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 against PBSP officer Ford. His complaint
is now before the Court for review under 28 U.S.C. §
1915A. He has been granted leave to proceed in forma
pauperis in a separate order.
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
The
complaint makes the following allegations. On October 29,
2019, in the course of assisting with afternoon yard release,
Officer Ford performed an illegal clothed body search on
plaintiff “in ‘vengence' (sic) and
‘retaliation' to cover up” the sexual battery
committed on him by his co-workers, Officers Gutierrez and
Kumbat on June 19, 2018, and January 17, 2019. Dkt. No. 1 at
3. The search constituted sexual battery because Officer Ford
grasped around plaintiff's public hair area, pulled
plaintiff's pubic hair, and inappropriately cupped and
squeezed plaintiff's testicles. Id. The search
was an intentional infliction of emotional distress, and
caused plaintiff pain and annoyance. Id. The search
was done maliciously and sadistically, was an offensive and
intentional touching done without plaintiff's consent and
with the intent to harm or offend, and had no legitimate
penological motive. Dkt. No. 1 at 4. Plaintiff alleges that
the body search violated his First Amendment right to be free
of retaliation and was a sexual battery in violation of the
Eighth Amendment. Plaintiff also alleges that the body search
violated the “three strikes” provision set forth
in 28 U.S.C. 1915(g).
1.
Eighth Amendment Claim
A
prisoner may state an Eighth Amendment claim under Section
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). When prison
officials maliciously and sadistically use force to cause
harm, contemporary standards of decency are always violated,
see Hudson, 503 U.S. at 9, and no lasting physical
injury is required to state a cause of action, Schwenk v.
Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000). 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). Liberally construed,
the complaint states a cognizable Eighth Amendment claim.
2.
First Amendment Claim
“Within
the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion
that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate's exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.” Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). The alleged motive for the body search is Officer
Ford's desire to cover up his co-workers' alleged
misconduct, and not because of plaintiff's protected
conduct. Taking adverse action in an attempt to cover up
misconduct does not state a cognizable First Amendment
retaliation claim. However, if the body search was in
retaliation for plaintiff's engaging in protected
conduct, such as reporting that Officers Gutierrez and Kumbat
had committed sexual battery on plaintiff on June 19, 2018,
...