(PC) Richard v. Joseph

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG RICHARD, No. 2: 21-cv-0975 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOSEPH, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court are cross-motions for summary judgment, 20 defendants’ motion to strike plaintiff’s sur-reply and plaintiff’s motion for clarification, 21 construed as a request for reconsideration. (ECF Nos. 62, 65, 71, 77.) 22 For the reasons stated herein, the undersigned recommends that defendants’ motions for 23 summary judgment and to strike plaintiff’s sur-reply be granted, and plaintiff’s motions for 24 summary judgment and clarification, construed as a request for reconsideration, be denied. 25 II. Legal Standards for Summary Judgment 26 Summary judgment is appropriate when it is demonstrated that the standard set forth in 27 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 28 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 1 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 2 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 3 for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 4 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 5 6 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 7 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need 8 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 9 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 10 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 11 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial 12 burden of production may rely on a showing that a party who does have the trial burden cannot 13 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 14 should be entered, after adequate time for discovery and upon motion, against a party who fails to 15 make a showing sufficient to establish the existence of an element essential to that party’s case, 16 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 17 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 18 necessarily renders all other facts immaterial.” Id. at 323. 19 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 20 the opposing party to establish that a genuine issue as to any material fact actually exists. See 21 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 22 establish the existence of such a factual dispute, the opposing party may not rely upon the 23 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 24 form of affidavits, and/or admissible discovery material in support of its contention that such a 25 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 26 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 27 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 28 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 2 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 3 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 4 1564, 1575 (9th Cir. 1990). 5 In the endeavor to establish the existence of a factual dispute, the opposing party need not 6 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 7 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 8 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 9 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 10 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 11 amendments). 12 In resolving a summary judgment motion, the court examines the pleadings, depositions, 13 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 14 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 15 255. All reasonable inferences that may be drawn from the facts placed before the court must be 16 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa 17 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not 18 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 19 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 20 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a 21 genuine issue, the opposing party “must do more than simply show that there is some 22 metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 23 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 24 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 25 On October 14, 2021, and August 17, 2022 (ECF Nos. 22, 65-2), plaintiff was advised of 26 the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil 27 Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. 28 Eikenberry, 849 F.2d 409 (9th Cir. 1988). 1 III. Plaintiff’s Claims 2 This action proceeds on plaintiff’s verified original complaint as to defendants Spaulding 3 and Joseph as to claim one.1 (ECF Nos. 1, 6.) Plaintiff alleges that during the months of August- 4 October 2020, defendant Joseph sexually harassed plaintiff and defendant Spaulding failed to 5 intervene. 6 In particular, plaintiff alleges that while plaintiff was housed at the California Health Care 7 Facility (“CHCF”), Building E1B, defendant Joseph propositioned plaintiff on several occasions 8 by asking plaintiff for oral sex. (Id. at 3.) Defendant Joseph said to plaintiff, “I bet you have a 9 big dick,” and “I bet you have some good dick.” (Id.) 10 On September 2, 2020, defendant Joseph harassed plaintiff at the officer’s desk. (Id.) 11 Defendant Spaulding stood within earshot of the vulgar conversation and sexual advances made 12 by defendant Joseph. (Id.) Plaintiff told defendant Joseph that he would report the harassment if 13 he did not stop. (Id.) Defendant Joseph responded that he did not care. (Id.) Plaintiff 14 approached defendant Spaulding, who was defendant Joseph’s supervisor. (Id.) Plaintiff told 15 defendant Spaulding that his officer was harassing plaintiff in a sexual way. (Id.) Defendant 16 Spaulding responded that he heard plaintiff use profane language toward his officer, and that as 17 long as plaintiff was at his prison, plaintiff had nothing coming. (Id. at 3-4.) 18 Defendant Spaulding then yelled, “It’s 4:00. What are you doing out of your cell?” (Id. at 19 4.) Before plaintiff could respond, defendant Spaulding told defendant Joseph to write plaintiff 20 up for being out of bounds. (Id.) Defendant Joseph escorted plaintiff to his cell while making 21 lude comments of a sexual manner. (Id.) Defendant Joseph told plaintiff that there was nothing 22 plaintiff could do about defendant Joseph’s interest in plaintiff and that he (defendant Joseph) 23 would get it (plaintiff’s penis) eventually. (Id.) 24 Between September 8-13, 2020, between 5-6:00 p.m., while performing his duties as a 25 porter, plaintiff entered the kitchen alone. (Id.) Defendant Joseph then entered the kitchen. (Id.) 26 Defendant Joseph made a lude sexual comment and reached for plaintiff’s penis. (Id. at 5.) 27

28 1 Plaintiff voluntarily dismissed claim two raised in the complaint. (ECF No. 9.) 1 On September 29, 2020, plaintiff approached defendant Joseph at the desk and asked him 2 to leave plaintiff alone. (Id.) Defendant Joseph responded that it would stop when he says it will 3 or when he gets what he wants. (Id.) Plaintiff walked away and punched the wall next to his cell, 4 injuring his hand. (Id.) 5 Plaintiff alleges that defendant Joseph violated the Eighth Amendment by sexually 6 harassing and assaulting him. Plaintiff alleges that defendant Spaulding violated the Eighth 7 Amendment by failing to intervene on September 2, 2020. 8 IV. Defendants’ Summary Judgment Motion 9 A. Relevant Pleadings 10 On August 17, 2022, defendants filed the summary judgment motion. (ECF No. 65.) On 11 August 30, 2022, plaintiff filed an opposition. (ECF No. 67.) On September 21, 2022, 12 defendants filed a reply. (ECF No. 68.) 13 On January 23, 2023, the undersigned ordered defendants to serve plaintiff with redacted 14 documents from the Prison Rape Elimination Act (“PREA”) investigation conducted regarding 15 plaintiff’s claims against defendant Joseph. (ECF No. 75.) The undersigned granted plaintiff 16 forty-five days to file a supplemental opposition. (Id.) On February 8, 2023, plaintiff filed a 17 supplemental opposition. (ECF No. 79.) 18 On September 21, 2022, plaintiff filed a sur-reply to defendants’ reply to plaintiff’s 19 opposition. (ECF No. 69.) On December 9, 2022, defendants filed a motion to strike plaintiff’s 20 sur-reply. (ECF No. 71.) The undersigned addresses defendants’ motion to strike plaintiff’s sur- 21 reply following the analysis of defendants’ summary judgment motion. 