1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WATSON, No. 2:25-cv-2664 CSK P 12 Plaintiff, 13 v. ORDER 14 TURNER, 15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this Court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the Court will 26 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 27 and forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly 28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 Plaintiff is granted an opportunity to elect to proceed with his potentially colorable Eighth 5 Amendment claims against defendant Turner or may elect to amend his complaint as discussed 6 below. 7 II. SCREENING STANDARDS 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 22 1227. 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 24 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 25 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 26 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 27 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 28 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 1 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 2 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 3 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 4 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 5 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 6 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 7 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 8 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 9 III. PLAINTIFF’S COMPLAINT 10 The only named defendant is Correctional Officer Turner. (ECF No. 1 at 2.) Plaintiff 11 alleges violations of the Eighth Amendment. (Id. at 3.) Plaintiff claims that during July through 12 September 2025, defendant Turner sexually harassed, sexually assaulted and filed rules violation 13 reports against plaintiff. (Id.) Plaintiff claims that on July 31, 2025, defendant Turner told 14 plaintiff that he hates Black inmates even though defendant Turner is Black. (Id.) Shortly 15 thereafter, plaintiff went to get a drink of water and defendant Turner issued a rules violation 16 report against plaintiff for getting a drink of water. (Id.) Plaintiff claims that White and Hispanic 17 inmates had gotten water from the same water fountain but defendant Turner did not issue rules 18 violation reports against those inmates. (Id.) Plaintiff claims that plaintiff was found guilty of the 19 rules violation report issued by defendant Turner. (Id.) 20 During August and into September 2025, defendant Turner told plaintiff that he hates 21 Blacks, but wished he could “fuck” plaintiff. (Id.) When plaintiff rebuffed defendant Turner, 22 defendant Turner became more vulgar and persistent. (Id.) Defendant Turner told plaintiff that 23 he wanted to “fuck the shit out of me” and told plaintiff on several occasions that “he bets I have 24 a nice black asshole.” (Id. at 4.) On August 25, 2025, defendant Turner approached plaintiff and 25 said that he heard that plaintiff was telling other inmates that defendant Turner did not like Blacks 26 and that defendant Turner had been harassing plaintiff. (Id.) Defendant Turner handcuffed 27 plaintiff and took plaintiff to the E-Facility Clinic.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WATSON, No. 2:25-cv-2664 CSK P 12 Plaintiff, 13 v. ORDER 14 TURNER, 15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this Court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the Court will 26 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 27 and forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly 28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 Plaintiff is granted an opportunity to elect to proceed with his potentially colorable Eighth 5 Amendment claims against defendant Turner or may elect to amend his complaint as discussed 6 below. 7 II. SCREENING STANDARDS 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 22 1227. 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 24 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 25 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 26 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 27 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 28 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 1 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 2 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 3 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 4 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 5 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 6 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 7 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 8 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 9 III. PLAINTIFF’S COMPLAINT 10 The only named defendant is Correctional Officer Turner. (ECF No. 1 at 2.) Plaintiff 11 alleges violations of the Eighth Amendment. (Id. at 3.) Plaintiff claims that during July through 12 September 2025, defendant Turner sexually harassed, sexually assaulted and filed rules violation 13 reports against plaintiff. (Id.) Plaintiff claims that on July 31, 2025, defendant Turner told 14 plaintiff that he hates Black inmates even though defendant Turner is Black. (Id.) Shortly 15 thereafter, plaintiff went to get a drink of water and defendant Turner issued a rules