Raymond Watison v. Mary Carter , 668 F.3d 1108 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND WATISON, 
Plaintiff-Appellant,
v. No. 10-16778
D.C. No.
MARY CARTER; CRAIG MADIEROS;
DON HELLING; JOSEPH RODRIGUEZ;  3:09-cv-00664-
SEAN LAGIER; DANILO SANTOS; ECR-RAM
CHRISTINE CARMAZZI; ROSA OPINION
RODRIGUEZ; CANDICE NYA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted
November 18, 2011—San Francisco, California
Filed February 13, 2012
Before: Jerome Farris, John T. Noonan, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Farris;
Partial Concurrence and Partial Dissent by Judge Noonan
1725
1728 WATISON v. CARTER
COUNSEL
Daniel H. Bromberg, Quinn Emanuel Urquhart & Sullivan,
LLP, Redwood Shores, California, for the plaintiff-appellant.
WATISON v. CARTER 1729
Clark G. Leslie, Department of the Attorney General, Carson
City, Nevada, for the defendants-appellees.
OPINION
FARRIS, Senior Circuit Judge:
Petitioner Raymond Watison, who is serving a sentence in
Nevada State Prison, sued defendant prison officials under 42
U.S.C. § 1983 pro se, alleging that they violated several of his
rights under the U.S. Constitution. He also alleged that the
officials violated various Nevada laws. The district court dis-
missed Watison’s complaint with prejudice. Watison appealed
the dismissal of some of his claims and had counsel appointed
for him. We have jurisdiction under 28 U.S.C. § 1291.
Watison failed to state an Eighth Amendment claim against
Correctional Officer Sean LaGier and failed to state a First
Amendment retaliation claim against Correctional Officer
Joseph Rodriguez, but Watison’s First Amendment retaliation
claims against Associate Warden Mary Carter and Correc-
tional Officers Rosa Rodriguez, Sean LaGier, and Danilo San-
tos require further consideration. The district court should not
have dismissed Watison’s state-law claims with prejudice. We
therefore affirm in part, and remand for further proceedings.
I.
[1] We review the dismissal of a complaint for failure to
state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo.
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
The standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under
§ 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a claim. See,
e.g., Lopez v. Smith, 203 F.3d 1122 (2000). Dismissal is
1730 WATISON v. CARTER
proper only if it is clear that the plaintiff cannot prove any set
of facts in support of the claim that would entitle him to relief.
Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In mak-
ing this determination, we take as true all allegations of mate-
rial fact stated in the complaint and construe them in the light
most favorable to the plaintiff. Warshaw v. Xoma Corp., 74
F.3d 955, 957 (9th Cir. 1996). We “construe [a pro se plain-
tiff’s] pleadings liberally and . . . afford the petitioner the ben-
efit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010) (internal quotation marks omitted).
II.
Watison alleged that Correctional Officer Sean LaGier sex-
ually harassed him in violation of the Eighth Amendment. He
alleged that LaGier entered his (Watison’s) cell while Wati-
son was on the toilet and began to search it, that Watison
asked LaGier to leave the room, and that LaGier approached
Watison while Watison was still on the toilet, rubbed his thigh
against Watison’s thigh, “began smiling in a sexual contact
[sic],” and left the cell laughing.
[2] “After incarceration, only the unnecessary and wanton
infliction of pain constitutes cruel and unusual punishment
forbidden by the Eighth Amendment.” Jordan v. Gardner,
986 F.2d 1521, 1525 (9th Cir. 1993) (en banc) (quoting Whit-
ley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89
L. Ed. 2d 251 (1986)) (internal quotation marks and indica-
tions of alteration omitted). The alleged pain may be physical
or psychological. See, e.g., Jordan, 986 F.2d 1521. Neverthe-
less, the “inmate must objectively show that he was deprived
of something ‘sufficiently serious.’ ” Foster v. Runnels, 554
F.3d 807, 812 (9th Cir. 2009) (quoting Farmer v. Brennan,
511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811(1994)). For example, in Jordan, we held that the Eighth
Amendment prohibited clothed body searches of female pris-
oners by male guards directed by a prison policy to “push
inward and upward when searching the crotch and upper
WATISON v. CARTER 1731
thighs of the inmate,” to “squeeze and knead” “the leg and the
crotch area,” and to “search the breast area in a sweeping
motion, so that the breasts will be ‘flattened.’ ” 986 F.2d at
1523 (indications of alteration omitted). The Jordan court’s
finding of serious deprivation relied on the “high probability
of . . . severe psychological injury and emotional pain and suf-
fering . . . from these searches” based on the inmates’ “shock-
ing histories of verbal, physical, and, in particular, sexual
abuse . . . .” Id. at 1525. By contrast, “the exchange of verbal
insults between inmates and guards is a constant, daily ritual
observed in this nation’s prisons” of which “we do not
approve,” but which do not violate the Eighth Amendment.
Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (inter-
nal quotation marks omitted). Moreover, not “every malevo-
lent touch by a prison guard gives rise to a federal cause of
action.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995,
1000, 117 L. Ed. 2d 156 (1992).
[3] The “humiliation” Watison allegedly suffered from the
incident with Officer LaGier does not rise to the level of
severe psychological pain required to state an Eighth Amend-
ment claim. We have found no Eighth Amendment violation
in situations involving more serious deprivations than the
deprivation Watison allegedly suffered. For example, in
Somers, we held that the Eighth Amendment did not prohibit
female guards from performing visual body cavity searches
on male inmates or watching male inmates shower, despite
one inmate’s allegation that the guards pointed, joked, and
“gawked” at him. Somers, 109 F.3d at 616; see also, e.g.,
Grummett v. Rushen, 779 F.2d 491, 494 n.1 (9th Cir. 1985)
(prison’s policy allowing female guards to observe male
inmates disrobing, showering, using the toilet, and being
strip-searched, and allowing them to conduct pat-down
searches including the groin area, did not amount to “the type
of shocking and barbarous treatment protected against by the
[E]ighth [A]mendment”).
[4] We emphasize, as we did in Somers, that this case does
not present the Eighth Amendment concerns found in Jordan.
1732 WATISON v. CARTER
See Somers, 109 F.3d at 623. Jordan’s holding relied on (1)
the preexisting mental conditions of the female inmates,
which caused them “to react differently to [the] searches . . .
than would male inmates subjected to similar searches by
women,” Jordan, 986 F.2d at 1525, and (2) the intrusive
nature of the searches. Somers, 109 F.3d at 624. As in Somers,
neither of these factors is present here. Watison is a male
inmate, and the only physical contact he alleged was a brief
brush of LaGier’s leg against his own.
The Eighth Circuit reached a similar conclusion in Berry-
hill v. Schriro, 137 F.3d 1073 (8th Cir. 1998). In Berryhill, the
plaintiff alleged that prison maintenance employees “embar-
rass[ed] him” in violation of the Eighth Amendment when
one of them “grabbed him by the shoulders while [another]
grabbed his buttocks with one hand briefly” and a third
“grabbed Berryhill’s buttocks for a moment.” Id. at 1074-75(indications of alteration omitted). The Eighth Circuit found
no Eighth Amendment violation because “there is no evidence
that Berryhill suffered anything more than a brief unwanted
touch on his buttocks” and “[i]t would be a distortion . . . to
characterize the conduct in this case as a sexual assault.” Id.
at 1076. Like Watison’s, Berryhill’s “humiliat[ion]” did not
constitute “objectively serious injury (either physical or psy-
chological).” Id.1
1
This Eighth Amendment jurisprudence is consistent with Supreme
Court precedent on sexual harassment. The Supreme Court has held that
“simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to [a] discriminatory [hostile environ-
ment] . . . .” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.
Ct. 2275, 2283, 141 L. Ed. 2d 662 (1998) (internal quotation marks and
citations omitted) (emphasis added); see also Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 271, 121 S. Ct. 1508, 1510, 149 L. Ed. 2d 509(2001) (holding that comments and chuckling by co-workers were “at
worst an ‘isolated inciden[t]’ that cannot remotely be considered
‘extremely serious,’ as our cases require”) (citing Faragher, 524 U.S. at
788, 118 S. Ct. at 2283) (alteration in original).
