Greene v. Karlow et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this action proceed on Plaintiff's retaliation claim against Defendant Karlow and all other claims and Defendants be dismissed from the action for failure to state a cognizable claim for relief re 13 Amended Prisoner Civil Rights Complaint ;referred to Judge Ishii,signed by Magistrate Judge Stanley A. Boone on 8/8/18. Objections to F&R due 21-Day Deadline (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FLOYD GREENE,
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Plaintiff,
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v.
NORM KARLOW, et.al.,
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Defendants.
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Case No.: 1:18-cv-00655-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
[ECF No. 13]
Plaintiff Floyd Greene is appearing pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s first amended complaint, filed July 27, 2018.
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I.
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SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court
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must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous
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or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary
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relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do
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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated
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in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally
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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which
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requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is
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liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
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969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and
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“facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility
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standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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II.
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COMPLAINT ALLEGATIONS
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On February 11, 2016, Plaintiff arrived at Kern Valley State Prison (KVSP). In early 2017,
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Plaintiff was assigned to a position in the law library as a literacy clerk. Plaintiff was scheduled to
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work Monday through Friday from 7:30 a.m. to 2:30 p.m. for 11 cents an hour.
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After the first week, Plaintiff’s direct supervisor, Norm Karlow began to engage in acts that
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made Plaintiff uncomfortable and violated the Title 15 of the California Code of Regulations. Norm
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Karlow began telling homo-erotic jokes, and throwing things such as small erasers, pens, and paper
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balls at Plaintiff. Karlow would also use his office chair to toll around the work area and approach
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Plaintiff. Karlow’s behavior made Plaintiff feel uncomfortable and he feared retaliation.
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On August 25, 2017, Karlow violated Title 15 of the California Code of Regulations section
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3401.6 by using suggestive sexual language. Karlow asked Plaintiff to engage in a form of dance that
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would produce sexual arousal, namely, to strip for him. During this time, Karlow was “thrusting” him
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crotch area toward Plaintiff.
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Plaintiff informed Karlow that he was being inappropriate and explained that he was
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uncomfortable and not interested in his advances.
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On Monday, August 28, 2017, Karlow filed a false rules violation report (RVR 115) in an
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attempt to punish Plaintiff for refusing his advance and as a pre-emptive attack on his credibility.
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Plaintiff was informed by custody staff that he was receiving a RVR for overfamiliarity and was no
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longer employed/assigned to the law library.
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On September 6, 2017, Plaintiff received the actual RVR.
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On September 5, 2017, Plaintiff placed an inmate appeal in the institutional mail dated
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September 6, 2017. However, the appeal was never found. On September 30, 2017, Plaintiff wrote a
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letter to the Chief Inmate Appeals Branch in Sacramento, California.
On October 14, 2017, Plaintiff was interviewed by Sergeant J. Melvin regarding his appeal.
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The interview was nothing more than an attempt to discredit his previously written statement. Plaintiff
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was being intimidated by Sergeant H. Robles and his non-verbal displays of disdain and condemnation
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for his complaint.
On multiple occasions following the interview by Sergeant Melvin, and several attempts by S.
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Hoffman to encourage Plaintiff to cancel his appeal, Karlow made attempts to intimidate Plaintiff.
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While Plaintiff was attending Bakersfield college classes, Karlow would enter the class, with no work
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related or penological reason, and stand in the back to intimidate him.
On October 26, 2017, Plaintiff submitted a CDCR Form 22 (request for interview) to Sergeant
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J. Melvin addressing the issue but never received a response.
On November 29, 2017, Plaintiff’s inmate appeal was granted in part, as an investigation was
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conducted but no remedy was granted.
On December 12, 2017, the Office of Risk and Insurance Management received Plaintiff’s
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claim against the CDCR.
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III.
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DISCUSSION
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A.
Retaliation
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“Prisoners have a First Amendment right to file grievances against prison officials and to be
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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing
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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the
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right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d
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1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation
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entails five basic elements: (1) An assertion that a state actor took some adverse action against an
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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a
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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Minor acts
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such as “bad mouthing” and verbal threats usually cannot reasonably be expected to deter protected
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speech and therefore do not violate a plaintiff’s First Amendment rights. See Coszalter v. City of
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Salem, 320 F.3d 968, 975-76 (9th Cir. 2003).
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Based on Plaintiff’s allegations that Defendant Karlow issued a false rules violation report for
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overfamiliarity because he refused to participate in Karlow’s sexual advances, Plaintiff states a
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cognizable retaliation claim against Karlow. However, the Court finds that Plaintiff’s other
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allegations of retaliation are insufficient. Plaintiff generally alleges that he was “intimidated” with
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“non-verbal displays of disdain and condemnation” for filing a complaint regarding Karlow’s actions.
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However, as with Plaintiff’s original complaint, he has not alleged with any specificity how
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Defendants retaliated against him in response to his complaints about Karlow. Further, to the extent
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that Plaintiff alleges retaliation in the form of verbal mistreatment such allegations do not state a
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constitutional violation. Oltarzewski, 830 F.2d at 139.
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B.
Sexual Harassment
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The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners
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not only from inhumane methods of punishment but also from inhumane conditions of confinement.
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Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825,
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847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (quotation marks omitted). While
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conditions of confinement may be, and often are, restrictive and harsh, they must not involve the
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wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347)
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(quotation marks omitted). Thus, conditions which are devoid of legitimate penological purpose or
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contrary to evolving standards of decency that mark the progress of a maturing society violate the
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Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v.
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Pelzer, 536 U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346.
