Samuel Eric Austin v. Cal A. Terhune, Dir., & James Williams, Corr. Officer, 367 F.3d 1167 (9th Cir. 2004). · Go Syfert
Samuel Eric Austin v. Cal A. Terhune, Dir., & James Williams, Corr. Officer, 367 F.3d 1167 (9th Cir. 2004). Cases Citing This Book View Copy Cite
“although 18 prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or 19 prison guards, . . . the eighth amendment's protections do not necessarily extend to mere verbal 20 sexual harassment.”
276 citation events (276 in the last 25 years) across 33 distinct courts.
Strongest positive: Foust v. Brown (ord, 2025-03-10)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Foust v. Brown
D. Or. · 2025 · quote attribution · 1 verbatim quote · confidence high
although prisoners have a right to be free from sexual abuse . . . the eighth amendment's protections do not necessarily extend to mere verbal sexual harassment.
examined Cited as authority (verbatim quote) (PC) George v. Lopez
E.D. Cal. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
pleadings need suffice only to put the opposing party on notice of the claim. . specific 6 legal theories need not be pleaded so long as sufficient factual averments show that the claimant 7 may be entitled to some relief.
discussed Cited as authority (verbatim quote) Hope v. Glover
D. Utah · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
although prisoners have a right to be free from sexual abuse, ... the eighth amendment's protections do not necessarily extend to mere verbal sexual harassment.
examined Cited as authority (verbatim quote) Baltas v. Cook
W.D. Va. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the eighth amendment's protections do not necessarily extend to mere verbal sexual harassment.
discussed Cited as authority (verbatim quote) Gulden v. Liberty Home Guard LLC
D. Ariz. · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
pleadings need suffice only 9 to put the opposing party on notice of the claim.
examined Cited as authority (verbatim quote) (PC) Price v. Sutton (2×)
E.D. Cal. · 2020 · quote attribution · 2 verbatim quotes · confidence high
although 18 prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or 19 prison guards, . . . the eighth amendment's protections do not necessarily extend to mere verbal 20 sexual harassment.
discussed Cited as authority (quoted) (PC) Martin v. California Department of Corrections & Rehabilitation
E.D. Cal. · 2023 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence low
he eighth amendment's protections do not necessarily extend to mere verbal 23 sexual harassment.
discussed Cited as authority (quoted) Turner v. Ralkey
W.D. Wash. · 2023 · quote attribution · 1 verbatim quote · confidence low
the eighth amendment's protections do not necessarily extend to mere verbal 3 sexual harassment
examined Cited as authority (quoted) Brewster v. Mills
N.D. Cal. · 2022 · quote attribution · 1 verbatim quote · confidence low
although prisoners have a right to be free from sexual abuse, whether at the 12 hands of fellow inmates or prison guards . . . the eighth amendment's protections do not 13 necessarily extend to mere verbal sexual harassment.
discussed Cited as authority (rule) John Anthony Cole v. F. Ortega, et al.
D. Ariz. · 2026 · confidence medium
The Court will require Defendant Levine to answer Count Ten. 7 F. Sexual Assault 8 Physical sexual assault on a prisoner by a prison official violates the Eighth 9 Amendment, Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), and “prisoners 10 have a right to be free from sexual abuse,” Austin v. Terhune, 367 F.3d 1167, 1171 (9th 11 Cir. 2004).
discussed Cited as authority (rule) Caleb Blankenship v. Officer Light, e7 a/, Officer Bowman
W.D. Va. · 2026 · confidence medium
But the Fourth Circuit has held that, “although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual threats.” Id. (quoting Austing v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)); see also Morva v. Johnson, No. 7:09-CV-00515, 2011 WL 3420650 , at *7 (W.D.
cited Cited as authority (rule) Issachar Timothy Meafou v. State of Hawaii, et al.
D. Haw. · 2025 · confidence medium
Meafou must keep in mind, however, that the “Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
discussed Cited as authority (rule) Santiago James Chavez, Jr. v. Sonya Dixon (2×)
E.D. Cal. · 2025 · confidence medium
To state an Eight Amendment sexual assault claim, a plaintiff must demonstrate “that a 21 prison staff member, acting under color of law and without legitimate penological justification, 22 touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff 23 member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning 24 the prisoner.” Id. 25 However, “the Eighth Amendment’s protections do not necessarily extend to mere verbal 26 sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation …
discussed Cited as authority (rule) Joseph Earl Steele v. F. Martinez
E.D. Cal. · 2025 · confidence medium
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 fa…
discussed Cited as authority (rule) (PC) Nitkin v. Clark
E.D. Cal. · 2025 · confidence medium
(ECF No. 1 at 5.) 7 The Eighth Amendment’s protections against cruel and unusual punishment “do not necessarily 8 extend to verbal sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 9 The Ninth Circuit has repeatedly found that harassing speech and conduct more egregious than 10 alleged in this case not to violate the Eighth Amendment.
