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Jordan v. Asuncion

United States District Court, C.D. California

May 7, 2018

PAUL JORDAN, Plaintiff,
DEBBIE ASUNCION, et al., Defendants.





         Pending before the Court is Plaintiff's First Amended Complaint, filed pursuant to 42 U.S.C. § 1983.[1] (“FAC, ” Dkt. No. 6). Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portion thereof, before service of process if the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the First Amended Complaint is DISMISSED with leave to amend.[2]



         Plaintiff sues two employees of California State Prison-Los Angeles County (“CSP-LAC”): (1) physician Dr. J. Marcelo, and (2) Warden Debbie Asuncion. Both Defendants are sued in both their individual and official capacities. (FAC at 3).[3]

         The FAC alleges that on May 21, 2015, Plaintiff suffered a back injury that caused him to collapse. (Id. at 8). Plaintiff was taken to the prison medical clinic, where he informed Dr. Marcelo that his “back gave out and he was in a lot of pain.” (Id.). Dr. Marcelo did not believe Plaintiff and told him to “get ready for a rectum exam.” (Id.) . Plaintiff asked, “What does a rectum exam have to do with my back?” (Id.). Dr. Marcello told Plaintiff that the procedure he was “about to do would tell [him] all [he] need[ed] to know.” (Id.). Dr. Marcello then placed his fingers in Plaintiff's rectum, which Plaintiff claims constituted sexual assault. (Id.).

         Plaintiff was not told of any alternatives to the rectal exam, and no such procedures were performed. (Id. at 16). For example, Plaintiff was not given an x-ray, and he “was not advised of a digital rectum exam as an alternate option to Marcelo['s] sexual assault with his fingers and the doctor did not offer the digital exam [sic]. ”[4] (Id.).

         As a lasting consequence of this “assault, ” Plaintiff claims that whenever he is around medical personnel, his heart starts to beat very fast and he sweats “profusely, ” which often trigger breathing difficulties and severe back pain. (Id. at 9-10). These physical injuries make Plaintiff become “extremely anxious, ” and he experiences “abnormal” feelings of anger towards health care providers and depression. (Id.).

         Plaintiff filed a grievance in which he complained of the sexual assault. (Id. at 18). However, to avoid having to address the assault, prison officials denied the 602 and refused to return it to Plaintiff, thereby depriving him of the ability to prove that he had raised the issue in his first-level grievance.[5] Plaintiff's third level appeal was wrongfully denied on the false ground that Plaintiff raised the sexual assault issue for the first time at the Director's Level of Review and failed to provide evidence that he had attempted to address it at the lower level. (Id. at 18 & Exh. A at 21).

         Plaintiff states that Warden Asuncion took no action against prison employees who purposely attempted to obstruct his right to file a grievance. (Id. at 11). According to Plaintiff, “[t]he routine illegal Screening out of plaintiff's 602 to avoid addressing the complaint and allowing plaintiff to stipulate [to] [sic] clearly determined facts is the moving force behind the violation of the First Amendment.” (Id. at 18). Plaintiff contends that Warden Asuncion “is responsible for the First Amendment violation . . . [because] employee's [sic] of CDCR under her supervision made false claims and withheld Plaintiff's original complaint of sexual abuse in order to not grant the 602 or address the claim as a properly filed First Amendment right.” (Id. at 17).

         Plaintiff raises claims for violations of his First, Eighth and Fourteenth Amendment rights and for the state law tort of negligence. (Id. at 5). He requests one million dollars in damages from each Defendant. (Id. at 19).



         Under 28 U.S.C. § 1915A(b), the Court must dismiss the FAC due to pleading defects. However, the Court must grant a pro se litigant leave to amend his defective complaint unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). For the reasons discussed below, it is not “absolutely clear” that at least some of the defects of Plaintiff's FAC could not be cured by amendment. The FAC is therefore DISMISSED with leave to amend.

         A. The FAC Fails To State A Fourteenth Amendment Claim

         Plaintiff broadly alleges that his Fourteenth Amendment rights were violated. However, he does not clearly state whether he is bringing a Fourteenth Amendment claim against Dr. Marcelo, Warden Asuncion, or both, or what the basis of his Fourteenth Amendment claim might be. However, any purported Fourteenth Amendment claim involving either ...

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