1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELVIS VENABLE, Case No. 1:17-cv-01519-AWI-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

REGARDING DEFENDANT’S MOTION

13 v. FOR PARTIAL SUMMARY JUDGMENT 14 DR. PATEL, (ECF No. 28) 15 Defendant. FOURTEEN (14) DAY DEADLINE 16 17 I. Background 18 Plaintiff Elvis Venable is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s complaint 20 against Defendant Patel for sexual assault in violation of the Eighth Amendment. (ECF No. 12.) 21 On July 11, 2019, Defendant Patel filed a motion for partial summary judgment on 22 Plaintiff’s claim for damages related to mental and emotional injuries resulting from Defendant’s 23 alleged conduct.1 (ECF No. 28.) On August 20, 2019, after Plaintiff failed to timely file a 24 response to Defendant’s partial summary judgment motion, the Court ordered Plaintiff to file an 25 opposition, or a statement of non-opposition, to Defendant’s partial summary judgment motion 26 within twenty-one days of service. (ECF No. 30.) Plaintiff filed his opposition to Defendant’s

27 1 Concurrent with this motion, Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th 28 Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 28-1.) 1 partial summary judgment motion on September 5, 2019. (ECF No. 31.) Defendant filed a reply 2 on September 12, 2019. (ECF No. 32.) The motion is deemed submitted. Local Rule 230(l). 3 II. Legal Standard 4 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 5 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 6 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 7 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 8 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 9 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. 10 The party seeking summary judgment “always bears the initial responsibility of informing 11 the district court of the basis for its motion, and identifying those portions of the pleadings, 12 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 13 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 14 Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility, however, varies 15 depending on whether the issue on which summary judgment is sought is one in which the 16 movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty 17 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at 18 trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 19 the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will 20 have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an 21 absence of evidence to support the nonmoving party’s case.” Id. 22 If the movant satisfies its initial burden, the nonmoving party must go beyond the 23 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 24 evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 25 (9th Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not 26 suffice in this regard. Id. at 929; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 27 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its 28 opponent must do more than simply show that there is some metaphysical doubt as to the material 1 facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of 2 fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. 3 at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 4 Each party’s position, whether it be that a fact is disputed or undisputed, must be 5 supported by (1) citing to particular parts of materials in the record, including but not limited to 6 depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not 7 establish the presence or absence of a genuine dispute or that the opposing party cannot produce 8 admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The 9 Court may consider other materials in the record not cited to by the parties, but it is not required 10 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 11 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 12 2010). 13 In resolving a summary judgment motion, “the court does not make credibility 14 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 15 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 16 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 17 nonmoving party must produce a factual predicate from which the inference may reasonably be 18 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 19 aff’d, 810 F.2d 898 (9th Cir. 1987). 20 In arriving at these findings and recommendations, the Court carefully reviewed and 21 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 22 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 23 reference to an argument, document, paper, or objection is not to be construed to the effect that 24 this Court did not consider the argument, document, paper, or objection. This Court thoroughly 25 reviewed and considered the evidence it deemed admissible, material, and appropriate. 26 III. Discussion 27 A. Summary of Factual Allegations of Plaintiff’s Complaint 28 The events in the complaint are alleged to have occurred while Plaintiff was housed at 1 Kern Valley State Prison. Plaintiff names Kern Valley State Prison Doctor Patel as the sole 2 Defendant in this action. 3 Plaintiff alleges as follows:

