1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ERIK MONROE, No. 2:19-CV-2218-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 G. MORTELL, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss. ECF No. 17. 19 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on Plaintiff’s original complaint. See ECF No. 1. Plaintiff 22 initially brought suit against six Defendants. See id. at 1. In light of the Court’s prior screening 23 order this case proceeds against two Defendants. See ECF Nos. 9, 10, and 11. The two remaining 24 Defendants are: (1) G. Mortell, a High Desert State Prison correctional officer; and (2) N. 25 Dordon, a sergeant at High Desert State Prison and Mortell’s superior officer. See ECF No. 11. 26 According to the prior screening order, the Court recognizes four claims. See id. 27 / / / 28 / / / 1 Claim I – Eighth Amendment: Cruel and Unusual Punishment – Harassment 2 Plaintiff claims Defendant Mortell repeatedly used derogatory, discriminatory, and 3 racist language towards Plaintiff intending to threaten, provoke, and humiliate him. Mortell 4 allegedly attempted to provoke Plaintiff on April 1, 2019, when Mortell said, “Your kind is 5 suppose to be locked up and it’s my job to make sure,” and on April 4, 2019, with “I’m gonna 6 have you in the hole soon.” See ECF No. 1, pg. 6. On June 4, 2019, Mortell said “I told you I was 7 gonna get you! I’m gonna hang you live I s[aid]! You don’t have a job, your through!” Id. at 7. 8 On June 7, 2019, Mortell approached Plaintiff in front of the canteen and said “Your mine watch! 9 Oh you can’t talk? Say something!” Id. Plaintiff also alleges one incident of sexual harassment 10 which caused Plaintiff mental anguish and anxiety. Id. Mortell allegedly opened Plaintiff’s cell 11 door to expose Plaintiff as he was using the toilet in view of a female correctional officer and 12 Mortell commented, “Just trying to see if what they say about Blacks is true!” while “staring at 13 Plaintiff’s crotch.” Id. at 5. As a result of the sexual harassment, Plaintiff claims he sought mental 14 health services and the continuing harassment caused Plaintiff’s medication to increase. Id. at 5-6. 15 Claim II – Fourteenth Amendment - Equal Protection 16 Derived from the prior facts, Plaintiff claims Defendant Mortell harassed Plaintiff 17 with discriminatory and racist remarks. Id. Plaintiff claims that as part of Mortell’s targeted 18 discrimination, Mortell had Plaintiff rehoused from Building 2 to Building 5 for no penological 19 purpose other than the order and will of Mortell. Id. at 8. 20 Claim III – Liability of Defendant Dordon – Supervisory Liability 21 Plaintiff claims that he reported Mortell’s actions to Defendant Dordon, the 22 sergeant and immediate supervisor of Mortell. Id. Dordon did not move Mortell away from 23 Plaintiff or stop Mortell’s harassment against Plaintiff. Id. Dordon also authorized Mortell’s 24 request to rehouse Plaintiff for “no penological reason but the will and order of C/O Mortell.” Id. 25 / / / 26 / / / 27 / / / 28 / / / 1 Claim IV – First Amendment Right to Free Speech – Retaliation 2 According to the complaint, Plaintiff was charged with two rules violations as 3 retaliation for reporting Mortell’s harassment. Id. at 7. As punishment, Plaintiff was moved to 4 Building 5, where Mortell barred Plaintiff from going to his job and took Plaintiff’s private 5 property. Plaintiff claims that on June 11, 2019, Mortell prohibited Plaintiff from attending 6 Plaintiff’s job assignment for 60 days, resulting in Plaintiff losing his job assignment and 7 accompanying privileges. On August 27, 2019, Mortell removed the T.V. antenna from Plaintiff’s 8 cell door “for no penological reason but harassment and retaliation.” Id. 9 10 II. STANDARDS FOR MOTION TO DISMISS 11 In considering a motion to dismiss, the Court must accept all allegations of 12 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 13 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 14 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 15 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 16 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 17 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 18 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 19 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 20 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 21 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 22 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 23 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 24 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 25 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 26 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 27 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 28 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 1 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 2 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 3 