Raymond Watison v. Mary Carter

Opinion by Judge FARRIS; Partial Concurrence and Partial Dissent by Judge NOONAN.

OPINION

Petitioner Raymond Watison, who is serving a sentence in Nevada State Prison, sued defendant prison officials under 42 *1112 U.S.C. § 1983 pro se, alleging that they violated several of his rights under the U.S. Constitution. He also alleged that the officials violated various Nevada laws. The district court dismissed Watison’s complaint with prejudice. Watison appealed the dismissal of some of his claims and had counsel appointed for him. We have jurisdiction under 28 U.S.C. § 1291 .

Watison failed to state an Eighth Amendment claim against Correctional Officer Sean LaGier and failed to state a First Amendment retaliation claim against Correctional Officer Joseph Rodriguez, but Watison’s First Amendment retaliation claims against Associate Warden Mary Carter and Correctional Officers Rosa Rodriguez, Sean LaGier, and Danilo Santos require further consideration. The district court should not have dismissed Watison’s state-law claims with prejudice. We therefore affirm in part, and remand for further proceedings.

I.

We review the dismissal of a complaint for failure to state a claim under…

concurring and dissenting:

I concur except as to the holding that dismisses Watison’s claim under the Eighth Amendment. The incident central to this claim is, for good reason, one that has not been the subject of appellate litigation: the grossness of the conduct alleged is not likely to have often occurred. In a word, a prisoner sitting in his own cell on his toilet was allegedly rubbed on his thigh by a prison guard who had entered the cell. The sexual implications of this stroking plus the interference with the prisoner’s discharge of his bladder amounted to the infliction of psychological pain. Given the privacy allegedly invaded, this kind of pain was sufficiently serious to constitute constitutionally prohibited cruelty.

We do not have, and need not have, a precedent exactly governing the case. A century ago the Supreme Court set out the governing principle:

Weems v. United States, 217 U.S. 349, 373 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910).

The prohibition of cruel and unusual punishment covers the case presented by Watison.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND WATISON, 

Plaintiff-Appellant, v. No. 10-16778 D.C. No.

MARY CARTER; CRAIG MADIEROS;

DON HELLING; JOSEPH RODRIGUEZ;  3:09-cv-00664-

SEAN LAGIER; DANILO SANTOS; ECR-RAM

CHRISTINE CARMAZZI; ROSA OPINION

RODRIGUEZ; CANDICE NYA,

Defendants-Appellees.  Appeal from the United States District Court for the District of Nevada Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted November 18, 2011—San Francisco, California

Filed February 13, 2012

Before: Jerome Farris, John T. Noonan, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Farris; Partial Concurrence and Partial Dissent by Judge Noonan

1725 1728 WATISON v. CARTER

COUNSEL

Daniel H. Bromberg, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, California, for the plaintiff-appellant. WATISON v. CARTER 1729 Clark G. Leslie, Department of the Attorney General, Carson City, Nevada, for the defendants-appellees.

OPINION

FARRIS, Senior Circuit Judge:

Petitioner Raymond Watison, who is…