The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 GERARDO AZPERA, No. 2:25-CV-3512-DMC-P
12 Plaintiff,
13 v. ORDER
14 FRYMAN, et al.,
15 Defendants.
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17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1.
19 The Court is required to screen complaints brought by prisoners seeking relief
20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was
22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel.
23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or
24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can
25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See
26 28 U.S.C. § 1915A(b)(1), (2).
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1 Moreover, the Federal Rules of Civil Procedure require that complaints contain a
2 “. . . short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
3 Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See
4 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)).
5 These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim
6 and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996).
7 Because Plaintiff must allege with at least some degree of particularity overt acts by specific
8 defendants which support the claims, vague and conclusory allegations fail to satisfy this
9 standard. Additionally, it is impossible for the Court to conduct the screening required by law
10 when the allegations are vague and conclusory.
11
12 I. PLAINTIFF’S ALLEGATIONS
13 Plaintiff asserts claims against the following defendants: (1) Fryman –
14 Correctional Officer, Mule Creek State Prison (MCSP) A Yard, 2 Block; (2) Smith – Correctional
15 Officer, MCSP A Yard, 2 Block; and (3) Sandoval – Correctional Officer, MCSP A Yard, 2
16 Block. See ECF No. 1, pgs. 1-4. Plaintiff alleges nine claims for relief. See id. at 5-13.
17 Claim I
18 Plaintiff’s first claim alleges an Eighth Amendment violation due to being publicly
19 strip searched by Defendants Smith and Sandoval instead of female officers, despite Plaintiff
20 identifying as female. See id. at 5. Plaintiff asserts that, on September 21, 2025, Defendants
21 Smith and Sandoval strip searched Plaintiff “for the whole building” and in front of Plaintiff’s
22 cellmate instead of in private with a female officer. Id. Plaintiff asserts a private screening
23 should have been used to cover Plaintiff’s “private parts.” See id.
24 Claim II
25 Plaintiff’s second claim alleges First, Eighth, and Fourteenth Amendment
26 violations by Defendants Smith and “White Male” for illegally searching Plaintiff’s cell and
27 seizing Plaintiff’s belongings. See id. at 6. Plaintiff contends Defendants Smith and White
28 falsely accused Plaintiff of having “spice” in Plaintiff’s cell as a retaliatory, harassing, and
1 targeted act because Plaintiff claims to not smoke or otherwise possess “spice.” See id. Plaintiff
2 asserts on September 21, 2025, Defendants Smith and White “searched my cell[,] taking very
3 important personal belongings” without recording it on the cell search’s paperwork. Id. Plaintiff
4 claims Defendants Smith and White took personal pens, books, legal paperwork, and two books
5 of stamps from Plaintiff’s cell. See id. Plaintiff alleges she has receipts for these items, and not
6 having pens leaves Plaintiff “vulnerable” with “nothing to write with.” Id. Plaintiff asserts the
7 First Amendment as a “[r]ight to courts” because “prison officials cannot take adverse action
8 against me because I exercised the right to file a grievance.” Id.
9 Claim III
10 Plaintiff’s third claim alleges a First Amendment violation and retaliatory behavior
11 by Defendant Smith and Perez, who is not named in the complaint, for illegally seizing Plaintiff’s
12 belongings. See id. at 7. Plaintiff asserts that the items seized were “not contraband,” and seizure
13 was retaliatory that “did not reasonably advance a legitimate correctional goal.” Id. Plaintiff
14 alleges “3 specific pens” seized “were given to me by a staff here at MCSP.” Id. Plaintiff re-
15 asserts defendants falsely accused Plaintiff of possessing “spice,” to support the retaliation claim.