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 4 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 5 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 6 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 7 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 8 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 9 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 10 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 11 documents whose contents are alleged in or attached to the complaint and whose authenticity no 12 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 13 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 14 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 15 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 16 1994).
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ERIK MONROE, No. 2:19-CV-2218-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 G. MORTELL, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss. ECF No. 17. 19 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on Plaintiff’s original complaint. See ECF No. 1. Plaintiff 22 initially brought suit against six Defendants. See id. at 1. In light of the Court’s prior screening 23 order this case proceeds against two Defendants. See ECF Nos. 9, 10, and 11. The two remaining 24 Defendants are: (1) G. Mortell, a High Desert State Prison correctional officer; and (2) N. 25 Dordon, a sergeant at High Desert State Prison and Mortell’s superior officer. See ECF No. 11. 26 According to the prior screening order, the Court recognizes four claims. See id. 27 / / / 28 / / / 1 Claim I – Eighth Amendment: Cruel and Unusual Punishment – Harassment 2 Plaintiff claims Defendant Mortell repeatedly used derogatory, discriminatory, and 3 racist language towards Plaintiff intending to threaten, provoke, and humiliate him. Mortell 4 allegedly attempted to provoke Plaintiff on April 1, 2019, when Mortell said, “Your kind is 5 suppose to be locked up and it’s my job to make sure,” and on April 4, 2019, with “I’m gonna 6 have you in the hole soon.” See ECF No. 1, pg. 6. On June 4, 2019, Mortell said “I told you I was 7 gonna get you! I’m gonna hang you live I s[aid]! You don’t have a job, your through!” Id. at 7. 8 On June 7, 2019, Mortell approached Plaintiff in front of the canteen and said “Your mine watch! 9 Oh you can’t talk? Say something!” Id. Plaintiff also alleges one incident of sexual harassment 10 which caused Plaintiff mental anguish and anxiety. Id. Mortell allegedly opened Plaintiff’s cell 11 door to expose Plaintiff as he was using the toilet in view of a female correctional officer and 12 Mortell commented, “Just trying to see if what they say about Blacks is true!” while “staring at 13 Plaintiff’s crotch.” Id. at 5. As a result of the sexual harassment, Plaintiff claims he sought mental 14 health services and the continuing harassment caused Plaintiff’s medication to increase. Id. at 5-6. 15 Claim II – Fourteenth Amendment - Equal Protection 16 Derived from the prior facts, Plaintiff claims Defendant Mortell harassed Plaintiff 17 with discriminatory and racist remarks. Id. Plaintiff claims that as part of Mortell’s targeted 18 discrimination, Mortell had Plaintiff rehoused from Building 2 to Building 5 for no penological 19 purpose other than the order and will of Mortell. Id. at 8. 20 Claim III – Liability of Defendant Dordon – Supervisory Liability 21 Plaintiff claims that he reported Mortell’s actions to Defendant Dordon, the 22 sergeant and immediate supervisor of Mortell. Id. Dordon did not move Mortell away from 23 Plaintiff or stop Mortell’s harassment against Plaintiff. Id. Dordon also authorized Mortell’s 24 request to rehouse Plaintiff for “no penological reason but the will and order of C/O Mortell.” Id. 25 / / / 26 / / / 27 / / / 28 / / / 1 Claim IV – First Amendment Right to Free Speech – Retaliation 2 According to the complaint, Plaintiff was charged with two rules violations as 3 retaliation for reporting Mortell’s harassment. Id. at 7. As punishment, Plaintiff was moved to 4 Building 5, where Mortell barred Plaintiff from going to his job and took Plaintiff’s private 5 property. Plaintiff claims that on June 11, 2019, Mortell prohibited Plaintiff from attending 6 Plaintiff’s job assignment for 60 days, resulting in Plaintiff losing his job assignment and 7 accompanying privileges. On August 27, 2019, Mortell removed the T.V. antenna from Plaintiff’s 8 cell door “for no penological reason but harassment and retaliation.” Id. 9 10 II. STANDARDS FOR MOTION TO DISMISS 11 In considering a motion to dismiss, the Court must accept all allegations of 12 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 13 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 14 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 15 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 16 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 17 