Id. at 5.) 23 As to defendant Lynch, plaintiff claims he sent countless grievances to Warden Lynch 24 complaining that defendants Burkeheart and Connelly were sexually assaulting plaintiff by use of 25 foreign object or instrument on plaintiff’s body, penetrating the anus and touching the penis for 26 sexual pleasure. (ECF No. 1 at 3-4.) Plaintiff wrote Lynch on June 21, 2022, advising Lynch that 27 plaintiff continued to suffer daily rape and harassment from defendants Burkeheart and Connelly 28 using the “computer generated touch reality synthetic technology” which caused plaintiff to 1 attempt suicide. (ECF No. 1 at 5.) Plaintiff seeks money damages. 2 Governing Standards 3 A. Sexual Harassment 4 Sexual harassment or abuse of an inmate by a prison official is a violation of the Eighth 5 Amendment. Wood v. Beauclair, 692 F.3d 1041, 1046, 1051 (9th Cir. 2012) (citing Schwenk v. 6 Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). In evaluating such a claim, “courts consider 7 whether ‘the official act[ed] with a sufficiently culpable state of mind’ ” -- the subjective 8 component -- “and if the alleged wrongdoing was objectively ‘harmful enough’ to establish a 9 constitutional violation” -- the objective component. Wood, 692 F.3d at 1046 (alteration in 10 original) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). As “sexual assault serves no 11 valid penological purpose . . . where an inmate can prove that a prison guard committed a sexual 12 assault, we presume the guard acted maliciously and sadistically for the very purpose of causing 13 harm, and the subjective component of the Eighth Amendment claim is satisfied.” Bearchild v. 14 Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020) (citing Wood, 692 F.3d at 1050; Schwenk, 204 F.3d 15 at 1196 n.6). “Any sexual assault is objectively ‘repugnant to the conscience of mankind’ and 16 therefore not de minimis for Eighth Amendment purposes.” Bearchild, 947 F.3d at 1144 (quoting 17 Hudson, 503 U.S. at 10). 18 In sum, 19 a prisoner presents a viable Eighth Amendment claim where he or she proves that a prison staff member, acting under color of law and 20 without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff 21 member's own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner. 22 23 Bearchild, 947 F.3d at 1144. 24 Although prisoners have a right to be free from sexual abuse, whether at the hands of 25 fellow inmates or prison guards, the Eighth Amendment's protections do not extend to all forms 26 of sexual harassment. Allegations of sexual harassment that do not involve touching have 27 routinely been found ‘not sufficiently serious’ to sustain an Eighth Amendment claim. Austin v. 28 Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding dismissal of claim premised on 1 allegations that correctional officer unzipped his pants and exposed his penis to an inmate from 2 inside control booth); accord Somers v. Thurman, 109 F.3d at 624 (“To hold that gawking, 3 pointing, and joking violates the prohibition against cruel and unusual punishment would 4 trivialize the objective component of the Eighth Amendment test and render it absurd.”). Verbal 5 harassment may violate the Constitution when it is “unusually gross even for a prison setting and 6 [is] calculated to and [does] cause [plaintiff] psychological damage.” Keenan v. Hall, 83 F.3d 7 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998); Patrick v. Hernandez, 8 2018 WL 5095130, at *2 (E.D. Cal. Oct. 17, 2018) (denying cognizable claim where defendants 9 gawked at plaintiff in a manner that suggested they wanted him to expose himself.); Bearchild, 10 947 F.3d at 1144 (“[T]here are occasions when legitimate penological objectives within a prison 11 setting require invasive searches.”); Grummet v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985) 12 (“[R]outine pat-down searches, which include the groin area, and which are otherwise justified by 13 security needs, do not violate” the Constitution). 14 Harassment/Verbal Threats 15 Allegations of harassment, embarrassment, and defamation are not cognizable under 16 section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff’d sub 17 nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d 1337, 1344 18 (9th Cir. 1982) (allegations of harassment with regards to medical problems not cognizable); 19 Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner does not have 20 cause of action under § 1983 for being called obscene name by prison employee); Batton v. North 21 Carolina, 501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by prison officials does 22 not state claim under § 1983). Nor are allegations of mere threats cognizable. See Gaut v. Sunn, 23 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong, nor do 24 allegations that naked threat was for purpose of denying access to courts compel contrary result). 25 Discussion 26 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 27 unable to determine whether the current action is legally frivolous or fails to state a claim for 28 relief. Plaintiff’s claims of general harassment, standing alone, are insufficient to state a 1 cognizable civil rights claim. Plaintiff’s allegations concerning defendants Burkeheart and 2 Connelly using virtual reality technology to sexually assault plaintiff, vicariously or otherwise, 3 appear implausible. It is unclear whether plaintiff asserts that either defendant physically 4 assaulted plaintiff. In an abundance of caution, plaintiff is granted leave to file an amended 5 complaint that specifically identifies the actions of each defendant. To the extent plaintiff put 6 defendant Lynch on notice of such actions, plaintiff should renew his allegations as to defendant 7 Lynch’s alleged failure to intervene or protect plaintiff from such actions. Plaintiff is required to 8 file his amended complaint on the court’s civil rights form. 9 Leave to Amend 10 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 11 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 12 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 13 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 14 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 15 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 16 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague, and conclusory allegations of official 17 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 18 268 (9th Cir. 1982). 19 In addition, plaintiff is informed that the court cannot refer to a prior pleading to make 20 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 21 complete without reference to any prior pleading. This requirement exists because, as a general 22 rule, an amended complaint supersedes the original complaint. See Ramirez v. County of San 23 Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the 24 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once 25 plaintiff files an amended complaint, the original pleading no longer serves any function in the 26 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 27 involvement of each defendant must be sufficiently alleged. 28 Finally, because plaintiff’s claims based on the October 31, 2019 incident involving 1 inmate Puckett and Officer N. West are proceeding in Case No. 2:22-cv-2015 KJN (E.D. Cal.), 2 therefore plaintiff should refrain from including any references to those allegations in any 3 amended complaint filed in this action. 4 Motion for Appointment of Counsel 5 On March 20, 2023, plaintiff filed a motion for appointment of counsel. 6 District courts lack authority to require counsel to represent indigent prisoners in section 7 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 8 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 9 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 10 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 11 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 12 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 13 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 14 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 15 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 16 legal education and limited law library access, do not establish exceptional circumstances that 17 warrant a request for voluntary assistance of counsel. 18 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 19 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 20 time. Plaintiff’s motion is denied without prejudice. 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 23 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 24 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 25 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 26 Director of the California Department of Corrections and Rehabilitation filed concurrently 27 herewith. 28 3. Plaintiff’s complaint is dismissed. ] 4. Within thirty days from the date of this order, plaintiff shall complete the attached 2 || Notice of Amendment and submit the following documents to the court: 3 a. The completed Notice of Amendment; and 4 b. An original of the Amended Complaint. 5 || Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 6 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 7 || be filed on the court’s civil rights form, bear the docket number 2:23-cv-0503 KJN P assigned to 8 | this case and must be labeled “Amended Complaint.” 9 Failure to file an amended complaint in accordance with this order may result in the 10 || dismissal of this action. 11 5. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights 12 || complaint by a prisoner. 13 6. Plaintiff's motion for appointment of counsel (ECF No. 6) is denied without prejudice. 14 | Dated: March 28, 2023 Aectl Aharon UNITED STATES MAGISTRATE JUDGE jpark0503.14new.kjn 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 10 MELVIN A. PARKER, No. 2:23-cv-0503 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 JEFF LYNCH, et al.,, 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint DATED: 19
20 ________________________________ Plaintiff 21
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