22 B. Undisputed Facts 23 The undersigned reviewed plaintiff’s deposition transcript cited by defendants in the 24 statement of undisputed facts and finds that defendants’ representations regarding plaintiff’s 25 deposition testimony are accurate. 26 Undisputed Fact No. 1: At all relevant times, plaintiff was an inmate at CHCF. (ECF No. 27 68-1 at 2 (defendants’ undisputed fact no. 1 citing plaintiff’s complaint); ECF No. 67 at 44 28 (plaintiff’s response).) 1 Undisputed Fact No. 2: Plaintiff alleges that, at all relevant times in the complaint, 2 defendant Joseph was a Correctional Officer at CHCF and defendant Spaulding was a 3 Correctional Sergeant Supervisor at CHCF. (ECF No. 68-1 at 2 (defendants’ undisputed fact no. 4 2 citing plaintiff’s complaint); ECF No. 67 at 44 (plaintiff’s response).) 5 Undisputed Fact No. 3: Plaintiff alleges that defendant Joseph sexually 6 harassed/assaulted him during the months of August 2020 through October 2020. (ECF No. 65-2 7 at 2 (defendants’ undisputed fact no. 3 citing plaintiff’s complaint); ECF No. 67 at 44 (plaintiff’s 8 response).) 9 Undisputed Fact No. 4: Defendant Joseph allegedly made statements of a sexual nature 10 towards plaintiff during this period. Plaintiff initially interpreted the statements as jokes because 11 defendant Joseph would laugh after making them. Plaintiff did not take these statements 12 seriously until September 2020 when the statements allegedly became more intense. (ECF No. 13 65-2 at 2 (defendants’ undisputed fact no. 4, citing plaintiff’s deposition at pp. 37:13-39:12).) 14 In response to undisputed fact no. 4, plaintiff seems to dispute defendants’ claim that he 15 initially interpreted defendant Joseph’s statements as jokes. (ECF No. 67 at 44.) Plaintiff claims 16 that he immediately requested that defendant Joseph refrain from making sexual comments. (Id.) 17 In support of this claim, plaintiff refers to his declaration filed in support of the opposition. (Id.) 18 In his declaration filed in support of the opposition, plaintiff does not state that he immediately 19 requested that defendant Joseph refrain from making sexual comments. (Id. at 52-54.) Moreover, 20 “a party cannot create an issue of fact by an affidavit contradicting his prior deposition 21 testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). 22 In response to defendants’ undisputed fact no. 4, plaintiff also claims that defendant 23 Joseph became upset and threatened plaintiff’s housing and work assignment in an attempt to 24 pressure plaintiff to have sex with him. (ECF No. 67 at 44.) The undersigned discusses these 25 allegations herein. 26 Undisputed Fact No. 5: Plaintiff testified that defendant Joseph’s statements to plaintiff 27 included discussions about transgender inmates, that plaintiff had some “good dick,” and that 28 plaintiff enjoyed being previously sexually assaulted. However, at the beginning, defendant 1 Joseph did not demand that plaintiff do something sexual with him. (ECF No. 65-2 at 2 2 (defendants’ undisputed fact no. 5 citing plaintiff’s deposition at pp. 34:10-21; 38:13-20).) 3 Plaintiff’s response to defendants’ undisputed fact no. 5 does not dispute the facts alleged. 4 (ECF No. 67 at 45.) In the response, plaintiff claims that defendant Joseph’s attempts at the 5 beginning were only to prime plaintiff for sex later. (Id.) 6 Undisputed Fact No. 6: Plaintiff alleges that on September 2, 2020, defendant Joseph 7 made sexual comments toward him. Plaintiff does not specifically remember what defendant 8 Joseph said, but described the comments as sexual banter and jokes which he construed as 9 making a pass at him. Defendant Joseph allegedly joked that plaintiff had some good dick. 10 Plaintiff testified that defendant Joseph was not trying to get him to do anything physical that day 11 and that defendant Joseph was just making sexual comments. (ECF No. 65-2 at 2-3 (defendants’ 12 undisputed fact no. 6, citing ECF No. 1 at 4 (plaintiff’s complaint) and plaintiff’s deposition at 13 40:9-20, 42:1-5, 43:21-44-23).) 14 In response to defendants’ undisputed fact no. 6, plaintiff contends that defendant 15 Joseph’s comments on September 2, 2020 were disturbing and threatening. (ECF No. 67 at 45.) 16 Plaintiff claims that he was so upset that he asked defendant Spaulding to intervene. (Id.) The 17 undersigned observes that at his deposition, plaintiff testified that defendant Joseph’s comments 18 on September 2, 2020, really disturbed and bothered plaintiff. (Plaintiff’s deposition at 44: 24- 19 25.) 20 Undisputed Fact No. 7: As of September 2, 2020, all of defendant Joseph’s conduct 21 toward plaintiff had been purely verbal and plaintiff does not allege that defendant Joseph 22 sexually assaulted him as of that date. (ECF No. 65-2 at 3 (defendants’ undisputed fact no. 7 23 citing plaintiff’s deposition at 54: 12-16); ECF No. 67 at 46 (plaintiff’s response to defendants’ 24 undisputed fact no. 7).) 25 Undisputed Fact No. 8: Following defendant Joseph’s comments on September 2, 2020, 26 plaintiff allegedly approached defendant Spaulding, who when the comments were made was six 27 feet away at his desk, and told him that defendant Joseph had been sexually assaulting and 28 harassing him for some time. Defendant Spaulding responded that he had heard plaintiff curse at 1 defendant Joseph and ordered defendant Joseph to lock plaintiff up and write plaintiff up for 2 being out of bounds. The curse word plaintiff allegedly used was “hell.” Defendant Spaulding 3 allegedly told plaintiff that he had nothing coming. (ECF No. 65-2 at 3 (defendants’ undisputed 4 fact no. 8 citing plaintiff’s deposition at 40:13-41:13, 42:6-12); ECF No. 67 at 46-47 (plaintiff’s 5 response).) 6 Undisputed Fact No. 9: Plaintiff alleges that, sometime between September 8 and 13, 7 2020, he entered the kitchen alone and defendant Joseph walked in behind him. (ECF No. 62-2 at 8 3 (defendants’ undisputed fact no. 9 citing plaintiff’s deposition at 54:17-25, 56:8-16); ECF No. 9 67 at 47 (plaintiff’s response to defendants’ undisputed fact no. 9).) 10 Undisputed Fact No. 10: Plaintiff testified that defendant Joseph asked plaintiff what he 11 was doing and then grabbed him in the zipper area. Plaintiff testified that defendant Joseph did 12 not say anything sexual. Defendant Joseph allegedly touched plaintiff over his clothes in the 13 penis area and immediately pulled back. Defendant Joseph did not attempt to reach inside 14 plaintiff’s clothes. (ECF No. 65-2 at 3 (defendants’ undisputed fact no. 10 citing plaintiff’s 15 deposition at 57:19-24, 59:7-60:22).) 16 In response to defendants’ undisputed fact no. 10, plaintiff claims that defendant Joseph 17 made a lude comment to plaintiff before reaching for his penis. (ECF No. 67 at 47.) In support 18 of this claim, plaintiff cites his verified complaint where he alleged that defendant Joseph made a 19 lude comment before reaching for his penis. (ECF No. 1 at 5.) Plaintiff also attaches to his 20 opposition the declaration of inmate Gary Williams who states that plaintiff told him that 21 defendant Joseph threatened to file a false disciplinary report and fire plaintiff from his job if 22 plaintiff reported what happened in the kitchen. (ECF No. 67 at 76.) 23 In the reply, defendants argue that plaintiff provides three different versions of what 24 defendant Joseph said to him in the kitchen: 1) defendant Joseph did not say anything; 2) 25 defendant Joseph made a lude comment to plaintiff; and 3) defendant Joseph threatened to file a 26 false disciplinary report and fire plaintiff from his job if he reported the incident. 27 The undersigned finds that plaintiff’s claim that defendant Joseph made a lude comment 28 does not necessarily contradict inmate Williams’ statement that plaintiff told him that defendant 1 Joseph threatened him. However, plaintiff’s complaint alleging that defendant Joseph made a 2 lude comment prior to reaching for his penis and inmate Williams’ claim that plaintiff told him 3 that defendant Joseph threatened him contradicts plaintiff’s deposition testimony that defendant 4 Joseph said nothing to him in the kitchen. The undersigned cannot weigh the credibility of 5 plaintiff’s contradictory allegations on summary judgment. Perez v. Smith, 2022 WL 17821607, 6 at *1 (E.D. Cal. Dec. 20, 2022) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th 7 Cir. 2007)).2 Accordingly, the undersigned finds that whether defendant Joseph made a lude 8 comment before reaching for plaintiff’s penis and/or threatened plaintiff is disputed. Defendants’ 9 undisputed fact no. 10 is otherwise undisputed. 