Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BERNIE RUIZ, Case No. 26-cv-3624-BAS-BJW 12 Plaintiff, ORDER: 13 v. 1. GRANTING MOTION TO 14 M. VILORIO; M. ALVAREZ, PROCEED IN FORMA 15 Defendants. PAUPERIS; AND 2. DISMISSING COMPLAINT 16 FOR FAILURE TO STATE A 17 CLAIM 18 19 20 Plaintiff Bernie Ruiz, a state prisoner proceeding pro se, has filed a civil rights 21 Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to Proceed In Forma 22 Pauperis (“IFP”). (ECF Nos. 1-2.) 23 I. Motion to Proceed IFP 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $405.00, consisting of a $350.00 statutory fee plus an additional administrative fee of $55, 27 although the administrative fee does not apply to persons granted leave to proceed IFP. See 28 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 1 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 4 seeking leave to proceed IFP must submit a “certified copy of the trust fund account 5 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 6 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 7 (9th Cir. 2005). From the trust account statement, the Court assesses an initial payment of 8 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 9 average monthly balance in the account for the past six months, whichever is greater, unless 10 the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1)&(4); Bruce v. Samuels, 577 11 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining balance in 12 “increments” or “installments,” regardless of whether their action is ultimately dismissed. 13 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 14 In support of his IFP motion, Plaintiff has submitted a copy of his inmate trust 15 account statement attested to by a trust account official. (ECF No. 3 at 4.) The document 16 shows he had an average monthly balance of $239.46 and average monthly deposits of 17 $233.57, with an available balance of $0.42. (Id.) The Court GRANTS Plaintiff’s motion 18 to proceed IFP and assesses an initial partial filing fee of $47.89. However, this initial fee 19 need be collected only if sufficient funds are available in Plaintiff’s account at the time this 20 Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 21 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 22 judgment for the reason that the prisoner has no assets and no means by which to pay the 23 initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 24 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 25 IFP case based solely on “failure to pay . . . due to the lack of funds available to him when 26 payment is ordered”). Pursuant to 28 U.S.C. § 1915(b)(2), the agency having custody of 27 Plaintiff will forward payments to the Clerk pursuant to the installment provisions of 28 28 U.S.C. § 1915(b)(1)&(2) until the $350.00 statutory fee is paid in full. 1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer 4 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 5 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 6 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 7 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v. 8 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 9 “The standard for determining whether a plaintiff has failed to state a claim upon 10 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 11 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 12 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 13 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 14 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 15 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 16 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 17 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 18 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 19 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 20 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff 21 must show both (1) deprivation of a right secured by the Constitution and laws of the 22 United States, and (2) that the deprivation was committed by a person acting under color 23 of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 24 B. Allegations in the Complaint 25 Plaintiff alleges that on February 5, 2026, Defendants AIU Squad Investigator 26 Correctional Officers Vilorio and Alvarez, “without advancing any legitimate penological 27 correctional goals,” came to his cell, placed him and his cellmate in handcuffs, searched 28 their cell and found no contraband. (ECF No. 1 at 6.) Plaintiff was sitting on his walker in 1 the B section of the dayroom in handcuffs when Vilorio and Alvarez erected a privacy 2 partition around him to block “the security cameras from reviewing and recording their 3 malfeasance conduct.” (Id. at 7-8.) They lifted him up to his tiptoes “in what is known as 4 the duck walk position” by placing their arms under his arms “with an unnecessary amount 5 of excessive force,” causing “pain and discomfort and bruises on Plaintiff’s right arm.” 6 (Id.) They moved him to the A section of the dayroom and ordered him to strip naked. (Id. 7 at 8.) Without a privacy partition and in full view of prisoners and others in the open, in- 8 progress dayroom, Vilorio and Alvarez strip searched Plaintiff, “laughing and commenting 9 on the size of his penis and contending that Plaintiff had something coming out of his 10 rectum when forced to bend over spread his butt cheeks in the dayroom in front of others.” 