Opinion
CIV-21-216-C
09-09-2021
MAURICE LARRY POPE, Plaintiff, v. JIMMY MARTIN, WARDEN, Defendant.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). United States District Judge Robin J. Cauthron referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B). (Docs. 4, 13). Plaintiff alleges a violation of the Prison Rape Elimination Act (“PREA”), 34 U.S.C. §§ 30301-30309. Having conducted a preliminary review of the pleadings pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B), the undersigned recommends that the Court dismiss Plaintiff's Complaint for failure to state a claim on which relief can be granted.
I. Plaintiff's Complaint.
Plaintiff has filed a Complaint against Warden Jimmy Martin and the North Fork Correctional Center Facility CERT Team. (Doc. 1, at 4). Plaintiff states in his Complaint that he is alleging a violation of his rights by two female CERT team members, Captain Pattie and Sergeant Garland, as well as male members of the team. (Id. at 6).
Plaintiff lists one claim: the night of November 27, 2020, he was made “to remove [his] clothes and not being able to take a shower while two (2) women were present and telling [him] to stripe [sic].” (Id. at 6-7). Plaintiff alleges this incident constitutes “voyeurism . . . an invasion of privacy of an inmate by staff for reasons unrelated to official duties, ” in violation of PREA. (Id. at 7).
II. Duty to Screen Complaints.
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity and each case in which the plaintiff proceeds in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(e)(2). The court must dismiss a complaint or any portion of it that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Id.
The court's review of a complaint under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). The court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. Id. at 1217. The court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (citation omitted). A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. Plaintiff's Complaint Should Be Dismissed For Failure to State a Claim Because PREA Does Not Create a Private Right of Action.
Plaintiff asserts that the Defendants violated his rights under PREA. However, PREA, which was “designed to reduce incidents of sexual misconduct in our nation's correctional facilities through federal funding and education initiatives[, ] . . . do[es] not create any private right of action for prisoners to sue correctional staff for alleged sexual misconduct.” Worley v. Ewing, 2021 WL 951704, at *4 (S.D. W.Va. Mar. 12, 2021); see also Young v. Rios, 2017 WL 9251589, at *2 n.4 (W.D. Okla. Aug. 24, 2017) (“[T]he PREA does not confer a private right of action upon Plaintiff.”) (collecting cases), adopted in part by 2017 WL 5465522 (W.D. Okla. Nov. 14, 2017); Moreno v. Corizon Med. Provider, 2017 WL 3052770, at *2 (D. N.M. June 21, 2017).
“Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution and laws.” Blessing v. Freestone, 520 U.S. 329, 340 (1997). But to state a claim under § 1983, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Id. Plaintiff has not stated a violation of a federal right. “Simply put, Plaintiff may not sue for PREA violations. . . . [N]othing in PREA indicates it devised a private right of action, to be enforced under § 1983.” Thompson v. Chief Exec. of Utah, 2021 WL 2322479, at *1 (D. Utah June 7, 2021) (collecting cases). Plaintiff's Complaint, alleging a violation of PREA, thus fails to state a claim on which relief can be granted.
IV. Recommendation and Notice of Right to Object.
For the reasons stated, the undersigned recommends that the court dismiss Plaintiff's Complaint for failure to state a claim. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by Thursday, September 30, 2021, in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2). Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred. ENTERED this 9th day of September, 2021.