Vazquez v. County of Kern et al, No. 1:2016cv01469 - Document 97 (E.D. Cal. 2017)
Court Description: ORDER GRANTING Defendant's 58 Motion for Summary Judgment, signed by Magistrate Judge Jennifer L. Thurston on 12/14/17. (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMANTHA VAZQUEZ, 12 Plaintiff, 13 14 v. COUNTY OF KERN, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-1469 - JLT ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 58) 16 17 Plaintiff alleges the defendants are liable for civil rights violations arising under 42 U.S.C. § 18 1983, related to incidents while she was incarcerated in a juvenile detention facility. (See generally 19 Doc. 37) Defendant George Anderson argues Plaintiff is unable to succeed on the claims against him, 20 and seeks summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 58) The Court heard the oral arguments of the parties on December 7, 2017. For the following 21 22 reasons, Defendant’s motion for summary judgment is GRANTED. 23 I. 24 25 Background1 “On January 19, 2015, Plaintiff was arrested in Delano, California on an outstanding warrant and taken to Kern County Juvenile Hall.” (DSF 1) Plaintiff “was housed in Unit 300A (also referred to 26 27 28 1 This section is a summary of both the undisputed facts and the parties’ positions in this action. Facts from the parties’ Joint Statement of Undisputed Material Facts are identified as “JSF.” (Doc. 58-2) In addition, each of the parties prepared additional facts in support of the motion. To the extent any facts identified by the parties are undisputed and the Court found the evidence cited supports the fact identified, these are identified as “DSF” for Defendant’s Separate Facts and “PSF” for Plaintiff’s Separate Facts. 1 1 as ‘3A’) where Defendant Anderson worked.” (DSF 2) “Plaintiff and Anderson had met before during 2 another one Plaintiff’s detentions at juvenile hall.” (JSF 1) “When Plaintiff arrived at juvenile hall on 3 January 19, she asked a staff member if Mr. Anderson was working because she ‘needed to talk to 4 him.’” (DSF 3; Doc. 58-6 at 2 Bracamonte Decl. ¶4) 5 “Anderson has been employed as a Juvenile Correctional Officer (JCO) by Kern County 6 Probation Department since 1990.” (JSF 2) He “was a gang intelligence officer, and trained other 7 officers.” (DSF 4) Further, “Anderson handled the maintenance details for juvenile hall, including 8 painting and cement work.” (JSF 4) Wards at juvenile hall are “frequently” used by JCOs for work 9 details, such as laundry, kitchen, and clean-up. (JSF 3) 10 “Plaintiff worked details with several staff members, including [] Anderson.” (JSF 5) She 11 reports that she “initially liked doing details with Anderson” “because they would listen to music while 12 chipping paint.” (DSF 6; Doc. 73 at 6; Vazquez Depo. 71:9-72:1, 97:23:98-1) Plaintiff also said the 13 details “relieved stress and got her out of her room.” (DSF 6) 14 Plaintiff asserts that “at the end of January 2015, Anderson began being ‘really friendly’ with 15 Plaintiff.” (PSF 1, Doc. 88 at 1) She contends Anderson “would talk to her about his personal life, 16 about his kids, and about how she should leave [her] boyfriend and find someone better like him.” (Id.; 17 see also JSF 13; Doc. 37 ¶¶ 2, 23) In addition, “Plaintiff claims [Anderson] called her ‘babe’” and 18 “said she had a ‘big butt’ in her Bob Barker pants.” (JSF 11, 12) She also claims Anderson “touched 19 her face,” “touched her shoulders,” and “took his shirt off in front of her.” (JSF 15-17) Further, 20 Plaintiff asserts “Defendant looked in her window when the privacy sign was up,” and “looked at her 21 while she was in the shower,” on three or four occasions. (JSF 9, 14; Vazquez Depo. 99:3-10) 22 According to Plaintiff, one day in early February when she was “working details in Room 16” 23 with Anderson, he told Plaintiff to shut the door “and said that he had a dream about [her].” (Vazquez 24 Depo. 96:21-25; see also JSF 10, DSF 9) Plaintiff said she asked whether the dream was “rated R or 25 PG,” and Anderson “said it’s rated R.” (Id., 96:24-25) Plaintiff testified: 26 27 28 I told him oh, wow, I don't want nothing to do with what the heck you're about to say. And he just went along with it and told me, well, my dream was that, you know, I was working inside where -- what would you say, the kitch- -- not the kitchen, where you eat area and that he was on top of the lad- -- stairs or the ladder and that he was riding on the top and he was -- that I had grabbed him by his T-shirt and that he went down and I gave him a kiss and that after that we ended up going to a room and, like, having 2 fun and stuff. 1 2 (Id., 96:25- 96:11) Plaintiff asserts after telling her about the dream, Anderson “told [her] to get close 3 to him, like, to the point where he had opened his knees and [Plaintiff] was right in the middle of him, 4 and he told [Plaintiff] that he wanted his dream to come true.” (Id., 97:19-22) Plaintiff testified she 5 “felt really, really awkward,” “moved away from him,” and “just left it at that.” (Id. at 97:24- 98:1) “On February 10, 2015, plaintiff told Francisco Maldonado, a substance abuse counselor at 6 7 juvenile hall, that … Anderson told her he had a sexual dream about her.” (DSF 9) Maldonado 8 reported Plaintiff’s allegations, after which “a criminal investigation was commenced by the 9 Bakersfield Police Department.” (JSF 7) Anderson denies the allegations made by Plaintiff, including that he called Plaintiff “babe,” 10 11 looked into her cell Plaintiff was changing or using her toilet, looked at her in the shower, touched any 12 part of Plaintiff’s body, made comments about her in her shower gown, or said that she had “a big butt.” 13 (Anderson Depo. 9:6-10:14) 14 II. 15 Legal Standards for Summary Judgment The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to 16 see whether there is a genuine need for trial.” Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 17 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is “no 18 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 19 R. Civ. P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial summary 20 judgment, when there is no genuine issue of material fact as to a particular claim or portion of that 21 claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) 22 (“Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 23 single claim . . .”) (internal quotation marks and citation omitted). The standards that apply on a 24 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. 25 P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 26 Summary judgment, or summary adjudication, should be entered “after adequate time for 27 discovery and upon motion, against a party who fails to make a showing sufficient to establish the 28 existence of an element essential to that party’s case, and on which that party will bear the burden of 3 1 proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the “initial 2 responsibility” of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 3 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find 4 for the non-moving party, while a fact is material if it “might affect the outcome of the suit under the 5 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem 6 Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication is 7 appropriate by “informing the district court of the basis of its motion, and identifying those portions of 8 ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 9 if any,’ which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 10 11 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)). If the moving party meets its initial burden, the burden then shifts to the opposing party to 12 present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); 13 Matsuhita, 475 U.S. at 586. An opposing party “must do more than simply show that there is some 14 metaphysical doubt as to the material facts.” Id. at 587. The party is required to tender evidence of 15 specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention 16 that a factual dispute exits. Id. at 586 n.11; Fed. R. Civ. P. 56(c). Further, the opposing party is not 17 required to establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed 18 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth 19 at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 20 1987). However, “failure of proof concerning an essential element of the nonmoving party’s case 21 necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 22 The Court must apply standards consistent with Rule 56 to determine whether the moving party 23 demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. 24 Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary 25 judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 26 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 27 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed “in the light most favorable to the 28 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. Orr, 4 1 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 2 III. 3 Discussion and Analysis Anderson seeks summary adjudication of Plaintiff’s first and second claims for violations of her 4 constitutional rights. (Doc. 58) Anderson “denies that Plaintiff’s claims have any merit,” and argues 5 that “even assuming for the sake of argument that every word Plaintiff says about him is true, there is 6 still no Constitutional deprivation.” (Id. at 8) Plaintiff opposes summary judgment, asserting “[e]ven 7 where the basic facts are undisputed, … reasonable minds could differ on the inferences to be drawn 8 from those facts.” (Doc. 71 at 21; Doc. 95 at 21) 9 10 A. Section 1983 Standards Plaintiff contends Anderson is liable for violations of 42 U.S.C. § 1983 (Doc. 37 at 12-13), 11 which “is a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 12 266, 271 (1994). In relevant part, Section 1983 provides: 13 14 15 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress... 16 42 U.S.C. § 1983. To establish a Section 1983 violation, a plaintiff must show (1) deprivation of a 17 constitutional right and (2) a person who committed the alleged violation acted under color of state law. 18 West v. Atkins, 487 U.S. 42, 48 (1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). 19 A plaintiff must allege a specific injury was suffered and show causal relationship between the 20 defendant’s conduct and the injury suffered. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). A 21 person deprives another of a right “if he does an affirmative act, participates in another’s affirmative 22 acts, or omits to perform an act which he is legally required to do so that it causes the deprivation of 23 which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, 24 “[s]ome culpable action or in action must be attributable to defendants.” See Puckett v. Corcoran 25 Prison - CDCR, 2012 WL 1292573, at *2 (E.D. Cal. Apr. 13, 2012). 26 Plaintiff alleges that Anderson “sexually abused Plaintiff,” thereby violating her “constitutional 27 rights as guaranteed by the Fourth, Eighth, and Fourteenth Amendments to the US Constitution.” (Doc. 28 37 at 12) In addition, she contends that Anderson acted in a manner that violated her “interest under 5 1 the Due Process Clause of the Fourteenth Amendment of the United States Constitution to be free from 2 state actions that deprive her of life, liberty, or property in such a manner as to shock the conscience.” 