11 (Id.) Plaintiff claims that the intentional infliction of physical, emotional and mental pain 12 and discomfort was malicious and sadistic and inflicted in retaliation for not having found 13 contraband during the cell search. (Id. at 9.) 14 On March 25, 2026, Vilorio, Alvarez and several other AIU squad K-9 officers, “in 15 retaliation for exercising Plaintiff’s protected conduct,” came to Plaintiff’s cell where he 16 and his cellmate were strip searched in the cell in view of each other. (Id. at 10.) After the 17 search resulted in negative results, the officers “damaged personal property and legal 18 papers were put all over the floor during the search and water was all over the legal papers.” 19 (Id.) Plaintiff was then x-rayed and still no contraband was found. (Id.) Plaintiff claims 20 Vilorio and Alvarez violated the Eighth Amendment when they humiliated him and used 21 excessive force without a penological justification and violated the First Amendment by 22 retaliating against him and denying him access to the courts. (Id. at 9-10.) 23 C. Discussion 24 1. Retaliation Claim 25 Plaintiff claims the searches were conducted “in retaliation for exercising Plaintiff’s 26 protected conduct,” but without identifying that conduct. (ECF No. 1 at 10-11.) “Within 27 the prison context, a viable claim of First Amendment retaliation entails five basic 28 elements: (1) An assertion that a state actor took some adverse action against an inmate 1 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 2 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 3 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005) 4 (footnote omitted). Plaintiff must allege a retaliatory motive, that is, a causal connection 5 between the adverse action and his protected conduct. Watison, 668 F.3d at 1114. 6 Plaintiff has not plausibly alleged any Defendant took an adverse action against him 7 because of any protected conduct, as he has not identified any protected conduct he 8 engaged in or of which Defendants were aware. See Soranno’s Gasco, Inc. v. Morgan, 874 9 F.2d 1310, 1314 (9th Cir. 1989) (noting that the plaintiff must show that the protected 10 conduct was a “substantial” or “motivating” factor in the defendant’s decision to act). 11 Neither has he set forth any facts supporting his conclusory allegation that the searches 12 were not reasonably related to a legitimate penological interest. See Thornburgh v. Abbott, 13 490 U.S. 401, 411–12 (1989) (discussing that the prevention and detection of contraband 14 is a legitimate penological objective); Bell v. Wolfish, 441 U.S. 520, 560 (1979) (stating 15 that visual body-cavity inspections serve “significant and legitimate security interests of 16 the institution.”); Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of 17 action, supported by mere conclusory statements, do not suffice” to state a § 1983 claim.). 18 Plaintiff’s First Amendment retaliation claim is dismissed sua sponte pursuant to 28 19 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; 20 Wilhelm, 680 F.3d at 1121. 21 2. Eighth Amendment Claim 22 Plaintiff claims Defendants violated the Eighth Amendment by using “undue 23 unnecessary excessive force” causing “pain and discomfort and bruises on Plaintiff’s right 24 arm” when they lifted him and duck-walked him, and by inflicting mental and emotional 25 distress in the humiliating manner in which the strip search was conducted. (ECF No. 1 at 26 7-8.) “[A] prison official violates the Eighth Amendment when two requirements are met. 27 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 28 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 1 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 2 culpable state of mind,” that is, “one of ‘deliberate indifference’ to” his constitutional 3 rights. Id., quoting Wilson, 501 U.S. at 302–03. An objectively serious deprivation is a 4 denial of “the minimal civilized measures of life’s necessities.” Keenan v. Hall, 83 F.3d 5 1083, 1089 (9th Cir. 1996), quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981). 