1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MICHAEL A. THOMPSON, Case No. 20-cv-04241-RMI
9 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 10 v. TO AMEND
11 JEUNG, Re: Dkt. No. 6 12 Defendant.
13 14 Plaintiff has filed a pro se civil rights complaint under 42 U.S.C. § 1983.1 He has been 15 granted leave to proceed in forma pauperis (dkt. 7) and he has consented to the jurisdiction of a 16 Magistrate Judge (dkt. 5). 17 DISCUSSION 18 Standard of Review 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement 2 need only ‘give the defendant fair notice of what the . . . . claim is and the grounds upon which it 3 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state 4 a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 5 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 6 a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 7 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 9 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 10 recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can 11 provide the framework of a complaint, they must be supported by factual allegations. When there 12 are well-pleaded factual allegations, a court should assume their veracity and then determine 13 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 14 (2009). 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 16 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 17 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 18 487 U.S. 42, 48 (1988). 19 Legal Claims 20 Plaintiff alleges that defendant sexually harassed him, retaliated against him for his 21 protected conduct and initiated an assault against him by another inmate. 22 Mere verbal sexual harassment does not necessarily amount to an Eighth Amendment 23 violation. Austin v. Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary 24 judgment dismissal of Eighth Amendment claim where prison guard exposed himself to prisoner 25 in elevated, glass-enclosed control booth for no more than 30-40 seconds). A prisoner therefore 26 must establish that the alleged sexual harassment was egregious, pervasive and/or widespread in 27 order to state a claim under the Eighth Amendment. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1 on female prisoners); Watson v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (correctional 2 officer sexually harassed two inmates on almost daily basis for two months by conducting 3 deliberate examination of genitalia and anus). 4 Sexual harassment and unwanted sexual contact may violate the Fourteenth Amendment’s 5 substantive due process right to be free from violations of bodily integrity. See Vazquez v. County 6 of Kern, Nos. 18-15060 & 15671, slip op. 1, 13-15 (9th Cir. Jan. 31, 2020) (analyzing claim by 7 ward against officials at county juvenile hall). “The threshold question is ‘whether the behavior of 8 the governmental official is so egregious, so outrageous, that it may fairly be said to shock the 9 contemporary conscience.’” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 10 (1998)) (finding that adult male officer’s referring to female juvenile ward as “babe,” touching of 11 her face and shoulders, talking about her appearance in her shower gown, telling her that he had 12 seen her in the shower and that she should leave her boyfriend for him, describing a sexual dream 13 he had about her that he wanted to come true, and telling her to stand between his opened knees, if 14 true was sufficiently egregious to violate the Fourteenth Amendment). 15 The right of a pretrial detainee or juvenile ward to be free from punishment under the 16 Fourteenth Amendment may also be violated by sexual harassment or unwanted sexual contact. 17 Vazquez, slip op. at 16-17. The question is whether such conduct amounts to “punishment.” Id. To 18 constitute punishment, the conduct “must either significantly exceed, or be independent of, the 19 inherent discomforts of confinement” and have purpose of punishment rather than a legitimate 20 governmental interest. Id. at 16 (internal quotations omitted) (citing Denmery v. Arpaio, 378 F.3d 21 1020, 1029 (9th Cir. 2004) (finding juvenile hall guard’s sexual harassment met test for 22 punishment and violated the Fourteenth Amendment). 23 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 25 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); 1 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 2 rights and that the retaliatory action did not advance legitimate penological goals, such as 3 preserving institutional order and discipline). The prisoner must show that the type of activity he 4 was engaged in was constitutionally protected, that the protected conduct was a substantial or 5 motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no 6 legitimate penological interest. Hines v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MICHAEL A. THOMPSON, Case No. 20-cv-04241-RMI