4 Plaintiff hereby assert thereon August 22, 2017 he was subjected to a very 5 humiliating situation when he was sexually assaulted by the prison doctor, Patel, who at the Time was exaiming (sic) him when he Forced himself upon The 6 Plaintiff grabbing The plaintiff by the penis holding on to it while asking the plaintiff could he perform oral sex on him for Tabacco (sic), leaving The plaintiff 7 in extreme Fear and intimidation. Plaintiff is in great distress over the assault on his person, by someone whom he was to trust. This assault has effected (sic) me 8 To The core of depression, distrust by Prison Personel (sic) whom abused Their 9 authority and/or power To commit such an offense of immoral conduct on an inmate. Plaintiff did nothing To The defendant To encourage the assault nor 10 consented to such abuse of power. Plaintiff is having problems Functioning psychologically and is seeing The prison phycologist (sic) in mental health 11 treatment. 12 13 (ECF No. 1, at 3, 5.) Plaintiff seeks compensatory damages in the amount of $100,000.00. (Id. at 14 6.) 15 B. Undisputed Material Facts (UMF)2 16 1. Plaintiff is an inmate in the custody of the California Department of Corrections 17 and Rehabilitation. Plaintiff is currently incarcerated at Kern Valley State Prison 18 (“KVSP”). All events relevant to this action occurred while Plaintiff was residing 19 at KVSP. (Plaintiff’s Complaint, ECF No. 1, at 3.3) 20 2. Plaintiff alleges that Defendant Patel, a doctor at KVSP, forced himself upon 21 Plaintiff by grabbing Plaintiff by the penis, holding onto it, and asking Plaintiff if 22 Defendant could perform oral sex on Plaintiff in exchange for tobacco. (Id.) 23 3. Plaintiff alleges that he is having problems functioning psychologically and is 24 2 ECF No. 28-3. Plaintiff did not provide a separate statement of undisputed facts in his opposition. Local Rule 25 260(a). As a result, Defendant’s Statement of Undisputed Material Facts in support of his motion for summary judgment is accepted except where brought into dispute by Plaintiff’s verified complaint and Plaintiff’s verified 26 opposition to Defendant’s summary judgment motion. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified pleadings and motions may be used as an opposing affidavit if it is based on pleader’s personal knowledge 27 of specific facts which are admissible in evidence). Unless otherwise indicated, disputed and immaterial facts are omitted from this statement. 28 3 All references to page numbers are to the page numbers in the Court’s CM/ECF pagination headers. 1 seeing the prison psychologist for mental health treatment. Plaintiff seeks 2 compensatory damages in the amount of $100,000.00. (Id. at 5-6.) 3 4. Plaintiff was deposed on February 21, 2019. (Declaration of Robert M. Perkins, 4 III, ECF No. 28-4, Ex. A, at 4.) 5 5. Plaintiff is a 46-year-old inmate. (Id. at 19.) 6 6. Plaintiff had an appointment with Defendant Patel on August 22, 2019. (Id. at 5.) 7 7. Plaintiff testified that Defendant Patel conducted an examination of Plaintiff’s 8 knees at that appointment. (Id. at 8.) 9 8. Plaintiff testified that, during the examination of Plaintiff’s knees, Defendant Patel 10 grabbed Plaintiff’s penis. (Id. at 10.) 11 9. Plaintiff testified that he was wearing his pants when Defendant Patel grabbed his 12 penis. (Id.) 13 10. Plaintiff testified that Defendant Patel massaged his penis over the top of 14 Plaintiff’s clothing. (Id. at 11.) 15 11. Plaintiff testified that Defendant Patel said, “How do you feel about getting some 16 oral sex, man, for a cell phone?” while massaging Plaintiff’s penis. (Id.) 17 12. Plaintiff testified that he pushed back from Defendant and left the appointment. 18 (Id. at 11, 12, 14.) 19 13. Plaintiff testified that he experienced anxiety during the incident. He also testified 20 at his deposition that he has “been going through some things mentally,” including 21 loss of sleep, having thoughts about having homosexual contact with men, and 22 having anxiety over questioning his sexuality. Plaintiff also testified that he has 23 seen his prison psychologist on a more frequent basis. (Id. at 15-18.) 24 C. Analysis of Defendant’s Motion 25 Here, Defendant Patel contends that his motion for partial summary judgment should be 26 granted because Plaintiff’s damages claim for mental and emotional injuries is barred by a 27 provision of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(e). 28 /// 1 Section 1997e(e) provides that: “No Federal civil action may be brought by a prisoner 2 confined in … prison …, for mental or emotional injury suffered while in custody without a prior 3 showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 4 18, United States Code).” 42 U.S.C. § 1997e(e). The physical injury “need not be significant but 5 must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). Further, a 6 “sexual act” is defined as:

7 (A) contact between the penis and the vulva or the penis and the anus, and for 8 purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; 9 (B) contact between the mouth and the penis, the mouth and the vulva, or the 10 mouth and the anus;