6 “[W]henever prison officials stand accused of using excessive physical force in 7 violation of the [Eighth Amendment], the core judicial inquiry is . . . whether force was 8 applied in a good-faith effort to maintain or restore discipline, or maliciously and 9 sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). De minimis uses 10 of physical force do not violate the constitution provided that the use of force is not of a 11 sort “repugnant to the conscience of mankind.” Whitley v. Albers, 475 U.S. 312, 327 12 (1986), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). 13 The allegations that Defendants left a bruise on Plaintiff’s arm when lifting or 14 moving him and that he suffered pain and discomfort fail to plausibly allege Defendants 15 used more than de minimis force or that they used it maliciously or sadistically rather than 16 in a good faith effort to lift and move him. Id. Plaintiff’s conclusory allegations that 17 Defendants acted “without having advanced any legitimate penological correctional goals” 18 and “with an unnecessary amount of excessive force” (ECF No. 1 at 7-8), are insufficient 19 to plausibly allege these elements of an Eighth Amendment claim. See Iqbal, 556 U.S. at 20 678 (“Threadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice” to state a § 1983 claim.). 22 The comments allegedly made during the search do not plausibly allege an Eighth 23 Amendment violation. See Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (“To 24 hold that gawking, pointing, and joking violates the prohibition against cruel and unusual 25 punishment would trivialize the objective component of the Eighth Amendment test and 26 render it absurd.”); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“Verbal 27 harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 28 U.S.C. § 1983.”) 1 Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant to 28 U.S.C. 2 §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 3 680 F.3d at 1121. 4 3. Fourth and Fourteenth Amendment Privacy and Search Claims 5 To the extent Plaintiff claims the searches were intended to harass and humiliate 6 him, particularly the strip search conducted in view of everyone in the dayroom, he has not 7 stated a claim. (ECF No. 1 at 8.) The Fourth Amendment protects against unreasonable 8 searches, “and its protections are not extinguished upon incarceration.” Jordan v. Gardner, 9 986 F.2d 1521, 1524 (9th Cir. 1993), citing Michenfelder v. Sumner, 860 F.2d 328, 333 10 (9th Cir. 1988) (noting that prisoners retain a limited right to bodily privacy which was not 11 violated by routine body cavity searches when leaving or returning to their housing unit). 12 “[T]he Fourteenth Amendment protects . . . the most basic subject of privacy . . . the naked 13 body.” Vazquez v. County of Kern, 949 F.3d 1153, 1162 (9th Cir. 2020) (quotation marks 14 omitted). A Fourteenth Amendment bodily privacy claim “largely mirrors” a Fourth 15 Amendment analysis. Byrd v. Maricopa Cnty. Bd. of Supervisors, 845 F.3d 919, 923 (9th 16 Cir. 2017). 17 Strip searches of prisoners are constitutional if they are reasonable. See Nunez v. 18 Duncan, 591 F.3d 1217, 1227 (9th Cir. 2010). Strip-search procedures are not reasonable 19 if they are abusive, vindictive, harassing, or unrelated to any legitimate penological 20 interest. Michenfelder, 860 F.2d at 332 (discussing that strip searches that are “excessive, 21 vindictive, harassing, or unrelated to any legitimate penological interest” may be 22 unconstitutional), citing Wolfish, 441 U.S. at 559. However, “restrictions on inmates’ 23 privacy interests are justified to the extent that they are “reasonably related to legitimate 24 penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987). The prevention of 25 contraband is a legitimate penological objective, see Thornburgh, 490 U.S. at 411–12, and 26 is one that strip searches serve. Wolfish, 441 U.S. at 560. Whether a search is reasonable 27 under the Fourth Amendment requires a case-by-case balancing of the need for the 28 particular search against the invasion of personal rights that the search entails, and courts 1 are required to consider such factors as (1) the scope of the particular intrusion, (2) the 2 manner in which it is conducted, (3) the justification for initiating it, and (4) the place in 3 which it is conducted. Byrd v. Maricopa County Sheriff’s Dept., 629 F.3d 1135, 1141 (9th 4 Cir. 2011) (en banc). 