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Thompson v. Cagle

United States District Court, E.D. California

September 12, 2019

WAYNE THOMPSON, Plaintiff,
v.
TOM CAGLE and REBECCA DENNIS, Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ALL CLAIMS AND DEFENDANTS (ECF NO. 23) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS

         Wayne Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on July 24, 2018. (ECF No. 1). On September 24, 2018, the Court issued a screening order which found no cognizable claims, but granted leave to amend. (ECF No. 12). Plaintiff filed a First Amended Complaint (“FAC”) on February 8, 2019. (ECF No. 23).

         The Court has reviewed that FAC and recommends dismissing the FAC without leave to amend. Plaintiff may file objections to these findings and recommendations within twenty-one days of the date of service of this order, which will be reviewed by the district judge.

         I. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 9), the Court may also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF PLAINTIFF'S COMPLAINT

         The statement of facts in Plaintiff's complaint is very brief. Plaintiff alleges that Defendant Tom Cagle, employed as laundry staff, “utilized his position toward unwanted sexual advances.” (ECF No. 23, at p. 3). He also alleges that “Defendant Tom Cagle has a history of sexual misconduct his supervisor failed to address this staff member misconduct. And his sexual overture relating to his being free from these unwanted advancement.” (Id.). Further, “Defendant subjected plaintiff to verbal conduct of a sexual nature making his work environment a hostile environment. This conduct was unwelcome.” (Id. at 4).

         Plaintiff also attaches his 602 prison grievances and the prison's response. The response to one staff complaint describes the issue as follows:

The appellant alleges while he was changing in his work assignment, Material and Store Supervisor-I (MSS-I) T. Cagle sexually harassed him by verbally directing “cat call” expressions toward him. The appellant claims he confronted MMS-I Cagle of the aforementioned action and MMS-I Cagle indicated if the appellant was not fond of the “cat call, ” the appellant can be replaced by an alternate inmate. The appellant further alleges MSS-I Cagle was excessive in making inappropriate sexual remarks against him regarding anal sex, comparing male anatomy of different ethnicities, and stated, “Fuck me running.”

(ECF No. 23, at p. 8).

         III. ANALYSIS OF PLAINTIFF'S CLAIMS

         “The Constitution... ‘does not mandate comfortable prisons,' and only those deprivations denying ‘the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 349. Whether a specific act constitutes cruel and unusual punishment is measured by “‘the evolving standards of decency that mark the progress of a maturing society.' ” Rhodes, 452 U.S. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). In evaluating a prisoner's claim, courts consider whether “‘the officials act[ed] with a sufficiently culpable state of mind' and if the alleged wrongdoing was objectively ‘harmful enough' to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8, (1992) (alteration in original) (quoting Wilson, 501 U.S. at 298, 303).

         “[P]risoners have a clearly established Eighth Amendment right to be free from sexual abuse.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). However, “the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted). While “the Ninth Circuit has recognized that sexual harassment may constitute a cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated between sexual harassment that involves verbal abuse and that which involves allegations of physical assault, finding the later to be in violation of the constitution.” Minifield v. Butikofer, 298 F.Supp.2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198)). See Hill v. Rowley, 658 Fed.Appx. 840, 841 (9th Cir. 2016) (finding allegations of deliberate, unwanted touching sufficient to state a claim for sexual harassment that violates the Eighth Amendment); Wood v. Beauclair, 692 F.3d 1041, 1046-51 (9th Cir. 2012) (reversing summary judgment on behalf of defendant because plaintiff's allegations of sexual harassment that included physical contact of a sexual nature was sufficient to state Eighth Amendment claim); Austin, 367 F.3d at 1171-72 (officer's conduct was not sufficiently serious to violate the Eighth Amendment where officer exposed himself to prisoner but never physically touched him); Blacher v. Johnson, 517 Fed.Appx. ...


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