United States District Court, N.D. California
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
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