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Brian R. Brown v. C/O Whitaker

July 26, 2011

BRIAN R. BROWN, PLAINTIFF,
v.
C/O WHITAKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); 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, 555 (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." 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, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

In the statement of claim portion of the complaint form, plaintiff wrote "to whom it may concern." (Dkt. No. 1 at 3.) Plaintiff provides no factual allegations in the complaint. Plaintiff seeks monetary damages for "sexual harassment, violation of [his] civil rights, and public humiliation." (Id.) Plaintiff appends a citizens complaint form*fn1 in which he stated that on February 27, 2011, plaintiff was allegedly stripped naked, forced to walk back to his cell, with no shower, and was publicly humiliated in front of 199 other inmates. (Dkt. No. 1 at 4.) Plaintiff also claims correctional officer Whittaker allegedly kept asking plaintiff about plaintiff's grievance, which plaintiff alleges was an effort to force plaintiff to drop the grievance. (Id.)

Plaintiff must provide factual allegations in the complaint that give defendants fair notice of plaintiff's claims. While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp., 550 U.S. at 555). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp., 550 U.S. at 570).

Plaintiff is cautioned, however, that the allegations set forth in the attachment to the complaint do not state a cognizable civil rights claim for sexual harassment. Allegations of harassment, embarrassment, and defamation are not cognizable under § 1983. Gaut v. Sunn, 810 F.2d 923 (9th Cir. 1987) (no claim stated when threatened with bodily harm if pursue legal redress). There is no right to privacy in a prison cell. See Hudson v. Palmer, 468 U.S. 517, 526 (1984). A prisoner may be subjected to strip searches and body cavity searches conducted in a reasonable manner. See Bell v. Wolfish, 441 U.S. 520, 561 (1979). Also, the Ninth Circuit has noted that any privacy right is very limited. See Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) ("highly questionable" whether inmates have Fourth Amendment right to be free from routine unclothed searches or viewing of their unclothed bodies by officials of the opposite sex); Jordan v. Gardner, 986 F.2d 1521, 1524-25 (9th Cir. 1993) (en banc) (prior case law suggests inmates' legitimate expectations of bodily privacy "extremely limited"; privacy interest in freedom from cross-gender clothed body searches not "judicially recognized"). Given plaintiff's allegations, it is unlikely plaintiff could state a cognizable civil rights claim based on one single, isolated incident of being required to walk naked from the shower area back to plaintiff's cell. See Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1985) (visual strip search of male prisoners by female guards does not violate privacy right); Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985) (pat-down searches of mail prisoners by female guards does not violate privacy right.) Rather, a prisoner must establish that the alleged sexual harassment was egregious, pervasive and/or widespread in order to state a claim under the Eighth Amendment. See, e.g., Jordan, 986 F.2d at 1525-31 (9th Cir. 1993) (en banc) (prison policy requiring male guards to conduct body searches on female prisoners); Watson v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (correctional officer sexually harassed two inmates on almost daily basis for two months by conducting deliberate examination of genitalia and anus). Without more, plaintiff should not renew this claim in any amended complaint.

Plaintiff names the Warden as a defendant. Plaintiff is advised that [t]he Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an ...


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