Barnett v. McDowall et al

Filing 73

ORDER: Defendant Brown's Motion to Dismiss 41 is allowed; the Columbia County Defendants' Motion for Summary Judgment 46 is allowed; plaintiff's request for injunctive relief is denied as moot in that plaintiff is no longe r incarcerated in the Columbia County Jail; Plaintiff's claims for declaratory relief are denied based on my finding that plaintiff's constitutional rights were not violated by defendants' alleged conduct; and, the court declines to exercise supplemental jurisdiction over any remaining state law claims. Any appeal from this order or judgment of dismissal would be frivolous and not taken in good faith. Signed on 10/7/2013 by Chief Judge Ann L. Aiken. (gw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
ANDREW LAUD BARNETT,
Plaintiff,

3:13-cv-00476-AA

v.

ORDER

McDOWALL, et al.,

~ROOK

Defendants.
AIKEN, District Judge.
Plaintiff,

an

inmate

in

the

custody of the

state of

Oregon, filed a complaint under 42 U.S.C. § 1983 alleging that
a female deputy sheriff touched him in a sexual manner and
made vulgar comments to him while he was an inmate in the
Columbia County Jail.
Eighth

and

Plaintiff alleges

Fourteenth

Amendment

rights

violations
and

"the

of his
tort

of

assault battery under Oregon State law."
The following motions are before the court:
1.)

Defendant

Dave

Brown

moves

the

court

to

dismiss

plaintiff's claims against him for failure to state a claim.
Motion to Dismiss (#41) .
1 - ORDER

Plaintiff alleges that "Defendant Brown, U.S. Marshal,
[is] responsible for federal pre-trial inmates' safe-keeping
and well being awaiting trial;
decisions

on

transportation

institutions;

and is

and is in charge of making

issues

to

and from

generally responsible

for

court

and

safety and

security." Complaint ( #2) p. 3. Plaintiff further alleges that
he requested the U.S.

Marshal's

Service to move him to a

federal facility "away from defendants and that request was
denied.

Id.

p.

5.

Plaintiff alleges that defendant Brown's

failure

to "intervene" and transport plaintiff "away from

defendants" violated plaintiff's Eighth Amendment rights. Id.
p. 8.

Section 1983 creates a private right of action against
individuals who violate federal constitutional or statutory
rights while acting under the color of state law. Hall v. City
of Los Angeles,
v.

697 F.3d 1059, 1068

Dept of Homeland Security,

2008)

(9th Cir. 2012); Ibrahim

538 F.3d 1250, 1257

(9ili Cir.

[Section 1983 only provides a remedy against persons

acting under the color of state law] . "Federal officers acting
under federal authority are immune from suit under section
1983 unless the state or its agents significantly participated
in the challenged activity." Gibson v. United States, 781 F.2d
1334, 1343 (9th Cir. 1986);
In this case although plaintiff generally alleges that

2 - ORDER

"the USM acted jointly, and conspired with state and county
officials," plaintiff has not alleged any facts that would
establish that

any state agents

or officers

significantly

participated in defendant Brown's decision not to transfer him
to

a

different

fails

t

facility.

state a

Therefore plaintiff's

42 U.S. C.

§

complaint

1983 claim against defendant

Brown.
Even if plaintiff amended his complaint to allege his
claim

against

defendant

Brown

pursuant

to

Bivens

v.

Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 389 (1971)

1

,

I find that plaintiff has failed to allege

sufficient facts to establish a claim for cruel and unusual
punishment under the Eighth Amendment.
The Eighth Amendment proscribes punishments which involve
the "unnecessary and wanton infliction of pain."

Rhodes v.

Chapman, 452 U.S. 337, 347 (1981); Gregg v. Georgia, 428 U.S.
153, 173 (1976).
In

order

to

establish

liability

under

the

Eighth

Amendment, a plaintiff must prove two distinct components: 1.)
that the plaintiff actually suffered an extreme deprivation or
was placed at a substantial risk of suffering a significant
injury; and 2) that the defendants acted with a sufficiently

1

A Bivens action is the "federal counterpart" to a § 1983
action. See, Hinshaw v. Burfield, 2012 WL 3627425 at *3 (C.D. Cal.
June 15, 2012).
3 -

ORDER

culpable state of mind (deliberate indifference).

Marrero v.