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 18 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 19 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 20 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 21 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 22 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 23 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 24 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 25 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 26 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 27 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 28 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 1 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 2 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 3 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 4 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 5 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 6 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 7 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 8 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 9 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 10 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 11 documents whose contents are alleged in or attached to the complaint and whose authenticity no 12 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 13 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 14 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 15 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 16 1994). 17 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 18 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 19 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 20 21 III. DISCUSSION 22 Defendants argue in general that Plaintiff has failed to plead sufficient facts to 23 state claims for sexual harassment, verbal harassment, equal protection, and supervisory liability. 24 Defendants seek dismissal for all claims except Plaintiff’s claim for retaliation. See ECF No. 17- 25 1, page 10. 26 / / / 27 / / / 28 / / / 1 Defendants raise the following specific arguments:
2 1. Plaintiff fails to state a cognizable claim for verbal harassment because verbal harassment, even of a sexual nature, does not 3 violate the Eighth Amendment or constitute cruel and unusual punishment without physical touching. Id. at 5. 4 2. Plaintiff fails to state a cognizable claim for verbal harassment 5 because none of Mortell’s alleged threats “can be considered unusually harsh or gross for a prison setting.” Id. at 7-8. 6 3. Plaintiff fails to demonstrate that Mortell racially discriminated 7 against Plaintiff because Mortell’s language is insufficient to establish that Mortell’s actions had a racially discriminatory intent. 8 Id. at 8-9.
9 4. Plaintiff fails to state a supervisory liability claim because Mortell’s Eighth Amendment claim fails, so any claim against 10 Dordon that is based on Mortell’s conduct also fails. Id. at 9. 11 Defendants concede Plaintiff’s retaliation claim against Defendant Mortell is 12 sufficient to proceed past the pleading stage. See id. at 10. 13 A. Sexual and Verbal Harassment 14 In Claim I, Plaintiff alleges that Defendant Mortell continually sexually and 15 verbally harassed Plaintiff between April and July of 2019. See ECF No. 1, pgs. 5-6. Defendants 16 move to dismiss Plaintiff’s Eighth Amendment claim for sexual harassment, arguing that verbal 17 sexual harassment is insufficient without touching. See ECF No. 17-1, pages 5-6. The Court 18 agrees. Defendants also argue that Plaintiff’s claim for verbal assault is insufficient because 19 Mortell’s language was not unusually gross for a prison setting and caused no psychological 20 damage. See id. at 7. The Court does not agree. 21 1. Whether Mortell Sexually Harassed Plaintiff 22 Plaintiff alleges Defendant Mortell opened Plainitiff’s cell door while Plaintiff had 23 a bowel movement in view of a female counselor. See ECF No. 1, page 5. Mortell then allegedly 24 stared at Plaintiff’s crotch and said, “just trying to see if what they say about Blacks is true!” Id. 25 Plaintiff asserts that he sought mental health treatment and elevated his medication twice in 26 response to Mortell’s harassment. See id. However, Defendants argue that strictly verbal sexual 27 harassment is not cognizable under the Eighth Amendment. See ECF No. 17-1, pg. 5-6. The 28 Court agrees. 