10 Undisputed Fact No. 11: Plaintiff testified that the incident in the kitchen was the first 11 and last time that he alleges that defendant Joseph sexually assaulted him. (ECF No. 65-2 at 4 12 (defendants’ undisputed fact no. 11, citing plaintiff’s deposition at 55: 15-19); ECF No. 67 at 47 13 (plaintiff’s response).) 14 Undisputed Fact No. 12: Plaintiff reported the kitchen incident to a psychologist. (ECF 15 No. 65-2 at 4 (defendants’ undisputed fact no. 12 citing plaintiff’s deposition at 67:23-68:1); ECF 16 No. 67 at 47-48 (plaintiff’s response).) 17 Undisputed Fact No. 13: Plaintiff alleges that between the alleged incident in the kitchen 18 and September 29, 2020, defendant Joseph verbally harassed and threatened him, but there was 19 no physical contact. (ECF No. 65-2 at 4 (defendants’ undisputed fact no. 13 citing plaintiff’s 20 deposition at 69:12-23); ECF No. 67 at 48 (plaintiff’s response).) 21 Undisputed Fact No. 14: Plaintiff alleges that he engaged in a serious physical altercation 22 with another inmate on October 1, 2020, and was subsequently transferred to another unit away 23 from defendant Joseph. (ECF No. 65-2 at 4 (defendants’ undisputed fact no. 14 citing plaintiff’s 24 complaint (ECF No. 1 at 6); ECF No. 67 at 48 (plaintiff’s response).) 25 Undisputed Fact No. 15: Plaintiff alleges that following his October 2020 transfer, he 26

27 2 Under the “sham affidavit” rule, “a party cannot create an issue of fact by contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). 28 Plaintiff’s complaint is not a sham affidavit because it was prepared prior to his deposition. 1 filed a report regarding his allegations against defendant Joseph and submitted a PREA 2 complaint. (ECF No. ECF No. 65-2 at 4 (defendants’ undisputed fact no. 15 citing plaintiff’s 3 complaint (ECF No. 1 at 7); ECF No. 67 at 48 (plaintiff’s response).) 4 Undisputed Fact No. 16: Before plaintiff’s October 2020 transfer, defendant Spaulding 5 took no action preventing plaintiff from filing a grievance regarding either defendants’ alleged 6 conduct. (ECF No. 65-2 at 4 (defendants’ undisputed fact no. 16 citing plaintiff’s deposition at 7 53:3); ECF No. 67 at 49 (plaintiff’s response).) 8 Undisputed Fact No. 17: On October 9, 2020, defendant Spaulding came to interview 9 plaintiff regarding his allegations against defendant Joseph. Plaintiff informed defendant 10 Spaulding that he included him in his complaint regarding his failure to protect, and the interview 11 was stopped. (ECF No. 65-2 at 4-5 (defendants’ undisputed fact no. 17 citing plaintiff’s 12 complaint (ECF No. 1 at 7), plaintiff’s deposition at 93:4-94:12, and defendant Spaulding’s 13 declaration (ECF No. 65-4)); ECF No. 67 at 49 (plaintiff’s response).) 14 Undisputed Fact No. 18: Following the interview, a PREA investigation was conducted. 15 Plaintiff agreed that following his PREA interview, the report went through PREA protocols, 16 went to Investigative Services Unit, and went to the next procedural step beyond the PREA 17 interview. (ECF No. 65-2 at 5 (defendants’ undisputed fact no. 18 citing plaintiff’s deposition at 18 94:16-23; Exhibit A (filed under seal)); ECF No. 67 at 50 (plaintiff’s response).) 19 Undisputed Fact No. 19: Plaintiff testified that he had no contact with defendant 20 Spaulding from September 2, 2020, until the PREA interview on October 9, 2020. (ECF No. 65- 21 2 at 5 (defendants’ undisputed fact no. 19 citing plaintiff’s deposition testimony at 68:17-22); 22 ECF No. 67 at 50 (plaintiff’s response).) 23 C. Discussion—Claims Against Defendant Joseph 24 Defendants move for summary judgment as to plaintiff’s claim against defendant Joseph 25 on the grounds that the alleged physical assault and verbal abuse did not violate the Eighth 26 Amendment. The undersigned addresses these claims separately. 27 Allegations of Verbal Abuse 28 It is undisputed that plaintiff alleges that defendant Joseph engaged in persistent verbal 1 sexual harassment of plaintiff for three months, i.e., August 2020 through October 2020. It is 2 undisputed that plaintiff alleges that defendant Joseph discussed transgender inmates with 3 plaintiff, stated that plaintiff had some good dick and that plaintiff previously enjoyed being 4 sexually assaulted. It is undisputed that plaintiff also alleges that defendant Joseph made 5 statements that plaintiff construed as making a pass at plaintiff. Attached to plaintiff’s opposition 6 is the verified declaration of inmate Davion Rashid. (ECF No. 67 at 79.) Inmate Rashid states 7 that in 2020-21, he observed defendant Joseph make sexual advances toward plaintiff by smiling 8 at plaintiff and licking his lips.3 (Id.) 9 Defendants moves for summary judgment on the grounds that verbal sexual harassment 10 does not violate the Eighth Amendment. 11 The Ninth Circuit has stated that “verbal harassment generally does not violate the Eighth 12 Amendment.” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), opinion amended on denial of 13 reh’g, 135 F.3d 1318 (9th Cir. 1998). In Keenan, the Court affirmed the grant of summary 14 judgment based on verbal harassment, but left open the possibility that there could be a set of 15 circumstances under which verbal harassment could violate the Constitution. Id. The Ninth 16 Circuit suggested that verbal harassment may violate the Eighth Amendment when it is 17 “unusually gross even for a prison setting and [is] calculated to and [does] cause [plaintiff] 18 psychological damage.” Id. “The Ninth Circuit did not, however, detail what type of verbal 19 harassment could meet this high standard.” Brewster v. Mills, 2022 WL 976973, at *5 (N.D. Cal. 20 March 31, 2022.) “And since Keenan, the Court has repeatedly held that “the Eighth 21 Amendment’s protections do not extend to mere verbal sexual harassment.” Id. (citing Blacher v. 22 Johnson, 517 F. App’x 564 (9th Cir. 2013) (“The district court properly dismissed Blacher’s 23 claim of sexual harassment because the Eighth Amendment’s protections do not extend to mere 24 verbal sexual harassment.”); Austin v. Terhune, 367 F.3d 1167, 1171–72 (9th Cir. 2004) 25 (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow 26 inmates or prison guards ... the Eighth Amendment’s protections do not necessarily extend to 27 3 As observed by defendants in the reply, inmate Rashid does not state the exact date he 28 witnessed defendant Joseph lick his lips. 1 mere verbal sexual harassment.”) (citation omitted)). 2 Based on Ninth Circuit law, courts have found that isolated and persistent verbal sexual 3 harassment does not violate the Eighth Amendment. In Moore v. Calderon, 2021 WL 1541296, 4 at *2 (E.D. Cal. Apr. 20, 2021), the court found that defendant’s order for plaintiff to show him 5 her breasts was not “unusually gross even for a prison setting.” In Reed v. Racklin, 2019 WL 6 4745266, at *5 (E.D. Cal. Sept. 30, 2019), the court found the alleged statement by a correctional 7 counselor that, “Do you think you could jack me off in the blink of an eye?” did not violate 8 Eighth Amendment. 9 In Baker v. Battad, 2020 WL 487411, at *1, *4 (S.D. Cal. Jan. 30, 2020), report and 10 recommendation adopted, 2020 WL 3451329 (S.D. Cal. June 24, 2020), the court found that three 11 alleged comments made by a prison guard to the plaintiff were sexual in nature and highly 12 inappropriate but were “not unusually gross for a prison setting,” and noted that courts had found 13 even worse comments made in the prison setting not to be actionable. These comments included 14 defendant telling plaintiff that “he wanted to suck [plaintiff’s] penis,” “let me see your hot dog,” 15 and “I’m going to show you mine.” Id. at *1. 