16 See id.
17 Claim IV
18 Plaintiff’s fourth claim alleges an Eighth Amendment violation by Defendant
19 Fryman for failing to provide adequate mental health care. See id. at 8. Plaintiff alleges that, on
20 September 22, 2025, Defendant Fryman approached Plaintiff’s cell and asked whether Plaintiff
21 wanted to attend an appointment with Plaintiff’s “clinician.” Id. Plaintiff asserts they asked to
22 reschedule instead of attending and was subsequently approached by a healthcare representative
23 and her co-worker to sign a “refusal for a healthcare grievance interview.” Id. Plaintiff claims to
24 have not been informed about the nature of the appointment and would not sign the refusal
25 paperwork. See id. Plaintiff contends Defendant Fryman intentionally confused Plaintiff and did
26 not explain that the appointment was for an important “healthcare grievance interview.” Id.
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1 Claim V
2 Plaintiff’s fifth claim alleges an Eighth Amendment violation by Defendant
3 Fryman for providing incomplete and inaccurate information about the disciplinary process. See
4 id. at 9. Plaintiff asserts a need for “specific reasonable accommodation” due to a communication
5 disability. Id. Plaintiff alleges Defendant Fryman intentionally miscommunicated with Plaintiff
6 as a form of mental health discrimination that violates reasonable accommodation. See id.
7 Claim VI
8 Plaintiff’s sixth claim alleges an Eighth Amendment violation by Defendant
9 Sandoval for making false promises and allowing inmates to fight inside their cells. See id. at 10.
10 Plaintiff asserts that, on August 26, 2025, at 8:30 a.m.; September 7, 2025, from 10:30 a.m., to
11 11:30 a.m.; September 16, 2025, at 9:52 a.m.; and on September 21, 2025, at 12:50 a.m.,
12 Defendant Sandoval put Plaintiff under imminent danger that threatens personal safety. See id.
13 Plaintiff specifies dates and times without describing what happened on each. See id. Plaintiff
14 asserts Defendant Sandoval allows inmates to fight and will not “protect me from violence by
15 other inmates and instead allow the violence.” Id. Plaintiff alleges asking Defendant Sandoval
16 for help retrieving Plaintiff’s pen after the search on September 21, 2025, but Defendant Sandoval
17 responded, “No because it’s about your pen.” Id. Plaintiff contends Defendant Sandoval “plays
18 favorites” with inmates because “inmate 239” openly passes around “contraband” like fans and a
19 television after a search during lockdown. Id.
20 Claim VII
21 Plaintiff’s seventh claim alleges an Eighth Amendment violation by Defendant
22 Sandoval for transgender discrimination based on the same acts described under Claim VI. See
23 id. at 11. Plaintiff claims Defendant Sandoval retaliated against “his own staff” by warning other
24 inmates, but not Plaintiff, when staff are coming. Id. Plaintiff asserts Defendant Sandoval tells
25 inmates he’s “only 25” to justify breaking rules. Id. Plaintiff does not explain how transgender
26 discrimination applies. See id.
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1 Claim VIII
2 Plaintiff’s eighth claim alleges a Fourteenth Amendment violation by Defendant
3 Sandoval for sexual harassment. See id. at 12. Plaintiff alleges Defendant Sandoval told
4 Plaintiff, “Let me find out you’re a faggot [edited for grammar].” Id. Plaintiff asserts Defendant
5 Sandoval repeats similar conduct, and Plaintiff “can’t trust him to ever protect me . . . not
6 knowing how much what he said affected me and hurt me.” Id.
7 Claim IX
8 Plaintiff’s ninth claim alleges a Fourteenth Amendment violation by Defendant
9 Sandoval for gender discrimination based on the same acts described under Claim VIII. See id. at
10 13. Plaintiff asserts that, on September 2, 2025, at 4:30 p.m., Defendant Sandoval apologized to
11 Plaintiff for calling Plaintiff a “faggot.” Id.
12
13 II. DISCUSSION
14 The Court finds that Plaintiff’s Claim II and Claim III are cognizable against
15 Defendant Smith for retaliatory seizure of Plaintiff’s property. Plaintiff’s remaining claims are
16 defective for the reasons discussed below.
