United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston, United States Magistrate Judge
Michael Albert, a prisoner proceeding without counsel, filed
a Complaint raising six claims against Defendants alleging
denial of medical care, deliberate indifference to his
safety, unsafe conditions of confinement, sexual harassment,
and discrimination based upon his disability. Mr.
Albert's allegations of sexual harassment are
insufficient to state a claim and should be dismissed.
Defendants will be required to respond to all other
allegations in the Complaint.
Court has considered whether Mr. Albert's allegations of
denial of medical care (Counts I and III), deliberate
indifference to his safety (Count II), ADA violations (Count
IV), and discrimination (Count VI) are frivolous, malicious,
fail to state a claim, or seek solely monetary relief from a
defendant who is immune. See 28 U.S.C. §§
1915(e)(2), 1915A(b). It has also considered whether Mr.
Albert has a reasonable opportunity to prevail on the merits.
See 42 U.S.C. § 1997e(g). Dismissal of these
claims is not appropriate at this time and Defendants must
respond to the Complaint. See 42 U.S.C. §
1997e(g)(2) (while Defendants may occasionally be permitted
to “waive the right to reply to any action brought by a
prisoner confined in any jail, prison, or other correctional
facility under section 1983, ” once the Court has
conducted its sua sponte screening pursuant to 28 U.S.C.
§ 1915(e)(2) and § 1915A(b), and thus, has made a
preliminary determination based on the face on the pleading
alone that plaintiff has a “reasonable opportunity to
prevail on the merits, ” Defendant is required to
Count V of the Complaint, Mr. Albert alleges Officer Smidt
asked him on numerous occasions if he wanted a prison wife.
(Complaint, Doc. 2 at 22.) He brings this allegation of
sexual harassment against Defendants Smidt, Wood, Noll,
Pentland, Cobban, and Martin. “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.” Austin v. Terhune, 367 F.3d 1167,
1171-72 (9th Cir. 2004)(internal citations omitted); see
also 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)(“To hold that gawking,
pointing, and joking violates the prohibition against cruel
and unusual punishment would trivialize the objective
component of the Eighth Amendment test and render it
Albert does not allege that there was ever any sexual contact
or other physical sexual abuse. He only alleges verbal
harassment which is insufficient to rise to the level of a
constitutional violation. As such, his allegations fail to
state a federal claim for relief and this claim should be
on the foregoing, the Court issues the following:
Pursuant to Fed.R.Civ.P. 4(d), the Court will request
Defendants Heidi Abbott, Melissa Scharf, Nurse Ally Carl, T.
Kohut, C. Winner, K. Fisk, Jorden McDonald, Alvin Fode, Jim
Solmensen, Sgt. Weber, John Doe infirmary staff listed in
Jorden McDonald's incident report dated March 13, 2017,
Sgt. Hebert, Investigator Martin, Russ Danaher, Steve Kremer,
Leroy Kirkegard, Abby Martin, and Leslie Thornton to waive
service of summons of the Complaint by executing, or having
counsel execute, the Waiver of Service of Summons. The Waiver
must be returned to the Court within 30 days of the entry
date of this Order as reflected on the Notice of Electronic
Filing. If these Defendants choose to return the Waiver of
Service of Summons, their answer or appropriate motion will
be due within 60 days of the entry date of this Order as
reflected on the Notice of Electronic Filing, pursuant to
Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. §
Clerk of Court shall e-mail the following documents to Legal
Counsel for the Montana Department of Corrections:
* Complaint (Doc. 2);
* this Order;
* a Notice of Lawsuit & Request to Waive Service of
* a Waiver of Service of Summons.
for the Montana Department of Corrections will not be served