Opinion
Case No. CV05-0052-E-EJL.
February 24, 2005
INITIAL REVIEW ORDER
Plaintiff's Complaint was conditionally filed on February 17, 2005. The Court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The Court also reviews Plaintiff's Motion to Proceed in Forma Pauperis. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I. REVIEW OF COMPLAINT
A. BackgroundPlaintiff asserts that Officer Hampton violated her civil rights when he said, "You and your roommate better not be on top of each other," to Plaintiff's cellmate over their cell intercom. Plaintiff heard the inappropriate comment and was hurt and angered by it. She seeks $50,000 in damages for what she deems "sexual harassment."
B. Applicable Law
The Court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915(e) and 1915A. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
Plaintiff brings her claims under 42 U.S.C. § 1983, the civil rights statute. To state a claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Verbal harassment, abuse, and threats, without more, are not sufficient to state a constitutional deprivation under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987) (allegations that correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983); Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997) (abusive language directed at prisoner's religious and ethnic background not actionable); McFadden v. Lucas, 713 F.2d 143, 147 (5th Cir. 1983) ("While twenty-two officers armed with sticks and threatening demeanor may arguably be excessive, we must, in the absence of physical abuse, concur with the lower court's dismissal. The alleged conduct, absent more, cannot be said to rise to the level of conduct which `shocks the conscience'" (citation omitted)).
Prisoners have an Eighth Amendment right to be free from sexual abuse. Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)); Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Mathie v. Fries, 935 F.Supp. 1284, 1301 (E.D.N.Y. 1996); Women Prisoners of the Dist. of Columbia Dept. of Corrections, 968 F.Supp. 744, 745 (D.D.C. 1997).
There is no question that sexual abuse is conduct which is "inconsistent with contemporary standards of decency" and "repugnant to the conscience of mankind," and therefore violates the Eighth Amendment. See Whitley v. Albers, 475 U.S. 312, 327 (1986) (internal citations omitted). Verbal sexual harassment can constitute an Eighth Amendment claim if the resulting harm was sufficiently severe. See Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997).
In Austin v. Terhune, 367 F.3d 1167 (9th Cir. 2004), Inmate Austin asserted that a correctional officer exposed his penis to the inmate through the glass of an officer's control booth for approximately 30 seconds, and said, "Come suck this [expletive], boy." Id. at 1171-72. The Ninth Circuit held that the incident was not enough to meet the standard for sexual abuse under the Eighth Amendment. That Court reasoned:
Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, see Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment. See e.g., Blueford v. Prunty, 108 F.3d 251, 254-55 (9th Cir. 1997) (holding that prison guard who engaged in "vulgar same-sex trash talk" with inmates was entitled to qualified immunity); Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997). Williams was in an elevated, glass-enclosed control booth when he exposed himself to Austin, and this isolated incident lasted for a period of no more than 30-40 seconds. Williams never physically touched Austin. In the light of these facts, the district court properly concluded that this incident was not sufficiently serious to constitute an Eighth Amendment violation.Id. at 1172.
C. Discussion
The incident Plaintiff describes, while clearly unprofessional and inappropriate behavior on the correctional officer's part, does not meet the Eighth Amendment standard for sexual abuse, but is a single incident of verbal abuse. If one imagines that there is a scale to measure vulgar and indecent behavior, Plaintiff's incident was not nearly as vulgar and indecent as the incident described in Austin v. Terhune, which did not meet the Eighth Amendment standard. Accordingly, the Court concludes that Plaintiff's Complaint fails to state a federal claim upon which relief can be granted, and that amendment would be futile. The Complaint shall be dismissed, and Plaintiff's Motion for in Forma Pauperis Status shall be deemed moot.
II. ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
A. Plaintiff's Motion to Proceed in Forma Pauperis (Docket No. 1) is MOOT.
B. Plaintiff's Complaint is DISMISSED for failure to state a federal claim upon which relief can be granted.