(PC) Rials v. Lozano

• Court: District Court, E.D. California
• Decided: July 21, 2023
• Docket: 2:19-cv-02152
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ALEXANDER RIALS, No. 2:19-cv-02152-DJC-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 J. LOZANO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s first amended 19 complaint alleging an Eighth Amendment sexual abuse claim against defendant Bowen.1 20 Currently pending before the court is defendant’s motion for summary judgment which has been 21 fully briefed by the parties. See ECF Nos. 101, 104-105. Also pending before the court is 22 plaintiff’s motion in limine as well as defendant’s motion to strike the motion in limine as 23 prematurely filed. ECF Nos. 99-100. For the reasons explained below, the undersigned 24 recommends granting defendant’s summary judgment motion and denying plaintiff’s motion in 25

1 Plaintiff’s Eighth Amendment claim pertaining to ongoing sexual misconduct by defendant 26 Bowen that occurred after November 29, 2018 was dismissed without prejudice by order dated 27 July 19, 2022 for failing to exhaust administrative remedies. See ECF No. 85. Therefore, the Eighth Amendment claim before the court is limited to the events that occurred on November 29, 28 2018. 1 limine. 2 I. Allegations in the First Amended Complaint2 3 At all times relevant to the allegations in the amended complaint, plaintiff was an inmate 4 at the California Medical Facility. Plaintiff alleges that at about 6:10 a.m. on November 29, 2018, 5 defendant Bowen, who was a correctional officer, opened his cell door and asked him to undress 6 “without giving any reasonable justification related to legitimate penological interest.” ECF No. 7 14 at 3. Plaintiff further alleges that defendant Bowen made the request “for his own sexual 8 gratification, or for the purpose of humiliating, degrading and demeaning the Plaintiff.” ECF No. 9 14 at 3. 10 II. Defendant’s Motion for Summary Judgment 11 Defendant Bowen moves for summary judgment because the undisputed material facts 12 demonstrate that there was no physical touching that occurred on November 29, 2018, and 13 plaintiff’s claim for alleged verbal harassment is not sufficient to establish an Eighth Amendment 14 violation as a matter of law. ECF No. 101 at 6 (citing Watison v. Carter, 668 F.3d 1108, 1112 15 (9th Cir. 2012)). Moreover, plaintiff’s asserted emotional injury does not rise to the level of 16 “severe psychological pain” to state an Eighth Amendment claim. ECF No. 101 at 6-7. 17 In his opposition to the summary judgment motion, plaintiff contends that defendant 18 Bowen’s conduct on November 29, 2018, amounted to voyeurism. ECF No. 104 at 4. He relies 19 on the Prison Rape Elimination Act that includes voyeurism within the definition of sexual 20 abuse.3 Id. Additionally, plaintiff submits that no injury is required to establish a sexual abuse 21 claim. Id. at 6. Plaintiff submits evidence that defendant Bowen was not conducting a cell search 22 when he asked plaintiff to strip out. ECF No. 104 at 32 (Disciplinary Hearing Results finding 23 2 The allegations in the amended complaint may be construed as an affidavit in opposition to 24 summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure when they are made under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). 25

3 Voyeurism is defined therein as “an invasion of privacy of an inmate… by staff for reasons 26 unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to 27 perform bodily functions; requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an inmate’s naked body or of an inmate performing bodily 28 functions.” 28 C.F.R. § 115.6(8)(2). 1 plaintiff not guilty of possessing a cell phone on November 29, 2018). According to plaintiff, this 2 demonstrates the absence of any penological justification for defendant’s conduct. Id. at 4-5. 3 In reply, defendant emphasizes that “[p]laintiff’s statement of a single ‘disputed fact’ 4 relates to a matter not relevant to the determination of the motion and would not preclude 5 summary judgment for defendant. Whether there was or was not a search of plaintiff’s cell on 6 November 29, 2018, is nothing that would preclude summary judgment on the allegation that 7 defendant violated plaintiff’s constitutional rights.” ECF No. 105 at 2. Defendant further notes 8 that there is no private right of action under § 1983 for engaging in voyeurism as defined by the 9 Prison Rape Elimination Act (“PREA”) cited by plaintiff. ECF No. 105 at 3. 10 Plaintiff filed an objection to defendant’s evidence in the reply brief in accordance with 11 Local Rule 230(m)(1). ECF No. 106. Specifically, plaintiff takes issue with defendant’s denial 12 that any penological justification for his request to strip out was necessary. Id.4 Plaintiff argues 13 that this statement is in dispute. Id. 14 III. Legal Standards 15 A. Summary Judgment Standards 16 Summary judgment is appropriate when it is demonstrated that there “is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 18 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 19 “citing to particular parts of materials in the record, including depositions, documents, 20 electronically stored information, affidavits or declarations, stipulations (including those made for 21 purposes of the motion only), admissions, interrogatory answers, or other materials….” Fed. R. 22 Civ. P. 56(c)(1)(A). 23 Summary judgment should be entered, after adequate time for discovery and upon motion, 24 against a party who fails to make a showing sufficient to establish the existence of an element 25 essential to that party's case, and on which that party will bear the burden of proof at trial. See 26