discussed Cited as authority (rule) Gross v. Peterson
D. Kan. · 2025 · confidence medium
See, e.g., Barney v. Pulsipher, 143 F.3d 1299 , 1310 & n.10 (10th Cir. 1998) (noting that allegation of “severe verbal sexual harassment and intimidation” alone—in the absence of sexual “assault[ ]”—is insufficient to state an Eighth Amendment claim); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, . . . the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” (internal citation omitted)); Howard v. Everett, 208…
discussed Cited as authority (rule) Hopkins v. C/O Childress
D. Mont. · 2025 · confidence medium
Austin v. Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary judgment dismissal of 8th Amendment claim where prison guard exposed himself to prisoner in elevated, glass-enclosed control booth for no more than 30-40 seconds).
discussed Cited as authority (rule) Gross v. Peterson
D. Kan. · 2025 · confidence medium
See, e.g., Barney, 143 F.3d at 1310 n.11 (noting that allegation of “severe verbal sexual harassment and intimidation” alone—in the absence of sexual “assault[ ]”—is insufficient to state an Eighth Amendment claim); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, . . . the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” (internal citation omitted)); Howard v. Everett, 208 F.3d 218 (Table), 2000 WL 268493 , …
discussed Cited as authority (rule) Soto v. United Airlines, Inc.
N.D. Ill. · 2025 · confidence medium
To establish a claim for assault under California law, a plaintiff must establish “(1) that defendant intended to cause harmful or offensive contact, or the imminent apprehension of such contact, and (2) that plaintiff was put in imminent apprehension of such contact.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (quoting Brooks v. United States, 29 F.Supp.2d 613, 617 (N.D.Cal.1998)).
discussed Cited as authority (rule) (PC) Hinton v. Sergeant Mix
E.D. Cal. · 2025 · confidence medium
Doc. 19 at 2. 13 Plaintiff may not proceed on a false imprisonment claim based on a theory of a due process 14 liberty interest against administrative segregation, as such a theory is foreclosed by precedent. 15 See Austin v. Terhune, 367 F.3d 1167, 1170 (9th Cir. 2004).
discussed Cited as authority (rule) Martinez v. De La Torre
N.D. Cal. · 2025 · confidence medium
See Blacher v. Johnson, 517 Fed.Appx 564 (9th Cir. 22 2013); Austin v. Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (holding that “the 23 Eighth Amendment’s protections do not necessarily extend to mere verbal sexual 24 harassment”).
discussed Cited as authority (rule) (PC) Wilkins v. Heslop
E.D. Cal. · 2025 · confidence medium
Austin v. 7 Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (internal quotation marks omitted). 8 Defendant Heslop argues that plaintiff did not anticipate the alleged harmful touching, a 9 required element for civil assault.
discussed Cited as authority (rule) Henry Napel v. Phillips 66 Company
C.D. Cal. · 2025 · confidence medium
Assault (Claim 14) To state a claim for common law assault under California law, a plaintiff must “establish (1) that defendant intended to cause harmful or offensive contact, or the imminent apprehension of such contact, and (2) that plaintiff was put in imminent apprehension of such contact.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004).
discussed Cited as authority (rule) (PC) Bennett v. Parales
E.D. Cal. · 2025 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding 13 dismissal of claim premised on allegations that correctional officer unzipped his pants and 14 exposed his penis to an inmate from inside control booth); accord Somers v. Thurman, 109 F.3d 15 at 624 (“To hold that gawking, pointing, and joking violates the prohibition against cruel and 16 unusual punishment would trivialize the objective component of the Eighth Amendment test and 17 render it absurd.”); Pryor v. San Francisco City & County., 2013 WL 12199455 , at *8 (N.D.
discussed Cited as authority (rule) (PC) Ellis v. Crivello
E.D. Cal. · 2024 · confidence medium
Intentional Infliction of Emotional Distress 2 “In order to establish a claim for intentional infliction of emotional distress under 3 California law, [plaintiff must] show (1) that the defendant's conduct was outrageous, (2) that the 4 defendant intended to cause or recklessly disregarded the probability of causing emotional 5 distress, and (3) that the plaintiff's severe emotional suffering was (4) actually and proximately 6 caused by defendant's conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (internal 7 citation omitted).
discussed Cited as authority (rule) (PC) McCardie v. Pendleton
E.D. Cal. · 2024 · confidence medium
Sexual Harassment 17 “Although prisoners have a right to be free from sexual abuse, . . . , the Eighth 18 Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v. 19 Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted).
discussed Cited as authority (rule) (PC) Mackey v. Rudd
E.D. Cal. · 2024 · confidence medium
Intentional Infliction of Emotional Distress 26 “In order to establish a claim for intentional infliction of emotional distress under 27 California law, [plaintiff must] show (1) that the defendant's conduct was outrageous, (2) that the 28 defendant intended to cause or recklessly disregarded the probability of causing emotional 1 distress, and (3) that the plaintiff's severe emotional suffering was (4) actually and proximately 2 caused by defendant's conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (internal 3 citation omitted).
