Cruz v. D. Ford

          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, ...