1 While "the Ninth Circuit has recognized that sexual harassment may constitute a 2 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated 3 between sexual harassment that involves verbal abuse and that which involves allegations of 4 physical assault, finding the later to be in violation of the constitution." Minifield v. Butikofer, 5 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198)); compare Hill v. 6 Rowley, 658 F. App'x 840, 841 (9th Cir. 2016) (finding allegations of deliberate, unwanted 7 touching sufficient to state a claim for sexual harassment that violates the Eighth Amendment), 8 and Wood v. Beauclair, 692 F.3d 1041, 1046-51 (9th Cir. 2012) (reversing summary [*9] 9 judgment on behalf of defendant because plaintiff's allegations of sexual harassment that included 10 physical contact of a sexual nature was sufficient to state Eighth Amendment claim), with Austin, 11 367 F.3d at 1171-72 (officer's conduct was not sufficiently serious to violate the Eighth 12 Amendment where officer exposed himself to prisoner but never physically touched him), 13 Blacher v. Johnson, 517 F. App'x 564 (9th Cir. 2013) (sexual harassment claim based on verbal 14 harassment insufficient to state a claim under § 1983) (citation omitted), and Somers v. Thurman, 15 109 F.3d 614, 624 (9th Cir. 1997) ("To hold that gawking, pointing, and joking violates the 16 prohibition against cruel and unusual punishment would trivialize the objective component of the 17 Eighth Amendment test and render it absurd."). 18 The Ninth Circuit also holds incidents involving fondling, touching, or exposure 19 do not give rise to a claim under the Eighth Amendment. Defendants cite Watison, which 20 concluded there was not an Eighth Amendment violation when an officer approached the plaintiff 21 on the toilet and rubbed his thigh on the plaintiff’s leg while smiling in a sexual manner. Watison 22 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Defendants assert the same holds true when the 23 harassment “is tinged with race.” ECF No. 17-1, page 6. See Freeman v. Arpaio, 125 F.3d 732 24 (9th Cir. 1997) (abusive language directed at prisoner’s religious and ethnic background not 25 actionable), overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th 26 Cir. 2008); Hoptowit v. Ray, 682 F.2d 1237, 1252 (9th Cir. 1982) (court cannot order guards to 27 refrain from using racial slurs to harass prisoners); Burton v. Livingston, 791 F.2d 97, 99, 101 n. 28 1 (8th Cir. 1986) (use of racial slurs in prison does not offend Constitution); accord Tombs v. 1 Rackly, 2:13-CV-1341 JAM KJN, 2013 WL 4678919, at *3 (E.D. Cal. Aug. 30, 2013); Williams 2 v. Lindsey, C 00-3949 CRB (PR), 2000 WL 1677955, at *1 (N.D. Cal. Nov. 2, 2000). Lastly, 3 Defendants cite Austin, where the Court concluded that defendant, an officer in a control booth, 4 did not violate the Eighth Amendment when he exposed his penis to the plaintiff, who is black, 5 and said, “come suck this white dick, boy.” Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 6 2004). On the basis of this authority, Defendants’ argument prevails. 7 Plaintiff fails to make an Eighth Amendment claim for sexual harassment without 8 allegations that Mortell touched him. Without facts that show Mortell did more than open the cell 9 door and make a racially charged comment, Mortell’s conduct does not offend the Constitution. 10 The sexual harassment claim under Claim I should be dismissed with prejudice. 11 2. Whether Mortell Verbally Harassed Plaintiff 12 According to the complaint, Mortell verbally harassed Plaintiff on multiple 13 occasions, subjected Plaintiff to searches, and had Plaintiff’s personal property destroyed. See 14 ECF No. 17-1, page 2. On April 26, 2019, Mortell allegedly searched Plaintiff and told Plaintiff 15 “I’m here to disrupt your program.” Id. On May 24, Mortell searched Plaintiff’s cell and ordered 16 another officer to destroy Plaintiff’s new mattress that Plaintiff obtained that morning. See id. On 17 multiple occasions, Mortell regularly harassed Plaintiff with comments: “I’m gonna have you in 18 the hole soon;” “I’m gonna hang your ass watch;” “You can’t win, this is my yard!” and other 19 like comments previously discussed. Plaintiff states that he sought mental health treatment and an 20 increase in medication as a result of Mortell’s comments and conduct. See id. at 6. Defendants 21 argue that threats do not equate to the act itself and none of Mortell’s comments “rise to the level 22 of cruel and unusual punishment.” ECF No. 17, pages 7-8. The Court disagrees. 23 The treatment a prisoner receives in prison and the conditions under which the 24 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 25 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 26 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 27 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 28 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 1 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 2 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 3 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 4 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 5 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 6 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 7 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 8 official must have a “sufficiently culpable mind.” See id. 9 Allegations of verbal harassment do not state a claim under the Eighth 10 Amendment unless it is alleged that the harassment was “calculated to . . . cause [the prisoner] 11 psychological damage.