Rose, 2013 WL 2991295 at *4 (E.D. Cal. June 14, 2013);
v. Brennan, 511 U.S. 825, 828

(1994).

Farmer

Wilson v. Sieter, 501

U.S. 294, 298 (1991); LeMaire v. Mass, 12 F. 3d 1444, 1451 (9th
(9~

Cir. 1993); May v. Bladwin, 109 F.3d 557, 565

Cir. 1997).

The Eighth Amendment does not apply to every deprivation
or even every unnecessary deprivation, suffered by a prisoner,
but only that narrow class of deprivation "serious injury
inflicted by prison officials acting with a culpable state of
mind."

Hudson v. McMillian, 503 U.S. 1 (1992).

There is a de minimis level of imposition with which the
Constitution is not concerned.
651,

674

out

a

(1977).

Ingraham v. Wright, 430 U.S.

Extreme deprivations are required to make

conditions

of

confinement

Only

claim.

those

deprivations denying the 'minnimal civilized measure of life's
necessities' are sufficiently grave to form the basis of an
Eighth Amendment violation. Hudson v. McMillian, supra, at p.
8-9,

quoting Rhodes v.

Chapman,

supra at 347 and Wilson v.

Seiter, supra at 298.
In
"stood

this

case

plaintiff

uncomfortably

close"

alleges
to

him,

that

defendant

"made

contact

Kyles
with

plaintiff's crotch area and touched his penis," then made
vulgar comments to him.

Plaintiff further alleges that Kyles

"peeked over the shower door" when plaintiff was showering and

4 - ORDER

said "I could go for that."
Plaintiff

allegations,

if

true,

are

clearly represent inappropriate conduct.

disturbing

and

However, the sexual

harassment alleged by plaintiff does not constitute a risk of
sufficiently serious harm to plaintiff's health or safety to
rise to the level of an Eighth Amendment violation.
In addition,

plaintiff has not alleged that defendant

Brown had a sufficiently "culpable state of mind" to support
an Eighth Amendment violation.

Plaintiff alleges that he

asked to be removed "away from defendants" but he has not
alleged that he informed Brown that he was confined under
conditions posing a risk of "objectively sufficiently serious
harm" to his health or safety. See, Clemets v. Gomez, 298 F.3d
898 (9ili Cir. 2002). Thus he has failed to establish that Brown
had

a

state

recklessness,

of

mind

functionally

see Farmer v.

equivalent

Brennan,

supra,

to

criminal

in failing to

"intervene and move (plaintiff) to a different facility."
Defendants McDowall,

2. )

Kyles,

Moyer and Dickerson

"Columbia

County

defendants")

.move

judgment.

County

Defendants'

Motion

the
for

court

for

Summary

(the

summary
Judgment

( #4 6) .

Plaintiff alleges that while he was incarcerated in the
Columbia County Jail, defendant Kyles touched him in a sexual
manner and made vulgar comments to him in violation of his

5 - ORDER

Eighth

Amendment

punishment.

protection

against

cruel

and

unusual

Plaintiff further alleges that he was denied an

appropriate grievance process in violation of his Fourteenth
Amendment rights
The facts giving rise to plaintiff's Eighth Amendment
claim are disputed.

As set forth above,

plaintiff alleges

that defendant Kyles "stood uncomfortably close" to plaintiff
and "actually made contact with plaintiff's crotch area and
touched plaintiff's penis," and made vulgar comments to him.
Complaint (#2) p. 4-5.

Plaintiff further alleges that Kyles

"peeked over" the shower door when plaintiff was showering and
"while removing shackles and belly chains . . . defendant Kyles
fondled plaintiff."

Id. p. 6-7.

Defendant Kyles disputes

plaintiff's allegation. See, Kyles Declaration (#47).
Although the relevant facts are disputed, I find that the
disputed facts are not material because even if plaintiff's
version of the facts are true, the facts alleged by plaintiff
are insufficient to give rise to an Eighth Amendment claim for
cruel and unusual punishment.
To

the

extent

that

plaintiff's

claims

are

based

on

defendant Kyles alleged vulgar comments they do not give rise
to

a

claim under

42

U.S.C.

§

1983.

See,

Oltarzewski

v.