3 (Id. at 13) 4 B. 5 As an initial matter, claims by pretrial detainees related to their confinement arise under the Plaintiff’s Status as a Detainee 6 Fourteenth Amendment, whereas claims by prisoners arise under the Eighth Amendment. Bell v. 7 Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Eighth Amendment scrutiny is appropriate only after the 8 State has complied with the constitutional guarantees traditionally associated with criminal 9 prosecutions”). The parties agree that Plaintiff was a detainee at the time of the events alleged in the 10 11 complaint. (See Doc. 71 at 26; Doc. 87 at 4) Given Plaintiff’s status as a detainee, her claims arise under “the more protective substantive 12 due process standard” of the Fourteenth Amendment rather than the Eighth Amendment.2 Jones v. 13 Blanas, 393 F.3d 918, 931-33 (9th Cir. 2004); see also Gibson v. County of Washoe, 290 F.3d 1175, 14 1187 (9th Cir. 2002) (“Because [the plaintiff] had not been convicted of a crime, but had only been 15 arrested, his rights derive from the due process clause rather than the Eighth Amendment’s protection 16 against cruel and unusual punishment”). Moreover, at the hearing and in the opposition to the motion, 17 plaintiff’s counsel argued that the 14th Amendment and not the Eighth applies here. (Doc. 95 at 26) 18 Consequently, a claim for a violation of the Eighth Amendment by Plaintiff fails as a matter of law. 19 Accordingly, Defendant’s motion to summary adjudication of the First Claim for Relief, to the extent 20 the cause of action is based upon a violation of the Eighth Amendment, is GRANTED. “Sexual Abuse” Claims 21 C. 22 Plaintiff contends the reported conduct of Anderson “is defined as ‘sexual abuse’ under federal 23 guidelines promulgated pursuant to the Prison Rape Elimination Act.” (Doc. 37 at 2) Anderson argues 24 the PREA does not “serve[] as the guideline definition of sexual abuse for constitutional violations.” 25 (Doc. 58 at 8) Further, according to Anderson, assuming the allegations of Plaintiff are true, he also 26 27 28 2 Notably, the Ninth Circuit observed: “The California Supreme Court has declared that the cruel and unusual punishment provisions of the United States and California Constitutions do not apply to juvenile commitments, because the purpose of such a commitment is rehabilitation, not punishment.” Manney v. Cabell, 654 F.2d 1280, 1284 n.5 (1980) (citing People v. Olivas, 17 Cal.3d 236, 255 (1976); In re Gary W., 5 Cal.3d 296, 301-03 (1971)). Therefore, the Court determined that “[t]he correct standard of review… [was] therefore under the Due Process Clause” for a juvenile detainee. Id. 6 1 “[d]id not violate Plaintiff’s constitutional rights through comments or unwelcomed remarks and “non- 2 sexual physical contact.” (Id. at 8-10) 3 4 1. The PREA As Anderson observes, in the operative complaint—and the opposition to the pending motion— 5 Plaintiff relies upon the definition of “sexual abuse” under the PREA to address the reported 6 misconduct. (See Doc. 37 at 2, 8; Doc. 71 at 19; Doc. 95 at 19) Plaintiff contends that, under the 7 PREA, “sexual abuse is defined to include, without limitation, sexual voyeurism by staff,” as well as 8 grooming and exploitation. (Id., ¶¶ 2, 33) However, as this Court previously observed, the PREA 9 definition of sexual abuse—which is broader than state laws governing sexual assault and sexual 10 battery—does not govern here, as there is no private right of action under the PREA. See Reed v. 11 Racklin, 2017 U.S. Dist. LEXIS 90090 at *6, 2017 WL 2535388 (E.D. Cal. June 9, 2017) (“PREA does 12 not give rise to a private cause of action”); Faz v. North Kern State Prison, 2011 U.S. Dist. LEXIS at 13 *13-14, 2011 WL 4565918 (E.D. Cal. Sept. 29, 2011) (“the PREA does not create a private right of 14 action”). Thus, there is no cogent rationale for adopting the standards under PREA in light of the fact 15 that the plaintiff cannot enforce the Act in this action. Thus, the Court must look to the definitions of 16 sexual assault and harassment as defined by the courts when evaluating Plaintiff’s claims for violations 17 of her constitutional rights. 18 2. Legal Standards 19 “When the government holds a person in confinement as a pretrial detainee, it ‘may subject him 20 to the restrictions and conditions of the detention facility so long as those conditions and restrictions do 21 not amount to punishment or otherwise violate the Constitution’ … because ‘under the Due Process 22 Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process 23 of law.’” Byrd v. Maricopa County Sheriff’s Dept., 656 F.3d 1205, 1216 (9th Cir. 2009) (quoting Bell, 24 441 U.S. at 535, 536-37) This differs from “prisoners, who may be subject to punishment so long as it 25 does not violate the Eighth Amendment’s bar against cruel and unusual punishment.” Id. (quoting 26 Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)). Nevertheless, in evaluating claims 27 for civil rights violations, the Court applies the same standards. Frost v. Agnos, 152 F.3d 1124, 1128 28 (9th Cir. 1998); Gibson, 290 F.3d at 1187 (with issues related to health and safety, “the due process 7 1 2 clause imposes, at a minimum, the same duty the Eighth Amendment imposes”). “Whether a particular event or condition in fact constitutes ‘cruel and unusual punishment’ is 3 gauged against ‘the evolving standards of decency that mark the progress of a maturing society.’” 