(PC) Moore v. Schlichting ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MARCUS MOORE, No. 1:20-cv-01672-NONE-EPG (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 v. (Doc. No. 10) 13 R. SCHLICHTING, 14 Defendant. 15 16 Plaintiff Marcus Moore is proceeding pro se and in forma pauperis in this civil rights 17 action pursuant to 42 U.S.C. § 1983. In his first amended complaint, plaintiff alleges a single 18 claim under the Eighth Amendment for sexual harassment and assault, which includes allegations 19 that a correctional officer grabbed plaintiff’s buttocks on one occasion and that the same female 20 correctional officer, on a later occasion, touched her breasts and rubbed her body in a sexual way 21 in view of plaintiff. (Doc. No. 8 at 3.) Plaintiff also alleges one claim of the violation of his due 22 process rights, related to the same correctional officer named as a defendant in this action 23 purportedly filing a false prison disciplinary report for indecent exposure against plaintiff and for 24 claimed deficiencies in the disciplinary hearing conducted in relation to the allegedly false report. 25 (Id. at 4.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 26 § 636(b)(1)(B) and Local Rule 302. 27 On February 23, 2021, the assigned magistrate judge entered findings and 28 recommendations recommending that this action be dismissed with prejudice due to plaintiff’s 1 failure to state a claim. (Doc. No. 10.) Plaintiff’s allegation of assault in his first amended 2 complaint is, in its entirety, one sentence: “On 3-9-2019, [the correctional officer] while placing 3 [plaintiff] in a cell grabbed [plaintiff’s] buttocks for [the correctional officer’s] sexual 4 gratification.” (Doc. No. 8 at 3.) This sentence is not preceded by any alleged facts or 5 information and is followed only by two sentences of equal brevity describing the alleged sexual 6 harassment that occurred at a later date. (Id.) The magistrate judge found that plaintiff’s Eighth 7 Amendment claim did not state sufficient facts to meet the standard for an Eighth Amendment 8 sexual assault claim. (Id. at 4–6.) The magistrate judge also found that plaintiff’s due process 9 claim cannot proceed by way of a § 1983 suit because reversal of his prison rules violation 10 report—based either on the report’s fabrication or the hearing deficiencies—would result in the 11 restoration of good time credits. (Id. at 9.) Under the applicable law, any claims affecting the 12 duration of a sentence, including the restoration of good time credits, must be brought by way of a 13 habeas petition. (Id. at 6–9.) This is true even if other relief is sought in the § 1983 suit. (Id. at 14 8.) 15 Plaintiff was provided an opportunity to file objections to the findings and 16 recommendations within twenty-one (21) days. Plaintiff submitted objections that were dated 17 March 12, 2021, but were not filed with the court until March 22, 2021. (Doc. No. 11.) 18 Nonetheless, the court will consider the objections to have been timely filed under application of 19 the mail box rule. Regarding his Eighth Amendment claim, plaintiff argues that “any sexual 20 assault or abuse of an inmate by a prison official” constitutes a civil rights violation and that he 21 established the violation “without [ ] going into all the facts of the actions.” (Doc. No. 11.) He 22 further argues that he “explained as much as [he] could”; however, plaintiff follows this 23 declaration with additional purported facts not contained in his complaint: the correctional officer 24 made “sexual statements” about “how sexy [plaintiff] was”; and the correctional officer did 25 “sexual things like licking her lip at [plaintiff] and sticking her tongue out in a sexual manner 26 every time she walked by [plaintiff’s cell].” (Id.) Plaintiff does not state when these additional 27 comments or gestures occurred in relation to the events alleged in his complaint. 28 ///// 1 Most importantly, the additional facts asserted in plaintiff’s objections are insufficient as 2 stated largely because plaintiff has not established the dates and the context of the newly outlined 3 comments and gestures. As such, even if these the new details had been alleged in his complaint 4 would not establish how plaintiff knew or inferred that the contact made with his buttocks was 5 done for the correctional officer’s sexual gratification. Specifically, the new allegations do not 6 include a statement whether the sexual comments and gestures occurred before or after the 7 alleged physical contact. There is also no assertion that the physical contact had no penological 8 interest. 9 In order to state a cognizable sexual harassment claim based on verbal or nonverbal 10 statements (as opposed to an assault claim), plaintiff must “allege that there was no legitimate 11 penological objective and that the statement made was so extreme even for a prison setting and 12 was calculated to cause psychological harm.” Moore v. Calderon, No. 1:20-cv-00397-DAD- 13 BAM (PC), 2021 WL 1541296, at *2 (E.D. Cal. Apr. 20, 2021). Indeed, the Ninth Circuit on 14 several occasions has declined to find verbal or nonverbal sexual harassment sufficient to support 15 an Eighth Amendment claim. See, e.g., Austin v. Terhune, 367 F.3d 1167 (9th Cir. 2004) 16 (affirming the dismissal of an Eighth Amendment claim alleging that correctional officer 17 unzipped his pants and exposed his penis to the plaintiff from inside a control booth); Somers v. 18 Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (finding that gawking, pointing, and joking does not 19 violate the prohibition against cruel and unusual punishment because to do so “would trivialize 20 the objective component of the Eighth Amendment test and render it absurd”); see also Blacher v. 21 Johnson, 517 F. App’x 564 (9th Cir. 2013) (holding that the district court properly dismissed the 22 plaintiff’s claim of sexual harassment “because the Eighth Amendment’s protections do not 23 extend to mere verbal sexual harassment,” citing Somers).1 Under current Ninth Circuit law in 24 this area, plaintiff has not stated a cognizable claim. Moreover, plaintiff has been given more 25 than one opportunity to do so (which now also includes the undersigned’s consideration of the 26 new facts alleged in plaintiff’s objections). 27 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 Turning to plaintiff's due process claim, plaintiff argues in his objections that his claim 2 | should move forward because he was not allowed to call witnesses or present other evidence at 3 | his administrative hearing, which is a violation under Wolff v. McDonnell, 418 U.S. 539 (1974). 4 | (Doc. No. 11.) Plaintiff does not address the magistrate judge’s basis for recommending 5 | dismissal of his claim (that his claim must be brought by habeas petition) and his objections 6 || provide no basis upon which to reject that recommendation. 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B), this court has conducted a 8 | de novo review of this case. Having carefully reviewed the entire file, including plaintiffs 9 | objections, the court finds the findings and recommendations to be supported by the record and 10 | by proper analysis. 11 Accordingly, 12 1. The findings and recommendations entered February 23, 2021 (Doc. No. 10) are 13 adopted in full; 14 2. This case is dismissed with prejudice for failure to state a claim; and 15 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of 16 closing the case and then to close this case. '7 | Tr Is SO ORDERED. 18 ji je Ff; Dated: _ July 2, 2021 wea rE —- 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28