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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,
clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in
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prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). To
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maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately
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indifferent to a substantial risk of harm to his health or safety. Farmer, 511 U.S. at 847; Thomas v.
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Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir.
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2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th
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Cir. 1998).
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“Although prisoner have a right to be free from sexual abuse, whether at the hands of fellow
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inmates or prison guards, see Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), the Eighth
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Amendment protections do not necessary extend to mere verbal sexual harassment.” Austin v.
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Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). While “the Ninth Circuit has recognized that sexual
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harassment may constitute a cognizable claim for an Eighth Amendment violation, the Court has
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specifically differentiated between sexual harassment that involves verbal abuse and that which
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involves allegations of physical assault, finding [only] that latter to be in violation of the constitution.”
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Minifield v. Butikofer, 298 F.Supp.2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198);
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Austin, 367 F.3d at 1171-72 (officer’s conduct was not sufficiently serious to violate the Eighth
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Amendment where officer exposed himself to prisoner but never physically touched him); Patrick v.
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Martin, 402 Fed. Appx. 284, 285 (9th Cir. 2010) (sexual harassment claim based on verbal harassment
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insufficient to state a claim under § 1983) (citing Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.
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1987)); Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997) (found inmate failed to state a claim where
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female correction officers pointed, joked, and “gawked” at an inmate while he showered).
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Plaintiff’s allegations amount to nothing more than verbal comments and gestures which are
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not cognizable under the Eighth Amendment. While the alleged actions are certainly inappropriate,
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they do not rise to the level of a constitutional violation. Accordingly, Plaintiff fails to state a
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cognizable Eighth Amendment claim for sexual harassment.
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C.
Inmate Appeal Process
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The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life,
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liberty, or property; and those who seek to invoke its procedural protection must establish that one of
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these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a have
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protected liberty interest in the processing of his appeals, and therefore, he cannot pursue a claim for
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denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334
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F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).
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Accordingly, Plaintiff does not and cannot state a claim relating to the processing or handling of his
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inmate appeal.
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D.
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Plaintiff attempts to bring claims under California law for negligent and/or intentional
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State Law Claims
infliction of emotional distress.
The negligent infliction of emotional distress is not an independent tort but the tort of
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negligence to which the traditional elements of duty, breach of duty, causation and damages apply.
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Wong v. Tai Jin, 117 Cal.Rptr.3d 747, 767 (Cal. Ct. App. 2010) (quotation marks omitted); Potter v.
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Firestone Tire & Rubber Co., 6 Cal.4th 965, 984 (Cal. 1993); Burgess v. Superior Court, 2 Cal.4th
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1064, 1072 (Cal. 1992). Where there is no personal, physical injury, the emotional distress must have
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been serious, which is the functional equivalent to severe emotional distress. Schwarz v. Lassen
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County ex rel. Lassen County Jail (Detention Facility), No. 2:10-cv-03048-MCE-GGH, 2011 WL
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3319626, at *9 (E.D. Cal. Aug. 1, 2011) (quotation marks omitted) (citing Wong, 117 Cal.Rptr.3d at
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768).
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Under California law, the elements of intentional infliction of emotional distress are: (1)
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extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard
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of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
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emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s
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outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (quotation marks omitted);
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Tekkle v. United States, 567 F.3d 554, 855 (9th Cir. 2007); Simo v. Union of Needletrades, Industrial
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& Textile Employees, 322 F.3d 602, 621-22 (9th Cir. 2003). Conduct is outrageous if it is so extreme
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as to exceed all bounds of that usually tolerated in a civilized community. Corales, 567 F.3d at 571;
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Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622. In addition to the requirement that the conduct be
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intentional and outrageous, the conduct must have been directed at Plaintiff or occur in the presence of
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Plaintiff, of whom Defendant was aware. Simo, 322 F.3d at 622.
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In this instance, Plaintiff’s claim that Defendant Karlow made verbal sexual advances without
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any physical acts of violence or harm do not rise to the level of intentional outrageous conduct. See
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Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (“Liability for intentional infliction of emotional
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distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other
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trivialities.”) Furthermore, Plaintiff cannot proceed on a claim for emotional distress absent a showing
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of physical injury. 42 U.S.C. § 1997e(e) provides: “No Federal civil action may be brought by a
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prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered
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while in custody without a prior showing of physical injury.” The physical injury requirement only
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applies to claims for mental and emotional injuries and does not bar an action for a violation of a
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constitutional right. See Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002). In this instance, Plaintiff
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did not suffer any physical injury or harm as a result of Karlow’s actions and therefore cannot seek
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compensation for “emotional” damages. Accordingly, Plaintiff does not and cannot state a cognizable
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claim for intentional or negligent infliction of emotional distress.
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IV.
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CONCLUSION AND RECOMMENDATIONS
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Plaintiff was previously notified of the applicable legal standards and the deficiencies in his
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pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical
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to the original complaint. Based upon the allegations in Plaintiff’s original and first amended complaint,
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the Court finds that Plaintiff states a cognizable retaliation claim against Defendant Karlow, but fails to
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state any other cognizable claims. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A
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district court may not deny leave to amend when amendment would be futile.”) Based on the nature of
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the deficiencies at issue, the Court finds that further leave to amend is not warranted. Lopez v. Smith,
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203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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This action proceed on Plaintiff’s retaliation claim against Defendant Karlow; and
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All other claims and Defendants be dismissed from the action for failure to state a
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cognizable claim for relief.
These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)
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days after being served with these Findings and Recommendations, the parties may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-
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39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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August 8, 2018
UNITED STATES MAGISTRATE JUDGE
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