27 4 He cites defendant’s answer filed on October 4, 2021, in which defendant “admits the allegations but denies the implication that any explanation was necessary.” ECF No. 46 at 2. 28 1 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 2 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” 3 Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party 4 to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 5 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 6 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 7 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 8 and/or admissible discovery material, in support of its contention that the dispute exists or show 9 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 10 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 11 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 12 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 13 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 14 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 15 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the 16 endeavor to establish the existence of a factual dispute, the opposing party need not establish a 17 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 18 shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” 19 T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the 20 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 21 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 22 amendments). 23 In resolving the summary judgment motion, the evidence of the opposing party is to be 24 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 25 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 26 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's 27 obligation to produce a factual predicate from which the inference may be drawn. See Richards 28 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 1 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 2 simply show that there is some metaphysical doubt as to the material facts.... Where the record 3 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 4 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 5 B. Standard Governing Sexual Abuse Claim 6 The Eighth Amendment prohibits “cruel and unusual punishment.” U.S. Const., amend. 7 VIII. At its core, the Eighth Amendment protects against intrusions that offend “the basic 8 concept of human dignity.” Gregg v. Georgia, 428 U.S. 153, 182-83 (1976). To establish an 9 Eighth Amendment violation, plaintiff must prove that a prison official acted “with a sufficiently 10 culpable state of mind” and the alleged wrongful conduct was objectively “harmful enough” to 11 establish a constitutional violation. Hudson v. McMillian, 503 U.S. 1, 8 (1992). More 12 specifically, the Eighth Amendment prohibits the sexual harassment or abuse of an inmate by a 13 corrections officer. Wood, v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012) (citations omitted). 14 “[A] prisoner presents a viable Eighth Amendment claim where he or she proves that a prison 15 staff member, acting under color of law and without legitimate penological justification, touched 16 the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member's 17 own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the 18 prisoner.” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). When the prisoner can 19 establish that a sexual assault was committed by a prison guard, courts “presume the guard acted 20 maliciously and sadistically for the very purpose of causing harm, and the subjective component 21 of the Eighth Amendment claim is satisfied.” Bearchild, 947 F.3d at 1144. The objective 22 component of the Eighth Amendment is met when “the guard's conduct exceeded the scope of 23 what was required to satisfy whatever institutional concern justified the initiation of the [search] 24 procedure.” Bearchild, 947 F.3d at 1145 (recognizing that an Eighth Amendment sexual assault 25 claim includes both a subjective and objective component). 26 IV. Undisputed Material Facts 27 On November 19, 2018, plaintiff refused to comply with defendant Bowen’s request to 28 “strip out.” Defendant’s Statement of Undisputed Facts (“DSUF”) No. 5 at ECF No. 101-4. 1 After making this request, defendant Bowen had no physical contact with plaintiff. DSUF No. 9 2 at ECF No. 101-4. After plaintiff refused to “strip out,” defendant Bowen closed plaintiff’s cell 3 door and left. DSUF No. 6 at ECF No. 101-4. Defendant Bowen did not make any comments of 4 a sexual nature to plaintiff before leaving and did not say anything else to plaintiff. DSUF Nos. 5 7-8 at ECF No. 101-4. 6 V. Analysis 7 The undersigned finds that defendant has met his initial burden of informing the court of 8 the basis for the motion and identifying those portions of the record which he believes 9 demonstrate the absence of a genuine issue of material fact. The burden therefore shifts to 10 plaintiff to establish the existence of a genuine issue of material fact with respect to his Eighth 11 Amendment sexual abuse claim. See Matsushita Elec. Indus., 475 U.S. at 586 (1986). The court 12 has reviewed plaintiff's verified amended complaint and his opposition to the pending motion. 