FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND WATISON, 

Plaintiff-Appellant,

No. 10-16778 v.

M D.C. No. ARY CARTER; CRAIG MADIEROS;

 3:09-cv-00664- DON HELLING; JOSEPH RODRIGUEZ;

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
COUNSEL

Daniel H. Bromberg, Quinn Emanuel Urquhart & Sullivan,

LLP, Redwood Shores, California, for the plaintiff-appellant.

1728 WATISON v. CARTER
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 dismissed 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 Correctional Officers Rosa Rodriguez, Sean LaGier, and Danilo Santos 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

WATISON v. CARTER 1729
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 making this determination, we take as true all allegations of material 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 plaintiff’s] pleadings liberally and . . . afford the petitioner the benefit 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 sexually harassed him in violation of the Eighth Amendment. He

alleged that LaGier entered his (Watison’s) cell while Watison 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 Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89

L. Ed. 2d 251 (1986)) (internal quotation marks and indications of alteration omitted). The alleged pain may be physical

or psychological. See, e.g., Jordan, 986 F.2d 1521. Nevertheless, 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 prisoners by male guards directed by a prison policy to “push

inward and upward when searching the crotch and upper

1730 WATISON v. CARTER
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 suffering . . . from these searches” based on the inmates’ “shocking 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) (internal quotation marks omitted). Moreover, not “every malevolent 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 Amendment 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.

WATISON v. CARTER 1731
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 Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998). In Berryhill, the

plaintiff alleged that prison maintenance employees “embarrass[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 psychological).” Id.

1

1This 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 environment] . . . .” 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). 

1732 WATISON v. CARTER
Watison argues that the alleged incident “plainly violates

contemporary standards of decency” because “unwanted sexual 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 intimate parts”); Or. Rev. Stat. §§ 163.454, 163.305(6) (forbidden “sexual contact” defined as “touching of the sexual or

other intimate parts of a person . . . for the purpose of arousing or gratifying the sexual desire of either party”); Vt. Stat.

Ann. tit. 13, §§ 3257, 3251(1) (definition of forbidden conduct 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 constitutional violation,” the district court properly dismissed Watison’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 grievances 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 protected. The filing of an inmate grievance is protected conduct.

Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Second, 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. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of

WATISON v. CARTER 1733
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 complaint, allegation of a chronology of events from which retaliation 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 correctional 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 defendant’s actions were arbitrary and capricious, id., or that they

were “unnecessary to the maintenance of order in the institution,” Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.

1984).

A. Claims Against Associate Warden Carter and Officer

Rosa Rodriguez2

2We 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. 

1734 WATISON v. CARTER
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 discrimination, falsely “wrote [Watison] up” for calling her an expletive.

On May 27, Watison filed another grievance against Rodriguez. “[D]ue to [these] allegations [Watison] had against

defendant Mrs. Rodriguez,” Rodriguez and Carter had Watison 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 Amendment 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 administrative segregation, and interference with his parole hearing.

Finally, Watison alleged (5) the absence of a legitimate penological reason for the alleged adverse actions: Watison

pleaded arbitrary, capricious, and retaliatory conduct in pleading that (a) Rodriguez filed a false disciplinary complaint

WATISON v. CARTER 1735
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 Amendment retaliation claims against Carter and Rodriguez. The district 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 Watison 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: threatening to punch a prisoner serves no penological interest. Watison’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 refer1736 WATISON v. CARTER
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 element: 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 complaints 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

WATISON v. CARTER 1737
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 gunpointing incident, and that he is “now being harassed” in retaliation 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 retaliation for the emergency grievance Watison filed against Rodriguez. 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 conduct, is connected to Watison’s filing of the emergency grievance, 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 determines 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 particularly 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;

1738 WATISON v. CARTER
the harassment’s chilling effect; its connection to the grievance 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 appropriation 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, without 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 statelaw 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 jurisdiction 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 allegations 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 generally Collins v. Palczewski, 841 F. Supp. 333, 340 (D. Nev.

WATISON v. CARTER 1739
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.”) (internal 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 dismissed 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 retaliation 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 instructions to grant Watison leave to amend that claim. Finally, we

3The Nevada Supreme Court has held that Nev. Rev. Stat. § 197.200

does 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). 

1740 WATISON v. CARTER
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 subject of appellate litigation: the grossness of the conduct

alleged is not likely to have often occurred. In a word, a prisoner 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 infliction of psychological pain. Given the privacy allegedly

invaded, this kind of pain was sufficiently serious to constitute 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 conditions 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

WATISON v. CARTER 1741
can approach it.’ The future is their care and provision 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 developed 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.

1742 WATISON v. CARTER