Watison v. Carter

• Decision Date: 13 February 2012
• Docket Number: No. 10–16778.,10–16778.
• Citation: 668 F.3d 1108,2012 Daily Journal D.A.R. 1973,12 Cal. Daily Op. Serv. 1849
• Parties: Raymond WATISON, Plaintiff–Appellant, v. Mary CARTER; Craig Madieros; Don Helling; Joseph Rodriguez; Sean LaGier; Danilo Santos; Christine Carmazzi; Rosa Rodriguez; Candice Nya, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 1849

2012 Daily Journal D.A.R. 1973

668 F.3d 1108

Raymond WATISON, Plaintiff–Appellant,

v.Mary CARTER; Craig Madieros; Don Helling; Joseph Rodriguez; Sean LaGier; Danilo Santos; Christine Carmazzi; Rosa Rodriguez; Candice Nya, Defendants–Appellees.

No. 10–16778.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 18, 2011.Filed Feb. 13, 2012.

Daniel H. Bromberg, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, for the plaintiff-appellant.

Clark G. Leslie, Department of the Attorney General, Carson City, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. 3:09–cv–00664–ECR–RAM.

Before: JEROME FARRIS, JOHN T. NOONAN, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge FARRIS; Partial Concurrence and Partial Dissent by Judge NOONAN.

OPINION

FARRIS, Senior Circuit Judge:

Petitioner Raymond Watison, who is serving a sentence in Nevada State Prison, sued defendant prison officials under 42 U.S.C. § 1983 pro se, alleging that they violated several of his rights under the U.S. Constitution. He also alleged that the officials violated various Nevada laws. The district court dismissed Watison's complaint with prejudice. Watison appealed the dismissal of some of his claims and had counsel appointed for him. We have jurisdiction under 28 U.S.C. § 1291.

Watison failed to state an Eighth Amendment claim against Correctional Officer Sean LaGier and failed to state a First Amendment retaliation claim against Correctional Officer Joseph Rodriguez, but Watison's First Amendment retaliation claims against Associate Warden Mary Carter and Correctional Officers Rosa Rodriguez, Sean LaGier, and Danilo Santos require further consideration. The district court should not have dismissed Watison's state-law claims with prejudice. We therefore affirm in part, and remand for further proceedings.

I.

We review the dismissal of a complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998). The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim. See, e.g., Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000). Dismissal is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). In making this determination, we take as true all allegations of material fact stated in the complaint and construe them in the light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir.1996). We “construe [a pro se plaintiff's] pleadings liberally and ... afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010) (internal quotation marks omitted).

II.

Watison alleged that Correctional Officer Sean LaGier sexually harassed him in violation of the Eighth Amendment. He alleged that LaGier entered his (Watison's) cell while Watison was on the toilet and began to search it, that Watison asked LaGier to leave the room, and that LaGier approached Watison while Watison was still on the toilet, rubbed his thigh against Watison's thigh, “began smiling in a sexual contact [sic],” and left the cell laughing.

“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Jordan v. Gardner, 986 F.2d 1521, 1525 (9th Cir.1993) (en banc) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986)) (internal quotation marks and indications of alteration omitted). The alleged pain may be physical or psychological. See, e.g., Jordan, 986 F.2d 1521. Nevertheless, the “inmate must objectively show that he was deprived of something ‘sufficiently serious.’ ” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994)). For example, in Jordan, we held that the Eighth Amendment prohibited clothed body searches of female prisoners by male guards directed by a prison policy to “push inward and upward when searching the crotch and upper thighs of the inmate,” to “squeeze and knead” “the leg and the crotch area,” and to “search the breast area in a sweeping motion, so that the breasts will be ‘flattened.’ ” 986 F.2d at 1523 (indications of alteration omitted). The Jordan court's finding of serious deprivation relied on the “high probability of ... severe psychological injury and emotional pain and suffering ... from these searches” based on the inmates' “shocking histories of verbal, physical, and, in particular, sexual abuse....” Id. at 1525. By contrast, “the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation's prisons” of which “we do not approve,” but which do not violate the Eighth Amendment. Somers v. Thurman, 109 F.3d 614, 622 (9th Cir.1997) (internal quotation marks omitted). Moreover, not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992).

