1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEANDRO LEONEL GONZALEZ Case No.: 17cv2104-CAB-WVG CASTILLO, 12 ORDER ADOPTING REPORT AND Plaintiff, 13 RECOMMENDATION [Doc. No. 38] v. AND GRANTING MOTION FOR 14 SUMMARY JUDGMENT [Doc. No. A. RENTERIA, et al., 15 30] Defendant. 16
17 Plaintiff Leandro Leonel Gonzalez Castillo (“Plaintiff”), a state prisoner 18 proceeding pro se and in forma pauperis, filed his complaint on October 12, 2017, 19 pursuant to 42 U.S.C. §1983 claiming violation of his constitutional rights under the First 20 and Eighth Amendments. [Doc. No. 1.] On March 27, 2019, Defendants A. Renteria, R. 21 Segovia, and L. Romero (“Defendants”) filed a motion for summary judgment. [Doc. No. 22 30.] On April 24 and 25, 2019, Plaintiff filed opposition to the motion for summary 23 judgment. [Doc. Nos. 32, 33.] On May 20, 2019, Defendants filed a reply to the 24 opposition. [Doc. No. 35.] 25 On August 5, 2019, Magistrate Judge William V. Gallo issued a Report and 26 Recommendation (“Report”) to grant the motion for summary judgment. [Doc. No. 38 at 27 13.] On August 29, 2019, Plaintiff filed objections to the Report. [Doc. No. 39.] Having 28 1 reviewed the matter de novo and for the reasons set forth below, the Report is 2 ADOPTED and the motion for summary judgment is GRANTED in favor of 3 Defendants. 4 REVIEW OF REPORT AND RECOMMENDATION 5 The duties of the district court in connection with a report and recommendation of 6 a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 7 636(b). The district judge must “make a de novo determination of those portions of the 8 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in 9 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 10 636(b). The district court need not review de novo those portions of a report and 11 recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 12 1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) 13 (en banc). 14 DISCUSSION 15 A. Background. 16 The Report contains a complete summary of the undisputed facts as obtained from 17 the complaint and Plaintiff’s own deposition [Doc. No. 38 at 2-3] and, therefore, the 18 summary is adopted in full. 19 B. Eighth Amendment claim against Renteria. 20 Plaintiff alleges Renteria violated his Eighth Amendment right to be free from 21 cruel and unusual punishment because Renteria sexually assaulted him during two 22 clothed body searches on February 6, 2016 and June 25, 2016. [Doc. No. 1 at 9-10.] 23 1. February 6, 2016. 24 Based on Plaintiff’s own deposition testimony, the February 6, 2016 incident 25 amounted to Renteria momentarily squeezing Plaintiff’s buttocks during a fully clothed 26 pat-down in Donovan’s prison recreation yard. According to Plaintiff’s deposition, the 27 squeezing was only “seconds long,” it was not done in a “harsh way,” Renteria’s actions 28 1 were done “clowning around like that,” Renteria did not pat down Plaintiff’s groin areas, 2 and Renteria did not make any sexually suggestive comments during the incident. 3 As noted by the Magistrate Judge, such conduct is not objectively egregious. 4 Generally, inmate sexual harassment claims that allege brief inappropriate touching by a 5 correctional officer are not cognizable, particularly where the alleged touching occurred 6 pursuant to an authorized search. See e.g., Watison v. Carter, 668 F.3d 1108, 1112-13 7 (9th Cir. 2012) (inmate’s allegations an officer entered his cell and approached him while 8 he was on the toilet, then rubbed his thigh against the inmate’s thigh, “began smiling in a 9 sexual [manner], and left the cell laughing,” did not support a violation of the Eighth 10 Amendment); Berryhill v. Schiro, 137 F.3d 1073, 1075 (8th Cir. 1998) (finding two brief 11 (“mere seconds”) touches to the inmate’s buttocks during horseplay did not violate the 12 Eighth Amendment); Jackson v. Madery, 158 Fed.Appx. 656, 662 (6th Cir. 2005), 13 abrogated in part on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018) 14 (officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks in a degrading 15 manner was “isolated, brief, and not severe” and therefore, failed to meet Eighth 16 Amendment standards); Osterloth v. Hopwood, No. CV 06 152 M JCL, 2006 WL 17 3337505, *6, *7 (D. Mont. 2006) (dismissing Eighth Amendment claim challenging as 18 sexually abusive an officer’s search of plaintiff that allegedly included the officer 19 reaching between plaintiff’s legs, grabbing his scrotum and penis, and sliding his hand 20 between plaintiff’s buttocks, wherein plaintiff stated to the officer, “that was pretty much 21 sexual assault,” and officer responded, “yah pretty much.”). 