17 A. Strip Search
18 It is undisputed that “strip searches may be unpleasant, humiliating, and
19 embarrassing to prisoners, but not every psychological discomfort a prisoner endures amounts to
20 a constitutional violation.” Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003). “For
21 example, the strip search of a male in front of female officers, if conducted for a legitimate
22 penological purpose, would fail to rise to the level of an Eighth Amendment violation.” Id.
23 (citing Johnson v. Phelan, 69 F.3d 144, 150-51 (7th Cir. 1995)). To state an Eighth Amendment
24 claim, the strip search must have been conducted in a harassing manner intended to humiliate and
25 inflict psychological pain. Id. In Calhoun, officers allegedly made sexually explicit gestures
26 during a search and forced the prisoner to perform sexually provocative acts unrelated to
27 legitimate prison needs. See id at 938. Further, the guards of the opposite sex were “neither mere
28 passerby nor performing the legitimate penological function of conducting or monitoring the
1 search; they were instead invited spectators.” Id. at 940. Accordingly, the prisoner had
2 sufficiently stated a claim under the Eighth Amendment. Id. The Ninth Circuit agreed,
3 concluding that the Eighth Amendment “forbids conduct that is ‘so totally without penological
4 justification that it results in the gratuitous infliction of suffering.’” Wood v. Beauclair, 692 F.3d
5 1041, 1050 (9th Cir. 2012) (quoting Gregg v. Georgia, 428 U.S. 153, 182-83 (1976)).
6 Here, Plaintiff’s first claim alleges being publicly strip searched by Defendants
7 Smith and Sandoval, male officers, instead of female officers. Plaintiff alleges that she was
8 searched in front of others instead of in private but does not assert that the search was performed
9 to humiliate and inflict psychological pain nor that the “spectators” were more than “mere
10 passerby.” Instead, Plaintiff says the “whole building” and their cellmate happened to be in view.
11 Plaintiff does not allege Defendants Smith and Sandoval made any sexually explicit or
12 inappropriate gestures during the search. Given strip searches are a procedurally harsh and
13 restrictive condition of confinement that do not alone amount to an Eighth Amendment claim,
14 Plaintiff does not contend Defendants Smith and Sandoval were without legitimate penological
15 purpose. Further, Plaintiff was searched in her own cell which Plaintiff does not contend deviates
16 from standard practice. Plaintiff also fails to state whether Plaintiff informed Defendants Smith
17 and Sandoval that Plaintiff preferred female officers to perform the search. Plaintiff did not
18 demonstrate how the strip search was “so without penological justification that it results in the
19 gratuitous infliction of suffering.”
20 The Court will provide Plaintiff with an opportunity to amend this claim.
21 B. Due Process – Illegal Search and Seizure
22 Where, as here, a prisoner alleges the deprivation of a liberty or property interest
23 caused by the random and unauthorized action of a prison official, there is no claim cognizable
24 under 42 U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon
25 v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s
26 post-deprivation remedy may be adequate even though it does not provide relief identical to that
27 available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred,
28 however, where the deprivation is foreseeable and the state can therefore be reasonably expected
1 to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available
2 state common law tort claim procedure to recover the value of property is an adequate remedy.
3 See id. at 128-29.
4 Plaintiff’s second and third claims allege Defendants Smith, “White Male,” and
5 non-party Perez illegally seized three pens, books, legal paperwork, and two books of stamps
6 from Plaintiff’s cell. This claim, however, is not cognizable because California provides an
7 adequate post-deprivation remedy by way of a state tort act claim.
8 C. Retaliation
9 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the plaintiff must
10 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory
11 action was not related to a legitimate penological purpose, such as preserving institutional
12 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting
13 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the
14 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);
15 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also
16 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by
17 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also
18 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must
19 establish the following in order to state a claim for retaliation: (1) prison officials took adverse
20 action against the inmate; (2) the adverse action was taken because the inmate engaged in
21 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the
22 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.
