(PC) Guy v. Espinoza

— 1 — — 2 — 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA — 5 — 6 JAMESETTA GUY, Case No. 1:19-cv-00498-AWI-EPG (PC) 7 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 8 v. THIS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 9 JANEL ESPINOZA, et al., ORDER DENYING MOTION TO AMEND AND 10 Defendants. FOR APPOINTMENT OF COUNSEL — 11 — (ECF Nos. 16, 17, 18) — 12 — 13 Plaintiff, Jamesetta Guy, is a state prisoner currently housed at the Central California 14 Women’s Facility (“CCWF”). She is proceeding pro se and in forma pauperis in this civil rights 15 action pursuant to 42 U.S.C. § 1983 . The matter was referred to a United States Magistrate Judge 16 pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 17 On January 21, 2020, the assigned magistrate judge entered findings and 18 recommendations recommending that this action be dismissed based on Plaintiff’s failure to state 19 a claim upon which relief may be granted under §1983. (ECF No. 16.) Plaintiff was granted thirty 20 days in which to file objections to the findings and recommendations. (Id.) On February 19, 2020, 21 Plaintiff timely filed objections. (ECF No. 17.) On February 21, 2020, Plaintiff filed a motion to 22 file an amended complaint. (ECF No. 18.) 23 A. Motion to Amend 24 In her motion to amend, Plaintiff seeks to file a second amended complaint that includes 25 allegations of injury that are specific to herself. The allegation that she seeks to include is as 26 follows: “Upon my encounter with this transgender [inmate], I was sexually harassed, humiliated, 27 and publicly degrated. This inmate used [her] state issued Dildo a sexual device holding it where 28 [her] penis should be with extensive vulgar comments.” (ECF No. 18 at 2.) 1 The Court will deny the motion to amend as futile. First, the Court finds facially 2 implausible Plaintiff’s contention that the prison issued a dildo to a male-to-female transgender 3 inmate. Second, even if the Court found Plaintiff’s contention to be plausible, the incident 4 alleged by Plaintiff is insufficient to state a cognizable claim for relief. “Although prisoners have 5 a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the 6 Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” 7 Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (citing Schwenk v. Hartford, 204 F.3d 8 1187, 1197 (9th Cir. 2000); Blueford v. Prunty, 108 F.3d 251 , 254–55 (9th Cir.1997) (holding 9 that prison guard who engaged in “vulgar same-sex trash talk” with inmates was entitled to 10 qualified immunity); Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (female correctional 11 officers who allegedly made improper statements about plaintiff while he showered entitled to 12 qualified immunity). Indeed, the Ninth Circuit “has specifically differentiated between sexual 13 harassment that involves verbal abuse and that which involves allegations of physical assault, 14 finding [only] the later to be in violation of the constitution.” Minifield v. Butikofer, 298 15 F.Supp.2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198 ). 16 Here, Plaintiff contends that she was subjected to vulgar verbal comments and gestures by 17 a fellow inmate. These contentions are insufficient to state a claim under the Eighth Amendment. 18 Allowing Plaintiff to file an amended complaint to include these contentions would thus be futile. 19 Accordingly, the Court will deny Plaintiff’s motion to amend. 20 B. Findings and Recommendations 21 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the 22 Court has conducted a de novo review of this case. The Court has carefully reviewed the entire 23 file, including plaintiff’s objections. The Court finds the findings and recommendations to be 24 supported by the record and by proper analysis. Accordingly, the Court will adopt the findings 25 and recommendations. 26 As to Plaintiff’s renewed request in her objections for appointment of counsel, the request 27 will be denied. Plaintiff does not have a constitutional right to appointed counsel in this action, 28 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney 1 | torepresent plaintiff pursuant to 28 U.S.C. § 1915 (e)(.), Mallard y. United States District Court 2 | for the Southern District of lowa, 490 U.S. 296, 298 (1989). 3 In certain exceptional circumstances the court may request the voluntary assistance of 4 | counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525 . However, without a reasonable 5 | method of securing and compensating counsel, the court will seek volunteer counsel only in the 6 || most serious and exceptional cases. In determining whether “exceptional circumstances exist, the 7 || district court must evaluate both the likelihood of success of the merits [and] the ability of the g | [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” g | /d. Gnternal quotation marks and citations omitted). 10 The Court does not find the required exceptional circumstances for appointment of 1] | Counsel to be present in this case. Plaintiff has been able to clearly articulate her claims and the 12 | facts underlying her claims. However, for the reasons set forth in the findings and 13 || recommendations, Plaintiffs claims are not cognizable under § 1983. Accordingly, appointment 14 | of counsel is not warranted. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The motion to amend (ECF No. 18) is DENIED; 17 2. The request for appointment of counsel is DENIED; 18 3. The findings and recommendations issued by the magistrate judge on January 21, 19 2020 (ECF No. 16), are ADOPTED in full; 20 2. This action is DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which relief may be granted under § 1983; and 22 4. The Clerk of Court is directed to close this case. — 23 — IT IS SO ORDERED. 24 . Oe hci 25 | oe’ Sone ~_-SENIOR DISTRICT JUDGE — 26 — — 27 — — 28 —