4 Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 8 5 (1992)). However, the Supreme Court has determined that “when prison officials maliciously and 6 sadistically use force to cause harm contemporary standards of decency are always violated.” Id. (citing 7 Hudson, 503 U.S. at 9). In such circumstances, “the only requirement is that the officer’s actions be 8 ‘offensive to human dignity,’” and a physical injury is not necessary to establish a claim for a civil 9 rights violation cause of action. Id. (quoting Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991)). 10 A sexual assault on an inmate by a prison official implicates the rights protected by the Eighth 11 Amendment. Schwenk, 204 F.3d at 1197; see also Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 12 1997) (“Sexual abuse may violate contemporary standards of decency and can cause severe physical 13 and psychological harm”). For this reason, severe or repetitive sexual abuse of an inmate by a prison 14 officer can be “objectively, sufficiently serious” to constitute an Eighth Amendment violation. Id.; see 15 Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (noting the list of conditions held cruel and unusual by 16 the Supreme Court is not exclusive). Sexual abuse of a prisoner by a corrections officer has no 17 legitimate penological purpose, and is “simply not part of the penalty that criminal offenders pay for 18 their offenses against society.” Boddie, 105 F.3d at 861 (quoting, Farmer, 511 U.S. at 834). 19 On the other hand, the Eighth Amendment protections “do not necessarily extend to mere verbal 20 sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Minifield v. Butikofer, 21 298 F. Supp. 2d 900, 903-04 (N.D. Cal. 2004) (“Allegations of verbal harassment and abuse fail to state 22 a claim cognizable under 42 U.S.C. § 1983”). Courts have determined repeatedly determined such 23 conduct does not satisfy the “unnecessary and wanton infliction of pain” standard under the Eighth 24 Amendment. See, e.g., Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997) (affirming summary 25 adjudication in favor of the prison officials where “the only arguably sexually harassing conduct… was 26 verbal”); Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (allegations that prison guard asked 27 prisoner to have sex with her and to masturbate in front of her and other female staffers did not rise to 28 level of Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d 1299, 1311 n. 11 (10th Cir. 1998) 8 1 (allegations that a county jailer subjected female prisoners to severe verbal sexual harassment and 2 intimidation was not sufficient to state a claim under the Eighth Amendment); Zander v. McGinnis, 3 1998 U.S. App. LEXIS 13533, 1998 WL 384625, at *2 (6th Cir. June 19, 1998) (finding a prisoner’s 4 claim that a guard called him “pet names” for ten months failed to support an Eighth Amendment claim 5 “because allegations of verbal abuse do not rise to the level of a constitutional violation”). 6 7 3. Plaintiff’s Claims Plaintiff asserts that “at the end of January 2015, Anderson began being ‘really friendly,” and 8 “would talk to her about his personal life, about his kids, and about how she should leave [her] 9 boyfriend and find someone better like him.” (PSF 1, Doc. 88 at 1; see also JSF 13; Doc. 37 ¶¶ 2, 23) 10 In addition, “Plaintiff claims [Anderson] called her ‘babe’” and “said she had a ‘big butt’ in her Bob 11 Barker pants.” (JSF 11, 12) She also claims Anderson “touched her face,” “touched her shoulders,” 12 and “took his shirt off in front of her.” (JSF 15-17) Further, Plaintiff asserts that on one occasion, 13 Anderson told Plaintiff he had an “R-rated” dream about her, then proceed to open his knees while 14 Plaintiff “was right in the middle of him, and he told [Plaintiff] that he wanted his dream to come true.” 15 (Vazquez Depo., 96:24- 97: 22; see also JSF 10, DSF 9) Plaintiff testified the encounter made her feel 16 “really, really awkward.” (Id., 97:24- 98:1) 17 Anderson contends these allegations—even assumed as true—are insufficient to support a claim 18 that he violated Plaintiff’s constitutional rights. (Doc. 58 at 10-12) He observes: “Various circuits… 19 have found substantive due process violations of one’s right to bodily integrity when state actors have 20 engaged in lewd, nonconsensual touching of individuals.” (Id. at 11, citing, e.g., Haberthur v. City of 21 Raymore, Missouri, 119 F.3d 720 (8th Cir. 1997); Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 22 (6th Cir. 1996). On the other hand, Plaintiff contends “there is an allegation of unwanted touching in 23 this case,” which she asserts is sufficient to support her claim for a constitutional violation because she 24 was a detainee and “enjoys the protections of the Fourteenth Amendment and a higher standard than the 25 one used in many of the cases Defendants cite.” (Doc. 71 at 27; Doc. 95 at 27) 26 Significantly, as discussed above, the Court looks to the standards of the Eighth Amendment to 27 evaluate even the claims of detainees in the context of claims regarding health and safety. See Gibson, 28 290 F.3d at 1187. In doing so, courts have determined that isolated incidents of sexual touching—even 9 1 when coupled with occasional offensive sexual remarks— do not rise to the level of a constitutional 2 violation. See, e.g., Watison v. Carter, 668 F.3d 1108, 1112-13 (9th Cir. 2012) (where an inmate 3 asserted an officer entered his cell and approached the inmate while he was on the toilet, then rubbed 4 his thigh against the inmate’s thigh, “began smiling in a sexual [manner], and left the cell laughing,” 5 the allegations were not sufficient to support a violation of the