23 Here, Plaintiff’s second and third claims allege Defendant Smith’s search of
24 Plaintiff’s cell was an illegal retaliatory act that included seizure of pens and paperwork,
25 depriving access to file grievances. Plaintiff alleges the retaliation was based on a false
26 accusation that Plaintiff possessed “spice,” an illicit substance that Plaintiff claims to not smoke
27 or possess. Plaintiff claims the alleged retaliation to be specifically linked to Plaintiff having
28 filed grievances, and the deprivation of pens leaves Plaintiff “vulnerable” with “nothing to write
1 with.” Plaintiff claims the deprivation did not otherwise “reasonably advance a legitimate
2 correctional goal.” Thus, Plaintiff appears to establish prison officials took adverse action against
3 them, the adverse action was taken because Plaintiff engaged in the protected conduct of filing
4 grievances, the adverse action chilled Plaintiff’s First Amendment rights by not being able to
5 write, and the adverse action did not serve a legitimate penological purpose. While these, if taken
6 as true, satisfy all four elements under Rhodes with respect to Defendants Smith and Perez,
7 Plaintiff does not claim Defendant “White Male” acted in retaliation to Plaintiff filing grievances
8 nor does Plaintiff name Defendant Perez in the complaint. Additionally, Plaintiff’s complaint
9 was handwritten which raises doubts on whether the deprivation of the mentioned pens and paper
10 meaningfully chilled Plaintiff’s First Amendment rights to access the courts or file grievances.
11 Plaintiff will be provided an opportunity to amend this claim.
12 D. Medical Needs
13 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious
14 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;
15 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health
16 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by
17 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to
18 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and
19 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled
20 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see
21 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness
22 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2)
23 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the
24 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122,
25 1131-32 (9th Cir. 2000) (en banc).
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1 The requirement of deliberate indifference is less stringent in medical needs cases
2 than in other Eighth Amendment contexts because the responsibility to provide inmates with
3 medical care does not generally conflict with competing penological concerns. See McGuckin,
4 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to
5 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
6 1989). The complete denial of medical attention may constitute deliberate indifference. See
7 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical
8 treatment, or interference with medical treatment, may also constitute deliberate indifference. See
9 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate
10 that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
11 Here, Plaintiff’s fourth and fifth claims allege Defendant Fryman failed to provide
12 adequate mental health care by intentionally not informing Plaintiff that an appointment was for a
13 “healthcare grievance interview.” Although deliberate indifference to mental health that delays or
14 interferes with medical treatment may give rise to a claim under the Eighth Amendment, Plaintiff
15 does not specify how or why Defendant Fryman intentionally misled Plaintiff. Defendant
16 Fryman allegedly informed Plaintiff of an “appointment with Plaintiff’s ‘clinician’,” which
17 appears to give sufficient notice. Plaintiff asserts they have documented reasonable
18 accommodations for communication issues.
19 Plaintiff fails to demonstrate that the purported delay led to further injury because
20 being asked to sign a “refusal for a healthcare grievance interview” is not a medical injury.
21 Further, a “healthcare grievance interview” does not constitute medical treatment but rather a
22 discussion about perceived procedural issues. Accordingly, absence or delay of a “healthcare
23 grievance interview” does not create an “unnecessary, and wanton infliction of pain” as described
24 in McGuckin nor comport with the factors under Lopez. Plaintiff describes asking Defendant
25 Fryman to reschedule the appointment, demonstrating Plaintiff still had meaningful access to
26 attend a “healthcare grievance interview.” Plaintiff fails to assert that any subsequent mental
27 health care was denied because of Defendant Fryman’s alleged behavior, supported by Plaintiff’s
28 claim to have not signed refusal paperwork from healthcare representatives.
1 Plaintiff will be provided an opportunity to amend.
2 E. Safety
3 Prison officials have a duty to take reasonable steps to protect inmates from safety
4 risks. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982); Farmer, 511 U.S. at 833.