violation 16 report against plaintiff for getting a drink of water. (Id.) Plaintiff claims that White and Hispanic 17 inmates had gotten water from the same water fountain but defendant Turner did not issue rules 18 violation reports against those inmates. (Id.) Plaintiff claims that plaintiff was found guilty of the 19 rules violation report issued by defendant Turner. (Id.) 20 During August and into September 2025, defendant Turner told plaintiff that he hates 21 Blacks, but wished he could “fuck” plaintiff. (Id.) When plaintiff rebuffed defendant Turner, 22 defendant Turner became more vulgar and persistent. (Id.) Defendant Turner told plaintiff that 23 he wanted to “fuck the shit out of me” and told plaintiff on several occasions that “he bets I have 24 a nice black asshole.” (Id. at 4.) On August 25, 2025, defendant Turner approached plaintiff and 25 said that he heard that plaintiff was telling other inmates that defendant Turner did not like Blacks 26 and that defendant Turner had been harassing plaintiff. (Id.) Defendant Turner handcuffed 27 plaintiff and took plaintiff to the E-Facility Clinic. (Id.) At the Clinic, defendant Turner ordered 28 plaintiff to strip, repeatedly made plaintiff spread his buttock and cough, during which time 1 defendant Turner said things like, “You have a nice asshole.” (Id.) At one point, defendant 2 Turner rubbed plaintiff’s buttocks. (Id.) Plaintiff alleges that defendant Turner continued to 3 sexually harass plaintiff and give plaintiff fabricated rules violation reports. (Id.) Plaintiff claims 4 that plaintiff’s mental health deteriorated as a result of the harassment by defendant Turner. (Id.) 5 IV. DISCUSSION 6 “It is undisputed that the treatment a prisoner receives in prison and the conditions under 7 which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. 8 McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994). 9 Prison officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and 10 personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part 11 on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see Johnson v. Lewis, 217 F.3d 726, 12 731 (9th Cir. 2000). 13 “However, ‘[t]he issuance of Rules Violation Reports, even if false, does not rise to the 14 level of cruel and unusual punishment.’” Hutchinson v. Infante, 2017 WL 1709474, at *2 (E.D. 15 Cal. May 3, 2017) (quoting Cauthen v. Rivera, 2013 WL 1820260, at *10 (E.D. Cal. Apr. 30, 16 2013), findings and recommendations adopted, 2013 WL 3744408 (E.D. Cal. Jul. 15, 2013)); see 17 also Jones v. Prater, 2012 WL 1979225, at *2 (E.D. Cal. June 1, 2012) (“[P]laintiff cannot state a 18 cognizable Eighth Amendment violation based on an allegation that defendants issued a false 19 rules violation against plaintiff.”). Thus, to the extent that plaintiff alleges that defendant Turner 20 violated the Eighth Amendment by issuing rules violation reports against plaintiff, false or 21 otherwise, plaintiff fails to state a potentially colorable Eighth Amendment claim. 22 Individuals in prison have a constitutional right under the Eighth Amendment to be free 23 from sexual harassment or abuse. See Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012). 24 To state a cognizable sexual assault claim, a plaintiff must plead facts indicating that “a prison 25 staff member, acting under color of law and without legitimate penological justification, touched 26 [plaintiff] in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own 27 sexual gratification, or for the purpose of humiliating, degrading or demeaning the prisoner.” 28 Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). Plaintiff appears to claim that 1 defendant Turner conducted the strip search for defendant Turner’s sexual gratification, including 2 the rubbing of plaintiff’s buttocks during the strip search. These allegations state a potentially 3 colorable Eighth Amendment claim. 4 Allegations of verbal harassment do not generally state a viable claim under section 1983. 5 See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), overruled in part on other 6 grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 1987). This is true even where the 7 verbal harassment is of a sexual nature. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 8 2004) (holding that “the Eighth Amendment’s protections do not necessarily extend to mere 9 verbal sexual harassment.”). However, a claim based on verbal harassment can succeed if the 10 offending comments were “gross even for a prison setting and were calculated to and did cause 11 [plaintiff] psychological damage.” Keenan v. Hall, 83 F.3d 1083, 1092 (1996), amended on 12 denial of rehearing, 135 F.3d 1318 (9th Cir. 1998). 13 At this early stage of the proceedings, this Court cannot say as a matter of law that 14 defendant Turner’s alleged vulgar comments were not “gross even for a prison” and not 15 “calculated to ... cause [plaintiff] psychological damage.” Keenan, 83 F.3d at 1092. 16 Accordingly, this Court finds that plaintiff states a potentially colorable Eighth Amendment 17 verbal sexual harassment claim against defendant Turner based on the vulgar comments alleged 18 in the complaint. 