16 In Horton v. Billingsley, 2019 WL 7630863, at *2, *4 (C.D. Cal. Dec. 3, 2019), report and 17 recommendation adopted, 2020 WL 362634 (C.D. Cal. Jan. 20, 2020), the court found that 18 statements to plaintiff asking, “if he took [her] home with him, could he get into [her] pants 19 whenever he wants?” and telling her to “stay beautiful” and “keep [her] skin soft” and that he 20 admired the way she carried herself and got along with others did not violate the Eighth 21 Amendment. 22 In Thompson v. Cagle, 2019 WL 4392411, at *2, *3 (E.D. Cal. Sept. 13, 2019), report and 23 recommendation adopted, 2019 WL 5308994 (E.D. Cal. Oct. 21, 2019), the court found that “cat 24 calls” by defendant toward plaintiff, statements that if plaintiff was not fond of the “cat calls” 25 then plaintiff could be replaced by an alternate inmate, and allegations that defendant was 26 “excessive” in making inappropriate sexual remarks against him regarding anal sex, comparing 27 male anatomy of different ethnicities, and stating “fuck me running,” did not violate the Eighth 28 Amendment. 1 In Cruz v. Savoie, 2018 WL 2356761, at *1-2 (E.D. Cal. May 24, 2018), report and 2 recommendation adopted sub nom., Cruz v. Savioe, 2018 WL 3655885 (E.D. Cal. July 31, 2018), 3 the court found that two instances of the defendant asking the plaintiff to expose himself to her 4 did not violate the Eighth Amendment. 5 In Patrick v. Hernandez, 2018 WL 5095130, at *1, *3 (E.D. Cal. Oct. 17, 2018) report and 6 recommendation adopted, Nov. 27, 2018, Doc. No. 20), the court addressed instances of alleged 7 persistent sexual harassment, finding that allegations that defendant sexually harassed plaintiff by 8 saying, “Patrick suck my dick” and “you want it in the ass,” and saying to other inmates that 9 “Patrick likes to jack people off” and “Patrick likes it in the ass,” and that defendant put his hand 10 on his own crotch and squeezed while telling plaintiff to “lick [his] nuts” did not violate the 11 Eighth Amendment. 12 In Brewster v. Mills, 2022 WL 976973 (N.D. Cal. March 31, 2022), the court found that 13 persistent, verbal sexual harassment did not violate the Eighth Amendment. In Brewster, the 14 plaintiff alleged that the defendant watched plaintiff while he showered and frequently made 15 sexual comments about plaintiff’s body. 2022 WL 976973, at *1. Plaintiff alleged that the 16 defendant also said, “This is my jail, I do what I want. And I’ll make you suck my dick until my 17 knees buckle or till my knees shaking.” Id. The court found that the allegations of persistent 18 verbal sexual harassment did not violate the Eighth Amendment. Id. at 5. 19 The comments defendant Joseph allegedly made to plaintiff herein were highly offensive 20 and totally inappropriate. However, based on the cases cited above, it is clear that the type of 21 comments allegedly made by defendant Joseph to plaintiff were not unusually gross even for the 22 prison setting. The cases cited above make clear that defendant Joseph’s alleged persistent verbal 23 sexual harassment of plaintiff did not violate the Eighth Amendment.4 On these grounds, 24

25 4 One court in the Eastern District of California has suggested that it may be time for the Ninth Circuit to reevaluate and address the contours of those circumstances in which comments are 26 sufficiently “gross even for a prison setting” and lead to an inference of being calculated to cause 27 psychological damage so as to state a cognizable Eighth Amendment claim. Moore v. Calderon, 2021 WL 1541296, at *3. 28 1 defendant Joseph should be granted summary judgment as to this claim.5 2 Alleged Physical Assault 3 Defendants move for summary judgment as to plaintiff’s claim that defendant Joseph 4 physically assaulted plaintiff on the grounds that the alleged assault did not violate the Eighth 5 Amendment. 6 It is undisputed that plaintiff alleges that defendant Joseph briefly touched plaintiff over 7 his clothes in the penis area and immediately pulled back. As discussed above, whether 8 defendant Joseph made sexual comments and/or threats at the time he allegedly touching plaintiff 9 is disputed. 10 The Supreme Court has instructed that whether a specific act constitutes cruel and unusual 11 punishment is measured by “the evolving standards of decency that mark the progress of a 12 maturing society.” Hudson v. McMillian, 503 U.S. 1, 8 (1992). “The law regarding sexual abuse 13 and sexual harassment has changed over time.” Brewster, 2022 WL 976973, at *3 (citing 14 Anderson v. Ferguson, 2022 WL 767191, at *7–*9 (N.D. Cal. Mar. 14, 2022)). The current 15 Eighth Amendment jurisprudence focuses on whether a prison staff member, acting without 16 legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged 17 in sexual conduct for the staff member’s own gratification, or for the purpose of humiliating, 18 degrading, or demeaning the prisoner. Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). 19 Claims of brief inappropriate touching with sexual overtones have been found not to state 20 Eighth Amendment violations. See Watson v. Carter, 668 F.3d 1108, 1113-14 (9th Cir. 2012) 21 (defendant’s conduct was “not objectively harmful enough” and the prisoner’s humiliation not 22 severe enough to state an Eighth Amendment claim where defendant officer allegedly entered 23 prisoner’s cell while he was on the toilet, rubbed his thigh against the prisoner’s thigh and began 24 5 Plaintiff attached to his supplemental opposition the redacted PREA investigation documents 25 the undersigned ordered defendants to serve on plaintiff. (ECF No. 79 at 21-62.) The undersigned reviewed these documents and finds that they do not demonstrate a violation of 26 plaintiff’s Eighth Amendment rights by defendant Joseph as to this claim. The undersigned also 27 reviewed the unredacted PREA investigation documents submitted by defendants for in camera review. The unredacted PREA investigation documents also do not demonstrate a violation of 28 plaintiff’s Eighth Amendment rights by defendant Joseph as to this claim. 1 smiling in a sexual way, and left prisoner’s cell laughing); Martinez v. Scott, 2022 WL 598315, at 2 *10 (C.D. Cal. Jan. 24, 2022) (citing Benjamin v. Stevens County, 839 Fed. App’x 100, 101 (9th 3 Cir. 2020) (allegations that guard made sexual comments to inmate on a daily basis and touched 4 inmate without her consent, including brushing dirt off inmate’s thigh and putting hand on 5 inmate’s back while conversing, insufficient to show an Eighth Amendment violation); Rivera v. 6 Schultz, 556 Fed. App’x 500, 501 (7th Cir.), cert. denied, 574 U.S. 885 (2014) (affirming 7 judgment as a matter of law on Eighth Amendment claim where evidence showed that guard 8 conducting pat down of plaintiff grabbed plaintiff’s pants and pulled them down, exposing 9 plaintiff’s underwear, then made a comment eliciting laughter from other guards); Foust v. Ali, 10 2021 WL 4975183, at *3 (E.D. Cal. Oct. 26, 2021) (allegations that prison guard touched plaintiff 11 twice on the buttocks insufficient to allege Eighth Amendment claim); Horton v. Billingsley, 12 2019 WL 7630863, at *4 (C.D. Cal. Dec. 3, 2019), adopted, 2020 WL 362634 (C.D. Cal. Jan. 20, 13 2020) (incident in which guard drew his finger down plaintiff’s neck insufficient to allege Eighth 14 Amendment violation, even where guard made sexually suggestive comments); Gonzalez Castillo 15 v. Renteria, 2019 WL 4271521, at *1 (S.D. Cal. Sept. 10, 2019), aff'd, 831 Fed. App’x 282 (9th 16 Cir. 2020) (granting summary judgment for defendants where evidence showed prison guard 17 “momentarily squeez[ed] plaintiff’s buttocks during a fully clothed pat-down,” the squeezing was 18 only “seconds long” and not done in a “harsh way,” and guard did not pat down plaintiff's groin 19 area or make any sexually suggestive comments during the incident); Gonzalez Castillo v. 20 Valencia, 2019 WL 2387764, at *3 (E.D. Cal. June 6, 2019), adopted, 2020 WL 5370907 (E.D. 21 Cal. Sept. 8, 2020) (allegations that, pursuant to searches, one officer briefly touched plaintiff’s 22 buttock without sexual comment and another officer squeezed plaintiff’s buttocks twice on each 23 side did not “rise to the level of an Eighth Amendment violation”); Greene v. Karlow, 2019 WL 24 2369861, at *3 (E.D. Cal. June 5, 2019), adopted, 2019 WL 6894062 (E.D. Cal. Dec. 18, 2019) 25 (allegations that prison guard groped the back of prisoner’s leg just under his buttocks insufficient 26 to state an Eighth Amendment claim); Palmer v. O'Connor, 2013 WL 1326207, at *4 (E.D. Cal. 27 Mar. 29, 2013) (“Inmate sexual harassment claims that allege brief inappropriate touching by a 28 correctional official are generally found to be noncognizable”); Fisher v. Dizon, 2008 WL 1 619149, at *10 & n.4 (E.D. Cal March 4, 2008), adopted, 2008 WL 863980 (E.D. Cal. Mar. 28, 2 2008) (on summary judgment, a guard’s act of poking a prisoner twice in the buttocks with an 3 item resembling a baton or flashlight did not violate the Eighth Amendment); compare Hill v. 4 Rowley, 658 Fed. App’x 840, 841 (9th Cir. 2016) (prison guard’s “gripping” of prisoner’s 5 buttocks sufficient to allege Eighth Amendment claim). 