22 In his objections, Plaintiff cites to Mathie v. Fries, 935 F.Supp. 1284, 1301 23 (E.D.N.Y. 1996) for the proposition that “unwanted and prohibited sexual abuses on the 24 powerless plaintiff is objectively unreasonable.” [Doc. No. 39 at 4.] However, Mathie 25 involved allegations that the officer “intentionally, deliberately and sadistically sexually 26 abused an inmate and committed sodomy on him while he was handcuffed.” 935 F.Supp. 27 at 1301. Nothing close to such conduct occurred here, as Plaintiff testified Renteria 28 1 briefly touched plaintiff’s buttock incident to a search and without sexual comment. 2 Thus, Renteria’s conduct does not rise to the level of an Eighth Amendment violation. 3 In addition, Renteria’s conduct fails to satisfy the subjective requirement that he 4 had a “sufficiently culpable state of mind,”1 as Plaintiff testified that Renteria was 5 “clowning around like that,” and made no sexual comments. See Berryhill, 137 F.3d at 6 1076. In his objections, Plaintiff argues that Renteria possessed the requisite state of 7 mind because “his actions were with the only intent to abuse, arouse or gratify sexual 8 desire.” [Doc. No. 39 at 5.] However, Plaintiff has provided no evidence of such state of 9 mind,2 and Plaintiff’s own testimony is that Renteria was “clowning around.” Therefore, 10 no Eighth Amendment violation is shown. 11 2. June 25, 2016. 12 More than four months later, Renteria again conducted a fully-clothed pat-down of 13 Plaintiff in the prison yard on June 25, 2016. This time, Renteria touched Plaintiff’s 14 nipples during the course of the pat-down. While standing behind Plaintiff, Renteria 15 searched the sides of Plaintiff’s torso, then Plaintiff’s stomach, and then his hands went 16 up to Plaintiff’s chest. Renteria’s hands were open, and his fingers were apart as he 17 rubbed and “caressed” the front of Plaintiff’s torso. When Renteria reached Plaintiff’s 18 nipples, Plaintiff alleges Renteria started “rubbing” Plaintiff’s nipples with an open hand 19 with his hand flat on Plaintiff’s chest as he swept Plaintiff’s torso. The touching of 20 Plaintiff’s nipples lasted no more than fifteen to twenty seconds.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEANDRO LEONEL GONZALEZ Case No.: 17cv2104-CAB-WVG CASTILLO, 12 ORDER ADOPTING REPORT AND Plaintiff, 13 RECOMMENDATION [Doc. No. 38] v. AND GRANTING MOTION FOR 14 SUMMARY JUDGMENT [Doc. No. A. RENTERIA, et al., 15 30] Defendant. 16
17 Plaintiff Leandro Leonel Gonzalez Castillo (“Plaintiff”), a state prisoner 18 proceeding pro se and in forma pauperis, filed his complaint on October 12, 2017, 19 pursuant to 42 U.S.C. §1983 claiming violation of his constitutional rights under the First 20 and Eighth Amendments. [Doc. No. 1.] On March 27, 2019, Defendants A. Renteria, R. 21 Segovia, and L. Romero (“Defendants”) filed a motion for summary judgment. [Doc. No. 22 30.] On April 24 and 25, 2019, Plaintiff filed opposition to the motion for summary 23 judgment. [Doc. Nos. 32, 33.] On May 20, 2019, Defendants filed a reply to the 24 opposition. [Doc. No. 35.] 25 On August 5, 2019, Magistrate Judge William V. Gallo issued a Report and 26 Recommendation (“Report”) to grant the motion for summary judgment. [Doc. No. 38 at 27 13.] On August 29, 2019, Plaintiff filed objections to the Report. [Doc. No. 39.] Having 28 1 reviewed the matter de novo and for the reasons set forth below, the Report is 2 ADOPTED and the motion for summary judgment is GRANTED in favor of 3 Defendants. 