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Leonard v. Bonner

September 14, 2010

HARVEY MACK LEONARD, PLAINTIFF,
v.
EDWARD N. BONNER ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed February 24, 2010, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, id. However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Plaintiff's complaint rests on separate, unrelated incidents addressed in turn below.

1. First Amendment Claim Against Deputy J. Burch and Deputy Sergeant Gutierrez

While housed at Placer County Jail as a civil detainee, plaintiff alleges that his First Amendment rights were violated by Deputy J. Burch and Deputy Sergeant Gutierrez when he received a disciplinary violation for saying "How you doing, young lady" to a female correctional officer. (Compl. at 3.)

"[C]ivilly detained persons must be afforded 'more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Hydrick v. Hunter, 500 F.3d 978, 989 (9th Cir. 2007), vacated on other grounds, 129 S.Ct. 2431 (2009) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)). "[T]he rights afforded prisoners set a floor for those that must be afforded [to civil detainees]." Id. (citing Youngberg, 457 U.S. 307). When determining the rights of civil detainees, "[t]he law generally requires a careful balancing of the rights of individuals who are detained for treatment, not punishment, against the state's interests in institutional security and the safety of those housed at the facility." Id. "As is the case with prisoners, civilly committed persons retain those First Amendment rights not inherently inconsistent with the circumstances of their detention." See Turner v. Safley, 482 U.S. 78, 89 (1987).

Plaintiff claims that he had a right to say "How you doing, young lady" to a female officer. Even assuming this speech was protected, "[w]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89 (1987). Here, there is a valid, rational connection between the prison's requirement that officers be referred to by their title and the orderly operation of the facility.

Based thereon, this claim is dismissed with prejudice.

2. Fourteenth Amendment Claim Against Deputy J. Burch

Plaintiff next claims that his Fourteenth Amendment rights were violated by Deputy Burch when the latter patted plaintiff down. (Compl. at 2.) Plaintiff attaches a Disciplinary Report filed by Officer Burch in connection with this incident. (See Compl., Ex. 1-A.) In that report, Officer Burch states that plaintiff complained of pain while being placed in a hold to conduct a pat-down. Officer Burch adjusted his hold. Based on these bare facts, no constitutional violation has been stated.

Accordingly, this claim is dismissed.

3. Fourteenth Amendment Claim Against Serna, ...


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