11 (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, 12 degrade, or arouse or gratify the sexual desire of any person; or 13 (D) the intentional touching, not through the clothing, of the genitalia of 14 another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of 15 any person[.] 16 17 18 U.S.C. § 2246(2). 18 It is undisputed that Plaintiff alleges that, during an appointment with Defendant Patel on 19 August 22, 2019, Defendant Patel grabbed and massaged Plaintiff’s penis through Plaintiff’s 20 clothing, while offering to give Plaintiff oral sex and either a cell phone or tobacco. However, 21 Plaintiff has not provided the Court with any evidence to establish a triable issue of material fact 22 that he suffered any physical injury that was more than de minimis as a result of Defendant Patel’s 23 alleged sexual assault. Rather, Plaintiff’s injuries are mental and emotional. Therefore, 24 Plaintiff’s damages claim for mental and emotional injuries is barred by § 1997e(e) unless 25 Defendant Patel’s alleged sexual assault was “a sexual act[.]” 42 U.S.C. § 1997e(e). 26 In his opposition, Plaintiff argues that he has established a triable issue of material fact 27 regarding whether Defendant Patel’s sexual assault was a “sexual act” under § 1997e(e) because 28 touching the genitalia of another person, even through clothing, without that person’s consent is 1 considered to be “sexual assault,” “sexual abuse,” sexual battery,” or “unlawful touching” in most 2 states and/or jurisdictions. (ECF No. 31, at 2-3.) However, a defendant’s conduct is only a 3 “sexual act” under 1997e(e) if the defendant’s conduct constitutes a “sexual act” under the 4 definition established in 18 U.S.C. § 2246(2). Further, “the statutory definition of a ‘sexual act’ 5 under § 2246(2) … require[s] direct skin-to-skin contact or touching of body parts.” United 6 States v. Hayward, 359 F.3d 631, 641 (3d Cir. 2004); see also Morris v. Taylor, No. 17-cv-01528- 7 WHO (PR), 2018 WL 4057493, at *3 (N.D. Cal. Aug. 23, 2018) (holding that, since defendant’s 8 alleged conduct of grabbing and holding plaintiff’s penis and scrotum was through clothing, 9 defendant’s alleged conduct was not a “sexual act” under 42 U.S.C. § 1997e(e)); Schmidt v. Idaho 10 Dep’t of Corr., No. 1:14-cv-00242-BLW, 2016 WL 617409, at *3-*4 (D. Idaho Feb. 16, 2016) 11 (holding that defendant’s alleged conduct of rubbing plaintiff’s chest and grabbing plaintiff’s 12 penis over plaintiff’s clothes was not a “sexual act” under 42 U.S.C. § 1997e(e)). Therefore, 13 since it is undisputed that Plaintiff has only alleged that Defendant Patel touched Plaintiff’s penis 14 through Plaintiff’s clothing, Defendant Patel’s alleged conduct is not a “sexual act” as defined by 15 18 U.S.C. § 2246(2) and 42 U.S.C. § 1997e(e). 16 Consequently, Plaintiff has failed to raise a genuine dispute of material fact that 17 Defendant Patel’s alleged conduct is a “sexual act” within the meaning of 42 U.S.C. § 1997e(e). 18 Further, Plaintiff has failed to raise a genuine dispute of material fact that Plaintiff suffered any 19 physical injury as a result of Defendant Patel’s alleged conduct that was more than de minimis. 20 Hence, Plaintiff’s damages claim for mental and emotional injuries resulting from Defendant 21 Patel’s alleged conduct is barred by 42 U.S.C. § 1997e(e). 22 However, “§ 1997e(e) applies only to claims for mental and emotional injury.” Oliver, 23 289 F.3d at 629. Thus, “[t]o the extent that [Plaintiff’s] claims for compensatory [and] nominal 24 … damages are premised on alleged [Eighth] Amendment violations, and not on emotional or 25 mental distress suffered as a result of those violations, § 1997e(e) is inapplicable and those claims 26 are not barred.” Id. at 630; Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (pro se 27 complaints should be liberally construed to request nominal damages where complaint fails to 28 expressly request them). To the extent that Plaintiff has actionable claims for compensatory, 1 nominal or punitive damages—premised on violations of his Eighth Amendment rights, and not 2 on any alleged mental or emotional injuries -- the claims are not barred by § 1997e(e). 3 Accordingly, Defendant Patel’s motion for partial summary judgment should be granted 4 as to Plaintiff’s damages claim for mental and emotional injuries resulting from Defendant Patel’s 5 alleged conduct. 6 IV. Conclusion and Recommendations 7 Based on the foregoing, it is HEREBY RECOMMENDED that: 8 1. Defendants Patel’s motion for partial summary judgment of Plaintiff’s damages 9 claim for mental and emotional injuries, (ECF No. 28), be GRANTED in 10 accordance with 42 U.S.C. § 1997e(e); and 11 2. That Plaintiff’s damages claim against Defendant Patel for mental and emotional 12 injuries be dismissed with prejudice. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 fourteen (14) days after being served with these Findings and Recommendations, the parties may 16 file written objections with the court. The document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 18 objections within the specified time may result in the waiver of the “right to challenge the 19 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 20 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21

IT IS SO ORDERED.

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23 Dated: November 22, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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