United States District Court, N.D. California, San Francisco Division
SECOND ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
RICHARD SEEBORG, District Judge.
This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state prisoner. In response to plaintiff's third amended complaint (Docket No. 28), defendant A. Avalos is directed to file a dispositive motion or notice regarding such motion on or before October 15, 2014, unless an extension is granted. The Court further directs that defendants are to adhere to the notice provisions detailed in Sections 2.a and 10 of the conclusion of this order. The first order of service (Docket No. 25) is VACATED.
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id . § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988).
A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (quoting Twombly , 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network , 18 F.3d 752, 754-55 (9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that (1) Salinas Valley State Prison correctional officer A. Avalos, in 2012, filed a false disciplinary report against him, thereby violating his due process rights; (2) Salinas Valley State Prison nurse Divina Druz sexually harassed him by asking to see his penis, thereby violating his Eighth Amendment rights; (3) law librarians, correctional officers and prison wardens mishandled his legal mail and prevented law library access; and (4) the federal judge presiding over this action violated his constitutional rights.
Claim 1, when liberally construed, appears to state a claim under § 1983. Claim 2 is DISMISSED without leave to amend. A single instance of verbal harassment, such as the one alleged in the present complaint, does not implicate the Eighth Amendment's strictures against the sexual abuse of prisoners. See Austin v. Williams , 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary judgment dismissal of an Eighth Amendment claim in which a prison guard exposed himself to prisoner in elevated, glass-enclosed control booth for no more than 30-40 seconds and never physically touched prisoner). Because Claim 3 involves different defendants and facts than the other claims, it is DISMISSED without prejudice. See Fed.R.Civ.P. 15 and 20. If plaintiff wishes to pursue Claim 3 in this Court, he may do so by filing a separate civil rights action.
Claim 4 is DISMISSED WITH PREJUDICE. A federal judge is absolutely immune from civil liability for acts performed in his or her judicial capacity and, unlike the judicial immunity available to state judges sued under § 1983, a federal judge's immunity is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief. See Moore v. Brewster , 96 F.3d 1240, 1243 (9th Cir. 1996); Mullis v. U.S. Bankruptcy Court , 828 F.2d 1385, 1394 (9th Cir. 1987) (applying judicial immunity to actions under Bivens ). A. Avalos is the sole defendant in this action. The Clerk shall terminate all other defendants from this action.
For the foregoing reasons, the Court orders as follows:
1. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter, all attachments thereto, and a copy of this order upon Correctional Officer A. Avalos at Salinas Valley State Prison. The Clerk shall also mail courtesy ...