5 Plaintiff’s Complaint, as drafted, does not indicate why he was moved from behind 6 the privacy partition before he was searched, and does not plausibly allege he could have 7 been searched behind the partition before he was moved to the dayroom, nor does the 8 Complaint contain anything other than wholly conclusory allegations that the search did 9 not advance a legitimate penological interest, and therefore fails to state a Fourth or 10 Fourteenth Amendment claim. Id.; see also Iqbal, 556 U.S. at 678 (stating that a complaint 11 is subject to dismissal for failure to state a claim if it does not “contain sufficient factual 12 matter, accepted as true, to state a claim to relief that is plausible on its face,” and the “mere 13 possibility of misconduct” falls short of meeting the plausibility standard). 14 Plaintiff’s Fourth and Fourteenth Amendment unreasonable search and invasion of 15 privacy claims are dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 16 for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 17 4. Access to Courts Claim 18 Plaintiff alleges that the scattering of his legal papers on the wet floor of his cell 19 interfered with his access to courts. (ECF No. 1 at 10-11.) Inmates have a constitutional 20 right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). A prisoner must 21 allege facts showing actual injury arising from interference with legal materials, that is, 22 “actual prejudice with respect to contemplated or existing litigation, such as the inability 23 to meet a filing deadline or to present a claim.” Id. at 348. Plaintiff must allege the loss of 24 a “non-frivolous” or “arguable” underlying claim, and the nature and description of the 25 underlying claim must be set forth in the pleading “as if it were being independently 26 pursued.” Christopher v. Harbury, 536 U.S. 403, 413–14, 417 (2002). Plaintiff has not 27 alleged the loss of a claim as a result of his legal papers becoming wet, or for any other 28 reason, and has therefore failed to state an access to courts claim. 1 The access to courts claim is dismissed for failure to state a claim pursuant to 28 2 U.S.C. §§ 1915(e)(2) & 1915A(b). Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 3 D. Leave to Amend 4 Because Plaintiff is proceeding pro se, the Court grants leave to amend. See Rosati 5 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 6 se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of 7 the complaint could not be cured by amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 8 1202, 1212 (9th Cir. 2012). 9 III. Conclusion and Orders 10 For the reasons explained, the Court: 11 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 12 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 13 Plaintiff’s prison trust account the $47.89 initial filing fee as well as the remaining $302.11 14 balance of the $350.00 filing fee owed in this case by collecting monthly payments from 15 the account in an amount equal to twenty percent (20%) of the preceding month’s income 16 and forward payments to the Clerk of the Court each time the amount in the account 17 exceeds $10.00 in accordance with 28 U.S.C. § 1915(b)(2). The initial fee need be collected 18 only if sufficient funds are available in Plaintiff’s account at the time this Order is executed. 19 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 20 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 21 P.O. Box 942883, Sacramento, California, 94283-0001. 22 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 23 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and 24 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file 25 an Amended Complaint which cures all the deficiencies of pleading noted; specifically, on 26 or before September 14, 2026. Plaintiff’s Amended Complaint must be complete by itself 27 without reference to his original pleading. Defendants not named and any claim not re- 28 alleged in the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; 1 || Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 2 || 1989) ¢‘[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 3 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are 4 ||not re-alleged in an amended pleading may be “considered waived if not repled”’). 5 If Plaintiff fails to file an Amended Complaint within the time provided, the 6 ||Court will enter_a final Order dismissing this civil action based both on □□□□□□□□□□□ 7 ||failure to state_a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 8 1915(e)(2)(B)Gi) & 1915A(b)(), and failure to prosecute in compliance with a court 9 || order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 10 a plaintiff does not take advantage of the opportunity to fix his complaint, a district 11 |}court may convert the dismissal of the complaint into dismissal of the entire action.”). 12 IT IS SO ORDERED. 13 ~ 14 || DATED: July 31, 2026 (pallu Bahar te 15 H n. Cynthia Bashant, Chief Judge United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28 10 □□