“[A] prisoner in state custody cannot use a § 1983 7 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus 8 relief (or appropriate state relief) instead.”
How later courts described this case
- “[A] prisoner in state custody cannot use a § 1983 7 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus 8 relief (or appropriate state relief) instead.”
- “[V]erbal harassment generally does not 16 violate the Eighth Amendment.”
- upholding 4 dismissal of claim premised on allegations that correctional officer unzipped his pants and 5 exposed his penis to an inmate from inside control booth
- section 15 1983 claims must be premised on violation of federal constitutional right
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 JOSEPH EARL STEELE, Case No. 1:25-cv-000187-BAM (PC)
12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
13 v. ACTION
14 F. MARTINEZ, FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION FOR FAILURE TO
15 Defendant. STATE A CLAIM
16 (ECF No. 10)
17 FOURTEEN (14) DAY DEADLINE
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Plaintiff Joseph Earl Steele (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action under 42 U.S.C. § 1983. The Court screened Plaintiff’s
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complaint, and Plaintiff was granted leave to amend. Plaintiff’s first amended complaint is
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currently before the Court for screening. (ECF No. 10.)
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I. Screening Requirement and Standard
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
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1 A complaint must contain “a short and plain statement of the claim showing that the
2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
8 To survive screening, Plaintiff’s claims must be facially plausible, which requires
9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
14 II. Plaintiff’s Allegations
15 Plaintiff is currently housed in Wasco State Prison, in Wasco, California, where the events
16 in the complaint are alleged to have occurred. Plaintiff names Defendant F. Martinez,
17 correctional officer, as the sole defendant.
18 Plaintiff alleges staff sexual misconduct. Plaintiff alleges that on 9/10/24 or 9/12/24,
19 while in Building 3, Plaintiff and three other inmates were in the dayroom playing a game of
20 pinocle. They were approached by correctional officer F. Martinez with the tossing of a lifestyle
21 colored condom on the table followed with the comment “I’m all in.” All actions were totally
22 unwanted and very disrespectful. Plaintiff’s mental state was severely effected and caused
23 Plaintiff ongoing problems with his peers that have become physical.
24 On a sheet of paper attached to the form complaint, Plaintiff further alleges: On
25 September 10, 2024, Defendant F. Martinez threw a life size condom onto the able where
26 Plaintiff was playing pinocle with three other inmates. Defendant Martinez said “I’m all in”
27 when throwing the condom, without any other conversation. This action was disrespectful,
28 caused Plaintiff unwanted attention, made Plaintiff’s living environment uncomfortable violating
1 Plaintiff’s Eighth Amendment rights and Title 15.
2 Due to Defendant Martinez’s actions of misconduct, Plaintiff was put in the dangerous
3 situation where he had to defend his sexual integrity and was caused to fight others because of the
4 humiliation he was put through with his peers. These incidents resulted in Plaintiff being placed
5 on a high security yard with increased security measures, contrary to Plaintiff’s original
6 classification, and Plaintiff received additional time on his sentence. This outcome caused
7 Plaintiff to lose time that could have been spent with is family. Plaintiff seeks compensatory
8 damages for emotional distress, discomfort, and other consequences. Plaintiff also seeks
9 injunctive relief.
10 III. Discussion
11 Eighth Amendment
12 Sexual Harassment
13 “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the
14 Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012) (citing Schwenk v.
15 Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) ). “In the simplest and most absolute of terms ...
16 prisoners [have a clearly established Eighth Amendment right] to be free from sexual abuse ....”
17 Schwenk, 204 F.3d at 1197. “In evaluating a prisoner's claim, courts consider whether ‘the
18 officials act[ed] with a sufficiently culpable state of mind’ and if the alleged wrongdoing was
19 objectively ‘harmful enough’ to establish a constitutional violation.” Wood, 692 F.3d at 1046.
20 “[A] prisoner presents a viable Eighth Amendment claim where he or she proves that a prison
21 staff member, acting under color of law and without legitimate penological justification, touched
22 the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s
23 own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the
24 prisoner.” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020).
25 While “the Ninth Circuit has recognized that sexual harassment may constitute a
26 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated
27 between sexual harassment that involves verbal abuse and that which involves allegations of
28 physical assault, finding the lat[t]er to be in violation of the constitution.” Minifield v. Butikofer,
1 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (citation omitted). Allegations of sexual harassment
2 that do not involve touching have routinely been found ‘not sufficiently serious’ to sustain an
3 Eighth Amendment claim. Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding
4 dismissal of claim premised on allegations that correctional officer unzipped his pants and
5 exposed his penis to an inmate from inside control booth); accord Somers v. Thurman, 109 F.3d
6 at 624 (“To hold that gawking, pointing, and joking violates the prohibition against cruel and
7 unusual punishment would trivialize the objective component of the Eighth Amendment test and
8 render it absurd.”).
9 Plaintiff's complaint fails to state a cognizable claim against Defendant Martinez
10 for sexual harassment based on the facts alleged in the first amended complaint.
11 Verbal Harassment
12 To the extent Plaintiff alleges verbal harassment, Plaintiff fails to state a cognizable claim
13 for threats. Allegations of name-calling, verbal abuse, or threats generally fail to state a
14 constitutional claim under the Eighth Amendment, which prohibits cruel and unusual punishment.
15 See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (“[V]erbal harassment generally does not
16 violate the Eighth Amendment.”), opinion amended on denial of reh'g, 135 F.3d 1318 (9th Cir.
17 1998); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (holding that a prisoner's
18 allegations of threats allegedly made by guards failed to state a cause of action). Even in cases
19 concerning “abusive language directed at [a plaintiff's] religious and ethnic background, ‘verbal
20 harassment or abuse is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.’