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also 12 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). 13 In addition, the prisoner must show that the verbal comments were unusually gross, even for a 14 prison setting, and that he was in fact psychologically damaged as a result of the comments. 15 See Keenan, 83 F.3d at 1092. 16 To state a claim of verbal harassment, Plaintiff must show that Mortell’s language 17 was unusually gross for a prison setting and that Mortell intended to cause psychological damage 18 to Plaintiff. Defendants argue that Mortell’s alleged comments were not unusually gross and cite 19 to Somers, wherein the inmate plaintiff was subjected to cavity searches by female officers while 20 the officers joked and pointed at the plaintiff. ECF No. 17-1, page 8. The case in question 21 acknowledges the “exchange of verbal insults between inmates and guards” on a daily basis and 22 that cavity searches conducted with inappropriate comments do not violate the Eighth 23 Amendment. See id. While Defendants address Mortell’s comments toward Plaintiff, Defendants 24 fail to address Mortell’s conduct that Plaintiff alleges were part of Mortell’s harassment 25 campaign. Construed liberally, the facts of the complaint are taken as a whole. Mortell allegedly 26 destroyed Plaintiff’s new mattress and removed Plaintiff’s tv antenna from Plaintiff’s cell door 27 “for no penological reason but harassment and retaliation.” ECF No. 1, page 7. As a result, 28 Plaintiff claims he sought mental health treatment and elevated his medication to cope with 1 Mortell’s harassment. Id. The Court finds that Plaintiff has pleaded enough for an Eighth 2 Amendment violation for verbal harassment alleged in Claim I. 3 B. Equal Protection – Racial Discrimination 4 Plaintiff alleges Mortell racially discriminated against him through racial 5 comments and by opening the cell door to expose Plaintiff. See ECF No. 1, page 6. Defendants 6 argue that “rather than racial discrimination, it appears that the primary impetus behind Mortell’s 7 actions was the fact that Plaintiff had filed a grievance against him on or about April, 1, 2019.” 8 ECF No. 17-1, page 9. Defendants argue that Mortell’s allegedly racist comment “Your kind is 9 suppose to be locked up” does not establish a racial bias. Id. at 8. The Court agrees. 10 In order to state a § 1983 claim based on a violation of the Equal Protection Clause 11 of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 12 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that 13 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. 14 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 15 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 16 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 17 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 18 “Intentional discrimination means that a defendant acted at least in part because of a plaintiff's 19 protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (internal quotation 20 marks and citation omitted) (emphasis in original); see also Byrd v. Maricopa Cnty. Sheriff's 21 Dep’t, 565 F.3d 1205, 1212 (9th Cir. 2009) (to state an equal protection claim, plaintiff “must 22 plead intentional unlawful discrimination or allege facts that are at least susceptible of an 23 inference of discriminatory intent”). 24 On April 1, 2019, Defendant Mortell allegedly tried to provoke Plaintiff with the 25 following comment: “Your kind is suppose to be locked up and it’s my job to make sure.” ECF 26 No. 1, pg. 6. Defendants argue that, on its own, this comment does not establish discriminatory 27 intent and is merely inappropriate. See ECF No. 17-1, page 8. Defendants use Austin to assert 28 that verbal harassment, even when tinged with race, does not violate the Eighth Amendment. 1 Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004). Burton also asserts that racially 2 offensive language by itself may not state an Equal Protection claim unless it is “coupled with 3 conduct infringing the prisoner’s right to security of his person,” which then raises an inference 4 that the officer’s conduct was motivated by racial bias. Burton v. Livingston, 791 F.2d 97, 101 5 (8th Cir. 1986). In claiming that an officer’s conduct was motivated by racial bias, the plaintiff 6 must prove that the defendant treated the plaintiff differently than any similarly situated 7 individual. Pimentel v. Dreyfus, 670 F.3d 1096, 1106 (9th Cir. 2012) ("To state an equal 8 protection claim of any stripe, whatever the level of scrutiny it invites, a plaintiff must show that 9 the defendant treated the plaintiff differently from similarly situated individuals."); Shallowhorn 10 v. Molina, 572 F. App'x 545, 547 (9th Cir. 2014) (equal protection claim properly dismissed 11 when plaintiff "failed to adequately allege that he was intentionally treated differently from 12 similarly situated inmates"). 