WATISON v. CARTER 1733
Watison argues that the alleged incident “plainly violates
contemporary standards of decency” because “unwanted sex-
ual contact by prison officials is now forbidden by every
state.” LaGier’s alleged conduct, however, is not the type of
conduct these laws forbid. See, e.g., Ala. Code §§ 14-11-31,
14-11-30(3) (forbidden “sexual conduct” defined to include
sexual intercourse and “touching[,] for the purpose of sexual
arousal, gratification, or abuse[,] of . . . sexual or other inti-
mate parts”); Or. Rev. Stat. §§ 163.454, 163.305(6) (forbid-
den “sexual contact” defined as “touching of the sexual or
other intimate parts of a person . . . for the purpose of arous-
ing or gratifying the sexual desire of either party”); Vt. Stat.
Ann. tit. 13, §§ 3257, 3251(1) (definition of forbidden con-
duct does not include touching thigh to thigh); Wis. Stat.
§§ 940.225(2)(h), (5)(b), 5(c) (same). Therefore, Watison’s
citations do not aid his argument.
[5] Because Officer LaGier’s “alleged wrongdoing was
[not] objectively ‘harmful enough’ to establish a constitu-
tional violation,” the district court properly dismissed Wati-
son’s Eighth Amendment claim against LaGier. Hudson, 503
U.S. at 8, 112 S. Ct. at 999 (quoting Wilson v. Seiter, 501 U.S.
294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991)).
III.
[6] Prisoners have a First Amendment right to file griev-
ances against prison officials and to be free from retaliation
for doing so. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009). A retaliation claim has five elements. Id. First, the
plaintiff must allege that the retaliated-against conduct is pro-
tected. The filing of an inmate grievance is protected conduct.
Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Sec-
ond, the plaintiff must claim the defendant took adverse
action against the plaintiff. Id. at 567. The adverse action need
not be an independent constitutional violation. Pratt v. Row-
land, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of
1734 WATISON v. CARTER
harm can be an adverse action . . . .” Brodheim, 584 F.3d at
1270.
Third, the plaintiff must allege a causal connection between
the adverse action and the protected conduct. Because direct
evidence of retaliatory intent rarely can be pleaded in a com-
plaint, allegation of a chronology of events from which retali-
ation can be inferred is sufficient to survive dismissal. See
Pratt, 65 F.3d at 808 (“timing can properly be considered as
circumstantial evidence of retaliatory intent”); Murphy v.
Lane, 833 F.2d 106, 108-09 (7th Cir. 1987).
Fourth, the plaintiff must allege that the “official’s acts
would chill or silence a person of ordinary firmness from
future First Amendment activities.” Robinson, 408 F.3d at
568 (internal quotation marks and emphasis omitted). “[A]
plaintiff who fails to allege a chilling effect may still state a
claim if he alleges he suffered some other harm,” Brodheim,
584 F.3d at 1269, that is “more than minimal,” Robinson, 408
F.3d at 568 n.11. That the retaliatory conduct did not chill the
plaintiff from suing the alleged retaliator does not defeat the
retaliation claim at the motion to dismiss stage. Id. at 569.
Fifth, the plaintiff must allege “that the prison authorities’
retaliatory action did not advance legitimate goals of the cor-
rectional institution . . . .” Rizzo v. Dawson, 778 F.2d 527, 532
(9th Cir. 1985). A plaintiff successfully pleads this element by
alleging, in addition to a retaliatory motive, that the defen-
dant’s actions were arbitrary and capricious, id., or that they
were “unnecessary to the maintenance of order in the institu-
tion,” Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
1984).
A. Claims Against Associate Warden Carter and Officer
Rosa Rodriguez2
2
We treat the allegations as true solely for the purpose of reviewing the
sufficiency of the allegations. Dougherty v. City of Covina, 654 F.3d 892,
896 n.2 (9th Cir. 2011). Their recitation should not be taken to express our
belief in their accuracy.
WATISON v. CARTER 1735
Watison claimed that Associate Warden Mary Carter and
Correctional Officer Rosa Rodriguez retaliated against him
for filing grievances against Rodriguez. Watison claimed that
on May 20, 2009, Rodriguez, “[i]n retaliation” for a grievance
Watison had previously filed against her for racial discrimina-
tion, falsely “wrote [Watison] up” for calling her an expletive.
On May 27, Watison filed another grievance against Rodri-
guez. “[D]ue to [these] allegations [Watison] had against
defendant Mrs. Rodriguez,” Rodriguez and Carter had Wati-
son placed in administrative segregation that same day. At
Watison’s May 29 parole hearing, Carter, in “retaliati[on]
[for] numerous amounts of complaints/grievances [Watison
filed] against her . . . and another prison official [Rodriguez],”
falsely stated that Watison had been placed in administrative
segregation because he had used abusive language toward
staff. “[D]ue to [Carter’s] lies,” the parole board found that
Watison had engaged in “disruptive institutional behavior”
and denied Watison parole.