6 Defendant Joseph’s alleged touching of plaintiff herein was offensive and highly 7 inappropriate. However, the case law is clear that brief, inappropriate touching does not violate 8 the Eighth Amendment.6 Accordingly, the undersigned finds that defendant Joseph’s alleged 9 brief touching of plaintiff in his penis area, outside of his clothes, did not violate the Eighth 10 Amendment, regardless of whether defendant Joseph made lude comments and/or threatened 11 plaintiff at the time of this incident. Accordingly, defendant Joseph should be granted summary 12 judgment as to this claim.7 13 The undersigned observe that in his opposition, plaintiff appears to argue that defendant 14 Joseph violated Title 15 of the California Code of Regulations. Plaintiff cites various section of 15 Title 15, including the alleged definition of sexual assault under Title 15. (ECF No. 67 at 4, 7.) 16 6 The undersigned finds that in Bearchild, supra, the Ninth Circuit did not expand the definition 17 of sexual assault to include brief, inappropriate touching. In Bearchild, the plaintiff alleged that during a pat-down search that lasted about five minutes, the defendant rubbed, stroked, squeezed 18 and groped plaintiff’s intimate areas. 947 F.3d at 1135. The plaintiff also stated that the 19 defendant ordered him to pull his waistband away from his body, stared at his penis and asked, “is that all of you?” Id. The Ninth Circuit considered whether the jury instructions misstated the 20 elements of plaintiff’s Eighth Amendment claim alleging sexual assault. Id. The Ninth Circuit went on to define sexual assault as a prison staff member, acting under color of law and without 21 legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member's own sexual gratification, or for the purpose of 22 humiliating, degrading, or demeaning the prisoner. Id. at 1144. In Bearchild, the Ninth Circuit 23 did not overturn its prior cases finding that brief, inappropriate touching does not violate the Eighth Amendment. 24 7 Plaintiff attached to his supplemental opposition the redacted PREA investigation documents 25 the undersigned ordered defendants to serve on plaintiff. (ECF No. 79 at 21-62.) The undersigned reviewed these documents and finds that they do not demonstrate a violation of 26 plaintiff’s Eighth Amendment rights by defendant Joseph as to this claim. The undersigned also 27 reviewed the unredacted PREA investigation documents, submitted by defendants for in camera review. The unredacted PREA investigation documents also do not demonstrate a violation of 28 plaintiff’s Eighth Amendment rights by defendant Joseph as to this claim. 1 Plaintiff argues that Title 15 prevents unwanted sexual misconduct. (Id. at 14.) Violations of 2 Title 15 of the California Code of Regulations do not create a private right of action. Nible v. 3 Fink, 828 Fed. Appx. 463, 464 (9th Cir. 2020). 4 D. Defendant Spaulding 5 Plaintiff alleges that defendant Spaulding failed to intervene after plaintiff reported 6 defendant Joseph’s sexual harassment of plaintiff on September 2, 2022. Defendants move for 7 summary judgment as to defendant Spaulding on the grounds that his alleged failure to intervene 8 did not violate the Eighth Amendment. 9 Plaintiff had a right to be free from sexual abuse. Bearchild v. Cobban, 947 F.3d at 1144. 10 In a “failure-to-protect” claim, a prisoner must show that a prison official’s act or omission (1) 11 was objectively, sufficiently serious, and (2) the official was subjectively, deliberately indifferent 12 to inmate’s health or safety. Farmer v. Brennan, 511 U.S. at 825, 834 (1994). “To be held liable 13 for deliberate indifference to the sexual abuse of an inmate, ‘the official must both be aware of 14 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 15 he must also draw the inference.’” Burnam v. Smith, 787 Fed.Appx. 387, 390 (9th Cir. 2019) 16 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)); see also Robins v. Meecham, 60 F.3d 17 1436, 1442 (9th Cir. 1995) (prison official’s failure to intervene to prevent 8th Amendment 18 violation may be basis for liability). 19 The following facts are undisputed. Plaintiff alleges that on September 2, 2020, defendant 20 Joseph made sexual comments toward plaintiff. Plaintiff does not specifically remember what 21 defendant Joseph said, but plaintiff described the comments as sexual banter and jokes which he 22 construed as making a pass at him. Defendant Joseph allegedly told plaintiff that plaintiff had 23 some good dick. Plaintiff does not claim that defendant Joseph did anything physical to him. 24 Plaintiff alleges that he approached defendant Spaulding, who was close enough to have heard 25 defendant Joseph’s comments. Plaintiff allegedly told defendant Spaulding that defendant Joseph 26 had been sexually assaulting him and harassing him for some time. Defendant Spaulding 27 allegedly told defendant Joseph to lock plaintiff up. Defendant Spaulding allegedly told plaintiff 28 that plaintiff had nothing coming. 1 Defendants first argue that defendant Spaulding is entitled to summary judgment because 2 there is no evidence that he was aware of an excessive risk of harm to plaintiff’s safety, i.e., the 3 subjective element of an Eighth Amendment claim. Defendants argue that because the 4 harassment on September 2, 2020, was only verbal, defendant Spaulding could not have been 5 aware that an excessive risk of serious harm existed. For the following reasons, the undersigned 6 finds that defendant Spaulding is not entitled to summary judgment on these grounds. 7 It is undisputed that the only harassment defendant Spaulding allegedly witnessed on 8 September 2, 2020 was verbal. However, it is undisputed that on September 2, 2020, plaintiff 9 allegedly reported to defendant Spaulding that defendant Joseph had been sexually assaulting and 10 harassing plaintiff for some time. Plaintiff’s alleged statement to defendant Spaulding that 11 defendant Joseph had been sexually assaulting him for some time was not true. However, based 12 on this alleged (false) statement as well as defendant Spaulding’s alleged witnessing of defendant 13 Joseph’s verbal harassment of plaintiff on September 2, 2020, the undersigned cannot find that 14 defendant Spaulding was not aware of facts from which an inference could be drawn that plaintiff 15 faced a substantial risk of serious harm from defendant Joseph. Defendants’ motion for summary 16 judgment on these grounds should be denied. 17 Defendants also argue that defendant Spaulding is entitled to summary judgment because 18 plaintiff did not face a substantial risk of serious harm, i.e., the objective element of an Eighth 19 Amendment claim. For the reasons stated herein, the undersigned recommends that defendant 20 Spaulding be granted summary judgment on these grounds. 21 The objective element of an Eighth Amendment failure to protect claim is that the 22 prisoner faced a substantial risk of serious harm. Farmer, 511 U.S. at 828. For the following 23 reasons, the undersigned finds that plaintiff did not face a substantial risk of serious harm from 24 defendant Joseph. Other than the incident in the kitchen, defendant Joseph’s alleged sexual 25 harassment of plaintiff was verbal. While defendant Joseph allegedly touched plaintiff briefly in 26 the penis area outside of his pants, this offensive conduct was not unconstitutional. In addition, 27 //// 28 //// 1 plaintiff presents no evidence that defendant Joseph previously sexually assaulted other inmates.8 2 These circumstances do not demonstrate that plaintiff faced a substantial risk of serious harm 3 from defendant Joseph. 