13 In this case, Plaintiff fails to show that Mortell’s treatment was based on Plaintiff’s 14 status as a member of a protected class. Nor does Plaintiff demonstrate that Mortell singled 15 Plaintiff out and treated him differently from similarly situated inmates. To the contrary, Plaintiff 16 specifically alleges under Claim IV that Mortell’s actions were based on retaliation for Plaintiff’s 17 grievances. Considering the nature of the claim, and to the extent Plaintiff believes that Mortel’s 18 conduct was driven by both a desire to retaliate as well as some racial animus, it is possible for 19 Plaintiff to cure these defects and Plaintiff should be provided an opportunity to amend his equal 20 protection claim alleged in Claim II. 21 C. Defendant Dordon – Supervisory Liability 22 According to Plaintiff, Defendant Dordon acted as Mortell’s Sergeant throughout 23 the events of the complaint. Plaintiff alleges that Dordon authorized Mortell’s request to rehouse 24 with the knowledge of Mortell’s alleged harassment. See ECF No. 1, pg. 8. Dordon allegedly 25 allowed this request for no penological reason other than Mortell’s request to have Plaintiff 26 moved. See id. Defendants argue that Plaintiff’s claim against Dordon necessarily fails because 27 Plaintiff does not state a cognizable Eighth Amendment claim against Mortell based on sexual 28 harassment. 1 Supervisory personnel are generally not liable under § 1983 for the actions of their 2 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 3 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 4 violations of subordinates if the supervisor participated in or directed the violations. See id. The 5 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 6 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 7 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 8 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 9 personnel who implement a policy so deficient that the policy itself is a repudiation of 10 constitutional rights and the moving force behind a constitutional violation may, however, be 11 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 12 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 13 When a defendant holds a supervisory position, the causal link between such 14 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 15 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 16 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 17 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 18 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 19 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 20 To be held liable as a supervisor, Dordon must have deprived Plaintiff of his rights 21 through Dordon’s own conduct. Defendants argue that Plaintiff has not sufficiently alleged a 22 causal link between Dordon and Plaintiff’s claim that Dordon was deliberately indifferent to the 23 sexual harassment. ECF No. 17, page 9. Plaintiff claims Dordon had knowledge of Mortell’s 24 conduct when Dordon authorized Plaintiff’s rehousing and did not reassign Mortell to another 25 post. Dordon’s authorization to rehouse Plaintiff and lack of action regarding Mortell’s conduct, 26 regardless of Dordon’s motivations or knowledge, are not indicative of participation or an order 27 from Dordon to Mortell to harass Plaintiff. Plaintiff fails to show Dordon’s involvement with 28 Mortell’s conduct and thus Plaintiff fails to state an Eighth Amendment claim against Dordon. To 1 | the extent, however, Plaintiff can allege facts to show Dordon acted with the intent to harass 2 | Plaintiff or that Dordon ordered Mortell to harass Plaintiff, Plaintiff may be able to cure the 3 | defects in Claim II. Plaintiff should, therefore, be granted leave to amend Claim III. 4 5 IV. CONCLUSION 6 Based on the foregoing, the Court recommends that: 7 1. Defendants’ motion to dismiss, ECF No. 17, be granted in part and denied 8 | in part; 9 2. Defendants’ motion be granted as to Plaintiff's claims of sexual harassment 10 | and racial discrimination against Defendant Mortell; 11 3. Defendants’ motion be granted as to Plaintiff's claim against Defendant 12 | Dordon; 13 4. Defendants’ motion be denied as to Plaintiff's verbal harassment claim 14 | against Defendant Mortell; and 15 5. Plaintiffs complaint be dismissed with leave to amend. 16 These findings and recommendations are submitted to the United States District 17 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 18 | after being served with these findings and recommendations, any party may file written 19 | objections with the court. Responses to objections shall be filed within 14 days after service of 20 | objections. Failure to file objections within the specified time may waive the right to appeal. See 21 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 22 23 || Dated: June 11, 2021 Sx