United States District Court, C.D. California
Present: The Honorable Steve Kim, U.S. Magistrate Judge
CIVIL MINUTES - GENERAL
CHAMBERS) SCREENING ORDER 
a California state prisoner, has filed a complaint under 42
U.S.C. § 1983, alleging that correctional officer J.
Talley used excessive force against him in July and August
2018 while Plaintiff was incarcerated at California Men's
Colony. (ECF 2 at 6, 8-10). Plaintiff sues Defendant Talley
in both his individual and official capacities for excessive
force and sexual assault. (Id. at 5, 9-10). He also
names four other correctional officers in their individual
and official capacities for their alleged failure to protect
Plaintiff or intervene. (Id. at 5, 8, 11). But
because Plaintiff requests to proceed in forma pauperis, the
Court must screen his complaint to "identify cognizable
claims" and dismiss those that are "frivolous,
malicious, or fail to state a claim upon which relief may
be granted," or that "seek monetarv relief from a
defendant who is immune from such relief." 28 U.S.C.
§ 1915A(a), (b)(1)-(2) (2018).
begin with, Plaintiff has not alleged enough facts to show
any constitutional violations during the July 2018 incident.
Plaintiff claims that as he was leaving the prison law
library, Talley "assaulted and "batter[ed]"
him. (ECF 2 at 6, 8). In the prison grievance forms attached
to his complaint, Plaintiff further alleges that a "John
Doe, "- whom he presumably later identified as Talley
(see Id. at 6)-conducted a clothed body search and
confiscated his legal papers. (Id. at 22, 24). These
allegations are too conclusory to state an Eighth Amendment
excessive force claim against Talley. See Fed. R.
Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) ("Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice" to state a federal claim on which relief
may be granted.).
other hand, Plaintiff has alleged enough facts that, if true,
state Eighth Amendment claims against Talley in his
individual capacity for excessive force and sexual assault
during the August 2018 incident. See, e.g., Wliitley v.
Albers, 475 U.S. 312, 319-20 (1986) (force applied
"maliciously and sadistically for the very purpose of
causing harm," rather than in good faith to preserve
order and discipline in the prison is excessive under the
Eighth Amendment); Schwenk v. Hartford, 204 F.3d
1187, 1197 (9th Cir. 2000) (sexual harassment or abuse of an
inmate by a corrections officer violates the Eighth
Amendment). Plaintiff alleges that, when leaving the prison
law library, Talley and a "mob" of correctional
officers surrounded him. (ECF 2 at 9). Talley threatened
Plaintiff, demanding that Plaintiff withdraw a previously
submitted grievance against Talley. (Id.). When
Plaintiff refused to acknowledge Talley's demands, Talley
"tightly and roughly" squeezed Plaintiffs
handcuffs, gripped Plaintiffs t-shirt near his collarbone and
"violently twist[ed]," the shirt, "choking
Plaintiff until he was nearly unconscious."
(Id.). Talley then pushed Plaintiff against a wall
and struck the back of Plaintiffs head with his elbow.
(Id.). Afterwards, Talley pushed, dragged, and
punched Plaintiff into the watch commander's office and
subjected Plaintiff to a strip search. (Id. at 10).
During the strip search, Plaintiff alleges that Talley
misused a metal detector as a "sexual instrument"
by repeatedly rubbing it between Plaintiffs buttocks after
each squat. (Id.). These allegations, if true, state
Eighth Amendment claims for excessive force and sexual abuse.
See, e.g., Hill v. Rowley, 658 Fed.Appx. 840, 841
(9th Cir. 2016) (correctional officer "gripping" an
inmate's buttocks "intentionally to discriminate
against him" stated claim for sexual harassment under
the Eighth Amendment); Michenfelder v. Simmer, 860
F.2d 328, 332 (9th Cir. 1988) (strip searches that are
"excessive, vindictive, harassing, or unrelated to any
legitimate penological interest" maybe
unconstitutional); McRorie v. Shimoda, 795 F.2d 780,
784 (9th Cir. 1986) (cognizable Eighth Amendment claim where
inmate alleged assault by prison official during strip search
that inmate was not resisting).
Talley, however, none of the other correctional officers are
alleged to have used any force, let alone excessive force,
during the July or August 2018 incidents. Rather, Plaintiff
alleges that correctional officer B. Kirker and Sergeant
Rodriguez failed to protect him from Talley after he reported
the first excessive force incident in July. (See ECF
2 at 6, 8). But to state a failure to protect claim under the
Eighth Amendment, Plaintiff must show that (1) "he [wa]s
incarcerated under conditions posing a substantial risk of
serious harm," and (2) prison officials acted with
deliberate indifference to his health or safety. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff claims
that both Kirker and Rodriguez were aware of a
"substantial risk of serious harm to" Plaintiffs
life after Plaintiff submitted a prison grievance relating to
the July incident and Kirker interviewed him about it. (ECF 2
at 6, 8). In order to alleviate that risk, Plaintiff alleges
that they should have removed him from the general population
and placed him into administrative segregation while the
investigation was pending. (Id.). But even if there
were a serious risk to Plaintiff-which, as noted, it is not
clear that there was- Kirker and Rodriguez "took
reasonable steps to abate any known risk," Fisher v.