4 REVIEW OF REPORT AND RECOMMENDATION 5 The duties of the district court in connection with a report and recommendation of 6 a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 7 636(b). The district judge must “make a de novo determination of those portions of the 8 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in 9 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 10 636(b). The district court need not review de novo those portions of a report and 11 recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 12 1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) 13 (en banc). 14 DISCUSSION 15 A. Background. 16 The Report contains a complete summary of the undisputed facts as obtained from 17 the complaint and Plaintiff’s own deposition [Doc. No. 38 at 2-3] and, therefore, the 18 summary is adopted in full. 19 B. Eighth Amendment claim against Renteria. 20 Plaintiff alleges Renteria violated his Eighth Amendment right to be free from 21 cruel and unusual punishment because Renteria sexually assaulted him during two 22 clothed body searches on February 6, 2016 and June 25, 2016. [Doc. No. 1 at 9-10.] 23 1. February 6, 2016. 24 Based on Plaintiff’s own deposition testimony, the February 6, 2016 incident 25 amounted to Renteria momentarily squeezing Plaintiff’s buttocks during a fully clothed 26 pat-down in Donovan’s prison recreation yard. According to Plaintiff’s deposition, the 27 squeezing was only “seconds long,” it was not done in a “harsh way,” Renteria’s actions 28 1 were done “clowning around like that,” Renteria did not pat down Plaintiff’s groin areas, 2 and Renteria did not make any sexually suggestive comments during the incident. 3 As noted by the Magistrate Judge, such conduct is not objectively egregious. 4 Generally, inmate sexual harassment claims that allege brief inappropriate touching by a 5 correctional officer are not cognizable, particularly where the alleged touching occurred 6 pursuant to an authorized search. See e.g., Watison v. Carter, 668 F.3d 1108, 1112-13 7 (9th Cir. 2012) (inmate’s allegations an officer entered his cell and approached him while 8 he was on the toilet, then rubbed his thigh against the inmate’s thigh, “began smiling in a 9 sexual [manner], and left the cell laughing,” did not support a violation of the Eighth 10 Amendment); Berryhill v. Schiro, 137 F.3d 1073, 1075 (8th Cir. 1998) (finding two brief 11 (“mere seconds”) touches to the inmate’s buttocks during horseplay did not violate the 12 Eighth Amendment); Jackson v. Madery, 158 Fed.Appx. 656, 662 (6th Cir. 2005), 13 abrogated in part on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018) 14 (officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks in a degrading 15 manner was “isolated, brief, and not severe” and therefore, failed to meet Eighth 16 Amendment standards); Osterloth v. Hopwood, No. CV 06 152 M JCL, 2006 WL 17 3337505, *6, *7 (D. Mont. 2006) (dismissing Eighth Amendment claim challenging as 18 sexually abusive an officer’s search of plaintiff that allegedly included the officer 19 reaching between plaintiff’s legs, grabbing his scrotum and penis, and sliding his hand 20 between plaintiff’s buttocks, wherein plaintiff stated to the officer, “that was pretty much 21 sexual assault,” and officer responded, “yah pretty much.”). 22 In his objections, Plaintiff cites to Mathie v. Fries, 935 F.Supp. 1284, 1301 23 (E.D.N.Y. 1996) for the proposition that “unwanted and prohibited sexual abuses on the 24 powerless plaintiff is objectively unreasonable.” [Doc. No. 39 at 4.] However, Mathie 25 involved allegations that the officer “intentionally, deliberately and sadistically sexually 26 abused an inmate and committed sodomy on him while he was handcuffed.” 935 F.Supp. 27 at 1301. Nothing close to such conduct occurred here, as Plaintiff testified Renteria 28 1 briefly touched plaintiff’s buttock incident to a search and without sexual comment. 2 Thus, Renteria’s conduct does not rise to the level of an Eighth Amendment violation. 3 In addition, Renteria’s conduct fails to satisfy the subjective requirement that he 4 had a “sufficiently culpable state of mind,”1 as Plaintiff testified that Renteria was 5 “clowning around like that,” and made no sexual comments. See Berryhill, 137 F.3d at 6 1076. In his objections, Plaintiff argues that Renteria possessed the requisite state of 7 mind because “his actions were with the only intent to abuse, arouse or gratify sexual 8 desire.” [Doc. No. 39 at 5.] However, Plaintiff has provided no evidence of such state of 9 mind,2 and Plaintiff’s own testimony is that Renteria was “clowning around.” Therefore, 10 no Eighth Amendment violation is shown. 