Hernandez v. Thomas
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/30/2018 RECOMMENDING defendant's 12 motion to dismiss be denied and that defendant be required to answer the complaint. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY HERNANDEZ,
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Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
THOMAS,
Defendant.
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No. 2:17-CV-1803-KJM-CMK-P
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is defendant’s motion to dismiss (Doc. 12).
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I. PLAINTIFF’S ALLEGATIONS
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This action proceeds on the original complaint. Plaintiff alleges:
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Dr. Thomas did become sexually inappropriate using body
language to mimick [sic] the act of masturbation on 1-4-17 during a 1 on 1
session. 1-9-17 used body language to mimick [sic] the act of oral
compulation [sic], as well as using a silver ring to mimick [sic] the act of
intercourse as well as using inuendo [sic] in speech and attempting to draw
petitioner’s attention below her waist that sexually harassed petitioner. . . .
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Doc. 1, p. 3.
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Plaintiff alleges that defendant Thomas is a prison psychologist. See id. at p. 2. Petitioner
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alleges that defendant’s conduct “shocked his senses to much that it inflicted psychological
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injury.” Id. at p. 3. Plaintiff seeks $1 millions dollars in compensatory damages. See id. at 4.
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II. STANDARD FOR MOTION TO DISMISS
In considering a motion to dismiss, the court must accept all allegations of
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material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The
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court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer
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v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
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738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All
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ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,
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395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual
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factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50
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(2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by
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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that
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the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is
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and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)
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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for
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failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic
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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to
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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain
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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.
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(quoting Twombly, 550 U.S. at 557).
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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials
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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)
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documents whose contents are alleged in or attached to the complaint and whose authenticity no
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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
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and upon which the complaint necessarily relies, but which are not attached to the complaint, see
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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
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1994).
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Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
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III. DISCUSSION
The treatment a prisoner receives in prison and the conditions under which the
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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,
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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102
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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.
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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with
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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only
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when two requirements are met: (1) objectively, the official’s act or omission must be so serious
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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)
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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of
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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison
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official must have a “sufficiently culpable mind.” See id. Allegations of verbal harassment do
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not state a claim under the Eighth Amendment unless it is alleged that the harassment was
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“calculated to . . . cause [the prisoner] psychological damage.” Oltarzewski v. Ruggiero, 830
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F.2d 136, 139 (9th Cir. 1987); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),
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amended by 135 F.3d 1318 (9th Cir. 1998). In addition, the prisoner must show that the verbal
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comments were unusually gross, even for a prison setting, and that he was in fact psychologically
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damaged as a result of the comments. See Keenan, 83 F.3d at 1092.
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Defendant argues that plaintiff cannot state a claim against her because plaintiff
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does not allege any physical contact and verbal harassment alone is insufficient. As noted above,
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where verbal harassment is alleged to have been calculated to cause psychological damage, such
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conduct may violate the Eighth Amendment. In this case, plaintiff alleges and defendant admits
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that she is a prison psychologist. Plaintiff alleges that the conduct occurred during a one-on-one
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counseling session. Given these facts, it is reasonable to infer that plaintiff claims defendant
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acted for the purpose of causing him psychological injury. Why defendant Thomas did what
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plaintiff alleges is a question that cannot be answered absent further development of the facts of
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this case.
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IV. CONCLUSION
Based on the foregoing, the undersigned recommends that defendant’s motion to
dismiss (Doc. 12) be denied and that defendant be required to answer the complaint.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: August 30, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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