Eighth Amendment); Jackson v. 6 Madery, 158 Fed.Appx. 656, 662 (6th Cir. 2005) (correction officer’s conduct in allegedly rubbing and 7 grabbing prisoner’s buttocks in degrading manner was “isolated, brief, and not severe” and so failed to 8 meet Eighth Amendment standards); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where 9 the inmate failed to assert that he feared sexual abuse, the court concluded two brief touches to his 10 buttocks could not be construed as sexual assault); Boddie, 105 F.3d at 859-61 (finding a prisoner failed 11 to state a violation of his constitutional rights where he asserted—on different occasions— a female 12 corrections officer made a pass at him, touched him on several occasions, and called him a “sexy black 13 devil”). Thus, incidents that cause “humiliation” may “not rise to the level of severe psychological pain 14 required to state an Eighth Amendment claim.” Watison, 688 F.3d at 1113. With these cases in mind, the Court is unable to find the facts asserted by the plaintiff support a 15 16 claim for sexual abuse under the Constitution. Anderson calling Plaintiff “babe,” commenting on her 17 body, and telling her about his dream while asking her to step quite close to him does not constitute 18 more than sexual harassment. Further, Anderson’s touching Plaintiff’s face and shoulder does not 19 render this claim the manner of which is prohibited under the constitution. Indeed, in Boddie, the facts 20 before the Second Circuit were more egregious than those claimed by Plaintiff here. In Boddie, the 21 plaintiff, a male prisoner, alleged that a female prison guard squeezed his hand, touched his penis, and 22 made sexually suggestive comments, calling him “sexy black devil.” Id. at 859-60. On another 23 occasion, the told the inmate to take off his sweatshirt and twice pinned him to a door with her body. 24 Id. The court concluded that “no single incident that he described was severe enough to be ‘objectively, 25 sufficiently serious.’ Nor were the incidents cumulatively egregious in the harm they inflicted.” Id. at 26 861. The court found these incidents did “not involve a harm of federal constitutional proportions.” Id. 27 Likewise, here, the Court is unable to find harm of constitutional proportions. 28 /// 10 1 D. Right to Privacy 2 The privacy rights of both pretrial detainees and prisoners are “severely curtailed” by their 3 confinement. United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996). Nevertheless, “[i]t is 4 clearly established that the Fourteenth Amendment protects a sphere of privacy, and the most ‘basic 5 subject of privacy [is] the naked body.’” Hydrick v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007) 6 (quoting Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985)). “While the circumstances of 7 institutional life demand that privacy be limited, it is clearly established that gratuitous invasions of 8 privacy violate the Fourteenth Amendment.” Id. However, “this calls for a highly factual inquiry.” Id. 9 Factors the Court has considered include: “the gender of those prison officials who viewed inmates, the 10 angle and duration of viewing, and the steps the prison had taken to minimize invasions of privacy.” 11 Id., citing Grummett, 779 F.2d at 494-95. 12 For example, in Grummett, the Court considered a claim by male inmates that their right to 13 privacy was violated by female officers viewing them while dressing, showering, being strip searched, 14 or using the toilet. Id., 779 F.2d at 492. The Ninth Circuit assumed “the interest in not being viewed 15 naked by members of the opposite sex is protected by the right of privacy.” Id., 779 F.2d at 494. The 16 Court discussed the circumstances in which female officers were observing male inmates, noting: 17 18 19 20 21 22 Female guards are not assigned to positions requiring unrestricted and frequent surveillance. Rather, the positions to which they are assigned require infrequent and casual observation, or observation at a distance. Female guards working the tiers walk past the cells routinely, but do not stop for prolonged inspection. When they are not walking down the tiers, their view of the inmates in their cells is circumscribed by the cell bars and by the distance and angle of their stations. Likewise, the observations by the female correctional officers stationed on the gunrails overlooking the tiers and the yard areas are obscured by the angle and distance of their locations. Female guards do not accompany male inmates to the individual or gang showers, and are not stationed on the tiers where the showers are located. Females are assigned to the more distant gunrail position overlooking showers, where, again, the surveillance is obscured. 23 Id. at 494-95. The Ninth Circuit concluded that these circumstances were not “so degrading as to 24 require intervention by [the] court,” and there was no Fourteenth Amendment violation. Id. at 495. 