1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TYRONE B. ESTES, Case No. 24-cv-02981-JSC

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND

10 VACA, Defendant. 11

12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding without an attorney, filed this civil rights action 14 under

against Correctional Officer Vaca, Jr. at Salinas Valley State Prison 15 (“SVSP”). Leave to proceed in forma pauperis is granted in a separate order. For the reasons 16 discussed below, the complaint is dismissed with leave to amend. 17 BACKGROUND 18 On the form complaint, Plaintiff’s “statement of claim” consists of one sentence: “I was 19 touch[ed] sexually on my behind by Officer Vaca Jr. and racially discriminated by him.” (ECF 20 No. 1 at 3.) Plaintiff attaches an administrative grievance to the complaint that provides slightly 21 more information. In it, Plaintiff states on February 18, 2024, Vaca searched him before “pill 22 call.” (Id. at 6.) After Plaintiff received his pills, Vaca searched him again “out of spite and 23 because I’m black,” and Vaca “felt my ass.” (Id.)) Plaintiff alleges Vaca “constantly harasses 24 African American inmates.” (Id.) 25 STANDARD OF REVIEW 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity.

or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, 2 or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a 3 defendant who is immune from such relief.”

§ 1915A(b). Pleadings filed by parties 4 unrepresented by an attorney must be liberally construed. Balistreri v. Pacifica Police Dep't, 901

(9th Cir. 1990). 6 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 7 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 8 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests.” Erickson v. Pardus,

(2007) (citations omitted). Although to 9 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 10 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 11 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 12 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 13

(2007) (citations omitted). A complaint must proffer “enough facts to state a 14 claim for relief that is plausible on its face.”

. 15 To state a claim under

, a plaintiff must allege two elements: (1) that a 16 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 17 violation was committed by a person acting under the color of state law. West v. Atkins,

42, 48 (1988). 19 LEGAL CLAIMS 20 Plaintiff has not alleged enough facts to raise a claim of sexual harassment “above a 21 speculative level.” Twombly,

. Sexual harassment violates the Eighth 22 Amendment. Bearchild v. Cobban,

(9th Cir. 2020). “A prisoner presents a 23 viable Eighth Amendment claim where he or she proves that a prison staff member, acting under 24 color of law and without legitimate penological justification, touched the prisoner in a sexual 25 manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or 26 for the purpose of humiliating, degrading, or demeaning the prisoner.”

Neither the complaint 27 nor its attachments, even when liberally construed, allege any non-conclusory facts suggesting the 1 touching was done in a “sexual manner,” for “sexual gratification,” or to humiliate or demean 2 Plaintiff. See

A body search, which Plaintiff alleges Vaca conducted, would necessarily 3 include touching the buttocks. Plaintiff alleges no specific facts that, if true, would plausibly 4 suggest the touching was sexual. The allegations that Vaca touched him “sexually” and out of 5 “spite” (ECF No. 1 at 3, 6) are conclusory. Without more, such allegations do not state a 6 “plausible” claim of sexual harassment in violation of his Eighth Amendment rights. See 7 Twombly,

. 8 For similar reasons, Plaintiff also has not stated a “plausible” racial discrimination claim 9 against Vaca. See

“The Equal Protection Clause of the Fourteenth Amendment commands 10 that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ 11 which is essentially a direction that all persons similarly situated should be treated alike.” City of 12 Cleburne v. Cleburne Living Center,

(1985) (quoting Plyler v. Doe,

(1982)). A plaintiff alleging denial of equal protection under

based on 14 race must plead intentional unlawful racial discrimination or allege facts that are at least 15 susceptible of an inference of racially discriminatory intent. Monteiro v. Tempe Union High 16 School Dist.,

, 1026 (9th Cir. 1998). To state a claim for relief, the plaintiff must 17 allege that the defendant state actor acted at least in part because of plaintiff’s membership in a 18 protected class. Furnace v. Sullivan,

(9th Cir. 2013); see also Byrd v. 19 Maricopa Cnty. Sheriff's Dep't,

(9th Cir. 2011) (en banc) (holding equal 20 protection claim alleging harmful treatment but not disparate treatment was properly dismissed). 21 Conclusory allegations will not suffice. Ventura Mobilehome Comms. Owners Ass’n v. City of 22 Buenaventura,

(9th Cir. 2004) (affirming dismissal of equal protection claim 23 because “[a]side from conclusory allegations, Appellant has not . . . alleged how [similarly 24 situated individuals] are treated differently”). 25 The racial discrimination claim must be dismissed. Plaintiff alleges no facts plausibly 26 showing the touching of his buttocks was based upon his race, as opposed to some non-race-based 27 reason. His allegation that Vaca “constantly harasses” African-American inmates is conclusory 1 as whether the harassment was verbal, physical, sexual or some combination; when or how often 2 this harassment occurred; or any facts revealing a racially discriminatory intent behind the 3 harassment. Plaintiff also does not allege Vaca did not harass inmates who are not African- 4 American in a similar manner. Consequently, the complaint and its attachments, even when 5 liberally construed, do not set forth non-conclusory factual allegations that state a “plausible” 6 claim for racial discrimination in violation of Plaintiff’s equal protection rights. 7 Plaintiff will be given leave to amend his complaint to state a claim under Section 1983 8 that is capable of judicial review and determination. 9 CONCLUSION 10 For the foregoing reasons, 11 1. The complaint is DISMISSED with leave to amend. 12 2. Plaintiff may file an amended complaint on or before September 24, 2024. The 13 amended complaint must include the caption and civil case number used in this order (No. C 24- 14 2981 JSC (PR)) and the words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the 15 first page. Because an amended complaint completely replaces the original complaint, see Ferdik 16 v. Bonzelet,

(9th Cir. 1992), Plaintiff may not incorporate material from the 17 original by reference; he must include in his amended complaint all the claims he wishes to 18 pursue. If Plaintiff fails to file an amended complaint within the designated time, or if the 19 amendment is not sufficient, this case will be dismissed. 20 // 21 //

22 23 24 25 26 27 1 2 3. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 3 informed of any change of address by filing a separate paper with the clerk headed “Notice of 4 || Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 5 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 6 || Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a 7 showing of good cause if the request is filed prior to the deadline. 8 IT IS SO ORDERED. 9 || Dated: August 22, 2024 td 11 me JACQUELINE SCOTT CORLE 12 United States District Judge

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28