Stewart, 37 Fed.Appx. 947, 948-49 (9th Cir. 2002), by
investigating Plaintiffs allegations, which they later
determined were uncorroborated. (ECF 2 at 14-15). Prison
officials who respond reasonably to a substantial risk to
inmate safety "cannot be found liable under the Cruel
and Unusual Punishments Clause." Farmer, 511
U.S. at 844-45. And in any event, Plaintiff fails to explain
how placement in administrative segregation would have
prevented the August incident, which allegedly happened when
Plaintiff was leaving the prison law library. Thus,
Plaintiffs allegations do not state a sufficient failure to
protect claim against Defendants Kirker and Rodriguez.
also asserts a failure to intervene claim against
correctional officers L. Hicks, R. Lowe, and J.
for failing to stop Talley from using excessive force on
Plaintiff during the August incident. (ECF 2 at 7, 11). When
an officer is alleged to have used excessive force against a
prisoner, other correctional officers may also be held liable
if they had a realistic opportunity to intervene and stop the
violation but failed to do so. See Lolli v. County of
Orange, 351 F.3d 410, 418 (9th Cir. 2003);
Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th
Cir. 2000). To state a claim for failure to intervene,
Plaintiff must allege that Hicks, Lowe, and Rupp were (1)
aware that Plaintiff faced a specific risk of harm from
Talley's use of excessive force, and (2) had a reasonable
opportunity to intervene to stop it. Id. Plaintiff
alleges that he was surround by Talley, Hicks, Lowe, and Rupp
as he was leaving the prison law library. (ECF 2 at 7, 9,
11). He claims that Hicks, Lowe, and Rupp watched as Talley
used unreasonable force against him, including choking him
with his t-shirt and striking him on the back of his head.
(Id.). These allegations are sufficient to state a
failure to intervene claim. See, e.g., Vann v.
Tapia, 2014 WL 691093, at *2 (N.D. Cal. Feb. 21, 2014).
In contrast, Plaintiffs assertion that Hicks, Lowe, and Rupp
are also culpable for failing to stop Talley from sexually
assaulting him during the strip search is unsupported by his
allegations. Plaintiff alleges that Talley
"kidnapped" him by pushing, dragging, and punching
Plaintiff into the watch commander's office to conduct
the strip search. (ECF 2 at 11). Because Hicks, Lowe, and
Rupp "were not present at the scene," they did not
have a realistic opportunity to intervene. See
Lolli, 351 F.3d at 418; Garcia v. Kernan, 2019
WL 3429175, at *14 (S.D. Cal. July 30, 2019).
Plaintiffs official capacity claims against Defendants are
barred by the Eleventh Amendment. A "suit against a
state official in his or her official capacity is not a suit
against the official but rather is a suit against the
official's office" and thus "is no different
from a suit against the State itself." Will v. Mich.
Dep't State Police, 491 U.S. 58, 71 (1989). But the
Eleventh Amendment prohibits suits for any type of relief
against a state or its agencies unless the state has waived
its immunity or Congress has specifically overridden state
sovereign immunity. See Welch v. Texas Dep't of
Highways & Pub. Transp., 483 U.S. 468, 472-74
(1987); Pennhurst State Sch.&Hosp. v. Halderman,
465 U.S. 89, 99-100, 106 (1984). "The State of
California has not waived its Eleventh Amendment immunity
with respect to claims brought under § 1983 in federal
court[.]" Dittnian v. California, 191 F.3d
1020, 1025-26 (9th Cir. 1999) (citation omitted). So
Plaintiff's official capacity claims against Defendants
must be dismissed. See Mitchell v. Washington, 818
F.3d 436, 442 (9th Cir. 2016); Brown v. California
Dep't of Con:, 554 F.3d 747, 752 (9th Cir. 2009)
(CDCR is an arm of the state under Eleventh Amendment
these reasons, Plaintiff is ORDERED TO SHOW
CAUSE on or before February 13.
2020. why his official capacity claims against
all Defendants, his failure to protect claim against Kirker
and Rodriguez, and any claims relating to the July 2019
incident should not be dismissed. To discharge this order,
Plaintiff must do one (and
only one) of the following:
(1) File a Notice of Voluntary Dismissal using the attached
Form CV-09, dismissing without prejudice all claims and
Defendants in the complaint, except for (1) his
Eighth Amendment claims for excessive force and sexual
assault against Defendant Talley in his individual capacity,
and (2) his Eighth Amendment failure to intervene claim
against Defendants Hicks and Lowe in their individual
capacities. If Plaintiff exercises this option, the
complaint will be ordered served as narrowed bv this order,
and he may proceed to the next step in this litigation,
including possibly discovery.
(2) File a First Amended Complaint ("FAC") curing
all the deficiencies described in this order. See Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en
banc) (leave to amend may be granted to pro se plaintiff to
correct curable pleading defects). The FAC must be complete
in itself, as it will supersede the original complaint. If
Plaintiff wishes to assert a failure to intervene claim
against Rupp in the FAC, he must add him into the caption and
section III of the FAC.
(3) File a Response stating that Plaintiff wants to stand on
the original complaint as alleged and providing
valid reasons why the complaint is not ...