4 The undersigned is mindful that an inmate may face a substantial risk of harm even if they 5 are not assaulted. See Helling v. McKinney, 509 U.S. 25, 33 (1993); Munoz v. Cal. Dep’t. of 6 Corrections, 2020 WL 5163589, at *4 (C.D. Cal. July 24, 2020) (“Prison inmates are not required 7 to wait until the threatened assault occurs before seeking relief for deliberate indifference to a 8 serious risk of harm.”). However, for the reasons discussed above, the undersigned finds that 9 plaintiff has not presented sufficient evidence demonstrating that he faced a substantial risk of 10 serious harm from defendant Joseph. Accordingly, the undersigned finds that defendant 11 Spaulding did not violate the Eighth Amendment on September 2, 2020, when he allegedly 12 disregarded plaintiff’s claims of previous sexual assaults and verbal harassment by defendant 13 Joseph. On these grounds, defendant Spaulding should be granted summary judgment. 14 Defendants also argue that defendant Spaulding is entitled to qualified immunity. The 15 doctrine of qualified immunity protects “government officials ... from liability for civil damages 16 insofar as their conduct does not violate clearly established statutory or constitutional rights of 17 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 18 As the Supreme Court has noted, qualified immunity protects “all but the plainly incompetent or 19 those who knowingly violate the law.” See Malley v. Briggs, 475 U.S. 335, 341 (1986). In 20 evaluating qualified immunity, the court must determine : (1) whether the facts, viewed in the 21 light most favorable to the plaintiff, show that the defendant’s conduct violated a constitutional 22 right; and (2) whether the right was clearly established at the time of the alleged violation such 23 that a reasonable person in the defendant’s position would have understood that his actions 24 violated that right. Saucier v. Katz, 533 U.S. 194, 201–02 (2001) (receded from in Pearson v. 25 Callahan, 555 U.S. 223 (1009) (holding that while Saucier’s two step sequence for resolving 26 8 In support of his opposition, plaintiff submitted five inmate witness declarations. (ECF No. 67 27 at 75-80.) None of these inmates claim that defendant Joseph physically assaulted them, sexually or otherwise, or that they personally witnessed defendant Joseph physically assault other inmates, 28 sexually or otherwise. 1 government official's qualified immunity claims is often appropriate, courts may exercise their 2 sound discretion in deciding which of the two prongs should be addressed first)). If the answer to 3 either inquiry is “no,” then the defendant is entitled to qualified immunity and may not be held 4 personally liable for his or her conduct. Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir. 5 2011). 6 Because the undersigned finds that defendant Spaulding did not violate the Eighth 7 Amendment, no further discussion of qualified immunity is warranted. 8 In the summary judgment motion, defendants also argue that defendant Spaulding did not 9 have a reasonable opportunity to intervene during the kitchen incident because he was not 10 present. The undersigned does not find that plaintiff’s complaint raises a failure-to-intervene 11 claim regarding this specific incident. However, in an abundance of caution, the undersigned 12 finds that there is no evidence that defendant Spaulding was present during this incident or knew 13 that defendant Joseph intended to follow plaintiff into the kitchen. For these reasons, the 14 undersigned finds that defendant Spaulding did not violate the Eighth Amendment by failing to 15 intervene on the date of the kitchen incident. 16 In the summary judgment motion, defendants also argue that defendant Spaulding took no 17 steps to prevent plaintiff from filing a complaint and properly performed his role in the PREA 18 investigation. The undersigned does not find that plaintiff raises a claim against defendant 19 Spaulding for preventing plaintiff from filing a complaint or not performing his role in the PREA 20 investigation. Accordingly, the undersigned will not address these matters. 21 Finally, the undersigned observes that in his opposition, plaintiff argues that defendant 22 Spaulding violated Title 15 by failing to report defendant Joseph’s sexual misconduct. (ECF No. 23 67 at 21-22.) As stated above, violations of Title 15 do not create private rights of action. Nible 24 v. Fink, 828 Fed. Appx. 463, 464 (9th Cir. 2020). Plaintiff may also be attempting to argue that 25 defendant Spaulding violated PREA by failing to report defendant Joseph’s alleged sexual 26 harassment on September 2, 2020. However, PREA does not create a private right of action. 27 Hardney v. Moncus, 2016 WL 7474908, at *3 (E.D. Cal. Dec. 28, 2016). 28 //// 1 E. Defendants’ Motion to Strike 2 On September 21, 2022, plaintiff filed a sur-reply to defendants’ reply. (ECF No. 69.) On 3 December 9, 2022, defendants filed a motion to strike plaintiff’s sur-reply as an improper 4 pleading. (ECF No. 71.) 5 The Local Rules for the Eastern District of California provide for a motion, an opposition, 6 and a reply. See E.D. Cal. L.R. 230(l). There is nothing in the Local Rules or the Federal Rules 7 of Civil Procedure that permit the filing of a sur-reply as a matter of right. The court generally 8 views motions for leave to file a sur-reply with disfavor. See Hill v. England, 2005 WL 3031136, 9 at *1 (E.D. Cal. 2005) (citation omitted). However, district courts have the discretion to either 10 permit or preclude a sur-reply. See JG v. Douglas Cnty. School Dist., 552 F.3d 786, 803 n.14 11 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file a sur-reply where it 12 did not consider new evidence in reply); U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 13 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit 14 “inequitable surreply”), overruled on other grounds by U.S. ex rel. Hartpence v. Kinetic 15 Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015). 16 The undersigned is mindful that, in this Circuit, courts are required to afford pro se 17 litigants additional leniency. See, e.g., Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 18 (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (holding when plaintiff “is pro se, 19 particularly in civil rights cases, [courts should] construe the pleadings liberally and ... afford the 20 [plaintiff] the benefit of any doubt”). Nonetheless, the leniency afforded pro se inmates need not 21 extend to permitting sur-replies “as a matter of course,” and the undersigned is not inclined to 22 grant such leave absent a showing of good cause. See Garcia v. Biter, 195 F. Supp.3d 1131, 1134 23 (E.D. Cal. 2016) (denying motion for leave to file sur-reply due to lack of good cause). 24 Here, plaintiff did not seek leave to file a sur-reply even though the record reflects that 25 plaintiff is capable of seeking leave from the court to file various documents. (See, e.g., ECF No. 26 24 (motion to amend); ECF No. 29 (motion for extension of time); ECF No. 37 (motion to 27 compel).) The undersigned also reviewed the sur-reply and finds that the arguments raised do not 28 change the undersigned’s analysis of defendants’ summary judgment motion. Accordingly, 1 defendants’ motion to strike the sur-reply should be granted and the sur-reply should be stricken. 2 V. Plaintiff’s Summary Judgment Motion 3 A. Discussion 4 In discussing plaintiff’s summary judgment motion, the undersigned incorporates the legal 5 standards set forth above for the claims against defendants Joseph and Spaulding. 6 Plaintiff moves for summary judgment on the merits of his claims. Plaintiff also raises a 7 new retaliation claim against defendant Spaulding and argues that he is being denied video 8 evidence of his claims. The undersigned addresses these arguments herein. 