25 Likewise, the Court found there was no Fourth Amendment violation because the female guards’ 26 viewing of unclothed inmates was “infrequent and irregular,” and the guards were not “stationed at 27 those positions which involve close and prolonged surveillance of disrobed inmates.” Id. 28 In Michenfelder v. Sumner, 860 F.2d 328 (1988), the Ninth Circuit also addressed a claim of a 11 1 male inmate challenging the stationing of female officers on shower duty and involvement in strip 2 searches as a violation of his right to privacy. Id. at 333-34. The Court indicated “the issue … is 3 whether [the prison’s] female officers regularly or frequently observe unclothed inmates without a 4 legitimate reason for doing so.” Id. at 334. The Ninth Circuit found that a division of responsibilities 5 between male and female guards was a reasonable attempt to accommodate the tension between 6 inmates’ privacy concerns and the prison’s internal security needs and equal employment concerns. Id. 7 In addition, the Court found the right to privacy was not violated due to the limited nature of the 8 guards’ involvement in the searches, because the evidence showed observations were made from video 9 monitors that provided “an indistinct, limited view.” Id. The Court found “[e]vidence of female 10 officers’ role in shower duty likewise did not establish an inappropriate amount of contact with 11 disrobed prisoners.” Id. Accordingly, the Court concluded Michenfelder failed to establish violations 12 of his Fourth and Eighth Amendment rights. Id. at 338. 13 In Sepulveda v. Ramirez, the Ninth Circuit rejected a parole officer’s claim that he was entitled 14 to qualified immunity for a claim that he walked into a bathroom stall and observed a partially clothed 15 female parolee provide a urine sample. Id., 967 F.2d 1419 (9th Cir. 1992). The Court noted the officer 16 “walked into the stall where Sepulveda was partially unclothed and seated on the toilet” without her 17 permission, and laughed when she asked him to leave, saying Sepulveda “did not have anything he had 18 not seen before.” Id. at 1415. The officer remained in the stall while she finished urinating, cleaned 19 herself, and dressed. Id. Without explaining its reasoning, the Court held that, if established, this 20 conduct by the officer violated the parolee’s right to privacy. Id. at 1416. However, the Court also 21 noted that if the officer’s view “was generally obscured and from a distance,” the result may have been 22 different. See id. (citing Grummett, 779 F.2d at 495) 23 Years later, in Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997), the Ninth Circuit considered 24 an male inmate’s claim that his constitutional rights under the Fourth Amendment were violated by 25 female officers conducting visual body cavity searches on a regular basis and watching him shower. Id. 26 at 616. Somers also asserted the prison officials “‘pointed at him’ and ‘joked among themselves’ 27 during the searches and during his showers, behavior he characterize[d] as ‘gawking.’” Id. In 28 evaluating whether to apply the doctrine of qualified immunity, the Court reviewed its decisions in 12 1 Grummett, Michenfelder, and Sepulveda. See Somers, 109 F.3d at 619-20. The Court observed it never 2 “held that guards of the opposite sex are forbidden from viewing showering inmates.” Id. at 620. The 3 Court continued: “Taken together, however, one might read Grummett, Michenfelder, and Sepulveda to 4 suggest that up close, frequent, and intentional viewings by guards of the opposite sex could violate a 5 prisoner’s privacy rights.” Id. The Court found it significant that the actions alleged by Somers “did 6 not involve any physical conduct,” and concluded “gawking, pointing, and joking” did not violate the 7 Eighth Amendment. Id. at 624. 8 9 Most recently, in Byrd v. Maricopa County Sheriff’s Dept., 845 F.3d 919 (9th Cir. 2017), the Ninth Circuit addressed the claims of a pre-trial detainee, who alleged the facility had a “policy of 10 allowing female guards to observe daily, from four to five feet away, male pretrial detainees showering 11 and using the bathroom.” Id. at 921. The district court reviewed Byrd’s allegations pursuant to 28 12 U.S.C. § 1915A, and dismissed the complaint. Id. Upon appeal, the Ninth Circuit observed: 13 14 15 16 17 18 19 20 21 22 First, while the observation occurred in prison, where there are limited privacy rights, see Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), Byrd's status as a pretrial detainee suggests that he may have had greater rights than convicted prisoners. See Stone v. City & County of S.F., 968 F.2d 850, 857 n.10 (9th Cir. 1992) (noting that “pretrial detainees . . . possess greater constitutional rights than prisoners”). That alone is enough to distinguish Byrd’s allegations from precedent concerning convicted prisoners, which the district court thought foreclosed Byrd’s claims. Second, even if Byrd were a convicted prisoner, Byrd’s allegations survive section 1915A dismissal. Assuming that the female guards could view male pretrial detainees while showering and using the toilet frequently and up close, the scope and manner of the intrusions were far broader than those our court previously has approved. In Grummett v. Rushen, we upheld cross-gender surveillance of showers specifically because “such actual viewing of the inmates is infrequent and irregular.” 779 F.2d 491, 495 (9th Cir. 1985). Similarly, in Michenfelder v. Sumner, we held that female guards observing male prisoner body cavity searches from a control booth that provided limited view of the searches, and female guards sometimes conducting male prisoner shower duty, were reasonable because the female guards were “not routinely present for strip searches” and observation from video monitors “would provide at most an indistinct, limited view.” 860 F.2d 328, 334 (9th Cir. 1988). 23 24 Id. at 922. The Court found the case was, in its screening stage, “distinguishable from Grummett and 25 Michenfelder because the observation was allegedly not infrequent, irregular, or from a distance, but 26 frequent and just a few feet away.” Id. at 923. Therefore, the Ninth Circuit concluded the “dismissal 27 … was premature,” and the claim was “sufficient to warrant ordering defendants to file an answer.” Id. 28 (citation omitted). 13 1. 