13 Drawing all reasonable inferences from the evidence submitted in plaintiff's favor, the court 14 concludes that plaintiff has not submitted sufficient evidence at the summary judgment stage to 15 create a genuine issue of material fact with respect to his claim that the defendant sexually abused 16 or harassed him in violation of the Eighth Amendment. 17 The undisputed material facts demonstrate that defendant Bowen did not touch plaintiff on 18 November 29, 2018, and he made no comments to him that were sexual in nature. Absent any 19 such evidence, a rational trier of fact could not find that defendant Bowen objectively engaged in 20 conduct for his own sexual gratification, or for the purpose of humiliating, degrading, or 21 demeaning the prisoner. Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020); see also 22 Wattison v. Carter, 668 F.3d 1108 (9th Cir. 2012). Merely looking at plaintiff while he was fully 23 clothed without more is not sufficient to establish sexual harassment under the Eighth 24 Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000) (distinguishing 25 between claims of sexual harassment that involve physical contact and state a claim and those that 26 do not involve physical contact and therefore do not state a claim); Austin v. Terhune, 367 F.3d 27 1167, 1171-72 (9th Cir. 2004) (holding that officer exposing himself to inmate from a distance, 28 without physical contact, was not “sufficiently serious” to constitute an Eighth Amendment 1 violation); Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (explaining that “[t]o hold that 2 gawking, pointing, and joking violates the prohibition against cruel and unusual punishment 3 would trivialize the objective component of the Eighth Amendment test and render it absurd.”). 4 Since the Prison Rape Elimination Act (“PREA”) does not create a private right of action, its 5 definition of voyeurism does not preclude summary judgment as plaintiff argues. See Porter v. 6 Jennings, No. 1:10-cv-1811-AWI-DLB PC, 2012 WL 1434986, at *1 (E.D. Cal. Apr. 25, 2012) 7 (collecting cases). For all these reasons, the undersigned recommends granting defendant’s 8 motion for summary judgment. 9 VI. Plaintiff’s Motion in Limine 10 Also pending before the court is plaintiff’s motion in limine which requests the court to 11 take judicial notice of certain legislative facts “for purposes of summary judgment” and to make 12 specific evidentiary rulings at trial. ECF No. 99. 13 Defendant filed a motion to strike the motion in limine on the basis that it is premature 14 because there is no scheduled trial date. ECF No. 100. Defendant also asserts that the motion in 15 limine was filed in violation of the court’s Amended Discovery and Scheduling Order as well as 16 the Rules of Civil Procedure. ECF No. 100. 17 Plaintiff opposed the motion to strike by arguing that the motion in limine was filed in an 18 effort to “bar[] specified evidence, argument, and limiting the subjects about which testimony 19 may be offered as well as to resolve disputes about whether certain factual and legal matters are 20 subject to judicial notice….” ECF No. 102 at 2. 21 In reply to plaintiff’s opposition, defendant points out that Local Rule 281(b)(5) requires 22 motions in limine to be included in the parties pretrial statements after a trial date has been set. 23 ECF No. 103. As no trial date has been set in this matter, plaintiff’s motion in limine is 24 premature. Id. 25 Based on the recommendation to grant defendant Bowen’s summary judgment motion, the 26 undersigned recommends denying plaintiff’s motion in limine as moot and denying defendant’s 27 motion to strike it from the docket as unnecessary. 28 ///// 1 VII. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 intended as legal advice. 4 The court has reviewed the pending motion for summary judgment, as well as the 5 evidence submitted by you and the defendant, and has concluded that the facts of your case are 6 not sufficiently in dispute to have a trial on your Eighth Amendment sexual abuse claim. This 7 means that your case will end without a trial. 8 You have fourteen days to explain to the court why this is not the correct outcome in your 9 case. If you choose to do this you should label your explanation as, “Objections to Magistrate 10 Judge’s Findings and Recommendations.” The district court judge assigned to your case will 11 review any objections that are filed and will make a final decision on the motion for summary 12 judgment. 13 In accordance with the above, IT IS HEREBY RECOMMENDED that: 14 1. Defendant Bowen’s motion for summary judgment (ECF No. 101) be granted. 15 2. Plaintiff’s motion in limine (ECF No. 99) be denied as moot in light of the 16 recommendation to enter judgment in favor of defendant. 17 3. Defendant’s motion to strike plaintiff’s motion in limine (ECF No. 100) be denied as 18 unnecessary. 19 4. Plaintiff’s requests for subpoenas (ECF Nos. 97-98) also be denied as moot. 20 5. The Clerk enter judgment in favor of defendant Bowen and close this case. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 ///// 27 ///// 28 ///// 1 | objections shall be served and filed within fourteen days after service of the objections. The 2 || parties are advised that failure to file objections within the specified time may waive the right to 3 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: July 21, 2023 Card ke yy a 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] D 12/rial2152.msj.bowen 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28