Ruggiero, 830 F.2d 136 (9th Cir. 1987); Guat v. Sunn, 810 F.2d
923, 925 (9th Cir. 1987); see also, Hopson v. Frederickson, 961

6 - ORDER

F.2d 1374

(8th Cir. 1992); Austin v. Terhune, 367 F. 3d 1167,

1171 (9th Cir. 2004); Stevens v. Williams, 2008 WL 916991, *14
(D. Ore. March 27, 2008.
Under

the

Prison

Litigation

Reform Act

( "PLRA"),

42

U.S.C. § 1997e(e), "no federal civil action may be brought by
a prisoner confined in a jail, prison, or other correctional
facility,

for mental or emotional injury suffered while in

custody without a prior showing of physical injury."

In the

Ninth Circuit, the PLRA "requires a prior showing of physical
injury that need not be significant but must be more than de

minimus.

Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002).

The Ninth Circuit has consistently upheld the PLRA and
held that a

physical injury is

required for

an inmate to

obtain damages for emotional or mental injuries. See, Jackson
v. Montery County Jail,

407 Fed. Appx. 119,

(9th Cir. 2011);

Acosta v. Arpaio, 466 Fed. Appx. 556 (9th Cir. 2011).
In his motion for summary judgment plaintiff acknowledges
that he has "no 'physical injury'" and that his claim is for
"emotional distress."
2.

Motion for Summary Judgment (#24) p.

Plaintiff's claim for compensatory damages

is for

"the

mental and emotional injuries sustained as a result of the
sexual assault and harassment."

Id., p. 10.

In his Brief in Opposition to

Defendants'

Motion for

Summary Judgment (#63), plaintiff argues that his allegations

7 - ORDER

of

"sexual

requirement.

assault"

satisfy

the

PLRA's

physical

injury

However, the cases relied upon by plaintiff are

distinguishable from the alleged facts of this case in that
they involved repeated incidents of rape, coerced sodomy, oral
sex and intimate touching.
The alleged

facts of the case at bar are more similar to

those of Boddie v. Schnieder, 105 F3d 857 (2nct Cir. 1997).

In

Boddie, an inmate alleged that a female corrections officer
made "a pass" at him on one occasion and the next day she
"squeezed his hand, touched his penis, and saidt "[Y]ou know
your (sic) sexy black devil,

I like you." Id. at 859-60. On

another occasion the officer made the plaintiff take off his
sweatshirt

and

breasts so hard

then

"bump [ ed]

into

[his]

chest

with

her

[he]

could feel the points of her nipples

against [his] chest."

Id. at p. 60. When the inmate tried to

pass by her again, the corrections officer "again bumped into
him,

this time

'with her whole body vagina against penis

pinning [him] to the door.'" Id.
The

Second

Circuit

agreed

with

the

lower

court

granting the defendants' motion to dismiss, holding that:
"Boddie nevertheless failed to state an Eighth
Amendment claim.
He asserts a small number of
incidents in which he allegedly was verbally
harassed, touched, and pressed against without his
consent. No single incident that he described was
severe enough to be "objectively, sufficiently
serious. '
Nor were the incidents cumulatively
egregious in the harm they inflicted. The isolated
8 - ORDER

in

episodes of harassment and touching alleged by
Boddie are despicable and, if true, they may
potentially be the basis of state tort actions.
But they do not involve the harm of federal
constitutional proportions as defined by the
Supreme Court."
Id. at 861.
Plaintiff's allegations in this case are similar to those
in Boddie and

suffer

from the

plaintiff alleges

Boddie,

same

deficiencies.

isolated incidents

As

in

of over-the-

clothes touching accompanied by sexually suggestive comments.
I agree with the Second Circuit that these allegations are
insufficient to rise

to the level of an Eighth Amendment

violation.
The Violence Against Women Reauthorization Act of 2013,
created a limited exception to the physical injury requirement
of 42 U.S.C.
in

§

custodial

1997e(e) where the claim is based sexual abuse
settings.

However,

the

exception

is

not

applicable in this case because plaintiff's complaint contains
no allegations of "sexual acts" as defined in the statute. See
18

u.s.c.

§

2246.

Plaintiff's Eighth Amendment claims against the other
defendants
Kyles.
towards

are

derivative

Because I

Eighth

did

not

violate

Amendment

defendants fail as well.
9 - ORDER

his

claim against

Defendant

find that defendant Kyles alleged conduct

plaintiff

plaintiff's

of

the

claims

Eighth
against

Amendment,
the

other

Moreover,
defendants

plaintiff's Eighth Amendment

Moyer

and McDowall

are

claims against

based on

their

alleged

failure "to take precautionary steps and/or disciplinary or
other action to curb and address the abuse once they received
information and complaints regarding defendant Kyles sexually
inappropriate conduct."