9 Plaintiff’s Motion re: Merits of Claims 10 Plaintiff moves for summary judgment as to the merits of his claims against defendants 11 Joseph and Spaulding. (ECF No. 62 at 14-20.) The evidence plaintiff relies on in support of his 12 summary judgment motion is his separately filed declaration. (ECF No. 63.) In this declaration, 13 plaintiff alleges that defendant Joseph sexually and verbally assaulted him during August-October 14 2020. (Id. at 1-2.) Plaintiff alleges that defendant Spaulding failed to intervene after plaintiff 15 informed him that defendant Joseph was sexually and verbally harassing plaintiff. (Id. at 2.) 16 Attached to plaintiff’s declaration are exhibits relevant to the merits of his claims. These 17 exhibits include plaintiff’s complaint (id. at 7-21), plaintiff’s mental health records (id. at 23-38), 18 plaintiff’s medical records (id. at 38-46), a second declaration by plaintiff (id. at 96-97), and 19 declarations by inmate witnesses (id. at 98-102). 20 In his second declaration, plaintiff states that defendant Joseph assaulted him in 21 September 2020 in the kitchen pantry. (Id. at 97.) 22 The undersigned herein summarizes the inmate declarations attached to plaintiff’s 23 declaration filed in support of his summary judgment motion. Inmate Joseph Harris states that he 24 witnessed defendant Joseph verbally harass other inmates on February 18, 2021. (Id. at 98.) 25 Inmate Gary Williams states that he witnessed plaintiff attempt to report defendant Joseph’s 26 sexual misconduct to defendant Spaulding. (Id. at 99.) Inmate Gary Williams also states that he 27 witnessed plaintiff having a mental breakdown on September 29, 2020. (Id.) Plaintiff includes a 28 second declaration by inmate Gary Williams. (Id. at 100.) In the second declaration, inmate 1 Gary Williams states that in September he observed defendant Joseph follow plaintiff into the 2 kitchen. (Id.) Inmate Gary Williams states that plaintiff later told him that defendant Joseph 3 grabbed his penis and threatened to falsify a disciplinary report and fire plaintiff from his job if he 4 reported it. (Id.) Plaintiff submitted a declaration from inmate Allen. (Id. at 101.) This 5 declaration states that on or around September 8, 20139, the inmate observed defendant Joseph 6 enter the kitchen after plaintiff. (Id.) Plaintiff submitted the declaration of inmate David Rashid. 7 (Id. at 102.) Inmate David Rashid states that in 2020-2021, he witnessed defendant Joseph 8 smiling and licking his lips toward plaintiff. (Id.) 9 Defendants’ Opposition 10 Defendants first argue that plaintiff’s summary judgment motion should be denied 11 because plaintiff failed to file a statement of undisputed facts in support of his summary judgment 12 motion, as required by Local Rule 56-260(a). 13 In light of the Ninth Circuit’s directive that a document of a pro se litigant be construed 14 liberally, the undersigned resolves plaintiff’s summary judgment motion on the merits despite 15 plaintiff’s failure to file a statement of undisputed facts as required by the Local Rules. Estelle v. 16 Gamble, 551 U.S. 89, 94 (9th Cir. 2007); Fed. R. Civ. P. 8(f) (“All pleadings shall be so 17 construed as to do substantial justice.”). 18 Defendants next argue that plaintiff’s motion for summary judgment as to defendant 19 Joseph should be denied because the alleged verbal sexual harassment and alleged sexual assault 20 did not violate the Eighth Amendment. (ECF No. 66 at 7-8.) Defendants also contend that 21 whether defendant Joseph sexually harassed and/or assaulted plaintiff is disputed. In support of 22 this claim, defendants cite defendant Joseph’s supplemental responses to plaintiff’s first set of 23 interrogatories attached to the opposition. In his supplemental response to interrogatory no. 10, 24 defendant Joseph denied harassing or assaulting plaintiff in any manner. (ECF No. 66-3 at 12.) 25 In his supplemental response to interrogatory no. 12, defendant Joseph denied sexually assaulting 26 or sexually harassing plaintiff in E1B at CHCF in September 2020. (Id. at 14.) 27 9 It appears that the inmate Allen meant to state that he saw plaintiff enter the kitchen on 28 September 8, 2020, rather than September 8, 2013. 1 Regarding defendant Spaulding, defendants argue that plaintiff’s allegations against him, 2 if true, do not establish a constitutional violation. (ECF No. 66 at 9.) Defendants also argue that 3 plaintiff’s allegations against defendant Spaulding are contradicted by defendant Spaulding’s 4 responses to plaintiff’s first set of interrogatories. In response to interrogatory no. 1, defendant 5 Spaulding denied that plaintiff reported defendant Joseph’s misconduct to him on September 9, 6 2020. (ECF No. 66-3 at 19.) In response to interrogatory no. 3, defendant Spaulding denied 7 informing plaintiff on September 9, 2020 that plaintiff had nothing coming as long as he resided 8 at CHCF. (Id.) 9 Discussion 10 The undersigned recommends that plaintiff’s motion for summary judgment on the merits 11 of his claims be denied because, for the reasons set forth in the discussion of defendants’ 12 summary judgment motion, the alleged conduct of defendants Joseph and Spaulding did not 13 violate the Eighth Amendment. Because plaintiff’s Eighth Amendment claims were extensively 14 discussed above, the undersigned need not address these claims further herein. 15 In addition, the undersigned also finds that whether defendant Joseph committed the 16 alleged deprivations is disputed. In his supplemental response to plaintiff’s interrogatories, 17 defendant Joseph denies the alleged deprivations. Based on these responses, the undersigned 18 finds that whether defendant Joseph committed the alleged deprivations is disputed. 19 For the following reasons, the undersigned finds that defendants did not demonstrate a 20 dispute regarding whether defendant Spaulding committed the alleged deprivations. Plaintiff 21 alleges that he reported defendant Joseph’s misconduct to defendant Spaulding on September 2, 22 2020. The interrogatories, discussed above, ask defendant Spaulding about an incident on 23 September 9, 2020. For this reason, defendant Spaulding’s responses to plaintiff’s interrogatories 24 do not create a dispute regarding whether defendant Spaulding failed to report defendant Joseph’s 25 misconduct on September 2, 2020. 26 B. Retaliation 27 Plaintiff argues that defendant Spaulding retaliated against plaintiff for filing this action 28 by verbally threatening plaintiff and filing false rules violation reports. (ECF No. 62 at 3-4, 12- 1 14, 21.) Plaintiff’s complaint did not raise this retaliation claim against defendant Spaulding. 2 Plaintiff may not raise a new claim in his summary judgment motion. See Wolf v. University 3 Professional & Technical Employees, 2020 WL 6342934, at *4 (N.D. Cal. Oct. 29, 2020) 4 (“Slinking in a new claim in his summary judgment motion cannot serve as a substitute to 5 amending his complaint.”). Accordingly, plaintiff’s retaliation claim against defendant 6 Spaulding, raised for the first time in his summary judgment motion, is disregarded. 7 C. Video Footage 8 In the opposition, plaintiff argues that he has been denied video footage of the incidents. 9 (ECF No. 62 at 5-12.) Plaintiff appears to argue that he should be granted summary judgment 10 based on the alleged spoliation of video evidence. The background to this argument follows 11 herein. 12 Background 13 On April 27, 2022, the undersigned granted in part and denied in part plaintiff’s motion to 14 compel further responses to request for production of documents nos. 1-7 and 9. (ECF No. 35.) 15 In request for production no. 3, plaintiff sought “Moving video footage/recording of CHCF unit 16 E1 kitchen pantry area on the 9th-13th day of September, 2020 between 5:00 p.m.-6:00 p.m.” 17 (Id. at 9.) In request for production no. 4, plaintiff sought, “Moving video footage/recording of 18 CHCF unit E1B officer’s desk and cell areas (all) on the 29th day of September, 2020 between 19 3:00-3:40 p.m.” (Id.) 20 Defendants responded to requests nos. 3 and 4 that, despite a diligent and reasonable 21 search, the requested video footage did not exist. (Id. at 10.) The undersigned ordered 22 defendants to supplement their response to request nos. 3 and 4 with sufficient detail on the 23 search efforts undertaken for the requested videos. (Id. at 11.) 