5 Liability exists only when two requirements are met: (1) objectively, the prisoner was
6 incarcerated under conditions presenting a substantial risk of serious harm; and (2) subjectively,
7 prison officials knew of and disregarded the risk. See Farmer, 511 U.S. at 837. The very
8 obviousness of the risk may suffice to establish the knowledge element. See Wallis v. Baldwin,
9 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, however, if evidence is
10 presented that they lacked knowledge of a safety risk. See Farmer, 511 U.S. at 844. The
11 knowledge element does not require that the plaintiff prove that prison officials know for a
12 certainty that the inmate’s safety is in danger, but it requires proof of more than a mere suspicion
13 of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the plaintiff must
14 show that prison officials disregarded a risk. Thus, where prison officials actually knew of a
15 substantial risk, they are not liable if they took reasonable steps to respond to the risk, even if
16 harm ultimately was not averted. See Farmer, 511 U.S. at 844.
17 Here Plaintiff’s sixth and seventh claims allege Defendant Sandoval created safety
18 risks by allowing inmates to fight inside their cells. Regarding the first requirement of substantial
19 risk of serious harm, Plaintiff’s cell is separate from other cells and so she is not in any danger of
20 harm. Also, Plaintiff merely characterizes the danger as “fighting.” Physical fighting, and the
21 extent of it, is distinct from verbal, and Plaintiff provides no clarification. Separately, Plaintiff
22 lists various dates and times without specifying the dates applicable to inmate fighting. Plaintiff
23 also lists tangential issues of “falsely promising inmates things” and “allowing inmate 239 openly
24 run around during lockdown passing around contraband from cell to cell.” This would not place
25 Plaintiff in any risk of serious harm because promises and inmates running around are not
26 physically harmful to Plaintiff. So, Plaintiff has not sufficiently alleged facts showing Plaintiff to
27 have been objectively incarcerated under conditions presenting a substantial risk of serious harm.
28 Next, Plaintiff must demonstrate that Defendant Sandoval subjectively knew of and
1 disregarded the risk. Plaintiff fails to particularize a subjective knowledge and disregard of such
2 fighting to Defendant Sandoval. Not “trust[ing] [Defendant] Sandoval will protect [Plaintiff]
3 from violence by other inmates” does not create “proof of more than a mere suspicion of danger”
4 as required by Berg. Rather, lack of trust seems to align with a mere suspicion.
5 Given the lack of specificity, the undersigned will provide Plaintiff leave to amend
6 this claim.
7 D. Verbal Harassment
8 Inmate sexual harassment claims, which allege sexually inappropriate touching
9 and/or sexually inappropriate comments, require a careful assessment of the unique circumstances
10 of each case. While “the Ninth Circuit has recognized that sexual harassment may constitute a
11 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated
12 between sexual harassment that involves verbal abuse and that which involves allegations of
13 physical assault, finding the later to be in violation of the [C]onstitution.” Minifield v. Butikofer,
14 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (citing Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th
15 Cir. 2000). Likewise, allegations of verbal harassment generally do not state a claim under the
16 Eighth Amendment. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). However,
17 “[v]erbal harassment may violate the Constitution when it is ‘unusually gross even for a prison
18 setting and [is] calculated to and [does] cause [plaintiff] psychological damage.’” Cox v. Kernan,
19 2019 WL 6840136, *5 (E.D. Cal. Dec. 16, 2019) (quoting Keenan v. Hall, 83 F.3d 1083, 1092
20 (9th Cir. 1996)).
21 Despite Keenan’s rule, courts appear to be reluctant to recognize a verbal sexual
22 harassment claim under the Eighth Amendment. For example, while a “defendant’s alleged
23 statement telling plaintiff to show him her breasts would clearly be highly inappropriate, deeply
24 offensive and disrespectful, and would serve no legitimate penological objective, court decisions
25 addressing such claims do not support a conclusion that those alleged comments can be
26 characterized as ‘unusually gross even for a prison setting’ or as being calculated to cause
27 plaintiff psychological damage.” Moore v. Calderon, 2021 WL 1541296, at *2 (E.D. Cal. Apr.
