Greene v. Karlow et al

Filing 26

FINDINGS and RECOMMENDATION Recommending Dismissal of Action for Failure to State a Cognizable Claim for Relief re 25 , signed by Magistrate Judge Stanley A. Boone on 6/5/19. Referred to Judge Ishii. Objections to F&R Due Within 21-Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FLOYD GREENE,
Plaintiff,
v.
NORM KARLOW, et.al.,
Defendants.

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Case No.: 1:18-cv-00655-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF No. 25]

Plaintiff Floyd Greene is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s third amended complaint, filed May 31, 2019.

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I.

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RELEVANT HISTORY

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Plaintiff filed the instant action on May 14, 2018.

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On June 4, 2018, the Court screened Plaintiff’s complaint and found that he failed to state any

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cognizable claims for relief. Plaintiff was granted thirty days to file an amended complaint.
On July 27, 2018, Plaintiff filed an amended complaint. On August 9, 2018, the undersigned

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issued Findings and Recommendations recommending that the action proceed on Plaintiff’s retaliation

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claim against Defendant Karlow, and all other claims and Defendants be dismissed from the action for

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failure to state a cognizable claim for relief.
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After receiving an extension of time, Plaintiff filed objections to the Findings and

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Recommendations on October 5, 2018.
On January 14, 2019, the Findings and Recommendations were adopted in part, and Plaintiff

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was granted leave to file a second amended complaint to attempt to state a cognizable claim for sexual

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harassment against Defendant Karlow. The Court specifically noted that “Plaintiff’s allegations are

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still not factually clear enough to state a claim.” (Order at 2:6-8, ECF No. 18.) The Court further

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stated, “If Plaintiff believes that Defendant Karlow has in fact violated the Eighth Amendment through

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sexual harassment, he must make a motion to amend his complaint and provide the factual details that

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support such a claim.” (Id. at 2:13-15.) Lastly, the Court noted that “If Plaintiff does not file a new

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complaint within that time frame, then the matter is referred back to the Magistrate Judge for initiation

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of service of process on the existing complaint.” (Id. at 2:20-21.)
On April 11, 2019, Plaintiff filed a second amended complaint. On April 25, 2019, the Court

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screened the second amended complaint and granted Plaintiff one final opportunity to amend and file a

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third amended complaint. (ECF No. 24.) The Court found that Plaintiff’s second amended complaint

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did “not contain any factual allegations underlying the alleged constitutional violations.” In addition,

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Plaintiff failed to reallege the specific facts that give rise to his cognizable retaliation claim and

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potential sexual harassment claim. Plaintiff was specifically “advised that any third amended

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complaint must include all of the specific factual allegations relating to his retaliation and potential

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sexual harassment claims. Plaintiff may not refer or incorporate material from a prior complaint, or

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assume that the facts alleged in previously filings are known to the Court when reviewing the new

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complaint. (Order at 4:23-27, ECF No. 24.) Plaintiff was also advised that “an amended complaint

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supersedes” … [and] an amended complaint must be ‘complete in itself without reference to the prior

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or superseded pleading.’” (Order at 7:14-16, ECF No. 24.) Despite the Court’s directive, Plaintiff

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filed a third amended complaint that includes only factual allegations relating to his sexual harassment

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claim. For the reasons explained below, the instant action should be dismissed for failure to state a

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cognizable claim for relief.

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II.

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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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III.

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COMPLAINT ALLEGATIONS

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In August 2017, Plaintiff was working in the law library on Facility D at Kern Valley State

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Prison. Defendant Norm Karlow was Plaintiff’s direct supervisor. During his time working in the law

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library, Norm Karlow would throw things at Plaintiff, and he would ask Plaintiff to “stripe for him

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while thrusting out his crotch area.” Karlow would also roll around in his office chair and come up

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Plaintiff and grope the back of his legs just under his buttocks, while Plaintiff was assisting inmates at

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the counter. Once I filed a complaint, I received a disciplinary report.

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IV.

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DISCUSSION

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A.

Eighth Amendment Cruel and Unusual Punishment

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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,

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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).
Plaintiff’s factual allegations that in August 2017 Norm Karlow would “come up behind me

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groping the back of my legs just under my buttocks while I would be assisting inmates at the counter”

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are insufficient to give to a constitutional claim under the Eighth Amendment. Plaintiff’s allegations

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simply do not rise to the level of extremely egregious conduct. See, e.g., Watison v. Carter, 668 F.3d

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1108, 1113 (9th Cir. 2012) (officer approached prisoner while he was on the toilet, rubbed his thigh

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against the inmate’s thigh, ‘began smiling in a sexual contact [sic],’ and left the cell laughing…was

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insufficient to give rise to a claim for relief under the Eighth Amendment); Jackson v. Madery, 158

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Fed. Appx. 656, 662 (6th Cir. 2005) (officer who allegedly rubbed and grabbed prisoner’s buttocks in

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degrading manner was “isolated, brief, and not severe,” and failed to state a cognizable Eighth

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Amendment claim); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (two brief touches to

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prisoner’s buttocks without fear of sexual abuse was insufficient to state a cognizable Eighth

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Amendment claim); Boodie v. Schnieder, 105 F.3d 857, 859-61 (2d Cir. 1997) (prisoner’s claim that

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female officer made a pass at him, touched him on several occasions, and called him a “sexy black

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devil” was insufficient to give rise to a claim under the Eighth Amendment). Therefore, Plaintiff’s

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isolated claim which caused him “humiliation” do “not give rise to the level of severe psychological

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pain required to state an Eighth Amendment claim.” Watison v. Carter, 668 F.3d at 1113.

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V.

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RECOMMENDATIONS

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For the reasons stated above, Plaintiff fails to state a cognizable claim under the Eighth

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Amendment, and because Plaintiff has been given several opportunities to amend further amendment

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would be futile. Furthermore, despite the clear advisement that Plaintiff must include allegations in

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the third amended complaint including the retaliation claim, it is clear that Plaintiff has waived any

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retaliation claim. Long v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981) (“[A] plaintiff

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waives all causes of action alleged in the original complaint which are not alleged in the amended

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complaint.”)

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Accordingly, it is HEREBY RECOMMENDED that:

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The instant action be dismissed for failure to state a cognizable claim for relief; and

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The Clerk of Court be directed to terminate this action.

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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, Plaintiff 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.” Plaintiff is 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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June 5, 2019
UNITED STATES MAGISTRATE JUDGE

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