discussed Cited as authority (rule) (PC) Moore v. Hill
E.D. Cal. · 2024 · confidence medium
Sexual Harassment 20 “Although prisoners have a right to be free from sexual abuse, . . . the Eighth 21 Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v. 22 Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted).
cited Cited as authority (rule) Emerson v. The Prudential Insurance Company of America
N.D. Cal. · 2024 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). 18 For this motion, Prudential does not challenge that its conduct caused Mr. Emerson 19 severe emotional distress (see Br. 19).
discussed Cited as authority (rule) (PC) Ellis v. Williams
E.D. Cal. · 2024 · confidence medium
Intentional Infliction of Emotional Distress 24 “In order to establish a claim for intentional infliction of emotional distress under 25 California law, [plaintiff must] show (1) that the defendant’s conduct was outrageous, (2) that the 26 defendant intended to cause or recklessly disregarded the probability of causing emotional 27 distress, and (3) that the plaintiff’s severe emotional suffering was (4) actually and proximately 28 caused by defendant's conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (internal 1 citation omitted).
discussed Cited as authority (rule) (PC) Drumwright v. Pascua
E.D. Cal. · 2024 · confidence medium
Farmer, 511 6 U.S. at 837; Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). 7 Essentially, Plaintiff’s deliberate indifference claim is an alternative effort to hold Delos 8 Santos vicariously liable for the Eighth Amendment violations of his subordinates on October 9 24, 2018.
discussed Cited as authority (rule) (PC) Turner v. Gopal
E.D. Cal. · 2024 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding 22 dismissal of claim premised on allegations that correctional officer unzipped his pants and 23 exposed his penis to an inmate from inside control booth); accord Somers v. Thurman, 109 F.3d at 24 624 (“To hold that gawking, pointing, and joking violates the prohibition against cruel and 25 unusual punishment would trivialize the objective component of the Eighth Amendment test and 26 render it absurd.”). 27 Plaintiff alleges that Defendant Gopal touched Plaintiff during a medical examination, but 28 fails to allege factual…
discussed Cited as authority (rule) Williams v. Constant
D. Alaska · 2024 · confidence medium
Plaintiff does not name his former employer as a defendant, but to the extent he seeks to allege wrongful termination, this too is a common law tort more appropriately brought in a separate state court action. 107 See, e.g., Docket 1 at 7–8 (listing ten police officers he claims had been following his “every movement” and harassing him). 108 See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 109 A civilian review board is an entity external to a police department’s internal affairs office, and consists of citizens from outside the department, appointed by the mayor or other se…
discussed Cited as authority (rule) Stauch (ID 129417) v. Zmuda
D. Kan. · 2024 · confidence medium
See, e.g., Barney, 143 F.3d at 1310 n.11 (noting that allegation of “severe verbal sexual harassment and intimidation” alone—in the absence of sexual “assault[ ]”—is insufficient to state an Eighth Amendment claim); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, . . . the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” (internal citation omitted)); Howard v. Everett, 208 F.3d 218 (Table), 2000 WL 268493 , …
discussed Cited as authority (rule) Rachel Scanlon v. County of Los Angeles
9th Cir. · 2024 · confidence medium
To succeed on an IIED claim under California law, a plaintiff must establish “(1) that the defendant’s conduct was outrageous, (2) that the defendant intended to cause or recklessly disregarded the probability of causing emotional distress, and (3) that the plaintiff’s severe emotional suffering was (4) actually and proximately caused by the defendant’s conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (citation omitted).
discussed Cited as authority (rule) (PC) Moore v. Hill
E.D. Cal. · 2024 · confidence medium
Sexual Harassment 7 “Although prisoners have a right to be free from sexual abuse, . . . the Eighth 8 Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v. 9 Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted).
cited Cited as authority (rule) Palacios v. Lewis
S.D. Cal. · 2023 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1170 (9th Cir. 2004) (citing Sandin, 515 16 U.S. at 485); Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).
cited Cited as authority (rule) Smith v. Poynor
E.D. Wash. · 2023 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 18 2004).
discussed Cited as authority (rule) (PC) Segura v. Sgt. Maldonado
E.D. Cal. · 2023 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding 1 dismissal of claim premised on allegations that correctional officer unzipped his pants and 2 exposed his penis to an inmate from inside control booth); accord Somers v. Thurman, 109 F.3d 3 at 624 (“To hold that gawking, pointing, and joking violates the prohibition against cruel and 4 unusual punishment would trivialize the objective component of the Eighth Amendment test and 5 render it absurd.”).
