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Weatherington v. S. Rios

United States District Court, E.D. California

March 6, 2017

MONTE WEATHERINGTON, Plaintiff,
v.
S. RIOS, et al., Defendants.

         SCREENING ORDER ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE A THIRD AMENDED COMPLAINT ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Monte Weatherington (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 12, 2014. (ECF No. 1.) The court screened the Complaint under 28 U.S.C. § 1915A and issued an order on March 16, 2015, requiring Plaintiff to file an amended complaint or proceed with the cognizable Fourth Amendment claim found by the court. (ECF No. 7.) On June 1, 2015, Plaintiff filed the First Amended Complaint. (ECF No. 13.) On April 27, 2016, the court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (ECF No. 16.) On June 16, 2016, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (ECF No. 18.)

         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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). To state a viable claim, 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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF ALLEGATIONS IN SECOND AMENDED COMPLAINT

         Plaintiff is presently incarcerated at the California Men's Colony-East in San Luis Obispo, California. The events at issue in the Second Amended Complaint allegedly occurred at Pleasant Valley State Prison (PVSP) in Coalinga, California, when Plaintiff was incarcerated there.[1] Plaintiff names as defendants Correctional Officers (C/O) S. Rios and Arranquin (“Defendants”). Plaintiff brings claims under the First, Fourth, Eighth, and Fourteenth Amendments for retaliation, improper strip searches, excessive force, and violation of due process. Plaintiff brings a substantive due process claim, characterizing the violations against him as “shocking to the conscience.” Second Amended Complaint (2ACP) at 8. Plaintiff also brings a claim for procedural due process. Plaintiff states that he has more evidence which the court asked him not to include in the complaint.

         Plaintiff alleges as follows. Defendant C/O Rios, a male officer, singled Plaintiff out, made embarrassing comments about him to other officers, took Plaintiff out of view of other officers, and performed multiple strip searches when he and Plaintiff were alone. Often, Rios would have Plaintiff wait until last to be called for a search, so that no others would be present, causing Plaintiff extreme anxiety. When other inmates were present, Rios would make comments like, “You got to watch this one, ” and in prison such comments can lead to violence. 2ACP at 7.

         Defendant C/O Arranquin, a female officer, observed strip searches of Plaintiff and other male inmates by monitor, and viewed inmates on the monitor when they went to the bathroom. She particularly gawked at black inmates, as seen by other blacks when they observed her from the visiting room. Plaintiff contends that defendants C/O Arranquin and C/O Rios worked together, and C/O Rios condoned C/O Arranquin's actions and encouraged her to particularly watch Plaintiff.

         Plaintiff was called out for an unreasonable search while he was with his wife in the visiting room. Plaintiff and his wife were in line near the officer's desk, waiting to take a photograph. C/O Arranquin told Plaintiff, “Don't do it.” 2ACP at 3. Plaintiff said, “Don't do what?” and then realized that Arranquin thought he was going to speak to an inmate behind the glass. 2ACP at 3-4. C/O Rios called out to Plaintiff to search him, and when Plaintiff asked what it was about, C/O Rios said, “It's for fucking with my partner.” 2ACP at 4. C/O Rios pulled Plaintiff out of the visiting room to humiliate him in front of other inmates, and exposed Plaintiff's genitals during the search to the female officer on the monitor. There was no penological purpose for the search; it was only to get revenge against Plaintiff for prior grievances that Plaintiff had filed against C/O Rios. Plaintiff alleges that C/O Rios performed an excessive number of searches on Plaintiff on dates coinciding with Plaintiff's filing of grievances.

         Five officers were called away from the yard to strip search Plaintiff, placing the institution at risk because they were not able to immediately respond to an alarm in the medical clinic. This was part of Officer Rios' acts against Plaintiff for filing grievances against him.

         Officer Rios also fondled Plaintiff's genitals during a pat down search, to show Rios' intention to exert power and control over Plaintiff. Rios also retaliated against him by having him transferred to another yard. Plaintiff advises the court that a review of his 602 grievances will show the dates, times, and nature of defendants Rios and Arranquin's actions.[2]

         Plaintiff has not included a request for relief in the Second Amended Complaint.

         IV. PLAINTIFF'S CLAIMS

         The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, 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 ‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapmanv. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law ...


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