21 ” Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (quoting Oltarzewski v. Ruggiero, 830
22 F.2d 136, 139 (9th Cir. 1987)) (alterations omitted), abrogated on other grounds by Shakur v.
23 Schriro, 514 F.3d 878 (9th Cir. 2008). However, verbal harassment may violate the constitution
24 when it is “unusually gross even for a prison setting and [is] calculated to and [does] cause
25 [plaintiff] psychological damage.” Cox v. Kernan, 2019 WL 6840136, at *5 (E.D. Cal. Dec. 16,
26 2019) (alterations in original) (quoting Keenan, 83 F.3d 1083 at 1092). The factual allegations do
27 not support a claim.
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1 Eighth Amendment - Failure to Protect
2 The Eighth Amendment requires that prison officials take reasonable measures to
3 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. at 832. The failure of prison
4 officials to protect inmates violates the Eighth Amendment when two requirements are met: (1)
5 the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is,
6 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison
7 official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health
8 or safety by failing to take reasonable steps to abate it. Id. at 837. The official must both be aware
9 of facts from which the inference could be drawn that a substantial risk of serious harm exists,
10 and he must also draw the inference. See Farmer, 511 U.S. at 837. Mere negligent failure to
11 protect an inmate from harm is not actionable under Section 1983. See Farmer, 511 U.S. at 835.
12 Plaintiff's complaint fails to state a cognizable claim for failure to protect against
13 Defendant. There is no factual support in the first amended complaint that Defendant was aware
14 that Plaintiff was at risk of serious harm at the hands of other prisoners or other persons and failed
15 to act despite the knowledge.
16 Housing Assignment
17 Plaintiff is informed that any claim premised on the failure to house Plaintiff at a
18 particular institution or in particular housing fails because Plaintiff is not entitled to be housed in
19 any particular institution. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano,
20 427 U.S. 215, 225 (1976). In general, prison officials’ housing and classification decisions do not
21 give rise to federal constitutional claims encompassed by the protection of liberty and property
22 guaranteed by the Fifth and Fourteenth Amendments. Montayne v. Haymes, 427 U.S. 236, 242
23 (1976) (It is well settled that prisoners have no constitutional right to placement in any particular
24 prison, to any particular security classification, or to any particular housing assignment); accord
25 King v. Lemos, No. 1:20-CV-01837-NONE-BAM (PC), 2021 WL 2038187, at *6 (E.D. Cal. May
26 21, 2021).
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1 Habeas Corpus
2 To the extent that Plaintiff is attempting to challenge the validity of his conviction, the
3 duration of conviction, or his incarceration, the exclusive method for asserting that challenge is
4 by filing a petition for writ of habeas corpus. State prisoners cannot challenge the fact or duration
5 of their confinement in a § 1983 action, and their sole remedy lies in habeas corpus relief.
6 Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prisoner in state custody cannot use a § 1983
7 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus
8 relief (or appropriate state relief) instead.”).
9 Title 15 Claim
10 To the extent that Defendant has not complied with applicable state statutes or prison
11 regulations, these deprivations do not support a claim under § 1983. Section 1983 only provides a
12 cause of action for the deprivation of federally protected rights. See, e.g., Nible v. Fink, 828 Fed.
13 Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations do not
14 create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section
15 1983 claims must be premised on violation of federal constitutional right); Prock v. Warden, No.
16 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8, 2013) (noting that
17 several district courts have found no implied private right of action under title 15 and stating that
18 “no § 1983 claim arises for [violations of title 15] even if they occurred.”); Parra v. Hernandez,
19 No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) (granting motion to
20 dismiss prisoner's claims brought pursuant to Title 15 of the California Code of Regulations);
21 Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL 1211372, at *9 (E.D.
22 Cal. May 1, 2009) (holding that there is no private right of action under Title 15 of the California
23 Code of Regulations).
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1 Injunctive Relief
2 Requests for prospective relief are limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison
3 Litigation Reform Act [“PLRA”], which requires that the Court find the “relief [sought] is
4 narrowly drawn, extends no further than necessary to correct the violation of the Federal right,
5 and is the least intrusive means necessary to correct the violation of the Federal right.” In cases
6 brought by prisoners involving conditions of confinement, any injunction “must be narrowly
7 drawn, extend no further than necessary to correct the harm the court finds requires preliminary
8 relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).
9 Moreover, where, as here, “a plaintiff seeks a mandatory preliminary injunction that goes beyond
10 maintaining the status quo pendente lite, ‘courts should be extremely cautious’ about issuing a
11 preliminary injunction and should not grant such relief unless the facts and law clearly favor the
12 plaintiff.” Committee of Central American Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th Cir.
13 1986), quoting Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984).
14 IV. Conclusion and Recommendation
15 For the reasons discussed, the Court finds that Plaintiff has failed to state a cognizable
16 claim for relief. Despite being provided with the relevant pleading and legal standards, Plaintiff
17 has been unable to cure the deficiencies in his amended complaint. Further leave to amend is not
18 warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
19 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
20 district judge to this action.
21 Further, for the reasons stated above, IT IS HEREBY RECOMMENDED that this action
22 be dismissed for failure to state a cognizable claim upon which relief may be granted.
23 These Findings and Recommendations will be submitted to the United States District
24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
25 fourteen (14) days after being served with these Findings and Recommendations, the parties may
26 file written objections with the court. The document should be captioned “Objections to
27 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed
28 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page
1 number if already in the record before the Court. Any pages filed in excess of the 15-page
2 limit may not be considered. The parties are advised that failure to file objections within the
3 specified time may result in the waiver of the “right to challenge the magistrate’s factual
4 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter
5 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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8 Dated: October 1, 2025 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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