Hernandez v. Thomas
Filing
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ORDER signed by District Judge Kimberly J. Mueller on 10/4/2018 ADOPTING 32 Findings and Recommendations; DENYING 12 Motion to Dismiss, Defendant shall file an answer to plaintiff's complaint within 30 days of the date of this order; and this matter is REFERRED back to the assigned magistrate judge for all further pretrial proceedings. (Reader, L)
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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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No. 2:17-CV-1803-KJM-DMC-P
Plaintiff,
v.
ORDER
THOMAS,
Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under
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42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by
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Eastern District of California local rules.
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On August 31, 2018, the Magistrate Judge filed findings and recommendations,
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which were served on the parties and which contained notice that the parties may file objections
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within the time specified therein (Doc. 32). Timely objections to the findings and
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recommendations have been filed.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
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304(f), this court has conducted a de novo review of this case. Having reviewed the file, the court
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finds the findings and recommendations to be supported by the record and by proper analysis.
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In his objections, defendant contends the Magistrate Judge misstated the law. The
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Magistrate Judge cited Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and Keenan v.
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Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), for the proposition that, generally, allegations of verbal
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harassment do not state a claim under the Eighth Amendment unless it is alleged that the
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harassment was “calculated to . . . cause [the prisoner] psychological damage.” Defendant’s
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objection is technically correct in that the quoted language appears in Keenan but not in
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Oltarzewski. Keenan, however, cites Oltarzewski in support of the quoted language. The
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Magistrate Judge’s citation error does not change the substantive analysis, with which the court
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agrees.
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Defendant also objects on the basis plaintiff has not affirmatively alleged
defendant’s conduct was calculated to cause psychological damage. The court rejects this
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argument because, as the Magistrate Judge noted, plaintiff alleged defendant Thomas is a prison
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psychologist and the alleged conduct occurred during a therapy session. It is reasonable to infer
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from these allegations by a pro se defendant Thomas acted for the purpose of inflicting
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psychological damage beyond whatever mental impairments for which plaintiff was already being
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treated. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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The findings and recommendations filed August 31, 2018 (Doc. 32), are
adopted in full, except as to the citation error noted herein;
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2.
Defendant’s motion to dismiss (Doc. 12) is denied;
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3.
Defendant shall file an answer to plaintiff’s complaint within 30 days of
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the date of this order; and
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This matter is referred back to the assigned magistrate judge for all further
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pretrial proceedings.
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DATED: October 4, 2018.
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UNITED STATES DISTRICT JUDGE
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