discussed Cited as authority (rule) Palacios v. Lewis
S.D. Cal. · 2023 · confidence medium
Placement in Ad Seg, by itself, does not implicate a protected liberty interest 16 because the conditions prisoners are subjected to in Ad Seg are “within the expected 17 perimeters of the sentence imposed.” Austin v. Terhune, 367 F.3d 1167, 1170 (9th Cir. 18 2004) (citation omitted); see Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).
discussed Cited as authority (rule) (PC) Nuno v. Eslick
E.D. Cal. · 2023 · confidence medium
See Rhodes, 408 F.3d at 567 ; Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) 6 (holding placement in administrative segregation for engaging in such protected activities 7 constitutes an “adverse action” under Rhodes).
discussed Cited as authority (rule) (PC) Russo v. Johnson
E.D. Cal. · 2023 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding 6 dismissal of claim premised on allegations that correctional officer unzipped his pants and 7 exposed his penis to an inmate from inside control booth); accord Somers v. Thurman, 109 F.3d 8 at 624 (“To hold that gawking, pointing, and joking violates the prohibition against cruel and 9 unusual punishment would trivialize the objective component of the Eighth Amendment test and 10 render it absurd.”).
discussed Cited as authority (rule) Eteghaei v. County of Alameda
N.D. Cal. · 2023 · confidence medium
Negligent Infliction of Emotional Distress and Negligence 6 “[N]egligent infliction of emotional distress requires that a plaintiff show (1) serious 7 emotional distress, (2) actually and proximately caused by (3) wrongful conduct (4) by a 8 defendant who should have foreseen that the conduct would cause such distress.” Austin v. 9 Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004).
discussed Cited as authority (rule) (PC) Parker v. Lynch
E.D. Cal. · 2023 · confidence medium
Austin v. 28 Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (upholding dismissal of claim premised on 1 allegations that correctional officer unzipped his pants and exposed his penis to an inmate from 2 inside control booth); accord Somers v. Thurman, 109 F.3d at 624 (“To hold that gawking, 3 pointing, and joking violates the prohibition against cruel and unusual punishment would 4 trivialize the objective component of the Eighth Amendment test and render it absurd.”).
discussed Cited as authority (rule) Monson v. Hobbs
D. Maryland · 2023 · confidence medium
A plaintiff may “prove an official’s actual knowledge of a substantial risk ‘in the usual ways including inference from circumstantial evidence” so that “’a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’” Raynor, 817 F.3d at 128 . “[P]risoners 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), [but] the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.�…
discussed Cited as authority (rule) (PC)Elliott v. Lynch
E.D. Cal. · 2022 · confidence medium
Sexual Harassment 9 “Although prisoners have a right to be free from sexual abuse, . . . , the Eighth 10 Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v. 11 Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted).
cited Cited as authority (rule) Mahadevan v. Bikkina
S.D. Tex. · 2022 · confidence medium
Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004); Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982).
discussed Cited as authority (rule) Parks v. Administrator of Medical
D. Maryland · 2022 · confidence medium
Specifically, “[a]lthough prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Jackson v. Holley, 666 F. App’x 242, 244 (4th Cir. 2016) (per curiam) (quoting Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)).
discussed Cited as authority (rule) Powell v. Temple
E.D. Va. · 2022 · confidence medium
The Fourth Circuit has held that “[a]lthough prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Jackson, 666 F. App’x at 244 (quoting Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal quotation marks omitted)). 8 Watson v. Smith, 5:18cv142, 2019 U.S. Dist.
discussed Cited as authority (rule) Marcus Moore v. R. Schlichting
9th Cir. · 2022 · confidence medium
See Bearchild v. Cobban, 947 F.3d 1130, 1144-45 (9th Cir. 2020) (setting forth the elements for a claim of sexual assault by a correctional officer); Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (concluding that sexual gesturing from a control booth was not sufficiently serious to constitute an Eighth Amendment violation); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to state a plausible claim).
Retrieving the full opinion text from the archive…
Samuel Eric AUSTIN, Plaintiff-Appellant,
v.
Cal A. TERHUNE, Director, Defendant, and James Williams, Correctional Officer, Defendant-Appellee
02-16546.
Court of Appeals for the Ninth Circuit.
May 17, 2004.
367 F.3d 1167
Samuel Eric Austin, Pro se, Chino, CA, the plaintiff-appellant., Lotte Colbert, Matheny, Sears, Linkert & Long, LLP, Sacramento, CA, for the defendant-appellee.
Canby, Fletcher, Tallman.
Cited by 200 opinions  |  Published
3 passages pin-cited by 3 cases
Pinpoint authority: #29,108 of 633,719
Citer courts: E.D. California (1) · N.D. California (1) · W.D. Washington (1)
CANBY, Circuit Judge.

