1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN JOHNSON, Case No. 1:22-cv-00858-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION FOR FRIVOLOUSNESS

13 v.

(ECF No. 1) 14 AVENAL STATE PRISON, et al., 15 Defendants.

FOURTEEN (14) DAY DEADLINE

16 Clerk of Court to assign a district judge. 17 18 Plaintiff Norman Lamont Johnson is a state prisoner proceeding pro se in this civil rights 19 action filed under 42 U.S.C. § 1983. On July 12, 2022, Plaintiff filed a complaint alleging 20 Defendants subjected him to sexual harassment and racial discrimination. (ECF No. 1.) At the 21 same time, Plaintiff filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. 22 (ECF No. 2.) Upon screening of the complaint, the Court finds that Plaintiff’s complaint is 23 frivolous and fails to state a claim upon which relief may be granted must be dismissed pursuant 24 to 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii) and 28 § 1915A(b)(1). The Court further finds the 25 deficiencies in the complaint cannot be cured by amendment and therefore recommends 26 dismissal of this action. 27 I. SCREENING REQUIREMENT 1 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 2 The Court must dismiss a complaint or portion thereof if the prisoner raises claims that are 3 frivolous or malicious, fail to state a claim on which relief may be granted, or seeks monetary 4 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii); 28 5 U.S.C. § 1915A(b). These provisions authorize the court to dismiss a frivolous in forma pauperis 6 complaint sua sponte. Neitzke v. Williams, 490 U.S. 319, 322 (1989). Dismissal based on 7 frivolousness is appropriate “where it lacks an arguable basis either in law or in fact.” Id. at 325. 8 II. PLEADING REQUIREMENTS 9 A. Federal Rule of Civil Procedure 8(a) 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement must give the defendant fair 12 notice of the plaintiff’s claims and the grounds supporting the claims. Swierkiewicz v. Sorema N. 13 A., 534 U.S. 506, 512 (2002). Detailed factual allegations are not required, but “[t]hreadbare 14 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 15 suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 16 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to 17 ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 18 at 570). Factual allegations are accepted as true, but legal conclusions are not. Iqbal, 556 U.S. at 19 678 (citing Twombly, 550 U.S. at 555). 20 The Court construes pleadings of pro se prisoners liberally and affords them the benefit 21 of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). This liberal 22 pleading standard applies to a plaintiff’s factual allegations but not to his legal theories. Neitze, 23 490 U.S. at 330 n.9. Moreover, a liberal construction of the complaint may not supply essential 24 elements of a claim not pleaded by the plaintiff, Bruns v. Nat’l Credit Union Admin., 122 F.3d 25 1251, 1257 (9th Cir. 1997) (internal quotation marks and citation omitted), and courts “are not 26 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 27 (9th Cir. 2009) (Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1064 (9th Cir. 1 insufficient to state a cognizable claim. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 2 F.3d 962, 969 (9th Cir. 2009). 3 Dismissal of a pro se complaint without leave to amend is proper only if it is “absolutely 4 clear that no amendment can cure the defect.” See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 5 Cir. 2015) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212–13 (9th Cir. 2012)); Cervantes v. 6 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“Although leave to amend 7 should be given freely, a district court may dismiss without leave where a plaintiff’s proposed 8 amendments would fail to cure the pleading deficiencies and amendment would be futile.”). 9 B. Bivens 10 A Bivens action is the federal analog to suits brought against state officials under 42 11 U.S.C. § 1983. Iqbal, 556 U.S. at 676–77) (quoting Hartman v. Moore, 547 U.S. 250, 254, n.2 12 (2006). “Actions under § 1983 and those under Bivens are identical save for the replacement of 13 a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 14 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal officer in an individual capacity 15 for damages for violating the plaintiff’s constitutional rights. See Bivens, 403 U.S. at 397. To 16 state a claim under Bivens, a plaintiff must allege: (1) a right secured by the Constitution of the 17 United States was violated, and (2) the alleged violation was committed by a federal actor. See 18 Van Strum, 940 F.2d at 409. “A plaintiff must plead more than a merely negligent act by a 19 federal official in order to state a colorable claim under Bivens.” O’Neal v. Eu, 866 F.2d 314, 20 314 (9th Cir. 1989) (per curiam), cert. denied, 492 U.S. 909 (1989). 