1 2 The Parties’ Arguments Plaintiff asserts that Anderson “looked in her window when the privacy sign was up” and 3 “looked at her while she used the shower.” (JSF 9, 14) Anderson argues that he did not violate 4 “Plaintiff’s constitutional rights through visual observation as the viewing was infrequent, generally 5 obscured, at a distance, and reasonably related to institutional needs.” (Doc. 58 at 9, emphasis omitted) 6 Anderson contends, “Assuming Plaintiff’s claims are true, Anderson’s glance into Plaintiff’s room 7 when her privacy sign was up was not only brief and infrequent (occurring only one time), but was also 8 reasonably related to the welfare of wards housed within the facility.” (Id. at 9-10) Further, Anderson 9 contends his “presence during the showers does not constitute a constitutional violation.” (Id. at 10) 10 According to Anderson, “Plaintiff’s subjective belief that she was being watched does not give rise to a 11 constitutional violation. Likewise, Plaintiff cannot testify with certainty that Anderson was actually 12 observing her from his position behind the computer, which provided him with an indistinct and limited 13 view.” (Id.) 14 On the other hand, Plaintiff presents evidence that there was “a gap in the shower curtains in 15 Unit 300A, which would allow someone sitting at the staff counter to see into the showers.” (Doc. 71 16 at 12, citing Suender Depo., 28:1-12; see also Villegas Depo., 42:12-43:3) Janell Davidson, “a duty 17 supervisor” at juvenile hall, testified that depending on where someone sat or stood at the counter, there 18 was a view into the shower area. (Depo. 6:6-7, 14:9-15:6) According to Anallely Villegas, a ward at 19 juvenile hall, Anderson was the only male staff member who sat at the counter while female wards 20 showered, and other male staff members would go to another unit or to a little library. (Villegas Depo. 21 45:12-19) Ms. Villegas observed Anderson sitting at the staff counter while Plaintiff was showering. 22 (Id., 45:20-22) In addition, Ms. Villegas saw Anderson “[l]ook through Samantha’s window” while 23 she had her privacy sign up,” which indicated Plaintiff was using the restroom or changing her clothes. 24 (Id. at 46:16-47:19) 25 26 2. Analysis of the Evidence The evidence before this Court clearly indicates there is a dispute regarding whether—and to 27 what extent—Anderson watched Plaintiff in the shower. Taking all facts in Plaintiff’s favor, the Court 28 must consider that Anderson looked in Plaintiff’s room once when her privacy sign was up—indicating 14 1 that he looked in her room while she was engaged in a private act—and watched Plaintiff shower “three 2 to four times” (see Vazquez Depo. 99:11-18), to determine whether this reaches the level of a 3 constitutional violation. 4 In Morris v. Newland, this Court considered the claim of an inmate plaintiff that officers 5 violated his constitutional rights because female guards “made sure to observe plaintiff at length in the 6 shower and in his cell.” Id., 2007 WL 707525 at *1 (E.D. Cal. Mar. 6, 2007). The defendants moved to 7 dismiss, asserting the plaintiff failed to state a claim. Id. at *2. The Court noted Ninth Circuit authority 8 “implicate[d] circumstances more severe than those set forth… with respect to plaintiff’s cross-gender 9 viewing claims.” Id. at *4. For example, the Court noted that in Somers, the Ninth Circuit found the 10 plaintiff failed to state a constitutional violation “even where the female officials had engaged in 11 ‘gawking’ at the plaintiff and had pointed at him in the shower ‘and joked among themselves.’” Id., 12 citing Somers, 109 F.3d at 622. In light of this, the Court found “the[] intentional observation of [the 13 plaintiff] in the shower and in his housing unit in various states of undress” failed to rise to the level of 14 a violation of the Fourth and Eighth Amendments. Id. at *5, adopted by 2007 WL 987846 (E.D. Cal. 15 Mar. 30, 2007). Likewise, here, Plaintiff alleges Anderson intentionally viewed in her in the shower on 16 several occasions and once looked in her room while her privacy sign was up. Nevertheless, as this 17 Court determined in Morris, the circumstances do not rise to the level of the actions addressed in 18 Somers. 19 The evidence before the Court does not demonstrate that Anderson “regularly or frequently” 20 observed Plaintiff in her room or in the shower. In addition, the evidence does not establish that 21 Anderson engaged in “close and prolonged surveillance” of Plaintiff, such that a constitutional 22 violation occurred. See Grummett, 779 F.2d at 494-95; Michenfelder, 860 F.2d at 334. In contrast to 23 the facts before the Court in Sepulveda, Anderson was not in a small, confined space with Plaintiff 24 when the viewing occurred. Further, his viewing Plaintiff in the shower or her room while the privacy 25 sign was up occurred only a handful of times, not on a daily basis as the plaintiff alleged in Bryd, where 26 the Court recognized viewing that was “infrequent, irregular, or from a distance” has not been 27 recognized as a constitutional violation by the Ninth Circuit. See id., 845 F.3d at 921, 923. Indeed, 28 even where the plaintiff alleged that the prison officials were “gawking” and “joking” as he showered, 15 1 the Ninth Circuit found the conduct did not rise to the level of a constitutional violation. Somers, 109 2 F.3d at 624. 3 Consequently, taking the facts in the light most favorable to Plaintiff, Anderson’s viewings 4 were not sufficiently frequent to be a violation of Plaintiff’s right to privacy under the Fourth and 5 Fourteenth Amendments. See Somers, 109 F.3d at 620; Grummett, 779 F.2d at 494-95. Thus, 6 Anderson’s motion for summary adjudication of Plaintiff’s claims, to the extent they are based upon a 7 violation of her right to privacy, is GRANTED. 