Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1989)

Frank GONZALES, Plaintiff-Appellantv.Jacob M. AGUILAR, Guard at ASPC-F Defendant-Appellee

No. 86-2757.

United States Court of Appeals, Ninth Circuit.

Submitted May 12, 1989.* Decided Aug. 21, 1989.

Before JAMES R. BROWNING, CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges.


MEMORANDUM** 

Frank Gonzales, an Arizona state prisoner, appeals pro se and in forma pauperis the district court's order dismissing as frivolous his 42 U.S.C. § 1983 civil rights action. Gonzales alleged that a prison guard violated his civil rights through verbal abuse and sexual harassment. We have jurisdiction, see Gila River Indian Community v. Hennigson, Etc., 626 F.2d 708, 710 n. 4 (9th Cir. 1980), cert. denied, 451 U.S. 911 (1981); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978), and we affirm in part and reverse in part.

* Verbal harassment claims do not state grounds for relief under section 1983. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Consequently, the district court did not err in dismissing this aspect of Gonzales' 1983 action.

II

In dismissing the sexual harassment claim, however, the district court did err. The prison's right to conduct searches is broad, but limited by the need to safeguard penological interests. See Bell v. Wolfish, 441 U.S. 520, 558 (1978); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988), cert. denied, 109 S. Ct. 1655 (1989).

Gonzales alleges that the prison guard lasciviously, maliciously, and out of retaliation fondled his genitals during a pat-down search. His claim may prove to be entirely frivolous, but at this threshold stage we are required to accept his allegations as true. Doing so, we conclude that it was error to dismiss Gonzales' sexual harassment allegation for failing to state a claim. The Constitution does not permit prison guards to fondle an inmate's genitals for the purpose of harassment. See Bell, 441 U.S. at 558 (" [S]earches must be conducted in a reasonable manner.").

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3