Samuel Eric Austin, a California state prisoner, appeals pro se the district court’s summary judgment dismissing his claims under 42 U.S.C. § 1983 and state law. His claims arise from an incident in which a correctional officer allegedly exposed his genitalia to Austin and then filed a false disciplinary report against Austin when Austin complained to prison officials. We reverse and remand for further proceedings with respect to Austin’s retaliation claim. We affirm the judgment of the district court in all other respects.

I. FACTUAL BACKGROUND

At the time of the events in issue, Austin was incarcerated in the California State Prison at Solano. He was housed in the prison’s psychiatric medical housing unit when James Williams, a correctional officer with the California Department of Corrections, came on duty and announced from the control booth that all inmates were to return to their cells and that the cell doors would be locked. Austin requested that Williams allow the inmates to keep their cell doors open because of the heat. According to Austin, Williams responded by calling Austin a “punk bitch” and a “mother fucker,” and telling Austin that he was going to “come down out of this control booth and kick [Austin’s] ass.” While still in the control booth, which had a large glass window, Williams allegedly unzipped his pants, exposed his penis to Austin, who is black, and said “come suck this white dick, boy,” while shaking his exposed penis at Austin. Austin asserts that Williams exposed himself for 30 to 40 seconds. [1]

Austin attempted to report the incident, but the other officers on duty ignored his complaints. Later that day, Williams apologized to Austin for his conduct and[*1170] tried to persuade Austin not to report the incident. When Austin insisted that he would report it, Williams said he would cite Austin for misconduct. A supervisor, Lieutenant Roll, learned of the incident and questioned Williams about it. Williams allegedly lied about what had happened and accused Austin of misconduct. Austin was placed in administrative segregation for six weeks.