[7] Watison alleged facts sufficient to state a First Amend-
ment retaliation claim. Watison alleged (1) that he engaged in
protected actions: he filed grievances against Rodriguez. He
alleged (2) that Rodriguez and Carter took adverse actions
against him: Rodriguez filed a false disciplinary charge
against him; he was placed in administrative segregation; and
Carter’s lies to the parole board resulted in denial of parole.
Watison also alleged (3) a connection between (1) and (2):
Rodriguez and Carter took these adverse actions shortly after,
and “[i]n retaliation” for, Watison’s filing of grievances
against Rodriguez. He alleged (4) that the retaliatory actions
would have chilled or silenced a person of ordinary firmness
by alleging “more than minimal” harms—the filing of a false
disciplinary charge against Watison, his placement in admin-
istrative segregation, and interference with his parole hearing.
Finally, Watison alleged (5) the absence of a legitimate peno-
logical reason for the alleged adverse actions: Watison
pleaded arbitrary, capricious, and retaliatory conduct in plead-
ing that (a) Rodriguez filed a false disciplinary complaint
1736 WATISON v. CARTER
against him and (b) Carter made false statements to the parole
board, both in retaliation for grievances Watison had filed
against Rodriguez. Watison sufficiently pleaded First Amend-
ment retaliation claims against Carter and Rodriguez. The dis-
trict court improperly dismissed these claims.
B. Claim Against Officer Santos
Watison claimed that Correctional Officer Danilo Santos
retaliated against him for filing grievances against Santos. He
claimed that on July 7, 2009, Santos “became very angry
with” Watison, “walked directly in [Watison’s] face and
stated ‘your emergency grievance isn’t going to stand,’ ” and
threatened to hit Watison in the mouth for a complaint Wati-
son was in the process of filing against Santos.
[8] The district court also improperly dismissed this claim.
Watison alleged (1) that he engaged in a protected action: he
filed a grievance against Santos. He alleged (2) that Santos
took adverse action against him: Santos threatened to hit him
in the mouth. Watison also alleged (3) a connection between
(1) and (2): Santos threatened to hit Watison “for” a grievance
Watison filed against Santos. Watison alleged (4) chilling
conduct—the threat of physical violence. Finally, the facts
Watison alleged implicitly pleaded the fifth element: threaten-
ing to punch a prisoner serves no penological interest. Wati-
son’s First Amendment claim against Santos should not have
been dismissed.
C. Claim Against Officer LaGier
Watison claimed that Officer LaGier retaliated against him
for filing grievances against LaGier. Watison claimed that on
Aug 11, 2009, LaGier refused to give Watison his breakfast,
stared in Watison’s room smiling at him, and said, “ ‘They’re
not going to do nothing with those grievances you filed
against me.’ ” Watison then asked LaGier for an “informal
grievance.” LaGier responded with an expletive and refer-
WATISON v. CARTER 1737
enced a grievance Watison had previously filed against
LaGier. Watison alleged that “the meal refusals were [in]
retaliation” for Watison’s “filing a grievance against
[LaGier].”
[9] The district court should not have dismissed Watison’s
First Amendment claim against LaGier. Watison alleged
(1) that he engaged in protected actions: he filed grievances
against LaGier. He alleged (2) that LaGier took adverse
actions against him: LaGier refused to give him breakfast.
Watison also alleged (3) a connection between (1) and (2):
during the same interaction in which LaGier refused to give
Watison breakfast, LaGier mentioned the grievances. He
alleged (4) chilling conduct by alleging “more than minimal”
harm—deprival of food. Finally, Watison alleged the fifth ele-
ment: Watison alleged that LaGier’s conduct was retaliatory;
and Watison’s allegation that he asked to file a grievance
about LaGier’s denying him breakfast sufficiently raised a
question regarding the basis for the meal refusal.
D. Claim Against Officer Joseph Rodriguez
In his complaint, Watison alleged the following:
On July 5, 2009 . . . Rodriguez became very angry
in his voice of tone . . . [and] aimed [a] gun at me
and cocked it back. . . . Defendant had no reason,
justification to aim a gun at me . . . . I’ve filed com-
plaints against defendant and defendant is retaliating
against me.