21 III. PLAINTIFF’S ALLEGATIONS 22 Plaintiff provides sparse factual allegations. In his first claim, Plaintiff asserts that his 23 “sexual harassment rights” were violated. (ECF No. 1 at 4.) According to Plaintiff, at work 24 change on April 16, 2022,1 Correctional Officer (“CO”) Salsbury ordered Plaintiff to undress a 25 second time for inspection. When Plaintiff asked why, CO Salsbury stated, “Because you didn’t 26 pull your underwear down for me.” (Id.) Plaintiff states he felt “singled out” and “sexually 27 harassed and degraded.” (Id.) 1 Plaintiff bases his second claim on violations to his “personal safety rights/racial 2 equality” and “racial degradation.” (Id. at 7.) On April 1, 2022, when Plaintiff returned from 3 medical transport in Bakersfield, one of the transport officers asked Plaintiff, “Why are you the 4 only black person at Avenal?” (Id.) The officer and other COs allegedly started laughing. 5 Plaintiff replied, “Please don’t do that, I don’t find that funny in any way” and returned to 6 housing. (Id.) Plaintiff feels he was “racially profiled and disrespected because of [his] 7 ethnicity.” (Id.) 8 IV. DISCUSSION 9 A. Signature 10 Plaintiff has failed to sign the complaint as required by Local Rule 131(b) and Rule 11(a) 11 of the Federal Rules of Civil Procedure. Plaintiff’s complaint must be stricken for this reason. 12 See, e.g., Williams v. Corcoran State Prison, No. 1:21-cv-01009-JLT-BAM (PC), 2022 WL 13 1541567, at *1 (E.D. Cal. May 16, 2022), F. & R. adopted, 2022 WL 2177105 (E.D. Cal. June 14 16, 2022); Bradford v. Brewer, No. 2:21-cv-1413-KJM-KJN P, 2021 WL 6116795, at *1 (E.D. 15 Cal. Dec. 27, 2021); Torres v. Sup. Ct. of Cal. Cnty. of Riverside, No. 1:19-cv-01692-DAD-GSA 16 (PC), 2021 WL 4951721, at *1 (E.D. Cal. Oct. 25, 2021), F. & R. adopted, 2021 WL 6052189 17 (E.D. Cal. Dec. 21, 2021); see also Littleton v. Montiez, No. 2:22-CV-0700 KJN P, 2022 WL 18 2068266, at *1 (E.D. Cal. June 8, 2022) (advising Plaintiff that all documents submitted to the 19 court must bear his signature). 20 B. Demand for Relief 21 The complaint also violates Rule 8(a)(3), which requires a claim for relief “contain . . . a 22 demand for the relief sought.” Fed. R. Civ. P. 8(a)(3). A plaintiff must state with specificity the 23 relief he seeks. See Seven Words LLC v. Network Sols., 260 F.3d 1089, 1098 (9th Cir. 2001) 24 (observing that “useless statement, ‘I was wronged and am entitled to judgment for everything to 25 which I am entitled,’” would violate Rule 8(a)(3)). Plaintiff’s complaint must be dismissed for 26 failure to contain a demand for the relief sought. See Ford v. Newsom, No. 2:20-cv-2087-EFB P, 27 2021 WL 1611679, at *1 (E.D. Cal. Apr. 26, 2021); Johnson v. Unknown, No. 2:21-cv-1450- 1 2:21-cv-0012-EFB P, 2021 WL 4065477, at *1 (E.D. Cal. Sept. 7, 2021); Moten v. Pulido, No. 2 CV 22-04942-DOC (PLA), 2022 WL 3566816, at *6 (C.D. Cal. Aug. 17, 2022). 3 C. Claim I: Sexual Harassment 4 Plaintiff alleges he was sexually harassed and degraded by Defendant Salsbury, who 5 made him undress twice at work change. However, Plaintiff’s allegations are wholly insufficient 6 to state a cognizable Eighth Amendment claim based on sexual harassment. 7 Sexual harassment or abuse of an inmate by a prison official is a violation of the Eighth 8 Amendment. Wood v. Beauclair, 692 F.3d 1041, 1046, 1051 (9th Cir. 2012) (citing Schwenk v. 9 Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). In evaluating such a claim, the court considers 10 whether “the official act[ed] with a sufficiently culpable state of mind”—the subjective 11 component—“and if the alleged wrongdoing was objectively ‘harmful enough’ to establish a 12 constitutional violation”—the objective component. Wood, 692 F.3d at 1046 (alteration in 13 original) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). 14 Plaintiff’s subjective feelings that he was harassed and degraded are irrelevant in a Bivens 15 context. The allegations fail to support a claim that CO Salsbury’s conduct was objectively 16 harmful enough to constitute sexual harassment in violation of the Eighth Amendment or that 17 CO Salsbury subjectively intended to humiliate, degrade, or demean Plaintiff. By Plaintiff’s 18 account, none of CO Salsbury’s statements or actions were sexual or abusive in nature, and CO 19 Salsbury provided a penological reason for directing Plaintiff to undress a second time. Because 20 this claim lacks a cognizable legal theory supported by facts, it is frivolous and must be 21 dismissed. 