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Barnett v. McDowall

United States District Court, Ninth Circuit

October 7, 2013

BROOK McDOWALL, et al., Defendants.


ANN 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. Plaintiff alleges violations of his Eighth and Fourteenth Amendment rights and "the 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).

Plaintiff alleges that "Defendant Brown, U.S. Marshal, [is] responsible for federal pre-trial inmates' safe-keeping and well being awaiting trial; and is in charge of making decisions on transportation issues to and from court and institutions; and is generally responsible for 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 , 697 F.3d 1059, 1068 (9th Cir. 2012); Ibrahim v. Dept of Homeland Security , 538 F.3d 1250, 1257 (9th Cir. 2008) [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 "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 facility. Therefore plaintiff's complaint fails to state a 42 U.S.C. § 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 culpable state of mind (deliberate indifference). Marrero v. Rose, 2013 WL 2991295 at *4 (E.D. Cal. June 14, 2013); Farmer v. Brennan , 511 U.S. 825, 828 (1994). Wilson v. Sieter , 501 U.S. 294, 298 (1991); LeMaire v. Mass , 12 F.3d 1444, 1451 (9th Cir. 1993); May v. Bladwin , 109 F.3d 557, 565 (9th 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. Ingraham v. Wright , 430 U.S. 651, 674 (1977). Extreme deprivations are required to make out a conditions of confinement claim. Only 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 this case plaintiff alleges that defendant Kyles "stood uncomfortably close" to him, "made contact 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 said "I could go for that."

Plaintiff allegations, if true, are disturbing and clearly represent inappropriate conduct. However, the sexual harassment alleged by plaintiff does not constitute a risk of sufficiently serious harm to plaintiff's health or ...

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