Cruz v. Kumbat

          ORDER OF SERVICE

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that PBSP officer Kumbat violated his constitutional rights. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. His complaint (Dkt. No. 1) is now before the Court for review under 28 U.S.C. § 1915A.

         DISCUSSION

         A. Standard of Review

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity, or from an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Complaint

         According to the complaint, on July 19, 2018, defendant Kumbat sexually harassed plaintiff when she tried to get him to show her his penis for her own personal sexual gratification. That same day, defendant Kumbat entered plaintiff's cell to conduct a personal property inventory pursuant to plaintiff's transfer to court for an unrelated case. As plaintiff was bagging his personal property, defendant Kumbat maliciously and sadistically committed sexual battery on plaintiff by hitting his genitals, causing plaintiff pain, distress, and annoyance. Afterwards, defendant Kumbat spread rumors on the main yard that plaintiff had touched defendant Kumbat's private parts with the intent to provoke others into violently attacking plaintiff. Dkt. No. 1 at 2-3.

         A prisoner may state an Eighth Amendment claim under § 1983 for sexual harassment if the alleged sexual harassment was sufficiently harmful, i.e., a departure from "the evolving standards of decency that mark the progress of a maturing society," and the defendant acted with intent to harm the prisoner. See Thomas v. District of Columbia, 887 F.Supp. 1, 3-4 (D.D.C. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 6, 8 (1992)) (internal quotations and citation omitted). Sexual assault, coercion and harassment certainly may violate contemporary standards of decency and cause physical and psychological harm, see Jordan v. Gardner, 986 F.2d 1521, 1525-31 (9th Cir. 1993) (en banc); Women Prisoners of the District of Columbia Dep't of Corrections v. District of Columbia, 877 F.Supp. 634, 664-67 (D.D.C. 1994); however, not every malevolent touch by a prison guard or official gives rise to an Eighth Amendment violation - the Eighth Amendment's prohibition against cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of force, see Hudson, 503 U.S. at 9-10; Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (no Eighth Amendment violation against officer who was alleged to have rubbed his thigh against plaintiff's thigh while plaintiff was on toilet and to have begun smiling before leaving cell laughing); Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc) (plaintiff must show more than de minimis injury), cert. denied, 513 U.S. 1114 (1995); Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (no Eighth Amendment violation where employees briefly touched inmate's buttocks with apparent intent to embarrass him, and touching was unaccompanied by any sexual comments or banter). Mere verbal sexual harassment does not necessarily amount to an Eighth Amendment violation. Austin v. Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary judgment dismissal of Eighth Amendment claim where prison guard verbally sexually harassed prisoner and exposed himself to prisoner in elevated, glass-enclosed control booth for no more than 30-40 seconds and never physically touched prisoner). A prisoner therefore must establish that the alleged sexual harassment was egregious, pervasive and/or widespread in order to state a claim under the Eighth Amendment. See, e.g., Jordan, 986 F.2d at 1525-31 (prison policy requiring male guards to conduct body searches on female prisoners violated Eighth Amendment). Liberally construed, plaintiff's allegation that defendant Kumbat hit his genitals states an Eighth Amendment claim under § 1983 for sexual harassment. However, plaintiff's allegation that defendant Kumbat tried to get him to show her his penis for her own personal sexual gratification does not state a cognizable Eighth Amendment claim. Cf. Watison, 668 F.3d at 1112-14 (noting that Ninth Circuit has declined to find Eighth Amendment violations involving more serious deprivations than the touching of an inmate's buttocks with apparent intent to embarrass, such as finding that Eighth Amendment did not prohibit female guards from performing visual body cavity searches on male inmates or watching male inmates shower, despite one inmate's allegation that guards pointed, joked, and “gawked” at him).

         Liberally construed, plaintiff's allegation that defendant Kumbat deliberately spread a rumor that she had been sexually harassed by plaintiff states a cognizable claim for violation of the Eighth Amendment's prohibition on deliberate indifference to inmate safety. Cf. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (deliberately spreading rumor that prisoner is snitch may state claim for violation of right to be protected from violence while in state custody).

         C. Motion to Submit Exhibits

         Plaintiff has submitted a motion to submit exhibits that he was unable to submit with his complaint, specifically certain prison grievances. Dkt. No. 6. Plaintiff's motion is DENIED as unnecessary. Plaintiff may file exhibits with the Court if he so chooses. However, filing evidence or exhibits with the Court, unattached to any motion, is greatly discouraged. First, the Court is not a depository for prematurely filed evidence. The time to support a claim with evidence is in ...