1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 TARRYN UNIQUE, et al., Case No. 22-cv-00711-VKD

9 Plaintiffs,

ORDER OF SERVICE; REFERRING

10 v. MATTER TO FEDERAL PRO SE

PROGRAM TO LOCATE COUNSEL;

11 JOSEPH CLAYBAUGH, et al., INSTRUCTIONS TO CLERK 12 Defendants.

13 14 Pro se plaintiffs Tarryn Unique and Miguel White filed the instant civil rights complaint 15 pursuant to 42 U.S.C. § 1983 against defendants Joseph Claybaugh and the California Department 16 of Corrections and Rehabilitation (“CDCR”).1 Dkt. Nos. 1, 11. Plaintiffs’ motions for leave to 17 proceed in forma pauperis (Dkt Nos. 9, 12) are addressed in a separate order. Dkt. No. 14. 18 I. STANDARD OF REVIEW 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro 24 se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 25 699 (9th Cir. 1988). 26 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 27 1 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 2 alleged violation was committed by a person acting under the color of state law. See West v. 3 Atkins, 487 U.S. 42, 48 (1988). 4 II. BACKGROUND 5 As alleged in the complaint, Plaintiffs are transgender prisoners who previously were 6 incarcerated at Salinas Valley State Prison (“SVSP”). Dkt. No. 1 at 3. They allege that Dr. 7 Claybaugh, a staff psychologist at SVSP, engaged in sexual and other misconduct against them. 8 Dkt. No. 1 at 5-9. Specifically, they allege that Dr. Claybaugh sexually assaulted them and forced 9 them to sell contraband within the prison for approximately one year. Id. at 9. Initially, Plaintiffs 10 did not report the assaults for fear of retaliation from SVSP staff. Id. at 8. Eventually, Plaintiffs 11 complained to an unnamed correctional captain who arranged for them to be transferred to the 12 California Institution for Men (“CIM”). At CIM, Plaintiffs reported the assaults by Dr. 13 Claybaugh, but say that after reporting they became the target of threats and retaliatory actions 14 from CIM staff. Id. at 10-11. 15 Plaintiffs say they were eventually transferred to different prisons, “so that they can not 16 effectively communicate to pursue this action.” Id. at 11; Dkt. No. 11 at 2. Currently, plaintiff 17 Unique is at R.J. Donovan Correctional Facility in San Diego, and plaintiff White is at California 18 Men’s Colony in San Luis Obispo. 19 Plaintiffs seek damages and injunctive relief, including placement at the same institution 20 and the removal of disciplinary actions from their records. Dkt. No. 1. at 11-12. 21 III. DISCUSSION 22 A. Eighth Amendment Claims Against Dr. Claybaugh 23 The treatment a convicted prisoner receives in prison and the conditions under which he is 24 confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 25 31 (1993). “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes 26 cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 27 312, 319 (1986) (ellipsis in original) (internal quotation and citation omitted). A prison official 1 be, objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson 2 v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable 3 state of mind, i.e., the offending conduct was wanton, id. (citing Wilson, 501 U.S. at 297); 4 LeMaire v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1993). 5 “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the 6 Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012). The Ninth Circuit 7 consistently places prisoner sexual assault claims within the same legal framework as Eighth 8 Amendment excessive force claims. Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020). 9 A prisoner may state an Eighth Amendment claim under § 1983 for use of excessive force where 10 force was applied maliciously and sadistically for the purpose of causing harm rather than to 11 maintain or restore discipline. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). However, 12 claims arising from sexual assault are distinct from other Eighth Amendment excessive force 13 claims. Bearchild, 947 F.3d at 1144. “[S]exual assault serves no valid penological purpose,” and 14 thus, when an inmate proves that a prison guard committed a sexual assault, there is a presumption 15 that the guard acted maliciously and sadistically for the very purpose of causing harm, satisfying 16 the subjective prong of an Eighth Amendment claim. Id.; see Wood, 692 F.3d at 1049 (malicious 17 and sadistic intent may be presumed because there is no legitimate penological purpose for sexual 18 contact between prisoner and guard). “[A]n inmate need not prove that an injury resulted from 19 sexual assault” because “any sexual assault is objectively ‘repugnant to the conscience of 20 mankind’ and therefore not de minimis.” Bearchild, 947 F.3d at 1144 (quoting Hudson, 503 U.S. 21 at 10). “A prisoner presents a viable Eighth Amendment claim where he or she proves that a 22 prison staff member, acting under color of law and without legitimate penological justification, 23 touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff 24 member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the 25 prisoner.” Bearchild, 947 F.3d at 1144. “[A]ll of the elements of a § 1983 sexual assault claim 26 are established if a prisoner proves that a sexual assault occurred.” Id. at 1145. A sexual assault is 27 actionable, regardless of whether the assault was of a person of the same or opposite sex. See 1 Based on their allegations, Plaintiffs state cognizable claims against Dr. Claybaugh under 2 the Eighth Amendment for sexual assault and/or sexual harassment. 3 B. Claims Against the CDCR 4 Plaintiffs also name the CDCR as a defendant whom they allege “support[ed] the 5 retaliation against any inmate that files PREA all[e]gation[s] against a staff member, while having 6 rules and policies that claim they have [] zero tolerance policies for staff sexual misconduct, and 7 that actively allows for staff retaliation and the covering of up incidents of staff sexual 8 misconduct.” Dkt. No. 1 at 10. Plaintiffs claim that after they reported Dr. Claybaugh’s 9 misconduct to CIM staff, they were targeted by CIM staff and later sent to different institutions so 10 that they would have difficulty pursuing claims for relief. Id. Plaintiffs also claim they were 11 subject to retaliation at the other institutions to which they were transferred, including the 12 Substance Abuse Treatment Facility and their current places of confinement. Id. at 10-11. 13 Plaintiffs claim that the “CDCR staff” never fully investigated their complaints of staff sexual 14 misconduct, and that staff threatened and retaliated against them. Id. at 11. 15 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official 16 policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 17 690 (1978);2 however, a city or county may not be held vicariously liable for the unconstitutional 18 acts of its employees under a theory of respondeat superior, see Board of Cty. Comm'rs. of Bryan 19 Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 20 F.3d 1522, 1534 (9th Cir. 1995). To establish municipal liability under § 1983 for a violation of 21 constitutional rights, a plaintiff must show: “(1) that he possessed a constitutional right of which 22 he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to 23 deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving 24 force behind the constitutional violation.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 25