The “humiliation” Watison allegedly suffered from the incident with Officer LaGier does not rise to the level of severe psychological pain required to state an Eighth Amendment claim. We have found no Eighth Amendment violation in situations involving more serious deprivations than the deprivation Watison allegedly suffered. For example, in Somers, we held that the Eighth Amendment did not prohibit female guards from performing visual body cavity searches on male inmates or watching male inmates shower, despite one inmate's allegation that the guards pointed, joked, and “gawked” at him. Somers, 109 F.3d at 616; see also, e.g., Grummett v. Rushen, 779 F.2d 491, 494 n. 1 (9th Cir.1985) (prison's policy allowing female guards to observe male inmates disrobing, showering, using the toilet, and being strip-searched, and allowing them to conduct pat-down searches including the groin area, did not amount to “the type of shocking and barbarous treatment protected against by the [E]ighth [A]mendment”).

We emphasize, as we did in Somers, that this case does not present the Eighth Amendment concerns found in Jordan. See Somers, 109 F.3d at 623. Jordan's holding relied on (1) the preexisting mental conditions of the female inmates, which caused them “to react differently to [the] searches ... than would male inmates subjected to similar searches by women,” Jordan, 986 F.2d at 1525, and (2) the intrusive nature of the searches. Somers, 109 F.3d at 624. As in Somers, neither of these factors is present here. Watison is a male inmate, and the only physical contact he alleged was a brief brush of LaGier's leg against his own.

The Eighth Circuit reached a similar conclusion in Berryhill v. Schriro, 137 F.3d 1073 (8th Cir.1998). In Berryhill, the plaintiff alleged that prison maintenance employees “embarrass[ed] him” in violation of the Eighth Amendment when one of them “grabbed him by the shoulders while [another] grabbed his buttocks with one hand briefly” and a third “grabbed Berryhill's buttocks for a moment.” Id. at 1074–75 (indications of alteration omitted). The Eighth Circuit found no Eighth Amendment violation because “there is no evidence that Berryhill suffered anything more than a brief unwanted touch on his buttocks” and “[i]t would be a distortion ... to characterize the conduct in this case as a sexual assault.” Id. at 1076. Like Watison's, Berryhill's “humiliat[ion]” did not constitute “objectively serious injury (either physical or psychological).” Id.¹

Watison argues that the alleged incident “plainly violates contemporary standards of decency” because “unwanted sexual contact by prison officials is now forbidden by every state.” LaGier's alleged conduct, however, is not the type of conduct these laws forbid. See, e.g., Ala.Code §§ 14–11–31, 14–11–30(3) (forbidden “sexual conduct” defined to include sexual intercourse and “touching[,] for the purpose of sexual arousal, gratification, or abuse[,] of ... sexual or other intimate parts”); Or.Rev.Stat. §§ 163.454, 163.305(6) (forbidden “sexual contact” defined as “touching of the sexual or other intimate parts of a person ... for the purpose of arousing or gratifying the sexual desire of either party”); Vt. Stat. Ann. tit. 13, §§ 3257, 3251(1) (definition of forbidden conduct does not include touching thigh to thigh); Wis. Stat. § 940.225(2)(h), (5)(b), (5)(c) (same). Therefore, Watison's citations do not aid his argument.

Because Officer LaGier's “alleged wrongdoing was [not] objectively ‘harmful enough’ to establish a constitutional violation,” the district court properly dismissed Watison's Eighth Amendment claim against LaGier. Hudson, 503 U.S. at 8, 112 S.Ct. at 999 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991)).

III.

Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five elements. Id. First, the plaintiff must allege that the retaliated-against conduct is protected. The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir.2005). Second, the plaintiff must claim the defendant took adverse action against the plaintiff. Id. at 567. The adverse action need not be an independent constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.1995). “[T]he mere threat of harm can be an adverse action....” Brodheim, 584 F.3d at 1270.

Third, the plaintiff must allege a...