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5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF CALIFORNIA

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8 WAYNE THOMPSON, Case No. 1:18-cv-01020-LJO-EPG (PC)

9 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING DISMISSAL OF ALL

10 v. CLAIMS AND DEFENDANTS

11 TOM CAGLE and REBECCA DENNIS, (ECF No. 23)

12 Defendants. OBJECTIONS, IF ANY, DUE WITHIN

TWENTY-ONE (21) DAYS

13 14 Wayne Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma 15 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 16 complaint commencing this action on July 24, 2018. (ECF No. 1). On September 24, 2018, 17 the Court issued a screening order which found no cognizable claims, but granted leave to 18 amend. (ECF No. 12). Plaintiff filed a First Amended Complaint (“FAC”) on February 8, 19 2019. (ECF No. 23). 20 The Court has reviewed that FAC and recommends dismissing the FAC without leave 21 to amend. Plaintiff may file objections to these findings and recommendations within twenty- 22 one days of the date of service of this order, which will be reviewed by the district judge. 23 I. SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 26 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 27 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 28 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 9), the Court may 2 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 3 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 4 determines that the action or appeal fails to state a claim upon which relief may be granted.” 5 28 U.S.C. § 1915(e)(2)(B)(ii). 6 A complaint is required to contain “a short and plain statement of the claim showing 7 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 8 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 12 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 13 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 14 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 15 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 16 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 17 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 18 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 19 pro se complaints should continue to be liberally construed after Iqbal). 20 II. SUMMARY OF PLAINTIFF’S COMPLAINT 21 The statement of facts in Plaintiff’s complaint is very brief. Plaintiff alleges that 22 Defendant Tom Cagle, employed as laundry staff, “utilized his position toward unwanted 23 sexual advances.” (ECF No. 23, at p. 3). He also alleges that “Defendant Tom Cagle has a 24 history of sexual misconduct his supervisor failed to address this staff member misconduct. 25 And his sexual overture relating to his being free from these unwanted advancement.” (Id.). 26 Further, “Defendant subjected plaintiff to verbal conduct of a sexual nature making his work 27 environment a hostile environment. This conduct was unwelcome.” (Id. at 4). 28 1 Plaintiff also attaches his 602 prison grievances and the prison’s response. The 2 response to one staff complaint describes the issue as follows: The appellant alleges while he was changing in his work 3 assignment, Material and Store Supervisor-I (MSS-I) T. Cagle 4 sexually harassed him by verbally directing “cat call” expressions toward him. The appellant claims he confronted MMS-I Cagle of 5 the aforementioned action and MMS-I Cagle indicated if the appellant was not fond of the “cat call,” the appellant can be 6 replaced by an alternate inmate. The appellant further alleges 7 MSS-I Cagle was excessive in making inappropriate sexual remarks against him regarding anal sex, comparing male anatomy 8 of different ethnicities, and stated, “Fuck me running.” 9 (ECF No. 23, at p. 8). 10 III. ANALYSIS OF PLAINTIFF’S CLAIMS 11 “The Constitution... ‘does not mandate comfortable prisons,’ and only those 12 deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave 13 to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 14 (1991) (internal citations omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 349. 15 Whether a specific act constitutes cruel and unusual punishment is measured by “‘the evolving 16 standards of decency that mark the progress of a maturing society.’ ” Rhodes, 452 U.S. at 17 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). In evaluating a 18 prisoner’s claim, courts consider whether “‘the officials act[ed] with a sufficiently culpable 19 state of mind’ and if the alleged wrongdoing was objectively ‘harmful enough’ to establish a 20 constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8, (1992) (alteration in original) 21 (quoting Wilson, 501 U.S. at 298, 303). 22 “[P]risoners have a clearly established Eighth Amendment right to be free from sexual 23 abuse.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). However, “the Eighth 24 Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin 25 v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted). While “the Ninth 26 Circuit has recognized that sexual harassment may constitute a cognizable claim for an Eighth 27 Amendment violation, the Court has specifically differentiated between sexual harassment that 28 involves verbal abuse and that which involves allegations of physical assault, finding the later 1 to be in violation of the constitution.” Minifield v. Butikofer, 298 F.Supp.2d 900, 904 (N.D. 2 Cal. 2004) (citing Schwenk, 204 F.3d at 1198)). See Hill v. Rowley, 658 Fed.Appx. 840, 841 3 (9th Cir. 2016) (finding allegations of deliberate, unwanted touching sufficient to state a claim 4 for sexual harassment that violates the Eighth Amendment); Wood v. Beauclair, 692 F.3d 1041, 5 1046–51 (9th Cir. 2012) (reversing summary judgment on behalf of defendant because 6 plaintiff’s allegations of sexual harassment that included physical contact of a sexual nature 7 was sufficient to state Eighth Amendment claim); Austin, 367 F.3d at 1171-72 (officer’s 8 conduct was not sufficiently serious to violate the Eighth Amendment where officer exposed 9 himself to prisoner but never physically touched him); Blacher v. Johnson, 517 Fed.Appx. 564 10 (9th Cir. 2013) (sexual harassment claim based on verbal harassment insufficient to state a 11 claim under § 1983); Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (“To hold that 12 gawking, pointing, and joking violates the prohibition against cruel and unusual punishment 13 would trivialize the objective component of the Eighth Amendment test and render it absurd.”). 14 However, verbal harassment may violate the Constitution when it is “unusually gross 15 even for a prison setting and [is] calculated to and [does] cause [plaintiff] psychological 16 damage.” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th 17 Cir. 1998). Cf. Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986) (drawing gun and 18 terrorizing prisoner with threats of death while using racially offensive language immediately 19 after prisoner gave testimony against another guard presents cognizable claim). 20 Applying these legal standards to the allegations in Plaintiff’s complaint, Plaintiff has 21 failed to state a claim for cruel and unusual punishment in violation of the Eighth Amendment. 22 Plaintiff provides very few facts, so it is difficult to understand what happened. But even using 23 the description in Plaintiff’s grievance and the subsequent responses to understand the issue, it 24 appears that Plaintiff is complaining about verbal sexual harassment. While this conduct may 25 violate prison rules and be inappropriate and offensive, it does not appear to rise to the level of 26 a constitutional violation under the Eighth Amendment. 27 \\\ 28 \\\ 1 CONCLUSION AND RECOMMENDATIONS 2 The Court has screened Plaintiff's FAC, and finds that Plaintiff fails to state any 3 || cognizable constitutional claims. Thus, the Court recommends that Plaintiff's FAC be 4 || dismissed, with prejudice, for failure to state a claim. 5 The Court does not recommend granting further leave to amend because the Court 6 || provided Plaintiff an opportunity to amend his complaint with the benefit of the legal standards 7 || above, and Plaintiff filed an amended complaint. However, Plaintiff once again provided very 8 || few factual allegations, and his complaint once again fails to state a claim. Thus, further 9 || amendment would be futile. 10 These findings and recommendations are submitted to the district judge assigned to this 11 || case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one (21) days 12 || after being served with these findings and recommendations, Plaintiff may file written 13 || objections with the Court. Such a document should be captioned “Objections to Magistrate 14 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 15 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 16 || 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 17 || 1991)). 18 19 IT IS SO ORDERED. 20 1! Dated: _ September 12, 2019 [Je hey — 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28