Ashford et al v. Washington et al

Filing 3

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's Complaint be dismissed with prejudice and 1 Plaintiff's Motion for Leave to Proceed in forma pauperis be denied as moot. In addition, the Court recommends that the dismissal count as a strike for purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith. Objections to R&R due by 9/11/2009. Signed by Magistrate Judge Beth Deere on 8/28/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION C H A R L E S ASHFORD A D C #133975 V. C A S E NO. 5:09CV00224 JLH/BD DEFENDANTS P L A IN T IF F

W A L T E R WASHINGTON, et al.

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e s for Filing Objections: The following Recommended Disposition has been sent to Chief United States D is tric t Judge J. Leon Holmes. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that fin d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from receipt of the recommendations. A copy will be furnished to th e opposing party. Failure to file timely objections may result in a waiver of the right to a p p e a l questions of fact. M a il your objections and/or request for a hearing to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

I n t r o d u c t io n : P la in tiff, an inmate at the Arkansas Department of Correction ("ADC"), brings this

a c tio n pro se under 42 U.S.C. § 1983 (docket entry #2), along with a motion for leave to p ro c e e d in forma pauperis (#1). For the following reasons, this Court recommends that P la in tiff's Complaint (#2) be DISMISSED with PREJUDICE for failure to state a claim fo r relief, and that his motion for leave to proceed in forma pauperis (#1) be DENIED as m o o t. In addition, the Court recommends that the dismissal count as a "strike" for p u rp o s e s of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma p a u p e ris appeal taken from the order and judgment dismissing this action would be friv o lo u s and not taken in good faith. III. B ackground: P la in tiff alleges that on March 30, 2009, he was sexually harassed in the isolation s h o w e r while washing off pepper spray.1 Plaintiff alleges that three inmates and three A D C officers, Defendants Washington, Wilson, and Giddens, stared in his shower to " p e n e tra te on [his] private parts." (#2, p. 5) Plaintiff states that an unidentified female o ffic e r began "implying sexual remarks towards [him] by telling [the Defendants] to look a t [his] penis so that she could seize (sic) [his] body up." (#2, p. 5) Plaintiff does not a lle g e that the female officer could see him. Plaintiff states that during this time, D e fe n d a n t Washington paced back and forth in front of his shower while isolation

It does not appear that Plaintiff is raising a claim regarding the use of pepper s p ra y in this action. 2

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inmates laughed about what was occurring. Plaintiff does not allege that he was touched o r physically assaulted. Plaintiff states that he was forced to keep a big towel around him d u rin g the shower. Plaintiff attached several grievances to his Complaint. One grievance addresses th e claims Plaintiff raises in this action (#2, p. 7-10). In one grievance, Plaintiff alleges th a t he was physically raped on October 13, 2008, by Defendant Washington (#2, p. 17). In another grievance, Plaintiff alleges that he was kidnapped and improperly housed by D e fe n d a n t Washington on November 21, 2008 (#2, p. 13). In another grievance, Plaintiff a lle g e s that he was "raped" on March 25, 2009, again by Defendant Washington. Plaintiff describes the "rape" as being visually observed through a window while s h o w e rin g (#2, p. 15). The October and November 2008 incidents do not appear related to any of the allegations Plaintiff describes in his Complaint (#2, p. 5). Accordingly, they a re not addressed in this case. If Plaintiff wishes to raise these claims he must file s e p a ra te lawsuits regarding those allegations. IV. D is c u s s io n : A. S ta n d a r d

F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must d is m is s a complaint or portion thereof if the prisoner has raised claims that are frivolous, m a lic io u s , fail to state a claim upon which relief may be granted, or seek monetary relief fro m a defendant who is immune from such relief. 28 U.S.C § 1915A(b). 3

To state a cognizable claim under 42 U.S.C. § 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him of a right, privilege, o r immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1983. The Court must accept the factual allegations in the complaint as true and hold a p la in tiff's pro se complaint "to less stringent standards than formal pleadings drafted by la w y e rs ." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Even so, a p la in tiff must plead facts with enough specificity so as "to raise a right to relief above the s p e c u la tiv e level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1 9 6 5 (2007)(citations omitted). A complaint cannot simply "[leave] open the possibility th a t a plaintiff might later establish some `set of undisclosed facts' to support recovery." Id. at 1968 (citation omitted). Rather, the facts set forth in the complaint must be s u ffic ie n t to "nudge the[ ] claims across the line from conceivable to plausible." Id. at 1 9 7 4 . Even construing the Complaint in this case liberally, it fails to state a claim upon w h ic h relief may be granted. B. S e x u a l Harassment

B e c a u s e sexual harassment of an inmate by a corrections officer never serves a le g itim a te penological purpose, such harassment may constitute the "unnecessary and w a n to n infliction of pain" forbidden by the Eighth Amendment. Freitas v. Ault, 109 F.3d 1 3 3 5 , 1338 (8th Cir. 1997). "To prevail on a constitutional claim of sexual harassment, a n inmate must therefore prove, as an objective matter, that the alleged abuse or h a ra s s m e n t caused `pain' and, as a subjective matter, that the officer in question acted 4

with a sufficiently culpable state of mind." Id. (citing Hudson v. McMillian, 503 U.S. 1, 8 , 112 S.Ct. 995, 999-1000 (1992). In the present case, Plaintiff alleges that he was verbally harassed by ADC officers a n d inmates while showering. Verbal sexual harassment, however, does not violate an in m a te 's constitutional rights. Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004). "[S]exual harassment, absent contact or touching, does not constitute unnecessary and w a n to n infliction of pain" so as to state an Eighth Amendment claim. Howard v. Everett, 2 0 8 F.3d 218, *1 (unpub. table op.) (8th Cir. 2000) (citing Seltzer-Bey v. Delo, 66 F.3d 9 6 1 , 962-63 (8th Cir. 1995)). Plaintiff does not allege that any physical contact occurred d u rin g the verbal harassment. Accordingly, while the Court finds the conduct, if it o c c u rre d , both disgusting and unprofessional, it falls short of stating a constitutional c la im . V. C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED WITH P R E J U D IC E , and that his motion for leave to proceed in forma pauperis (#1) be D E N IE D as moot. In addition, the Court recommends that the dismissal count as a " s trik e " for purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in fo r m a pauperis appeal taken from the order and judgment dismissing this action would be friv o lo u s and not taken in good faith.

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DATED this 28th day of August, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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