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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 ) VINCENT VALDEZ DAVIS, ) Case No. CV 20-1682-PA (JEM) 12 ) Plaintiff, ) 13 ) MEMORANDUM AND ORDER v. ) DISMISSING FIRST AMENDED 14 ) COMPLAINT WITH LEAVE TO AMEND

M. WYKOFF, et al., )

15 ) Defendants. ) 16 ) 17 On February 20, 2020, Vincent Valdez Davis (“Plaintiff”), a state prisoner proceeding 18 pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983 (“Complaint”). 19 On March 23, 2020, Plaintiff filed a First Amended Complaint (“FAC”). 20 SCREENING STANDARDS 21 In accordance with the provisions of the Prison Litigation Reform Act of 1995 22 (“PLRA”),1 the Court must screen the FAC before ordering service to determine whether the 23 action: (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; 24 or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 25 26 1 Plaintiff states that he “is no longer in custody” and, therefore, is not subject to the 27 requirements of the PLRA. (FAC at 6.) However, the documents before the Court and the CDCR’s inmate locator flatly contradict Plaintiff’s statements and indicate that Plaintiff has been incarcerated 28 at the Richard J. Donovan Correctional Facility in San Diego, California, from the time this lawsuit 1 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). This screening is governed by the following 2 standards: 3 A complaint may be dismissed as a matter of law for failure to state a claim for two 4 reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has 5 alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 6 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on 7 which relief may be granted, allegations of material fact are taken as true and construed in 8 the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 9 1988). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual 10 allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of 11 a civil rights complaint may not supply essential elements of the claim that were not initially 12 pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 13 Although a complaint "does not need detailed factual allegations" to survive 14 dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic 15 recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in 17 Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations 18 sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely 19 possible or conceivable. Id. at 557, 570. 20 Simply put, the complaint must contain "enough facts to state a claim to relief that is 21 plausible on its face." Twombly, 550 U.S. at 570. A claim has facial plausibility when the 22 complaint presents enough facts “to draw the reasonable inference that the defendant is 23 liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability 24 requirement, but “it asks for more than a sheer possibility that a defendant has acted 25 unlawfully.” Id. A complaint that pleads facts that are merely consistent with liability stops 26 short of the line between possibility and plausibility. Id. 27 In a pro se civil rights case, the complaint must be construed liberally to afford 28 1 623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured, 2 pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an 3 opportunity to amend prior to the dismissal of an action. Id. at 623. Only if it is absolutely 4 clear that the deficiencies cannot be cured by amendment should the complaint be 5 dismissed without leave to amend. Id.; Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 6 2007). 7 After careful review and consideration of the FAC under the relevant standards and 8 for the reasons discussed below, the Court finds that the FAC must be DISMISSED WITH 9 LEAVE TO AMEND. 10 PLAINTIFF’S ALLEGATIONS 11 At all relevant times, Plaintiff was a state prisoner in the custody of the California 12 Department of Corrections and Rehabilitation (“CDCR”). Defendant M. Wykoff was a 13 Correctional Officer at the California Men’s Colony (“CMC”) in San Luis Obispo, California. 14 Defendant J. Gastello was the Warden of CMC. Plaintiff has sued both Defendants in their 15 individual and official capacities. 16 Plaintiff alleges the following: 17 While housed at Sierra Vista Hospital, for a surgery, I needed to use the toilet 18 facilities. A nurse accom[m]odated me by escorting me to the toilet. Officer M. 19 Wykoff walked directly behind me, while my hospital gown was completely open in 20 the back. A male officer, Rodriguez, was in front of me, observing me walk. Upon 21 reaching the bathroom, M. Wykoff took full view of me while I sat down on the toilet. 22 Officer Rodriguez came over and pushed the door closed. 23 When completing my movement, and coming out of the bathroom, M. Wykoff 24 had changed sides with Rodriguez so that she was behind me again on the return 25 escort. I felt so demeaned and humiliated to be in such a vulnerable position, and 26 have a officer of the opposite sex specifically manipulate the situation so that she 27 could take advantage of my position and view me naked. 