Moore v. Calderon

While incarcerated at Kern Valley State Prison, Jesse Moore, a transgender woman, had just come out of her cell to shower when she was approached by a male prison guard. The guard demanded that Ms. Moore remove her top and show him her breasts. When she refused, the guard became threatening, telling Ms. Moore he would “screw you over if you don’t do what I say” and to “show me your tits since you think you’re a woman.”

The guard’s misconduct didn’t stop there. Horrified by his verbal attacks, Ms. Moore informed the guard that she planned to file a complaint against him for sexually harassing her. In response, the guard not only continued harassing Ms. Moore—including by using a disparaging and profoundly offensive epithet—but also explicitly threatened her, saying that because she planned to report his harassment, he’d write up a false disciplinary report on her and would “make [her] time in Kern Valley hell,” so much so that she would “wish [she] were dead.”

Ms. Moore sued pro se to vindicate her Eighth Amendment right against sexual misconduct and her First Amendment right against retaliation. But the district court dismissed her case because it believed that sexual harassment can never violate the Eighth Amendment without physical contact. Our opening brief in the U.S. Court of Appeals for the Ninth Circuit explains why that’s wrong: evolving standards of decency dictate that non-physical sexual misconduct can violate the Eighth Amendment in certain circumstances.

Two groups of amici curiae filed briefs in support of Ms. Moore’s case. One group of amici—represented by the ACLU National Prison Project and Alston & Bird—consisted of former high-ranking state prison officials, who explained that the guard’s harassment violates the Eighth Amendment, and that allowing the guard to escape accountability for this type of misconduct undermines institutional safety and perpetuates a culture of sexual abuse. The other group of amici is a coalition of LGBTQ and anti-sexual-violence advocacy groups, led by Lambda Legal; their brief further explains why the harassment in Ms. Moore’s case violates the Constitution.

We are pleased to report that after filing our opening brief, we reached a settlement with the California Department of Justice that provides substantial financial compensation to Ms. Moore for the violation of her constitutional rights.