9 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 10 v. TO AMEND
11 JEUNG, Re: Dkt. No. 6 12 Defendant.
13 14 Plaintiff has filed a pro se civil rights complaint under 42 U.S.C. § 1983.1 He has been 15 granted leave to proceed in forma pauperis (dkt. 7) and he has consented to the jurisdiction of a 16 Magistrate Judge (dkt. 5). 17 DISCUSSION 18 Standard of Review 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement 2 need only ‘give the defendant fair notice of what the . . . . claim is and the grounds upon which it 3 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state 4 a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 5 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 6 a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 7 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 9 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 10 recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can 11 provide the framework of a complaint, they must be supported by factual allegations. When there 12 are well-pleaded factual allegations, a court should assume their veracity and then determine 13 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 14 (2009). 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 16 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 17 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 18 487 U.S. 42, 48 (1988). 19 Legal Claims 20 Plaintiff alleges that defendant sexually harassed him, retaliated against him for his 21 protected conduct and initiated an assault against him by another inmate. 22 Mere verbal sexual harassment does not necessarily amount to an Eighth Amendment 23 violation. Austin v. Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary 24 judgment dismissal of Eighth Amendment claim where prison guard exposed himself to prisoner 25 in elevated, glass-enclosed control booth for no more than 30-40 seconds). A prisoner therefore 26 must establish that the alleged sexual harassment was egregious, pervasive and/or widespread in 27 order to state a claim under the Eighth Amendment. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1 on female prisoners); Watson v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (correctional 2 officer sexually harassed two inmates on almost daily basis for two months by conducting 3 deliberate examination of genitalia and anus). 4 Sexual harassment and unwanted sexual contact may violate the Fourteenth Amendment’s 5 substantive due process right to be free from violations of bodily integrity. See Vazquez v. County 6 of Kern, Nos. 18-15060 & 15671, slip op. 1, 13-15 (9th Cir. Jan. 31, 2020) (analyzing claim by 7 ward against officials at county juvenile hall). “The threshold question is ‘whether the behavior of 8 the governmental official is so egregious, so outrageous, that it may fairly be said to shock the 9 contemporary conscience.’” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 10 (1998)) (finding that adult male officer’s referring to female juvenile ward as “babe,” touching of 11 her face and shoulders, talking about her appearance in her shower gown, telling her that he had 12 seen her in the shower and that she should leave her boyfriend for him, describing a sexual dream 13 he had about her that he wanted to come true, and telling her to stand between his opened knees, if 14 true was sufficiently egregious to violate the Fourteenth Amendment). 15 The right of a pretrial detainee or juvenile ward to be free from punishment under the 16 Fourteenth Amendment may also be violated by sexual harassment or unwanted sexual contact. 17 Vazquez, slip op. at 16-17. The question is whether such conduct amounts to “punishment.” Id. To 18 constitute punishment, the conduct “must either significantly exceed, or be independent of, the 19 inherent discomforts of confinement” and have purpose of punishment rather than a legitimate 20 governmental interest. Id. at 16 (internal quotations omitted) (citing Denmery v. Arpaio, 378 F.3d 21 1020, 1029 (9th Cir. 2004) (finding juvenile hall guard’s sexual harassment met test for 22 punishment and violated the Fourteenth Amendment). 23 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 25 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); 1 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 2 rights and that the retaliatory action did not advance legitimate penological goals, such as 3 preserving institutional order and discipline). The prisoner must show that the type of activity he 4 was engaged in was constitutionally protected, that the protected conduct was a substantial or 5 motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no 6 legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring 7 retaliatory motive from circumstantial evidence). 8 Inmates who sue prison officials for damages for injuries suffered while in custody may 9 do so under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet 10 convicted, under the Fourteenth Amendment’s Due Process Clause. See Bell v. Wolfish, 441 U.S. 11 520, 535 (1979); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en 12 banc). But under both clauses, the inmate must show that the prison official acted with deliberate 13 indifference. Castro, 833 F.3d at 1068. 14 In the context of claims for failure to protect, the standard under the Eighth Amendment to 15 prove deliberate indifference is different than the standard to prove deliberate indifference under 16 the Fourteenth Amendment. Whereas a convicted prisoner must prove an individual defendant’s 17 subjective awareness of a risk of harm in order to prevail on a failure-to-protect claim under the 18 Eighth Amendment, a pretrial detainee need not do the same in order to prevail on a failure-to- 19 protect claim under the Fourteenth Amendment. Castro, 833 F.3d at 1068-70 (holding that 20 objective standard of Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), applicable to excessive 21 force claims brought by pretrial detainees, also applies to failure-to-protect claims brought by 22 pretrial detainees). Specifically, a pretrial detainee need not “prove an individual defendant’s 23 subjective intent to punish in the context of a . . . failure-to protect claim.” Id. at 1070. A pretrial 24 detainee who asserts a due process claim for failure to protect instead must prove “more than 25 negligence but less than subjective intent – something akin to reckless disregard.” Id. at 1071. 26 In the brief complaint, Plaintiff alleges that Defendant has repeatedly sexually harassed 27 him, and after Plaintiff filed a grievance, defendant opened his cell door and another inmate 1 elements of some of his claims, the complaint is due to be dismissed with leave to amend to 2 provide more information. He must provide more details and factual allegations that plausibly give 3 rise to an entitlement to relief. See Iqbal, 556 U.S. at 679. With respect to the sexual harassment 4 allegations, Plaintiff must provide more information in light of the legal standards set forth above. 5 He must also describe his injuries from the assault and must indicate if he is a pretrial detainee or a 6 convicted prisoner. 7 Plaintiff has also filed a motion to appoint counsel. There is no constitutional right to 8 counsel in a civil case, Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981), and although 9 district courts may “request” that counsel represent a litigant who is proceeding in forma pauperis, 10 as Plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not give the courts the power to make 11 “coercive appointments of counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310 12 (1989). 13 The Ninth Circuit has held that a district court may ask counsel to represent an indigent 14 litigant only in “exceptional circumstances,” the determination of which requires an evaluation of 15 both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his 16 claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 17 1015, 1017 (9th Cir. 1991). Plaintiff has presented his claims adequately, and the issues are not 18 complex; thus, the circumstances are not exceptional, and the court will not appoint counsel. 19 CONCLUSION 20 For the reasons stated above, Plaintiff’s Motion to Appoint Counsel (dkt. 6) is DENIED. 21 Additionally, the complaint is DISMISSED with leave to amend in accordance with the standards 22 set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 23 this order is filed and must include the caption and civil case number used in this order and the 24 words AMENDED COMPLAINT on the first page. Because an amended complaint completely 25 replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See 26 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 27 original complaint by reference. Failure to amend within the designated time will result in the 1 It is the plaintiffs responsibility to prosecute this case. Plaintiff must keep the court 2 || informed of any change of address by filing a separate paper with the clerk headed “Notice of 3 Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do so 4 || may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 5 Procedure 41(b). 6 IT IS SO ORDERED. 7 Dated: August 18, 2020 8 9 RORERT M. ILLMAN 10 United States Magistrate Judge 11 12
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