.....
Count IV Eighth Amendment[:] . . . On date of 07/
05/09 . . . Mr. Rodriguez begain [sic] yelling and
screaming[.] I (inmate) acknowledged him aim a 12
gauge directly at me. Cock it back and repeat[ed]ly
yelling and screaming. I (inmate) then stated “What
1738 WATISON v. CARTER
you want?” C/O Mr. Rodriguez then with draw the
gun back. I filed an emergency grievance and
exhausted the grievance process and been denied.
And I’m now being harassed by the same officer.
[10] Because Watison labeled this claim as an Eighth
Amendment claim, the district court addressed it as such and
dismissed it. Watison argues that the district court should
have treated the claim as a First Amendment retaliation claim,
characterizing Rodriguez’s gun-pointing as retaliation for
grievances Watison filed against him. In fact, the complaint
alleged that Watison filed a grievance in response to the gun-
pointing incident, and that he is “now being harassed” in retal-
iation for that grievance. If there is any retaliation claim
against Rodriguez to be found in Watison’s complaint, then,
it is that Rodriguez is now “harass[ing]” Watison in retalia-
tion for the emergency grievance Watison filed against Rodri-
guez. This harassment-retaliation claim fails. Watison alleged
no facts about Rodriguez’s alleged harassing behavior, and he
failed to allege that the harassment constitutes chilling con-
duct, is connected to Watison’s filing of the emergency griev-
ance, and lacks a penological justification. The district court
properly dismissed this claim.
[11] However, on remand, the district court should grant
Watison leave to amend this claim to correct its deficiencies.
Federal Rule of Civil Procedure 15(a) provides that a trial
court shall grant leave to amend freely “when justice so
requires.” “[A] district court should grant leave to amend even
if no request to amend the pleading was made, unless it deter-
mines that the pleading could not possibly be cured by the
allegation of other facts.” Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995) (internal quotation marks omitted). The
“rule favoring liberality in amendments to pleadings is partic-
ularly important for the pro se litigant.” Lopez, 203 F.3d at
1131 (internal quotation marks omitted). Here, Watison might
cure his pleadings by alleging more facts—namely, the what,
when, and where of Rodriguez’s alleged harassing behavior;
WATISON v. CARTER 1739
the harassment’s chilling effect; its connection to the griev-
ance Watison filed against Rodriguez; and the absence of a
penological justification for Rodriguez’s behavior.
IV.
In addition to federal constitutional claims, Watison alleged
eleven claims under Nevada Revised Statutes §§ 197.200
(oppression under color of office), 197.210 (fraudulent appro-
priation of property), 197.220 (other violations by officers),
and 212.020 (inhumanity to prisoners)—all criminal statutes.
The district court dismissed these claims with prejudice, with-
out explanation. We suspect the district court declined to
exercise supplemental jurisdiction over the state-law claims
once it had dismissed the federal claims. See 28 U.S.C.
§ 1367(c)(3). If so, the court should have dismissed the state-
law claims without prejudice. See Les Shockley Racing, Inc.
v. Nat’l Hot Rod Ass’n, 884 F.2d 504, 509 (9th Cir. 1989).
[12] On remand, the district court will have original juris-
diction over Watison’s First Amendment claims and shall
decide anew whether to exercise supplemental jurisdiction
over the state-law claims. See, e.g., Fang v. United States, 140
F.3d 1238, 1244 (9th Cir. 1998). The district court may, in its
discretion, decline to exercise supplemental jurisdiction on the
basis that a state court should decide in the first instance the
“novel or complex issue of State law” of whether the criminal
statutes on which Watison’s state-law claims are based give
rise to civil liability—and if not, whether Watison’s allega-
tions nevertheless sufficiently plead state common-law
claims, such as tort claims, against the defendants. 28 U.S.C.
§ 1367(c)(1); see, e.g., Robinson v. Baca, No. 3:08-cv-00389-
HDM-VPC, slip op. at 5, 2010 WL 3724189 (D. Nev. Aug.
25, 2010) (declining to exercise supplemental jurisdiction
over plaintiff’s state-law claims in part because “the question
of whether the cited criminal statutes convey a private right
of action should be determined by a state court”); see gener-
ally Collins v. Palczewski, 841 F. Supp. 333, 340 (D. Nev.
