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Albert v. Abbott

United States District Court, D. Montana, Helena Division

November 6, 2017

MICHAEL ALBERT, Plaintiff,
v.
HIEDI ABBOTT, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston, United States Magistrate Judge

         Plaintiff 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.

         The 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 respond).

         In 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 absurd.”)

         Mr. 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 dismissed.

         Based on the foregoing, the Court issues the following:

         ORDER

         1. 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. § 1997e(g)(2).[1]

         2. The 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 Summons; and
* a Waiver of Service of Summons.

         Counsel for the Montana Department of Corrections will not be served with ...


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