11 2. June 25, 2016. 12 More than four months later, Renteria again conducted a fully-clothed pat-down of 13 Plaintiff in the prison yard on June 25, 2016. This time, Renteria touched Plaintiff’s 14 nipples during the course of the pat-down. While standing behind Plaintiff, Renteria 15 searched the sides of Plaintiff’s torso, then Plaintiff’s stomach, and then his hands went 16 up to Plaintiff’s chest. Renteria’s hands were open, and his fingers were apart as he 17 rubbed and “caressed” the front of Plaintiff’s torso. When Renteria reached Plaintiff’s 18 nipples, Plaintiff alleges Renteria started “rubbing” Plaintiff’s nipples with an open hand 19 with his hand flat on Plaintiff’s chest as he swept Plaintiff’s torso. The touching of 20 Plaintiff’s nipples lasted no more than fifteen to twenty seconds. Thereafter, Renteria 21 completed the search by patting the bottom part of Plaintiff’s legs. 22 23
24 25 1 Hudson v. McMillian, 503 U.S. 1, 8 (1992). 2 Plaintiff “cannot defeat summary judgment with allegations in the complaint . . . .” Hernandez v. 26 Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Instead, in order to demonstrate that a genuine dispute of facts exist, plaintiff must “cit[e] to particular parts of materials in the record, 27 including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, 28 1 As noted by the Magistrate Judge, this conduct fails to satisfy the requirement that 2 the touching be objectively serious because this was a one-time isolated touching of non- 3 genitalia and no sexual comments were made. [See Report at 7 and cases cited therein.] 4 In addition, there is no evidence that Renteria’s subjective mental state was to sexually 5 assault Plaintiff. Therefore, no Eighth Amendment violation is shown. 6 C. Eighth Amendment Claim Against Romero. 7 Plaintiff alleges that Romero violated his Eighth Amendment rights because he 8 was present during the two Renteria searches at issue, observed the alleged assaults, but 9 did not intervene. [Doc. No. 1 at 14-15.] Given that there are no Eighth Amendment 10 violations by Renteria, Romero cannot be vicariously liable for his actions. 11 D. Qualified Immunity. 12 As the Magistrate Judge correctly noted, Renteria and Romero are entitled to 13 qualified immunity because there were no Eighth Amendment violations. Moreover, 14 even if one were to assume an Eighth Amendment violation, Renteria (and therefore 15 Romero) are nonetheless entitled to qualified immunity because no court has held that the 16 minimal touching Plaintiff experienced here was sufficiently objectively serious to rise to 17 the level of an Eighth Amendment claim. 18 E. First Amendment claim against Segovia. 19 Plaintiff alleges that Segovia retaliated against him by threatening to choke and kill 20 him because of the prison grievances he had filed against Renteria and Romero. In order 21 to prevail on a First Amendment retaliation claim in the prison context, Plaintiff must 22 prove (1) “that a state actor took some adverse action against an inmate (2) because of (3) 23 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of 24 his First Amendment rights, and (5) the action did not reasonably advance a legitimate 25 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 26 As noted by the Magistrate Judge, Plaintiff’s complaint and testimony show that he 27 cannot meet the fourth element, because Segovia immediately retreated from his physical 28 threat once Plaintiff saw his nametag, and Plaintiff knew that no more intimidation would 1 follow. Thus, Plaintiff cannot establish the “chilling effect” element of his First 2 || Amendment claim. 3 CONCLUSION 4 For the reasons set forth above, the Court HEREBY ORDERS: 5 1. The Report and Recommendation is ADOPTED IN FULL; 6 2. Defendants’ motion for summary judgment is GRANTED; 7 3. The Clerk of Court shall enter judgment for Defendants and CLOSE the case. 8 IT IS SO ORDERED. 9 ||Dated: September 10, 2019 € Z 10 Hon. Cathy Ann Bencivengo United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28