28 1 (FAC at 5.) Gastello is “responsible for the actions of her employees” and “allowed M. 2 Wykoff to take assignments at the Sierra Vista Hospital, where men wearing hospital 3 gown[s], with open back-sides were known to be.” (FAC at 3.) 4 It appears that Plaintiff is attempting to assert a claim for violation of his right to 5 bodily privacy under the Fourth Amendment. Plaintiff seeks monetary damages. (FAC at 6 6.) 7 DISCUSSION 8 I. PLAINTIFF’S OFFICIAL-CAPACITY CLAIMS AGAINST DEFENDANTS ARE 9 BARRED BY THE ELEVENTH AMENDMENT 10 Plaintiff has sued Defendants in their individual and official capacities. (FAC at 3.) 11 Plaintiff’s official capacity claims are barred by the Eleventh Amendment. 12 In Will v. Michigan Department of State Police, 491 U.S. 58, 64-66 (1989), the 13 Supreme Court held that states, state agencies, and state officials sued in their official 14 capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. The 15 Supreme Court reasoned that a suit against a state official in his or her official capacity is a 16 suit against the official's office, and as such is no different from a suit against the State 17 itself, which would be barred by the Eleventh Amendment. See id.; see also Romano v. 18 Bible, 169 F.3d 1182, 1185 (9th Cir. 1999); Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 19 1995). “[T]he [E]leventh [A]mendment bars actions against state officers sued in their 20 official capacities for past alleged misconduct involving a complainant's federally protected 21 rights, where the nature of the relief sought is retroactive, i.e., money damages . . . .” Bair 22 v. Krug, 853 F.2d 672, 675 (9th Cir. 1988). However, the Eleventh Amendment “does not 23 preclude a suit against state officers for prospective relief from an ongoing violation of 24 federal law.” Children's Hospital and Health Ctr. v. Belshe, 188 F.3d 1090, 1095 (9th 25 Cir.1999). 26 To overcome the Eleventh Amendment bar on federal jurisdiction over suits by 27 individuals against a State and its instrumentalities, either the State must have consented to 28 1 consent or Congress' intent must be “unequivocally expressed.” See Pennhurst State 2 School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). While California has consented 3 to be sued in its own courts pursuant to the California Tort Claims Act, such consent does 4 not constitute consent to suit in federal court. See BV Engineering v. Univ. of Cal., Los 5 Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hosp. v. Scanlon, 6 473 U.S. 234, 241 (1985) (holding that Art. III, § 5 of the California Constitution did not 7 constitute a waiver of California's Eleventh Amendment immunity). Furthermore, Congress 8 has not abrogated State sovereign immunity against suits under 42 U.S.C. § 1983. 9 Here, Plaintiff seeks monetary damages against Defendants in their official 10 capacities as CDCR officers. (FAC at 3.) Plaintiff’s official capacity claims against 11 Defendants are tantamount to claims against the State of California, which are barred by 12 the Eleventh Amendment. If Plaintiff chooses to file an amended complaint, he should not 13 sue Defendants in their official capacities. 14 II. PLAINTIFF FAILS TO STATE AN INDIVIDUAL CAPACITY CLAIM AGAINST 15 WARDEN GASTELLO 16 In a Section 1983 action, a supervisory official cannot be held liable under a theory 17 of respondeat superior or vicarious liability. See, e.g., Iqbal, 556 U.S. at 676. A 18 supervisor’s mere knowledge of the unconstitutional conduct of a subordinate does not 19 amount to the supervisor’s own violation of the Constitution. See id. at 677 (rejecting this 20 theory of supervisory liability). “Absent vicarious liability, each Government official, his or 21 her title notwithstanding, is only liable for his or her own misconduct.” Id. 22 Under Section 1983, a supervisor may be liable if a plaintiff demonstrates either: (1) 23 his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 24 connection between the supervisor’s wrongful conduct and the constitutional violation. 25 Edgerly v. City & County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010); MacKinney v. 26 Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995). Liability also can be established if the 27 supervisor set in motion a series of acts by others which the actor knows or reasonably 28 1 743-44. However, “[v]ague and conclusory allegations of official participation in civil rights 2 violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. Thus, 3 a high ranking administrator such as the Warden cannot be held liable under Section 1983, 4 absent a showing of personal involvement in the constitutional deprivation, or if there was a 5 sufficient causal connection between the Warden’s wrongful conduct and the constitutional 6 violation. See Redman v. Warden of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). 7 Plaintiff’s claims against Gastello in her individual capacity are based solely on her 8 supervisory position as Warden of CMC. Plaintiff alleges no facts demonstrating that 9 Gastello was personally involved in or individually caused the alleged constitutional 10 deprivation. Thus, Plaintiff has failed to state a civil rights claim against Gastello in her 11 individual capacity. 