Austin appealed his placement in administrative segregation; the appeal was denied. He continued to file grievances against Williams. Prison officials eventually investigated and concluded that Williams had exposed himself as Austin claimed. Williams was suspended without pay for thirty days.

Austin then filed this civil action alleging various constitutional violations under 42 U.S.C. § 1983 and several state law claims. The district court granted Williams’ motion for summary judgment, and Austin appeals.

II. DISCUSSION

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment. Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relative substantive law. Id.

A. Retaliation

Austin’s second amended complaint alleges that Williams retaliated against him for reporting, or attempting to report, Williams’ inappropriate behavior. The district court construed this claim to be a Fourteenth Amendment claim for deprivation of liberty without due process. The district court granted summary judgment on the retaliation claim on the authority of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Sandin held that subjecting a prisoner to punitive administrative segregation did not implicate the due process clause because such segregation was “within the expected perimeters of the sentence imposed.” Id. at 485, 115 S.Ct. 2293. In ruling against Austin, the district court observed that the Supreme Court in Sandin “has virtually eliminated due process protection for inmates facing administrative segregation.”

We have previously held, however, that a claim of retaliation for filing a prison grievance survives Sandin because it raises constitutional questions beyond the due process deprivation of liberty that was rejected in Sandin. In Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995), we ruled that claims of retaliation for the exercise of a prisoner’s First Amendment rights survived Sandin, although in that case, we found insufficient evidence to establish retaliation. We relied on the Supreme Court’s concluding footnote in Sandin stating that, although prisoners lacked a due process liberty interest against administrative segregation, they “retain other protection from arbitrary state action.... They may invoke the First and Eighth Amendments and the Equal Protection Clause.” Id. (quoting Sandin, 515 U.S. at 487-88 n. 11, 115 S.Ct. 2293).

We revisited the issue in Hines v. Gomez, 108 F.3d 265, 269 (9th Cir.1997), where we upheld a jury verdict in favor of a prisoner who had been wrongly charged and placed in administrative confinement for ten days in retaliation for filing prison grievances. We stated:

Since Sandin, this court has reaffirmed that prisoners may still base retaliation claims on harms that would not raise due process concerns. * * *
Hines has alleged Pearson’s false charge infringed his First Amendment right to[*1171] file prison grievances. The allegation here falls squarely within Sandin’s eleventh footnote and Pratt’s reasoning; the injury asserted is the retaliatory accusation’s chilling effect on Hines’ First Amendment rights, not the additional confinement or the deprivation of television. We hold that Hines’ failure to demonstrate a more substantial injury does not nullify his retaliation claim.

Id. at 269.

We conclude that Austin’s retaliation claim stands on the same footing. It is understandable that the district court did not focus on the First Amendment aspects of the retaliation claim because the pleading of the claim was woefully inartful. [2] The complaint did not expressly refer to the First Amendment, but it did allege facts that Austin was punished for filing a grievance. Under Federal Rule of Civil Procedure 8, that was enough. “Pleadings need suffice only to put the opposing party on notice of the claim.... Specific legal theories need not be pleaded so long as sufficient factual averments show that the claimant may be entitled to some relief.” Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir.2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding a complaint sufficient under “liberal notice pleading of Rule 8(a)” because it gave fair notice of the plaintiffs claims). We conclude that the complaint at least minimally informed the parties and the court of Austin’s retaliation claim. As the district court stated in its opinion, a jury could find that the administrative segregation “was the natural and proximate result of [Williams’] filing a false report accusing an inmate of violating prison rules ... [and] could also infer that Williams intended that result, and acted only after Plain tiff said he planned to report the incident to prison officials.” We conclude that a claim of retaliation for the filing of a First Amendment-protected grievance was sufficiently, though certainly not expertly, raised in the district court. [3] Under our decisions in Pratt and Hines, that claim is not foreclosed by Sandin. See Pratt, 65 F.3d at 807; Hines, 108 F.3d at 269; see also Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003). We accordingly reverse the dismissal of that claim and remand for further proceedings.