24 Defendants filed supplemental briefing addressing the search efforts undertaken for the 25 requested videos. (ECF No. 40.) Defendants represented that the video footage plaintiff sought 26 did not exist because the CHCF camera did not capture the areas requested by plaintiff. (Id. at 3.) 27 In a declaration attached to defendants’ supplemental briefing, Litigation Coordinator Takehara 28 stated that the video footage did not exist because the areas from which plaintiff sought video 1 footage, i.e., the CHCF unit E1B Kitchen Pantry area and the CHCF Unit E1B officer’s desk and 2 cell areas, were not areas that were captured on cameras. (Id. at 2.) 3 On May 23, 2022, the undersigned denied plaintiff’s motion to compel regarding request 4 nos. 3 and 4 because the requested videos did not exist. (ECF No. 41.) 5 On June 29, 2022, plaintiff filed a motion for sanctions. (ECF No. 54.) Plaintiff claimed 6 that Litigation Coordinator Takehara’s declaration stating that video footage of the requested 7 areas did not exist because these areas were not captured on cameras was false. (Id.) On January 8 23, 2023, the undersigned denied plaintiff’s motion for sanctions. (ECF No. 76.) 9 Discussion 10 In his summary judgment motion, plaintiff argues that the video footage he sought in his 11 motion to compel existed. (ECF No. 62 at 5-12.) Plaintiff contends that the video footage was 12 wrongly erased, discarded or destroyed. (Id. at 6.) 13 The undersigned construes plaintiff’s arguments regarding the video footage as a request 14 for an adverse inference based on the alleged spoliation of evidence. The video footage appears 15 to have been electronic evidence. 16 “‘The failure to preserve electronic or other records, once the duty to do so has been 17 triggered, raises the issue of spoliation of evidence and its consequences.’” Surowiec v. Capital 18 Title Agency, Inc., 790 F. Supp.2d 997, 1005 (D. Ariz. 2011) (quoting Thompson v. U.S. Dep’t 19 of Hous. & Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003)). “[T]he obligation to preserve 20 evidence arises prior to the filing of a complaint where a party is on notice that litigation is likely 21 to be commenced.” Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991). A 22 party’s failure to preserve evidence constitutes “willful spoliation if the party has ‘some notice 23 that the documents were potentially relevant to the litigation before they were destroyed.’” Leon 24 v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) (quoting United States v. Kitsap 25 Physicians Serv., 314 F. 3d 995,1001 (9th Cir. 2002)) (italics in original). 26 A court “can sanction a party who has despoiled evidence” under its “inherent power ... to 27 levy sanctions in response to abusive litigation practices.” Leon, 464 F.3d 951, 958 (9th Cir. 28 2006). As a sanction for spoliation, a court considering a summary judgment motion may give 1 the harmed party the benefit of an adverse inference that the spoliated evidence would have 2 benefited their action. See In re Oracle Corp. Securities Litigation, 627 F.3d 376, 386 (9th Cir. 3 2010). 4 For the following reasons, the undersigned finds that plaintiff is not entitled to an adverse 5 inference based on alleged spoliation of the at-issue videos. First, the undersigned previously 6 found no evidence that the requested videos existed in the first place. (ECF Nos. 41, 76.) 7 Therefore, plaintiff’s claim that defendants destroyed the videos is without merit. 8 However, even if the requested videos existed and were improperly destroyed, the 9 undersigned finds that plaintiff is not entitled to an adverse inference because there is no adverse 10 inference to be made. Video footage of the September 29, 2020 incident would not demonstrate 11 that defendant Joseph violated plaintiff’s constitutional rights. Video footage of the incident in 12 the kitchen, showing defendant Joseph’s alleged brief touching of plaintiff’s penis outside of his 13 pants also would not demonstrate that defendant Joseph violated plaintiff’s constitutional rights. 14 As discussed above, defendant Joseph’s alleged brief touching of plaintiff did not violate the 15 Eighth Amendment. For these reasons, plaintiff’s request for an adverse inference based on the 16 alleged spoliation of the at-issue videos should be denied. Cf. Reinsdorf v. Skechers U.S.A., Inc., 17 296 F.R.D. 604, 631 (N.D. Cal. July 19, 2013) (deletion of irrelevant evidence does not support a 18 spoliation claim); cf. Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.1998) (when a party 19 “has produced no evidence—or utterly inadequate evidence—in support of a given claim”, “the 20 destruction of evidence, standing alone, is [not] enough to allow [the] party ... to survive 21 summary judgment on that claim”). 22 D. Remaining Matters 23 In his summary judgment motion, plaintiff contends that he exhausted administrative 24 remedies. (ECF No. 62 at 21-22.) Plaintiff also includes legal briefing addressing qualified 25 immunity. (Id. at 22-23.) The purpose of plaintiff’s discussion of administrative exhaustion and 26 qualified immunity in his summary judgment motion is unclear. 27 Because plaintiff’s exhaustion of administrative remedies is not at issue, the undersigned 28 will not address this issue further. The undersigned will not address the issue of qualified 1 immunity as it is not relevant to plaintiff’s summary judgment motion. 2 VI. Plaintiff’s Motion for Clarification (ECF No. 77) 3 On February 6, 2023, plaintiff filed a motion for clarification. (ECF No. 77.) In this 4 motion, plaintiff argues that the undersigned wrongly denied his motion to compel the production 5 of the videotapes, discussed above, by relying solely on the declaration of Litigation Coordinator 6 E. Takehara. (Id. at 6.) Plaintiff contends that the court should have granted his request for an 7 order directing a “CHCF employee who specializes (I.S.U.) to submit camera footage that video 8 captures EIB to the court, accompanied by a sworn declaration.” (Id. at 6.) Plaintiff filed a 9 declaration in support of his motion for clarification in which he states that he submitted evidence 10 proving that video captures the areas of his claims, contrary to the declaration of Litigation 11 Coordinator E. Takehara. (ECF No. 78.) 12 The undersigned construes plaintiff’s motion for clarification as a request for 13 reconsideration of the January 23, 2023 order denying plaintiff’s motion for sanctions. As 14 discussed above, in the motion for sanctions, plaintiff claimed that Litigation Coordinator 15 Takehara’s declaration stating that video footage of the requested areas did not exist was false. 16 (ECF No. 54.) On January 23, 2013, the undersigned denied plaintiff’s motion for sanctions. 17 (ECF No. 76.) 18 As discussed above, plaintiff’s allegations against defendants Joseph and Spaulding do not 19 demonstrate violations of the Eighth Amendment. Assuming videos of the kitchen incident and 20 the September 29, 2020 incident exist or existed, they would not demonstrate a violation of 21 plaintiff’s Eighth Amendment rights. For these reasons, the undersigned recommends that 22 plaintiff’s motion for clarification, construed as a request for reconsideration of the January 23, 23 2023 order denying plaintiff’s motion for sanctions, be denied. 24 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 25 district judge to this action; and 26 IT IS HEREBY RECOMMENDED that: 27 1. Defendants’ motion to strike plaintiff’s sur-reply (ECF No. 71) be granted; 28 2. Defendants’ summary judgment motion (ECF No. 65) be granted; 1 3. Plaintiff's motion for summary judgment (ECF No. 62) be denied; 2 4. Plaintiff's motion for clarification (ECF No. 77), construed as a request for 3 reconsideration of the January 23, 2023 order denying plaintiffs motion for sanctions, 4 be denied. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 7 || after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 || objections shall be filed and served within fourteen days after service of the objections. The 11 || parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 | Dated: March 6, 2023 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 17 18 Rich975.sj(3) 19 20 21 22 23 24 25 26 27 28 29