12 If Plaintiff chooses to file an amended complaint, he should not name Gastello as a 13 Defendant unless he can truthfully allege facts demonstrating that Gastello was personally 14 involved in causing the alleged constitutional violation. 15 III. PLAINTIFF FAILS TO STATE A FOURTH AMENDMENT CLAIM 16 The Supreme Court has held that “the Fourth Amendment proscription against 17 unreasonable searches does not apply within the confines of the prison cell.” Hudson v. 18 Palmer, 468 U.S. 517, 526 (1984). The Court noted “[t]he recognition of privacy rights for 19 prisoners in their individual cells simply cannot be reconciled with the concept of 20 incarceration and the needs and objectives of penal institutions.” Id. 21 “The Ninth Circuit has nevertheless recognized that prisoners do retain limited rights 22 to bodily privacy under the Fourth Amendment.” Lay v. Porker, 371 F. Supp. 2d 1159, 1164 23 (C.D. Cal. 2004) (citing Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988) (“We 24 recognize that incarcerated prisoners retain a limited right to bodily privacy.”)); Bull v. San 25 Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en banc) (holding “[t]he Fourth 26 Amendment applies to the invasion of bodily privacy in prisons and jails”). The Ninth Circuit 27 has, thus, found strip searches that are “excessive, vindictive, harassing, or unrelated to 28 1 However, as the court also stated “we cannot assume from the fact that the searches cause 2 immense anguish that they therefore violate protected Fourth Amendment interests. Far 3 from it, our prior case law suggests that prisoners' legitimate expectations of bodily privacy 4 from persons of the opposite sex are extremely limited.” Jordan v. Gardner, 986 F.2d 1521, 5 1524 (9th Cir. 1993); see also Michenfelder, 860 F.2d at 322 (visual body-cavity searches 6 of male inmates conducted within view of female guards held constitutional). Nonetheless, 7 the Ninth Circuit held alleged cross-gender viewing of pre-trial detainees “in showers and 8 toilets frequently and up close” was sufficient to state a claim under the Fourth Amendment. 9 Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923 (9th Cir. 2017) (emphasis 10 added). 11 Here, Plaintiff alleges that Officer Wykoff violated his Fourth Amendment rights when 12 she escorted Plaintiff to and from the bathroom while he was recovering from surgery at 13 Sierra Vista Hospital. (FAC at 5.) Plaintiff’s hospital gown was open in the back, Wykoff 14 walked behind Plaintiff during the escort, and therefore Wykoff was able see Plaintiff’s 15 naked backside. (Id.) The facts alleged are not sufficient to sustain a claim for violation of 16 bodily privacy under the Fourth Amendment. There is nothing to indicate that Wykoff’s brief 17 viewing of Plaintiff’s naked backside while escorting Plaintiff to and from the bathroom was 18 “excessive, vindictive, harassing, or unrelated to any legitimate penological interest.” See 19 Michenfelder, 860 F.2d at 332. Nor does he allege “frequent” observation. See Byrd, 845 20 F.3d at 923. Rather, it was legitimate and appropriate for Plaintiff to wear a hospital gown 21 with an open back while he was in the hospital recovering from back surgery. It was 22 legitimate and appropriate for Plaintiff to be escorted to and from the bathroom by 23 correctional officers since he was an inmate who was only temporarily out of prison for 24 surgery. There is nothing to indicate that Wykoff viewed Plaintiff more closely or frequently 25 than necessary to perform the single, limited escort alleged in the FAC. 26 In light of the law holding that a prisoner’s right to legitimate expectations of bodily 27 privacy from persons of the opposite sex are extremely limited, Plaintiff’s allegations are not 28 1 addresses the deficiencies of his Fourth Amendment claim as discussed above, although it 2 appears unlikely that he will be able to do so. 3 ************* 4 For the reasons set forth herein, the FAC is DISMISSED WITH LEAVE TO AMEND. 5 If Plaintiff desires to pursue this action, he is ORDERED to file a Second Amended 6 Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies 7 discussed above. 8 If Plaintiff chooses to file a Second Amended Complaint, it should: (1) bear the 9 docket number assigned in this case; (2) be labeled "Second Amended Complaint"; (3) be 10 filled out exactly in accordance with the directions on the form; and (4) be complete in and 11 of itself without reference to the previous complaints or any other pleading, attachment or 12 document. The Clerk is also directed to provide Plaintiff with a blank Central District of 13 California civil rights complaint form, which Plaintiff must fill out completely and resubmit. 14 Plaintiff is admonished that, if he fails to file a Second Amended Complaint by 15 the deadline set herein, the Court may recommend that this action be dismissed for 16 failure to prosecute and failure to comply with a Court order. 17 18 DATED: March 26, 2020 /s/ John E. McDermott

JOHN E. MCDERMOTT

19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28