19 V. PLAINTIFF’S OPTIONS 20 Plaintiff may proceed forthwith to serve defendant Turner and pursue his potentially 21 colorable Eighth Amendment claims based on the alleged strip search and verbal sexual 22 harassment, or he may delay serving defendant Turner and attempt to amend his complaint as to 23 the Eighth Amendment claim based on the filing of rules violation reports, although it is unlikely 24 that plaintiff can cure the pleading defects as to his Eighth Amendment claim based on the filing 25 of rules violation reports. If plaintiff elects to proceed forthwith against defendant Turner as to 26 the potentially colorable Eighth Amendment claims based on the alleged strip search and verbal 27 sexual harassment, then within thirty days plaintiff must so elect on the attached form. In this 28 event the Court will construe plaintiff’s election as consent to dismissal of the Eighth Amendment 1 claim against defendant Turner based on the filing of rules violation reports without prejudice. 2 Under this option, plaintiff does not need to file an amended complaint. 3 Or, plaintiff may delay serving defendant Turner and file an amended complaint. If 4 plaintiff elects to file an amended complaint, plaintiff has thirty days to amend. Plaintiff is not 5 granted leave to add new claims or new defendants. 6 Any amended complaint must show the federal court has jurisdiction, the action is brought 7 in the right place, plaintiff has complied with the California Government Claims Act, and plaintiff 8 is entitled to relief if plaintiff’s allegations are true. It must contain a request for particular relief. 9 Plaintiff must identify as a defendant only persons who personally participated in a substantial 10 way in depriving plaintiff of a federal constitutional right. See Johnson v. Duffy, 588 F.2d 740, 11 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he 12 does an act, participates in another’s act, or omits to perform an act he is legally required to do 13 that causes the alleged deprivation). 14 A district court must construe a pro se pleading “liberally” to determine if it states a claim 15 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 16 opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While 17 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of 18 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 19 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff 20 must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 21 plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570). 22 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 24 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 25 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 26 27 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 28 can provide the framework of a complaint, they must be supported by factual allegations, and are 1 not entitled to the assumption of truth. Id. 2 An amended complaint must be complete in itself without reference to any prior pleading. 3 Local Rule 220; see Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 4 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non- 5 existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original 6 pleading is superseded. Plaintiff is not granted leave to add new claims or new defendants. 7 VI. CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 5) is granted. 10 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 11 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 12 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 13 Director of the California Department of Corrections and Rehabilitation filed concurrently 14 herewith. 15 3. Plaintiff’s Eighth Amendment claim against defendant Turner based on the alleged 16 filing of rules violation reports is dismissed with leave to amend. Within thirty days of service of 17 this order, plaintiff may file an amended complaint. Plaintiff is not obligated to amend his 18 complaint. 19 4. The allegations in the complaint are sufficient to state potentially cognizable Eighth 20 Amendment claims against defendant Turner based on the alleged strip search and verbal sexual 21 harassment. See 28 U.S.C. § 1915A. If plaintiff chooses to proceed solely as to such claims, 22 plaintiff shall so indicate on the attached form and return it to the Court within thirty days from 23 the date of this order. In this event, the Court will construe plaintiff’s election to proceed 24 forthwith as consent to an order dismissing the defective claim without prejudice. 25 5. Failure to comply with this order will result in a recommendation that this action be 26 dismissed. 27 /// 28 /// 1 | Dated: October 21, 2025 Chm Spo (EL CHI S00 KIM 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 Wats2664.14/2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WATSON, No. 2:25-cv-2664 CSK P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 TURNER, 15 Defendant. 16 Plaintiff elects to proceed as follows: 17 ______ Plaintiff opts to proceed with his Eighth Amendment claims against 18 defendant Turner based on the alleged strip search and verbal sexual 19 harassment. Under this option, plaintiff consents to dismissal of his Eighth Amendment claim against defendant Turner based on the filing of rules 20 violation reports, without prejudice.
21 OR
22 _____ Plaintiff opts to file an amended complaint and delay service of process.
23 24 DATED: _______________________________ Plaintiff 25 26 27 28