8 E. 9 Anderson contends he is entitled to qualified immunity for the conduct reported by Plaintiff in 10 this action. (Doc. 58 at 12) Qualified immunity protects government officials from “liability for civil 11 damages insofar as their conduct does not violate clearly established statutory or constitutional rights of 12 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The 13 doctrine of qualified immunity “balances two important interests — the need to hold public officials 14 accountable when they exercise power irresponsibly and the need to shield officials from harassment, 15 distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S. Ct. 16 808, 815 (2009). 17 Qualified Immunity The threshold inquiry to a qualified immunity determination is whether the facts alleged, when 18 taken in the light most favorable to the plaintiff, demonstrate that the official’s conduct violated a 19 statutory or constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the alleged conduct 20 would not be considered a violation, the inquiry stops and the defense of qualified immunity applies. 21 See id. However, if a constitutional violation occurred, the Court must next determine whether the 22 statutory or constitutional right was “clearly established.” Id. Defendants have the burden to prove 23 they are entitled to qualified immunity. Moreno v. Baca, 431 F.3d 633, 638 (9th Cir.2005). 24 1. Whether a constitutional violation occurred 25 The facts taken in Plaintiff’s favor support a conclusion that her right to privacy was not 26 violated by Anderson, and her claim of sexual abuse does not rise to the level of a constitutional 27 violation. Accordingly, for purposes of summary judgment, the inquiry generally would stop here. See 28 Saucier, 533 U.S. at 201. 16 1 2 2. Whether the right was “clearly established” Even assuming that Anderson’s conduct arose to the level of a constitutional violation, the 3 Court must determine whether the law “gave ‘fair warning’ ... that [his] conduct was unconstitutional.” 4 Clement v. Gomez, 298 F.3d 898, 906 (2002) (quoting Saucier, 533 U.S. at 202). This inquiry “must be 5 undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 6 U.S. at 201. “This is not to say that an official action is protected by qualified immunity unless the very 7 action in question has previously been held unlawful, but it is to say that in the light of pre-existing law 8 the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). 9 The Ninth Circuit determined “[i]t is clearly established that the Fourteenth Amendment 10 protects a sphere of privacy, and the most ‘basic subject of privacy [is] the naked body.’” Hydrick, 500 11 F.3d at 1000 (9th Cir. 2007) (quoting Grummett, 779 F.2d at 494). In addition, in evaluating whether to 12 apply the doctrine of qualified immunity to a right to privacy claim, the Ninth Circuit observed that, 13 taken together, Grummett, Michenfelder, and Sepulveda and indicated “up close, frequent, and 14 intentional viewings by guards of the opposite sex could violate a prisoner’s privacy rights.” See 15 Somers, 109 F.3d at 620. 16 Further, the courts have determined that sexual assault on an inmate by a prison official 17 implicates the rights protected by the constitution. Schwenk, 204 F.3d at 1197; Boddie, 105 F.3d at 18 861. However, only severe or repetitive sexual abuse of an inmate by a prison officer can be 19 “objectively, sufficiently serious” to constitute an Eighth Amendment violation. Id. Courts have 20 repeatedly determined that constitutional protections “do not necessarily extend to mere verbal sexual 21 harassment,” and even when coupled with isolated incidents of touching, there is no constitutional 22 violation. See Austin, 367 F.3d at 1171; Watison, 668 F.3d at 1112-13; see also Boddie, 105 F.3d at 23 859-61 (finding a prisoner failed to state a violation of his constitutional rights where he asserted a 24 female corrections officer made a pass at him, touched him on several occasions, and gave him a 25 nickname); Morales, 278 F.3d at 132 (2nd Cir. 2002) (allegations that prison guard asked prisoner to 26 have sex with her and to masturbate in front of her did not rise to level of a constitutional violation). 27 In light of the Ninth Circuit authority discussed above, it is not clear that a reasonable officer 28 would be aware the conduct identified by Plaintiff—which included infrequent viewing in a state of 17 1 undress and sexual harassment— was unconstitutional. Accordingly, the Court finds the application of 2 qualified immunity should be applied. 3 IV. Conclusion and Order Anderson has carried his burden to demonstrate there are not genuine disputes of material facts 4 5 related to the claim against him. Further, where a plaintiff fails to identify evidence “concerning an 6 essential element” of her case, the entry of summary judgment is appropriate. Celotex, 477 U.S. at 323. Accordingly, the Court ORDERS: Defendant’s motion for summary judgment (Doc. 58) is 7 8 GRANTED. 3 9 10 IT IS SO ORDERED. 11 Dated: December 14, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 In granting judgment in Anderson’s favor, the Court feels compelled to state that the conduct at issue, if true, is absolutely unacceptable. Nevertheless, it does not implicate a wrong of constitutional proportions. The Court makes no comment as to whether the claims would impose liability under state law. 18
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