United States District Court, E.D. California
ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM
(ECF NO. 9) ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C.
§ 1915(G) ORDER FOR CLERK TO CLOSE CASE
Fregia (“Plaintiff”) is proceeding pro
se and in forma pauperis with this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff filed the
complaint commencing this action on January 11, 2017. (ECF
March 10, 2017, the Court screened Plaintiff's complaint,
and dismissed it with leave to amend. (ECF No.
On April 12, 2017, Plaintiff filed his First Amended
Complaint, which is now before the Court for screening. Like
the previous complaint, the First Amended Complaint alleges
that defendant Medina conducted unreasonable searches by
having Plaintiff lift his tongue after Plaintiff took his
medication, and generally harassed Plaintiff.
Court finds that Plaintiff's First Amended Complaint
fails to state a claim for a violation of the Constitution.
Because the Court has previously provided Plaintiff with the
applicable law and gave Plaintiff the opportunity to file
this amended complaint, and because it appears that further
amendment would be futile, the Court will dismiss this action
for failure to state a claim upon which relief may be
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).
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)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. 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). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF ALLEGATIONS IN THE FIRST AMENDED
First Amended Complaint is similar to his prior complaint. He
once again brings claims for “illegal cavity
search” and “deliberate indifference harassment,
” and he again asks for $20, 000 in damages. Plaintiff
also once again attaches several health care 602s, appeals,
and responses, which deal with the policy of having licensed
vocation nurses conduct searches on inmates and the conduct
of defendant Medina.
First Amended Complaint includes additional details regarding
the alleged harassment by defendant Medina. Plaintiff alleges
that defendant Medina harassed Plaintiff and other inmates
over a period of at least eighteen months. Part of the
harassment involved making Plaintiff lift his tongue, even
after defendant Medina had viewed the inside of
Plaintiff's mouth and empty cup to ensure that Plaintiff
had taken his medications. No other nurse forced inmates to
lift their tongue after already verifying that they had not
“cheeked” their pills.
further alleges that defendant Medina's offensive memos,
barking out orders, verbal abuse, facial expressions, and
body language are “grey areas” that could be
considered harassment. Finally, Plaintiff alleges that
defendant Medina has had an abnormal amount of prisoner
complaints about her behavior.
also included a new claim for “mental anguish over
approx. 18 months.” According to Plaintiff, he suffered
mental anguish because of defendant Medina's harassment,
and it left a mental scar.
ANALYSIS OF PLAINTIFF'S EXCESSIVE FORCE AND UNREASONABLE