22 D. Claim II: Racial Profiling and Degradation 23 In his second claim, Plaintiff alleges that he was racially profiled, disrespected, and 24 degraded when a transport officer asked, “Why are you the only black person at Avenal[?]”, 25 causing laughter among several COs. The Court liberally construes the pro se complaint to 26 assert a claim of racial discrimination under the Equal Protection Clause of the Fourteenth 27 Amendment. Initially, this claim fails because it is improperly joined under Federal Rules of 1 against them jointly, severally, or in the alternative with respect to or arising out of the same 2 transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact 3 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). See also George v. 4 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against unrelated defendants belong 5 in different suits.”). Here, Plaintiff’s claims are based on unrelated events that occurred on 6 different days and involved different COs. The second claim contains no allegations against the 7 prison or CO Salsbury. The unidentified transport officer is not a named defendant. Therefore, 8 the second claim is improperly joined, and the Court lacks jurisdiction over the claim or the 9 unnamed transport officer. 10 This claim also fails on the merits and is frivolous. “Prisoners are protected under the 11 Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on 12 race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing Lee v. Washington, 390 U.S. 333 13 (1968)).2 However, the court lacks jurisdiction to entertain claims that are “so attenuated and 14 unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously frivolous, 15 plainly unsubstantial, or no longer open to discussion.” Hagans v. Lavine, 415 U.S. 528, 536–37 16 (1974) (citations and internal quotations omitted). City of Las Vegas v. Clark Cnty., 755 F.2d 17 697, 701 (9th Cir. 1985) (quoting Demarest v. United States, 718 F.2d 964, 966 (9th Cir. 1983) 18 (finding the court lacks jurisdiction over a claim that is “patently without merit, or so 19 insubstantial, improbable, or foreclosed by Supreme Court precedent as not to involve a federal 20 controversy.”). 21 The single, passing comment by a transport officer is plainly insubstantial and does not 22 rise to the level of a constitutional violation. Plaintiff’s subjective feeling that he was “racially 23 profiled and disrespected” does not establish an injury that can be remedied by court order. This 24 claim is clearly frivolous and meritless. For these reasons, Plaintiff is unable to proceed on his 25 claims of sexual and racial harassment.

26 2 To state a claim under the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show he was intentionally treated differently than other “similarly situated” inmates, and a specific 27 defendant “acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166–67 (9th Cir. 2005) (finding the 1 | D. CONCLUSION 2 The complaint must be dismissed for Plaintiff's failure to sign the document and to make 3 | ademand for relief. More significantly, Plaintiffs claims lack an arguable basis either in law or 4 | in fact and are frivolous. Based upon the facts alleged, the deficiencies cannot be cured by 5 || amendment, and further leave to amend would be futile. Therefore, the Court should dismiss this 6 | action with prejudice. 7 Accordingly, IT IS HEREBY RECOMMENDED: 8 1. Plaintiff's complaint be dismissed with prejudice; and 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations will be submitted to the United States District 11 | Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). Within fourteen (14) days from 12 | the date of service of these findings and recommendations, Plaintiff may file written objections 13 | with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 14 | and Recommendations.” Plaintiffs failure to file objections within the specified time may result 15 | in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 The Clerk of Court is DIRECTED to assign a district judge to this case. 18 19 IT IS SO ORDERED. 20 | Dated: _ October 20, 2022 _ Mar DR—

UNITED STATES MAGISTRATE JUDGE

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