B. Other Claims

1. Cruel and unusual punishment.

Austin alleged various Eighth Amendment violations that were properly dismissed on summary judgment. 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[*1172] 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.

2. Deliberate indifference to medical needs.

We also affirm the dismissal of Austin’s Eighth Amendment deliberate indifference claim. To demonstrate that a prison official was deliberately indifferent to an inmate’s serious mental health needs, the prisoner must show that “the official [knew] of and disregarded] an excessive risk to inmate health.” Farmer v. Brennan, 511 U.S. 825, 838, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). There is no medical evidence in the record to support the contention that Williams’ conduct exacerbated Austin’s mental health condition. Neither is there any evidence that Williams acted intentionally to deny, delay, or interfere with Austin’s mental health treatment. The district court therefore did not err in dismissing the deliberate indifference claim.

3. Assault.

We also affirm the district court’s dismissal of Austin’s various state law claims. To make out a claim for assault under California law, Austin had to “establish (1) that defendant intended to cause harmful or offensive contact, or the imminent apprehension of such contact, and (2) that plaintiff was put in imminent apprehension of such contact.” Brooks v. United States, 29 F.Supp.2d 613, 617 (N.D.Cal.1998) (citing Restatement (SeCond) of Tokts § 21(1965)). The undisputed evidence indicates that Austin was not fearful of Williams, and at the time of the alleged indecent exposure, Williams was separated from Austin by the walls and window of the control booth. The district court properly granted summary judgment on the assault claim because Williams’ behavior never placed Austin in apprehension of imminent offensive contact.

4. Intentional infliction of emotional distress.

In order to establish a claim for intentional infliction of emotional distress under California law, Austin was required to show (1) that the defendant’s conduct was outrageous, (2) that the defendant intended to cause or recklessly disregarded the probability of causing emotional distress, and (3) that the plaintiffs severe emotional suffering was (4) actually and proximately caused by defendant’s conduct. Id. Austin clearly presented a triable issue of outrageous conduct on the part of Williams, but he failed to provide any evidence of severe emotional distress or damage. The district court therefore properly dismissed his claim for intentional infliction of emotional distress.

5. Negligent infliction of emotional distress.

A cause of action for negligent infliction of emotional distress requires that a plaintiff show “(1) serious emotional distress, (2) actually and proximately caused by (3) wrongful conduct (4) by a defendant who should have foreseen that the conduct would cause such - distress.” Id. at 618. Because Austin has not satisfied the first required element, his claim for negligent infliction of emotional distress also fails.

III. CONCLUSION

Austin presented a claim that he was retaliated against for exercising his First Amendment rights. The district court incorrectly concluded that this claim was barred by Sandin, 515 U.S. at 487, 115 S.Ct. 2293. We accordingly reverse the[*1173] dismissal of Austin’s retaliation claim and remand for further proceedings. We affirm the judgment of the district court in all other respects.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

1

. Williams vehemently denies exposing himself to Austin or making the offensive statements attributed to him. For the purposes of reviewing a grant of summary judgment, however, we must assume the non-moving party's version of the facts to be correct. Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.2000).

2

. Although Austin is appearing pro se on appeal, he was represented by an attorney in district court at the time his second amended complaint was filed. After disagreements between Austin and his attorney over the conduct of the case, the attorney withdrew and Austin thereafter represented himself. He was denied leave to file a third amended complaint.

3

. Austin's allegations of retaliation for the filing of grievances are sufficient to satisfy the requirement that Austin plead an absence of a legitimate penological purpose for the retaliatory action. See Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir.2003).