Complaint (#2) p. 7-8.

The failure to intervene on a prisoner's behalf to remedy
alleged unconstitutional behavior by others does not amount to
the direct participation necessary to state a

§

1983 claim.

See, Johnson v. Hayden, 2012 WL 652586, *3 (D.Ore., Feb 10,
2012), citing, Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999),

cert

denied,

530

U.S.

1264,

120

S.Ct.

2724

(2000) (concerning denial of a grievance).
Plaintiff

alleges

that

"the

actions

of

defendant

Dickerson and defendant McDowall in refusing to adhere to a
grievance procedure ... denied plaintiff due process of law in
violation of the Fourteenth Amendment."
However,

"[a}

Complaint (#2) p. 8.

prisoner has no substantive right to a

prison grievance system, and due process claims based upon the
denial or interference with a prisoner's access to a prison
grievance system are not cognizable."
WL 1890374,

*8

(D.

Ore.,

March 21,

McVay v. Becker, 2012
2012

(Magistrate Judge

Acosta)

citing Ramirez v. Glasa, 334 F.3d 850, 860 (9th Cir.

2003) .

Therefore, defendants are entitled to judgment as a

10 - ORDER

matter of law as to any due process claim based on the alleged
denial or interference with plaintiff's attempt to

file

a

grievance.

arguendo

Assuming
County

defendants'

that

alleged

constitutional rights,

one

or

conduct

more

of

the

violated

Columbia

plaintiff's

defendants are entitled to qualified

immunity from liability to plaintiff because plaintiff has not
established that such conduct violated "clearly established
statutory
person

would

(1999);
Kat z ,

or

constitutional
have

Siegert v.

53 3 U . S . 19 4

know."

rights

Conn.

Gilley,

V.

500 U/S.

of

which

Gabbert,
226

a
526

(1991);

(2 0 0 1 ) .

reasonable
U.S.

286

Saucier v.

3.)

Pendent

(supplemental) state law claims:
To the extent that plaintiff's allegations may state a
tort or other claims arising under the Oregon Constitution, or
state statutes,

I find that it is appropriate to refrain from

exercising federal jurisdiction over those claims.
If

the

federal

claim

giving

rise

to

the

court's

jurisdiction is dismissed before trial, supplemental state law
claims may be dismissed as well. 28 U.S.C. § 1367(c) (3).

Some

cases hold that the proper exercise of discretion requires
dismissal

of

state

law

claims

unless

"extraordinary

circumstances" justify their retention. Wren v. Sletten Const.
Co., 654 F.2d 529, 536 (9th Cir. 1991); Wentzka v. Gellman, 991

11 - ORDER

F.2d 423, 425 (7th Cir. 1993).

However, most courts hold that

whether to dismiss supplemental claims is fully discretionary
with the district court. Schneider v. TRW, Inc., 938 F.2d 986,
993-994

(9th Cir.

1991),

weighing factors

such as economy,

convenience, fairness and comity. Brady v. Brown, 51 F.3d 810
(9th Cir. 1995).
In this case there are no extraordinary circumstances
compelling the court to retain jurisdiction over plaintiff's
supplemental state law claims and the relevant factors weigh
against retention of those claims.
Based on the foregoing, I find that plaintiff has failed
to state a Eighth Amendment claim against Defendant Brown.
Defendant Brown's Motion to Dismiss

(#41)

is allowed;

the

Columbia County Defendants' Motion for Summary Judgment (#46)
is

allowed;

plaintiff's

request

for

injunctive

relief

is

denied as moot in that plaintiff is no longer incarcerated in
the Columbia County Jail; Plaintiff's claims for declaratory
relief

are

denied

based

on

my

finding

that

plaintiff's

constitutional rights were not violated by defendants alleged
conduct;

and,

the court declines to exercise

supplemental

jurisdiction over any remaining state law claims.

The Clerk

is directed to enter a judgment of dismissal with prejudice.

/Ill
/Ill

12 - ORDER

Any

be

appea~

£rivo~ous

£rom this order or judgment o£

dismissa~ wou~d

and not taken in good £aith.

DATED this·::f.:__ day

Q~

of~ember,

2013.

Ann Aiken
United State District Judge

13 - ORDER