28 20, 2021) (citing Patrick v. Hernandez, 2018 WL 5095130, at *1, *3 (E.D. Cal. Oct. 17, 2018)
1
(finding that plaintiff failed to state a claim for verbal sexual harassment in violation of the Eighth
2
Amendment despite his allegations that defendant verbally harassed him by telling plaintiff, inter
3
alia, to “suck my dick,” “lick my nuts,” and “you want it in the ass”). The court in Moore cited at
4
least ten other cases supporting the proposition that highly inappropriate comments of a sexual
5
nature do not give rise to a verbal harassment claim under the Eighth Amendment. See Moore,
6
2021 WL 1541296, at *2. The court went on to say:
7
The comments allegedly made by the defendant here are obviously highly
8 offensive and completely and totally inappropriate. In light of the sheer
number of cases in which such highly inappropriate comments of a sexual
9 nature are allegedly made in the prison setting, perhaps it is time for the
Ninth Circuit to reevaluate and address the contours of those
10 circumstances in which the comments are sufficiently “gross even for a
prison setting” and to lead to an inference of being calculated to cause
11 psychological damage, so as to state a cognizable Eighth Amendment
claim. Until and unless that happens, however, “unfortunately for
12 plaintiff, the law is clear: verbal harassment, even if sexual in nature, does
not without more violate the Constitution.”
13
Id. (citations omitted).
14
15 Allegations of name-calling, verbal abuse, or threats generally are not unusually gross for a prison
16 setting. See Carpenter v. Molina, 2021 WL 2226635, at *3 (E.D. Cal. June 2, 2021).
17 Here, Plaintiff’s eighth and ninth claims allege Defendant Sandoval, in violation of
18 the Eighth and Fourteenth Amendments, verbally harassed Plaintiff because Plaintiff identifies as
19 transgender. Considering the Ninth Circuit has established verbal harassment does not generally
20 state an Eighth or Fourteenth Amendment claim, this Court sees Keenan as instructive with
21 Moore as jurisdictional guidance. Although “faggot” is a deeply offensive and disrespectful term
22 devoid of a penological objective, the use of such a term is not “unusually gross even for a prison
23 setting.” Considering these did not measure to the “unusually gross” standard, “faggot” or “let
24 me find out you’re a faggot” likely do not either. While the use of the term is aggravated by
25 Plaintiff’s transgender status, and this Court sees it as intentional and arbitrary discrimination, it
26 does not create a cause of action without more than the use of derogatory language. Further,
27 Plaintiff acknowledges some redress by asserting Defendant Sandoval apologized to Plaintiff
28
1 “because he knows he is in the wrong.” This shows the use of “faggot” did not escalate beyond a
2 verbal encounter.
3 Accordingly, Plaintiff’s eighth and ninth claims are insufficient to state a
4 constitutional deprivation under § 1983. The claims are not subject to cure by amendment.
5
6 III. CONCLUSION
7 Because it is possible that some of the deficiencies identified in this order may be
8 cured by amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203
9 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an
10 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,
11 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the
12 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An
13 amended complaint must be complete in itself without reference to any prior pleading. See id.
14 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the
15 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See
16 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
17 each named defendant is involved and must set forth some affirmative link or connection between
18 each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167
19 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
20 Because the complaint appears to otherwise state cognizable claims, if no amended
21 complaint is filed within the time allowed therefor, the Court will issue findings and
22 recommendations that the claims identified herein as defective be dismissed, as well as such
23 further orders as are necessary for service of process as to the cognizable claims.
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] Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended
2 | complaint within 30 days of the date of service of this order.
3
4 | Dated: July 17, 2026 Svc
> DENNIS M. COTA
6 UNITED STATES MAGISTRATE JUDGE
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