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Title Benjamin A. Gibbs v. C. Hernandez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 19, 2013

TITLE BENJAMIN A. GIBBS
v.
C. HERNANDEZ, ET AL.

The opinion of the court was delivered by: Honorable Oswald Parada, United States Magistrate Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Oswald Parada, United States Magistrate Judge

As assigned N/A N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None

Proceedings: IN CHAMBERS: ORDER TO SHOW CAUSE

I. Proceedings

On February 28, 2013, Benjamin A. Gibbs ("Plaintiff") lodged for filing what purports be a Civil Rights Complaint pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) ("Complaint"), along with an in forma pauperis application in order to proceed without payment of the full filing fee. (ECF No. 1.) Because Plaintiff has requested leave to proceed in forma pauperis, the Court has screened the Complaint for the purpose of determining whether the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A.

For the reasons set forth below, Plaintiff is ordered to show cause why his in forma pauperis application should not be denied.

II.

Discussion

Summary of Plaintiff's Allegations.

Complaint names as Defendants the following employees at the United States Penitentiary ("USP") at Victorville, California: (1) Officer C. Hernandez; (2) Assistant Warden A. Matevousian; (3) Warden Francisco Quintanilla; and (4) Administrator of the Bureau of Prisons ("BOP") Harrell Watts. Plaintiff appears to allege violations of the First, Fourth, and Eighth Amendments to the United States Constitution. All Defendants are being sued inn their individual and official capacities. Plaintiff seeks damages and injunctive relief. (Compl. at 3-6, Attach. 5a-c.)

Plaintiff alleges that on or about September 11, 2011, he was walking from Unit 4B to the pill line. Defendant Hernandez allegedly asked Plaintiff for his identification. Plaintiff responded that he left his identification in his unit. Defendant Hernandez then asked Plaintiff to submit to a pat down search. Defendant Hernandez then told Plaintiff

spread his legs, grabbed Plaintiff's groin, rubbed Plaintiff's buttocks, pulled Plaintiff's pants down, pulled a knife from between Plaintiff's buttocks, and slid his finger into Plaintiff's anus. Plaintiff requested medical attention for having been sexually assaulted. Defendant Hernandez denied Plaintiff medical attention. Plaintiff alleges these acts violated his Fourth and Eighth Amendment rights. (Id. Attach. 5-5a.)

On March 4, 2012, Plaintiff was strip searched, and his property was also searched. After a verbal exchange between Plaintiff and Defendant Matevousian, Plaintiff was

out of his cell, his property was kicked off the bed, and swept into the hallway. Plaintiff alleges this violated his First Amendment rights by retaliating against Plaintiff for having filed complaints. (Id. Attach. 5a-5b.)

Plaintiff filed numerous grievances based on the incidents alleged. Plaintiff alleges Defendants Quintana and Harrell failed to protect Plaintiff in violation of his Eighth Amendment rights. Plaintiff alleges supervisory liability for maintaining a policy, custom, or practice which directly caused Plaintiff harm. Finally, Plaintiff alleges he is suffering from Post Traumatic Stress Disorder ("PTSD") resulting from the sexual assault. (Id. Attach. 5b-5c.)

The Complaint Is Subject to Dismissal Based on Sovereign Immunity.

Absent an express waiver, sovereign immunity shields the Federal Government and its agencies from suit. Loeffler v. Frank, 486 U.S. 549, 554, 108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988); Federal Housing Administration v. Burr, 309 U.S. 242, 244, 60 S. Ct. 488, L. Ed. 724 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the "terms [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); see also United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, L. Ed. 2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."); Arnsberg v. United States, 757 F.2d 971, 977-78 (9th Cir. 1985) (no right to money damages against United States without sovereign immunity waiver). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed" by Congress. United States v. King, 395 U.S. 1, 4, 89 S. Ct. 1501, 1503, 23 L. Ed. 2d 52 (1969). Without such a waiver, the courts have no jurisdiction to entertain a suit against the United States. Sherwood, 312 U.S. at 586; Gilbert v. DaGrossa, 756 F.2d 1455, 1458 Cir. 1985) (where suit has not been consented to by United States, dismissal of action is required.).

Moreover, the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants when such suit is based on actions done in their official capacities. See Gilbert, 756 F.2d at 1458. However, a Complaint that seeks damages against government officials in their individual capacities would not be barred sovereign immunity. Id. at 1459.