26 2 Local governing bodies therefore may be sued directly under § 1983 for monetary, declaratory or injunctive relief for the violation of federal rights. See Monell, 436 U.S. at 690. They are 27 absolutely immune from liability for punitive damages under § 1983, however. See City of 1 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal 2 quotation marks omitted); see Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 3 (9th Cir. 1997). The Ninth Circuit broadly defines an actionable “policy” for purposes of a Monell 4 claim as “‘a deliberate choice to follow a course of action . . . made from among various 5 alternatives by the official or officials responsible for establishing final policy with respect to the 6 subject matter in question.’” Brass v. County of Los Angeles, 328 F.3d 1192, 1199-1200 (9th Cir. 7 2003) (quoting Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam)). 8 The allegations in the complaint are insufficient to state a Monell claim against the CDCR 9 because Plaintiffs do not allege that the “CDCR staff” at each institution were acting pursuant to a 10 specific CDCR policy. To properly plead a claim under Monell, it is not sufficient to allege 11 simply that a policy, custom, or practice exists that caused the constitutional violations. AE ex rel. 12 Hernandez v. County of Tulare, 666 F.3d 631, 636-37 (9th Cir. 2012). As explained in Ashcroft v. 13 Iqbal, 556 U.S. 662, 670 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 14 (2007), a plaintiff suing a municipal entity must allege sufficient facts regarding the nature of the 15 alleged policy, custom or practice to allow the defendant to effectively defend itself, and these 16 facts must plausibly suggest that the plaintiff is entitled to relief. AE ex rel. Hernandez, 666 F.3d 17 at 636-37 (citing Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). If a plaintiff does not allege 18 sufficient facts to satisfy this standard, he or she must be given leave to amend. Id. at 637-38 19 (finding district court abused its discretion in dismissing Monell claim for insufficient factual 20 allegations as to specific nature of county’s policy without giving leave to amend to allege such 21 facts). 22 The Court concludes that the complaint presently does not state a Monell claim against the 23 CDCR, but that the complaint may be amended to state such a claim. 24 C. First Amendment Retaliation Claim 25 Plaintiffs allege that unnamed staff members at various institutions retaliated against them 26 for filing grievances regarding Dr. Claybaugh’s misconduct. See discussion supra Section II. 27 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 1 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 2 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 3 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); 4 accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 5 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 6 rights and that the retaliatory action did not advance legitimate penological goals, such as 7 preserving institutional order and discipline). 8 The complaint presently does not state a claim for retaliation against any defendant. 9 However, it is possible that the complaint may be amended to state such a claim. 10 D. Appointment of Counsel 11 As stated above, Plaintiffs state cognizable claims against Dr. Claybaugh under the Eighth 12 Amendment for sexual assault and/or sexual harassment. See discussion supra Section III.A. 13 Considering the nature and seriousness of the allegations presented by this complaint, the Court 14 finds this matter warrants appointment of counsel under 28 U.S.C. § 1915(e)(1) based on 15 exceptional circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). In addition, 16 the Court finds that Plaintiffs may be able to amend their complaint to address the deficiencies 17 outlined above with respect to potential claims against the CDCR and/or other defendants, and that 18 Plaintiffs may be assisted by the appointment of counsel in making such amendments. 19 IV. CONCLUSION 20 For the foregoing reasons and for good cause shown, the Court orders as follows: 21 1. This matter is referred to the Federal Pro Se Program to locate counsel for 22 Plaintiffs. Upon an attorney being located to represent Plaintiffs, that attorney shall be appointed 23 as counsel for Plaintiffs in this matter until further order of the Court. The Clerk shall forward to 24 the Federal Pro Se Program: (1) a copy of this order, (2) a copy of the docket sheet, and (3) a copy 25 of the operative complaints. Dkt. Nos. 1, 11. 26 2. The following defendant shall be served at SVSP: 27 a. Dr. Joseph Claybaugh, staff psychologist 1 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 2 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 3 email the following documents: the operative complaint, and any attachments thereto, Dkt. Nos.1 4 and 11, this order of service, a CDCR Report of E-Service Waiver form, and a summons. The 5 Clerk shall also include a magistrate judge jurisdiction consent/declination form. 6 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 7 provide the Court a completed CDCR Report of E-Service Waiver advising the Court which 8 defendant(s) listed in this order will be waiving service of process without the need for service by 9 the United States Marshal Service (USMS) and which defendant(s) decline to waive service or 10 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 11 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 12 a waiver of service of process for the defendant(s) who are waiving service. 13 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 14 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 15 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 16 of this order, the summons and the operative complaint for service upon each defendant who has 17 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 18 Service Waiver. 19 3. All communications from Plaintiffs to the Court must be served on defendants, or 20 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 21 defendants or defendants’ counsel. 22 4. With the exception of service upon defendant Claybaugh, all proceedings in this 23 action are STAYED until counsel is located for Plaintiffs. Once counsel is appointed, the Court 24 will set a deadline for amendment of the complaint and will make such further orders as may be 25 necessary. 26 // 27 // 1 IT IS SO ORDERED. 2 Dated: June 7, 2022 3 . 28 □ 4

VIRGINIA K. DEMARCHI

5 United States Magistrate Judge 6 7 8 9 10 11 12

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