The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the action. Pending before the court is plaintiff's amended complaint (Doc. 18).
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 names the following as defendants: Mercy Medical Center, Trish Patterson, Elizabeth Hernandez, Teresa Souza, Levi Solada, Peter Brindley, and City of Redding.*fn1
Plaintiff states that, prior to his incarceration, he arrived at Mercy Medical Center on August 4, 2010 for treatment. X-rays were obtained and reviewed by defendant Patterson, a doctor at Mercy Medical Center. According to plaintiff, Dr. Patterson "observed a foreign object in Plaintiff's rectum." When asked by Dr. Patterson what was in his rectum, plaintiff responded "tobacco." Plaintiff states that Dr. Patterson referred the matter to Redding Police Department, specially, defendants Solada and Brindley "with the assistance of RN Elizabeth Hernandez and Teresa Souza." Plaintiff alleges that Dr. Patterson "conspired with officer Solada & Brindley . . . to detain and retrieve the foreign object over Mr. Mason strong objections and protest." Plaintiff states that there was no warrant allowing a search or seizure.
According to plaintiff, Dr. Patterson said that a laxative could be administered in order to retrieve the foreign object. Plaintiff states that, despite this suggestion, defendants Solada and Brindley "authorized to use extreme physical force by forcefully restraining Mason to the hospital bed." Plaintiff next alleges that "RN Souza & Hernandez participated in sexually assaulting Mr. Mason with Officer Brindley and Solada." Plaintiff states: "They tore Mr. Mason rectum." Plaintiff states that he was in extreme pain and that he was also bleeding. He also claims to be suffering from post-traumatic stress disorder.
As to other named defendants, plaintiff claims that defendant Hansen, the Chief of Police, is liable for failing to properly train and discipline officers under him, specifically defendants Solada and Brindley. Plaintiff claims that Mercy Medical Center is liable for implementing "customs" which "allowed Doctor Patterson and RN Hernandez and Souza to recommend that they will willing to participate with the officers and assist in violation Mr. Mason's civil rights under the cloak of 'color of state law.'" Plaintiff adds that "[a]ll defendants knew Mr. Mason had a reasonable expectation of privacy in having a forcible full body cavity search without a warrant to do so." He also claims that defendants acted with malice.
The court finds that, as with the original complaint, plaintiff's amended complaint suffers from a number of defects, each discussed below.
A. Insufficient Factual Allegations to Determine Subject Matter Jurisdiction
Plaintiff essentially claims defendants conspired to subject him to a warrantless search and seizure in violation of the Fourth Amendment. Because plaintiff is now incarcerated, it is reasonable to infer that plaintiff is incarcerated as a result of a criminal prosecution relating to evidence discovered by the body cavity search. If a criminal case is still ongoing in any stage, Younger abstention would be implicated, see Younger v. Harris, 401 U.S. 37 (1971) (barring the federal court from hearing a civil rights claim arising from an ongoing criminal prosecution), as would the issue of a Wallace stay, see Wallace v. Kato, 127 S.Ct. 1091 (2007) (allowing a federal court to stay consideration of the federal claim until the criminal case is resolved). If a criminal case is concluded to final judgment, then this case might be Heck-barred because success on the 4th Amendment claim would imply the invalidity of the underlying conviction. See Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to malicious prosecution action which includes as an element a finding that the criminal proceeding was concluded in plaintiff's favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable because allegations of procedural defects were an attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) (concluding that § 1983 action seeking changes in procedures for determining when an inmate is eligible for parole consideration not barred because changed procedures would hasten future parole consideration and not affect any earlier parole determination under the prior procedures).
Plaintiff was provided an opportunity to amend in order to set forth additional factual allegations which would clear up the jurisdiction issues in this case. Plaintiff, however, has not done so. The amended complaint does not shed any more light on the jurisdictional issue than did the original complaint. In any event, either under Younger abstention applicable where criminal proceedings are ongoing, or either Heck which bars civil suits which would ...