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Jesse D. Garza v. Salinas Valley State Prison

December 8, 2010

JESSE D. GARZA, PLAINTIFF,
v.
SALINAS VALLEY STATE PRISON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

On July 20, 2010, plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Northern District of California. On August 13, 2010, plaintiff filed a First Amended Complaint. The Northern District of California then transferred the action to this judicial district. On October 22, 2010, this Court granted plaintiff's application to proceed in forma pauperis, and the First Amended Complaint, which is the operative complaint, was filed in this court.

Congress has mandated that courts perform an initial screening of prisoner civil rights actions. This Court "shall" dismiss such a civil action before service of process if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

Plaintiff is currently incarcerated at the Salinas Valley State Prison ("SVSP"). (First Amended Complaint at 1.) He is suing the following defendants: California State Prison-Los Angeles County ("CSPLAC"); SVSP; Chief Deputy Warden B.M. Cash; Correctional Officer Luis Chavez; Facility Captain E.J. Hutchins; Correctional Officers G. Lage, E.J. Williams, Rubio, and Solorzano; Lieutenant A. Espinoza; N. Grannis, Chief of the Inmate Appeals Branch; "Facility Captain Appeals Examiner"

S. Wright; Lieutenant A. Sylva; Sergeant R. Valenzuela; Appeals Coordinator J. Curiel; Correctional Officer J. Freye; B. Mendez, Cook; Dr. T. Belavich, Health Care Manager; Associate Warden R.W. Nipper; Lieutenant M. Nunez; Soliz, R.N.; Cabrera, R.N.; Warden F.B. Haws; Facility Captain Dottaviano; Lieutenant Aaron Pfeil; Correctional Officers Davila, Andy Puenes, P. Rohskothen; Napolitano, R.N.; Briones, R.N.; T. Van Dongen, Health Care Appeals Coordinator; P. Gailbraith, Health Care Appeals Coordinator; Special Agent Williams Wells; Correctional Counselor R. Thomas; Lieutenant Galviz; C. Ynson; V. Daniels, R.N.; A. Pangilinan; Correctional Officer Vadaro; A. Swaby; H.C. Le, M.D.; J. Gocke N.P.; R. Ravikumar, M.D.; Finlander, M.D.; Olukanmi; Fitter, M.D.; and Mostafania, M.D. (Id. at 2-3.)

Plaintiff alleges that, on July 17, 2009, while he was incarcerated at CSP-LAC, defendant Correctional Officer Chavez entered his hospital room and took his Bible. (First Amended Complaint at 3.) When plaintiff objected, Chavez grabbed his injured arm, dragged him out of bed, and repeatedly punched him. (Id.) Plaintiff suffered two broken front teeth and other injuries, including a re-injury of his shoulder. (Id.) Chavez then charged plaintiff with assaulting him. (Id.)

Plaintiff further alleges that, on another occasion, defendant Chavez: tore away plaintiff's blanket and threw his wheelchair at him, injuring plaintiff's ankle; made sexual advances to plaintiff; and claimed to have urinated in plaintiff's kosher meal. (Complaint at 3.) Plaintiff asserts that Chavez slandered plaintiff, called him names, and endangered his safety, and Chavez and other CSP-LAC staff starved plaintiff. (Id.) Plaintiff further contends that he was sexually abused and tormented by Chavez and other CSP-LAC staff since his arrival at the prison, and that the appeals coordinators and medical staff lied and engaged in cover-ups. (Id.)

Plaintiff seeks release from prison to "a regular and civilian hospital," an award of court costs, and methadone for his chronic pain. (First Amended Complaint at 3-4.)

DISCUSSION

I. PLAINTIFF'S EXCESSIVE FORCE CLAIMS AGAINST DEFENDANT CHAVEZ WITHSTAND SCREENING; PLAINTIFF'S OTHER CLAIMS AGAINST CHAVEZ MUST BE DISMISSED.

Plaintiff's factual allegations are sufficient to allege Eighth Amendment claims against defendant Chavez for excessive force on two occasions: (1) on July 17, 2009, when Chavez allegedly dragged plaintiff out of his hospital bed and repeatedly punched him; and (2) on an unspecified date, when Chavez allegedly threw plaintiff's wheelchair at him, injuring his ankle. (First Amended Complaint at 3.)

With respect to plaintiff's allegation that Chavez told him that Chavez had urinated in plaintiff's food, it is unclear whether plaintiff is alleging that Chavez actually did so, or only that Chavez verbally harassed him by claiming to have done so. An allegation that a correctional officer urinated in an inmate's food is sufficient to state an Eighth Amendment claim. The protections of the Eighth Amendment, however, do not extend to verbal harassment. See Blueford v. Prunty, 108 F.3d 251, 254-55 (9th Cir. 1997)(holding that a prison guard who engaged in "vulgar same-sex trash talk" with inmates was entitled to qualified immunity); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (holding that verbal threats and harassment do not state an Eighth Amendment claim). For the same reason, plaintiff's allegations that defendant Chavez slandered him and called him names do not state an Eighth Amendment claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at an inmate does not state a constitutional claim). Plaintiff may be alleging that the "names" applied to him by Chavez endangered his safety; however, he has not adequately alleged a claim for deliberate indifference to his safety, because he does not state what the "names" were, in what manner they endangered his safety, and whether the risk to his safety ever materialized. Contrast Valandingham v. Bojorquez, 866 F.2d 1135, 1137-38 (9th Cir. 1989)(allegations that prison guards called plaintiff a "snitch" and other inmates then threatened plaintiff with harm stated a claim).

With respect to plaintiff's allegations that Chavez made sexual advances towards him and sexually abused him, prisoners have a right to be free from sexual abuse by prison guards. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Verbal sexual harassment, however, does not necessarily violate the Eighth Amendment. Austin, 367 F.3d at 1171-72 (finding no Eighth Amendment violation when prison guard in control booth briefly exposed his genitals to inmate ...


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