1740 WATISON v. CARTER
1993) (“[C]riminal statutes cannot be enforced by civil
actions [unless] . . . the plaintiffs [are] members of the public
that the statutes were specifically designed to protect.”) (inter-
nal quotation marks and citations omitted) (citing Cort v. Ash,
422 U.S. 66, 78-82, 95 S. Ct. 2080, 2088-90, 45 L. Ed. 2d 26(1975); United States v. Claflin, 97 U.S. 546, 24 L. Ed. 1082(1878); United States v. Jourden, 193 F. 986 (9th Cir. 1912)).3
The inquiry into whether the complaint states common-law
claims is necessary because a “complaint should not be dis-
missed merely because plaintiff’s allegations do not support
the legal theory he intends to proceed on, since the court is
under a duty to examine the complaint to determine if the
allegations provide for relief on any possible theory.” Pruitt
v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991). Alternatively,
the district court may decide that it should retain supplemental
jurisdiction over the state-law claims. Even claims with slight
monetary value survive a motion to dismiss, unless we can
say with certainty that no factual basis has been alleged.
V.
[13] We affirm the dismissal with prejudice of Watison’s
Eighth Amendment claim against Officer LaGier. We reverse
the court’s dismissal of Watison’s First Amendment retalia-
tion claims against Associate Warden Carter and Officers
Rosa Rodriguez, LaGier, and Santos, and remand those
claims for further proceedings. We reverse the denial of leave
to amend Watison’s First Amendment retaliation claim
against Officer Joseph Rodriguez, and remand with instruc-
tions to grant Watison leave to amend that claim. Finally, we
3
The Nevada Supreme Court has held that Nev. Rev. Stat. § 197.200does not give rise to civil liability. See Jordan v. State ex rel. Dep’t of
Motor Vehicles & Pub. Safety, 110 P.3d 30, 48, 121 Nev. 44, 69 (Nev.
2005), abrogated on other grounds by Buzz Stew, LLC v. City of N. Las
Vegas, 181 P.3d 670, 124 Nev. 224 (Nev. 2008). A federal district court
has held the same with respect to Nev. Rev. Stat. § 212.020. See Mitchell
v. Skolnik, No. 2:09-CV-02377-KJD-PAL, slip op. at 9, 2011 WL
3626598 (D. Nev. Aug. 11, 2011).
WATISON v. CARTER 1741
reverse the dismissal with prejudice of Watison’s state-law
claims and remand with instructions to decide whether to
exercise supplemental jurisdiction over those claims.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
NOONAN, Circuit Judge, concurring and dissenting:
I concur except as to the holding that dismisses Watison’s
claim under the Eighth Amendment. The incident central to
this claim is, for good reason, one that has not been the sub-
ject of appellate litigation: the grossness of the conduct
alleged is not likely to have often occurred. In a word, a pris-
oner sitting in his own cell on his toilet was allegedly rubbed
on his thigh by a prison guard who had entered the cell. The
sexual implications of this stroking plus the interference with
the prisoner’s discharge of his bladder amounted to the inflic-
tion of psychological pain. Given the privacy allegedly
invaded, this kind of pain was sufficiently serious to consti-
tute constitutionally prohibited cruelty.
We do not have, and need not have, a precedent exactly
governing the case. A century ago the Supreme Court set out
the governing principle:
Time works changes, brings into existence new con-
ditions and purposes. Therefore a principle to be
vital must be capable of wider application than the
mischief which gave it birth. This is peculiarly true
of constitutions. They are not ephemeral enactments,
designed to meet passing occasions. They are, to use
the words of Chief Justice Marshall, ‘designed to
approach immortality as nearly as human institutions
1742 WATISON v. CARTER
can approach it.’ The future is their care and provi-
sion for events of good and bad tendencies of which
no prophecy can be made. In the application of a
constitution, therefore, our contemplation cannot be
only of what has been but of what may be. Under
any other rule a constitution would indeed be as easy
of application as it would be deficient in efficacy and
power. Its general principles would have little value
and be converted by precedent into impotent and
lifeless formulas. Rights declared in words might be
lost in reality. And this has been recognized. The
meaning and vitality of the Constitution have devel-
oped against narrow and restrictive construction.
Weems v. United States, 217 U.S. 349, 373 (1910).
The prohibition of cruel and unusual punishment covers the
case presented by Watison.