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Bartholomew v. Sisto

December 14, 2009

KEVIN BARTHOLOMEW, PLAINTIFF,
v.
D.K. SISTO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's complaint (Doc. 1).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a ". . . short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

I. PLAINTIFF'S ALLEGATIONS

Plaintiff's allegation appear to stem from two separate incidences in which he was strip searched for contraband during family visitations, and placed in a contraband watch cell thereafter. Plaintiff claims that the strip search was ordered without good cause, the strip search was conducted improperly, the conditions of the contraband watch cell were unsanitary, he was denied access to toilet facilities, and he was denied his medication. He appears to be claiming his First, Fourth, and Eighth Amendment rights have been violated.

II. DISCUSSION

1. Order for Strip Search

Plaintiff's first claim is that defendant Jones reported that he had received contraband during his visits with his daughter, which resulted in the strip search and confinement in the contraband watch cell. He argues that defendant Jones made that report in retaliation for his daughter's behavior.

In order to state a claim under 42 U.S.C. § 1983 for retaliation based on the First Amendment, the prisoner must establish that he was retaliated against for exercising a constitutional right, and that the retaliatory action was not related to a legitimate penological purpose, such as preserving institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials took adverse action against the inmate; (2) the adverse action was taken because the inmate engaged in protected conduct; (3) the adverse action chilled the inmate's First Amendment rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes, 4098 F.3d at 568.

As to the chilling effect, the Ninth Circuit in Rhodes observed: "If Rhodes had not alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm that is more than minimal will almost always have a chilling effect." Id. at n.11. By way of example, the court cited Pratt in which a retaliation claim had been decided without discussing chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly stated that one of the "basic elements" of a First Amendment retaliation claim is that the adverse action "chilled the inmates exercise of his First Amendment rights," id. at 567-68, see also Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the chilling effect element is essentially subsumed by adverse action.

To the extent Plaintiff is claiming his First Amendment rights were violated due to retaliation, he has not stated a claim as he has not identified what protected activity he was engaged in.

However, it is possible that Plaintiff instead is claiming his Fourth Amendment rights were violated by defendant Jones' actions. Prisoners have limited Fourth Amendment rights. Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988). Strip searches do not violate prisoners' Fourth Amendment Rights unless they are "excessive, vindictive, harassing, or unrelated to any legitimate penological interest." Id. at 332-33. Plaintiff could be claiming that defendant Jones's actions were motivated by a desire to harass Plaintiff, and she acted vindictively in falsely reporting possible contraband in order to subject Plaintiff to the strip search. The court cannot conclude that plaintiff's allegations render it implausible that plaintiff will meet these the requirements to prove a violation of his Fourth Amendment rights. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

2. Conduct During Strip Search

Plaintiff next claims that the defendants' behavior during the strip search violated his Eighth Amendment rights. He argues defendants Garcia, Realander, Oseguerra, Pavich, and Webster*fn1 ...


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