United States, through the FTCA , has made a limited waiver of sovereign *fn1 immunity. FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) (Federal Tort Claims Act waived sovereign immunity for "certain torts committed by employees."). The FTCA waiver of sovereign immunity does not, however, to constitutional claims. Although individual employees of the Federal Government may be sued for alleged violations of a plaintiff's constitutional rights, see generally Bivens, 403 U.S. at 388, such claims may not be asserted against the Federal Government itself. See FDIC, 510 U.S. at 477-78; Clemente v. United States, 766 F.2d 1358, 1363 (9th Cir. 1985); Laswell v. Brown, 683 F.2d 261, 267-68 (8th Cir. 1982); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir. 1978).

Plaintiff alleges constitutional claims against Defendants, all employees of USP Victorville. He sues them in their individual and official capacities. However, he fails allege an express waiver of sovereign immunity. Thus, to the extent Plaintiff seeks damages against Defendants in their official capacities, the Court finds that the Complaint is subject to dismissal based on sovereign immunity.

The Complaint Is Subject to Dismissal for Failure to State an Eighth Amendment Failure to Protect Claim.

Eighth Amendment imposes duties on prison officials to provide humane conditions confinement by ensuring that inmates receive adequate food, clothing, shelter, and medical care, and must "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (citing Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). In order to state an Eighth Amendment claim for failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of harm. Farmer, 511 U.S. at 834 (citing Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993)). Also, the required state of mind is one of "deliberate indifference" to inmate health or safety. Farmer, 511 U.S. at 834. This requirement is satisfied by showing that "the official knew of and disregarded a substantial risk of serious harm to [the prisoner's] health or safety." Johnson v. Meltzer, 134 F.3d 1393, 1398 (9th Cir. 1998) (citing Farmer, 511 U.S. at 837). Vague and conclusory allegations are insufficient to state a valid claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553-56, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

Supervisory personnel are not individually liable under § 1983 on a theory of respondeat superior or vicarious liability in the absence of a state law imposing such liability. Monell v. New York City Dep't of Soc. Serv., 436 U.S. 658, 691, 694-95, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978);Redman v. County of San Diego, 942 F.2d 1435, 1446 Cir. 1992); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). Vicarious liability is also inapplicable in Bivens actions. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ("Because vicarious liability is inapplicable to and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution."). A supervisory official may be personally liable under § 1983 only if he or she was personally involved in the constitutional deprivation, or if there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. See Redman, 942 F.2d at 1446-47; Hansen, 885 F.2d at 646; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Vague and conclusory allegations are insufficient to state a valid claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

the Complaint, Plaintiff alleges that he was subjected to an unreasonable strip search Defendant Hernandez and that he was subjected to an unreasonable search of his property by Matevousian. Plaintiff then filed numerous grievances based on the incidents alleged. He further alleges Defendants Quintana and Harrell failed to protect Plaintiff in violation of his Eighth Amendment rights. However, these supervisory Defendants cannot be held liable on a theory of respondeat superior. Further, Plaintiff to allege any facts that would establish individual liability on their part. Thus, the Complaint is subject to dismissal for failure to state an Eighth Amendment failure to claim against Defendants Quintana and Harrell.

III.

Conclusion

the foregoing, Plaintiff is ordered to show cause on or before April 26, 2013, why in forma pauperis application should not be denied. If Plaintiff still wishes to pursue action, he shall have until April 26, 2013, to file an amended Complaint, attempting cure the defects in the Complaint. The amended Complaint shall be complete in itself and must remedy the deficiencies discussed herein. Plaintiff may not use "et al." in the caption but must name each defendant against whom claims are stated. Plaintiff must use the blank Central District Civil Rights Complaint form accompanying this order,

sign and date the form, must completely and accurately fill out the form, and must use the space provided in the form to set forth all of the claims that he wishes to assert in his amended Complaint. The amended Complaint shall not refer to the original Complaint.

Failure to comply with these requirements may result in a recommendation that the in pauperis application be denied for failure to state a claim on which relief may be granted. The failure to properly respond to this OSC will result in a recommendation the in forma pauperis application be denied for failure to prosecute and/or failure to comply with a court order.

Clerk is directed to provide Plaintiff with a blank Central District Civil Rights Complaint form and a blank in forma pauperis application.

Finally, Plaintiff shall fill out the new in forma pauperis application which includes the prisoner authorization to disburse funds from his trust fund account.

IS SO ORDERED.

All Parties of Record

Initials of deputy clerk jh-relief


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