United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 9.) THIRTY DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT
GARY S. AUSTIN, Magistrate Judge.
Zane Hubbard ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983 and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811 (1982). Plaintiff filed the Complaint commencing this action on January 13, 2014. (Doc. 1.) The court screened the Complaint and issued an order on June 20, 2014, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On July 7, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 9.)
II. SCREENING REQUIREMENT
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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Sergeant De Ochoa and Correctional Officer (C/O) Rodriguez ("Defendants"). Defendants were employed by the CDCR at CSP at the time of the events at issue. Plaintiff's factual allegations follow.
On November 23, 2013, with approximately twenty-eight homosexual male inmates and ten male Correctional Officers present, defendant C/O Rodriguez told Plaintiff to strip and bend at the waist. Plaintiff refused and asked why he was singled out for a cavity search. Defendant Sergeant De Ochoa stated, "I think you have something in your a**." (Amd Cmp, Doc. 9 at 3 ¶IV.) Other officers told Plaintiff, "in a homosexual manner, " that he needed to submit to a cavity search. (Amd Cmp at 3 ¶IV(4).) This was sexual harassment and excessive force, done deliberately to embarrass Plaintiff. Officers confiscated Plaintiff's clothing and left him naked in front of male and female officers and nurses. Plaintiff responded with expletives. Half an hour later, Officer Hobbs [not a defendant] and other officers strip-searched Plaintiff again, forcing him to squat and cough three times.
Plaintiff alleges that he is illegally surveilled on a twenty-four hour basis under the Foreign Intelligence Surveillance Act of 1978, so officers were aware that Plaintiff was not concealing any items. Through these means, authorities know that Plaintiff is homophobic (against homosexuality), and Plaintiff believes Defendants acted out of discrimination due to Plaintiff's race, gender and gender identity, religion, and sexual orientation. Plaintiff believes that correctional officers seek to influence him to become homosexual. Plaintiff is sexually harassed and threatened daily by prison authorities, in violation of the Eighth Amendment and California regulations. Plaintiff has been subjected to unclothed searches around many other male inmates who humiliate him by taunting him about his genitalia and bragging about their sexual acts. Other than sexual harassment, defendant De Ochoa had no reasonable suspicion to search Plaintiff in front of others.
The recreation yard is not a high risk security area, but inmates are searched before entering the yard, in their cells, and then segregated by dog cages. These strip searches are very disrespectful and threatening to integrity. Officers force their sexual preference on men who are resisting. This is abuse of authority. The surveillance, threats, and taunting are dehumanizing.
Plaintiff requests monetary and injunctive relief.
IV. PLAINTIFF'S CLAIMS
The Civil Rights Act under which this action was filed provides:
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 action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. "Section 1983... creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches ...