YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff James David Williams, a state prisoner currently incarcerated at the Correctional Training Facility ("CTF"), filed this pro se civil rights action under 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated by the following prison officials based on their involvement in Plaintiff's unclothed body search on June 29, 2016: California Department of Corrections and Rehabilitation ("CDCR") Secretary Scott Kernan; CTF Warden S. Hatton; Investigative Services Unit ("ISU") Lieutenant V. Khan; ISU Sergeant S. Kelley
The parties are presently before the Court on Defendants' Motion to Dismiss and Motion for Summary Judgment. Dkt. 14. Plaintiff has filed an opposition to Defendants' motion, and Defendants have filed a reply. Dkts. 25, 27. The parties have also filed other pending motions which will all be addressed below, including: Defendants' Administrative Motion to File Confidential Documents Under Seal (dkt. 15), which Plaintiff opposes (dkt. 16); Plaintiff's request for leave to amend the original complaint (dkt. 16), which Defendants oppose (dkt. 19); Plaintiff's "Motion to Request Service of this Action to Additional Defendants" (dkt. 17); and Plaintiff's motion for appointment of counsel (dkt. 21).
Having read and considered the papers submitted and being fully informed, the Court hereby GRANTS Defendants' motion to dismiss and motion for summary judgment,
At the time of the events set forth in his complaint, Plaintiff was a state prisoner who was incarcerated at CTF, which is where he is still currently incarcerated. See Dkt. 1 at 1. Also during the time frame at issue, the following Defendants were employed by the CDCR and CTF: CDCR Secretary Kernan; CTF Warden Hatton; CTF Appeals Coordinator Truett; ISU Lieutenant Khan; ISU Sergeant Kelley; and ISU Officers Brown (a male officer) and Patterson (a female officer).
The following background relating to Plaintiff's Eighth Amendment claim is taken from the Court's January 5, 2018 Order:
Dkt. 7 at 2 (brackets and footnote added). Plaintiff claims that such treatment of inmates has violated his constitutional rights and that female correctional officers are still being allowed to take partially nude photographs of male inmates. Id. (citing Dkt. 1 at 6). Thus, upon conducting an initial review of the complaint, the Court determined that, liberally construed, Plaintiff's allegations were sufficient to state cognizable claims for the violation of his rights under the Eighth Amendment. Id. (citing Byrd v. Maricopa Cnty. Sheriff's Dep't, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc); Byrd v. Maricopa Cnty. Bd. of Supervisors, 845 F.3d 919, 922-25 (9th Cir. 2017)). The Court further noted that in his complaint Plaintiff had named two Doe Defendants— "yet to be identified [H]ispanic male, John Doe (I.S.U.)" and "unidentified Supervising Sgt. John Doe"—whose names he intended to learn through discovery. See Dkt. 1 at 3. The Court dismissed his claims against these Doe Defendants without prejudice to move to file an amended complaint to add them as named defendants. Id. at 3 (citing Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003)). As explained below, Plaintiff is now attempting to do so by requesting to add two named Defendants to this action: ISU Correctional Sergeant S. Rodriguez and ISU Correctional Officer R. Salas, who were also employed by CTF during the time frame at issue. See Dkts. 16, 17. The Court will address Plaintiff's request later on in this Order.
In the instant dispositive motion, Defendants have elaborated more on the factual background of Plaintiff's claim, and the Court includes it as Defendants' version below.
Dkt. 14 at 12-18 (brackets, footnote 2 in original, and footnote 5 added).
In his original complaint, Plaintiff claimed that, in connection with the unclothed body search on June 29, 2016, his constitutional rights were violated by Defendants Brown and Patterson, along with two unidentified prison officials from ISU, whose identities were initially not known to him. Plaintiff used Doe Defendant monikers for these unidentified officers. After Defendants filed their dispositive motion, Plaintiff filed a motion to amend the complaint to name Defendants Rodriguez and Salas in place of the Doe Defendants. Dkt. 16. Plaintiff also filed a motion for service of process on the aforementioned newly-named Defendants. Dkt. 17. The motion to amend the complaint and motion for service of process are GRANTED. Defendants Rodriguez and Salas are added as Defendants, and the Court orders service of process on these newly-added Defendants.
However, the Court need not wait for such service to take effect or delay its resolution of the pending dispositive motion because the instant motion is based on declarations from Defendants Brown and Patterson and as a result presents a complete picture of these Defendants and the newly-named Defendants' version of the incident. Plaintiff makes no effort to distinguish between the versions that would have been filed by the served Defendants versus the newly-named (and unserved) Defendants, and thus this demonstrates that his briefs in opposition to the dispositive motion were not filed with the understanding that he only needed to address his claims against the served Defendants. The issues having been fully briefed, the Court can proceed and determine whether the served Defendants and newly-named (and unserved) Defendants are entitled to judgment in their favor as to the Eighth Amendment claim. There is no need to delay the resolution of the pending motion by several months so that Defendants Rodriguez and Salas can be served with process, retain counsel (who would probably be the same as counsel for the served Defendants), and file a separate motion for summary judgment that makes an argument and factual presentation identical to the one made by the served Defendants. The most practical approach therefore is to allow Defendants Rodriguez and Salas to be added as Defendants in place of the Doe Defendants, but not to waste the time necessary to have them served with process prior to ruling on the pending dispositive motion. Therefore, the Court will resolve the pending dispositive motion below.
In connection with the instant dispositive motion, Defendants seek, in accordance with this District's Civil Local Rules 7-11 and 79-5(b), to file under seal the exhibit attached to the declaration of CTF Litigation Coordinator E. Galvan in support of Defendants' dispositive motion:
Defendants have filed a motion to dismiss and motion for summary judgment. Dkt. 14. In the motion to dismiss, Defendants argue, inter alia, that Plaintiff's claims against Defendants in their official capacities are barred, that any claim for punitive damages should be dismissed, that Plaintiff has failed to state a cognizable claim for relief as to Defendants Kernan, Hatton, Khan, Kelley, and Truett, and that Plaintiff failed to exhaust administrative remedies against to Defendants Kernan, Hatton, Khan, Kelley, and Truett. Defendants also move for summary judgment on the merits and based on qualified immunity.
For the reasons stated below, the Court GRANTS Defendants' motion to dismiss the claims against all Defendants in their official capacities, the claim for punitive damages, and the Eighth Amendment claim against Defendants Kernan, Hatton, Khan, Kelley, and Truett for failure to state a claim.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and a complaint that fails to do so is subject to dismissal pursuant to Rule 12(b)(6). "A complaint may be dismissed as a matter of law for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim." Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).
Failure to state a claim is grounds for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dismissal for failure to state a claim is a ruling on a question of law. Parks Sch. of Bus., Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). "The issue is not whether the plaintiff ultimately will prevail, but whether he is entitled to offer evidence to support his claim." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
In reviewing a Rule 12(b)(6) motion, a district court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. See Symington, 51 F.3d at 1484. However, a district court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). But a pro se pleading must be liberally construed and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Twombly, 550 U.S. at 570 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff seeks monetary relief from Defendants in their individual and official capacities. Dkt. 1 at 3.
However, Defendants argue that Plaintiff's claims for monetary damages against them in their official capacities are barred by the Eleventh Amendment. Dkt. 14 at 23.
The Eleventh Amendment to the United States Constitution bars from the federal courts suits against a state by its own citizens, citizens of another state, or citizens or subjects of any foreign state. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985) abrogated on other grounds as noted in Lane v. Pena, 518 U.S. 187, 198 (1996). Unless a state has waived its Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued regardless of the relief sought. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Eleventh Amendment immunity extends to suits against a state agency, Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (CDCR and California Board of Prison Terms entitled to Eleventh Amendment immunity), and to suits for damages against state officials sued in their official capacities, Kentucky v. Graham, 473 U.S. 159, 169-70 (1985). California has not waived its Eleventh Amendment immunity with respect to claims brought under Section 1983 in federal court. Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). Therefore, because the CDCR is a state agency, its employees, who are the aforementioned Defendants, sued in their official capacities are immune from suit for monetary damages.
Accordingly, Plaintiff's claims for monetary damages against Defendants in their official capacities are DISMISSED as barred by the Eleventh Amendment.
Defendants argue that Plaintiff has failed to plead sufficient facts to state claims that "Defendants acted with an evil motive or were recklessly indifferent to [Plaintiff's] rights." Dkt. 14 at 23. The Court agrees. The dismissal of Plaintiff's claim for punitive damages is in order, as punitive damages may be awarded in a Section 1983 suit only "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). There is no indication whatsoever that any of Defendants' alleged wrongdoing rose to this requisite high level of culpability. Accordingly, Plaintiff's claim for punitive damages is DISMISSED. Dkt. 14.
The United States Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). A prison official violates the Eighth Amendment only if two requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, and (2) the prison official possesses a sufficiently culpable state of mind. Farmer, 511 U.S. at 834.
A prisoner may state an Eighth Amendment claim under Section 1983 for sexual harassment if the alleged sexual harassment was sufficiently harmful, i.e., a departure from "the evolving standards of decency that mark the progress of a maturing society," and the defendant acted with intent to harm the prisoner. See Thomas v. District of Columbia, 887 F.Supp. 1, 3-4 (D.D.C. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 6, 8 (1992)) (internal quotations and citation omitted). Sexual assault, coercion, and harassment certainly may violate contemporary standards of decency and cause physical and psychological harm. See Jordan v. Gardner, 986 F.2d 1521, 1525-31 (9th Cir. 1993) (en banc).
The Eighth Amendment's prohibition against cruel and unusual punishment may also be violated by certain body searches. See id. (emphasizing many female inmates' history of abuse, "psychological differences between men and women," and intrusive physical nature of search); cf. Byrd v. Maricopa County Bd. of Supervisors, 845 F.3d 919, 924 (9th Cir. 2017) (pretrial detainee's allegation that he alerted prison officials of his discomfort with defendants' policy of permitting female guards to regularly view his bathroom and shower use from 4-5 feet away because of detainee's past sexual abuse was sufficient to state a claim for relief against cruel and unusual punishment).
Here, Plaintiff alleges that Defendants Kelley, Kahn, and Truett "conducted a flawed investigation" of Plaintiff's accusations against Defendants Brown and Patterson and "covered up the conduct that occurred." Dkt. 1 at 5. Plaintiff further alleges that Defendant Hatton failed to correct the underground conduct of ISU staff, and continues to allow this treatment to occur on inmates." Id. Finally, Plaintiff claims that Defendant Kernan "denied correction and training of these rogue actions if CTF staff violating Plaintiff and continuing to use female staff to conduct unsecure, non-emergency strip searches of male inmates. . . . Id.
Liability may be imposed on an individual defendant under Section 1983 if the plaintiff can show that the defendant's actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062, 1085 (9th Cir. 2013). However, Plaintiff does not allege that Defendants Khan, Kelley, and Truett were involved in or proximately caused Plaintiff's unclothed body search. Plaintiff also does not allege that these Defendants engaged in sexual harassment against him. Instead, Plaintiff's complaint alleges that Defendants Kelley, Khan, and Truett were only involved as investigators into the circumstances of the unclothed body search after the search had already occurred. To the extent that Plaintiff is suing Defendants Khan and Truett based on their involvement in handling the relevant grievance relating to the claims in this action, there is no constitutional right to a prison administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (order) ("There is no legitimate claim of entitlement to a grievance procedure."). There is also no right to a response or any particular action. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam) ("When the claim underlying the administrative grievance involves a constitutional right, the prisoner's right to petition the government for redress is the right of access to the courts, which is not compromised by the prison's refusal to entertain his grievance.").
Therefore, the Court finds that Plaintiff has not stated a cognizable Eighth Amendment claim against Defendants Kelley, Khan, and Truett, and Defendants' motion to dismiss this claim against Defendants Kelley, Khan, and Truett is GRANTED. While leave to amend should generally be given to a pro se plaintiff, leave is not required when it is absolutely clear that the deficiencies could not be overcome by amendment. See Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987). Here, based on these facts, no amendment could overcome the lack of a legal basis for liability against Defendants Kelley, Khan, and Truett. Plaintiff's Eighth Amendment claim against Defendants Kelley, Khan, and Truett are DISMISSED without leave to amend.
With respect to Defendants Kernan and Hatton, Plaintiff does not allege that these Defendants were involved in/proximately caused the unclothed body search, nor that these Defendants engaged in sexual harassment against him. Plaintiff alleges only that Defendant Hatton failed to prohibit female correctional officers from conducting strip searches and taking partially nude photographs of male inmates, and that Defendant Kernan failed to train his subordinates who allow female staff to participate in the aforementioned actions. Dkt. 1 at 5. Based on these facts, Plaintiff has not stated a cognizable Eighth Amendment claim against Defendants Hatton and Kernan. Defendants' motion to dismiss the Eighth Amendment claim against these Defendants is GRANTED. However, this dismissal is with leave to amend. A supervisor may be liable under Section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012). A supervisor may also be liable if there is evidence of "a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994). It is insufficient for a plaintiff only to allege that supervisors knew about a constitutional violation and that they generally created policies and procedures that led to the violation, without alleging "a specific policy" or "a specific event" implemented or instigated by them that led to the constitutional violations. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (emphasis in original). Here, Plaintiff has not proffered any facts from which it can be inferred that Defendants Hatton and Kernan knew about any constitutional violation, or that these Defendants created a specific policy or procedure which led to the alleged violation.
It is not beyond doubt, however, that Plaintiff could provide a set of facts in support of a claim against Defendants Hatton and Kernan which would entitle Plaintiff to relief. Thus, the claim against Defendants Hatton and Kernan is DISMISSED with leave to amend to allow Plaintiff an opportunity to provide more facts to support a cognizable claim for relief against these Defendants.
In sum, Defendants' motion to dismiss is GRANTED as to Plaintiff's Eighth Amendment claim against Defendants Khan, Kelley, and Truett, and all claims against these Defendants are DISMISSED without leave to amend. Meanwhile, as explained above, Plaintiff has not stated a cognizable Eighth Amendment claim against Defendants Hatton and Kernan, and therefore Defendants' motion to dismiss the Eighth Amendment claim against these Defendants is GRANTED. However, the Eighth Amendment claim against Defendants Hatton and Kernan is dismissed with leave to amend to allow Plaintiff an opportunity to provide more facts to support a cognizable claim for relief against these Defendants, as further directed below.
Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to "particular parts of materials in the record"). The court is only concerned with disputes over material facts and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). If the moving party meets this initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If the nonmoving party fails to make this showing, "the moving party is entitled to a judgment as a matter of law." Celotex, 477 U.S. at 323.
A district court may consider only admissible evidence in ruling on a motion for summary judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).
In support of their motion for summary judgment, Defendants Patterson, Brown, Kelley, Khan and Truett have submitted declarations and attached exhibits, including copies of the grievance responses and the Rules Violation Report related to the June 29, 2016 incident at issue. Dkts. 14-2, 14-3, 14-4, 14-5, 14-6; Dkt. 14-3 at 6; Dkt. 14-5 at 6-9; Dkt. 14-6 at 6-16. Attached to Defendant Kelley's Declaration is a copy of the "general chrono regarding the staff sexual misconduct allegation log number CTF-PREA-16-07-019." Dkt. 14-4 at 6. Because the aforementioned documents have been properly authenticated pursuant to Federal Rule of Evidence 803(6), the Court will consider these documents in connection with Defendants' motion for summary judgment. In addition, Defendants have submitted Litigation Coordinator Galvan's declaration and copies of the photographs taken of Plaintiff, which the Court has reviewed and ordered to be filed under seal.
Plaintiff has verified his complaint and declaration
As mentioned above, Plaintiff claims that on June 29, 2016, Defendants Brown and Patterson as well as the two Doe Defendants (Defendants Rodriguez and Salas) subjected him to "cruel and unusual sexual invasion of privacy [and] sexual misconduct" when they forced him to be undergo to an unclothed body search. Dkt. 1 at 3. Furthermore, Defendant Patterson, who is a female officer, was present during the search and took "sexually suggestive photographs" of Plaintiff while he was partially nude. Id. Plaintiff also claims that Defendant Brown laughed at him during the search. Id. at 5. Plaintiff claims that such treatment of inmates has violated his constitutional rights and that female correctional officers are still being allowed to take partially nude photographs of male inmates. Id. at 6. In essence, Plaintiff claims that Defendants sexually harassed him by subjecting him to an unclothed body search as well as by allowing a female correctional officer to take partially nude photographs of him, and that they did so to deliberately embarrassed and humiliated him. Based on these allegations, the Court found that Plaintiff stated a cognizable claim that the aforementioned Defendants violated Plaintiff's Eighth Amendment to be free from cruel and unusual punishment.
As mentioned above, the Eighth Amendment prohibits the infliction of cruel and unusual punishment on prisoners. Hudson, 503 U.S. at 8. Courts considering a prisoner's Eighth Amendment claim must ask: (1) if the officials acted with a sufficiently culpable state of mind, and (2) if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. Id. at 8 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). A prisoner may state an Eighth Amendment claim for sexual harassment if the alleged harassment was sufficiently harmful, and the defendant acted with intent to harm the prisoner. Thomas, 887 F. Supp. at 3-4 (citing Hudson, 503 U.S. at 8). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, even in the absence of significant injury. Hudson, 503 U.S. at 9. And, as explained above, sexual assault, coercion, and harassment certainly may violate contemporary standards of decency and cause physical and psychological harm. See Jordan, 986 F.2d at 1525-31.
Not every malevolent touch by a prison guard or official, however, gives rise to an Eighth Amendment violation—the Eighth Amendment's prohibition against cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of force. Hudson, 503 U.S. at 9-10; Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (no Eighth Amendment violation against officer who was alleged to have rubbed his thigh against plaintiff's thigh while plaintiff was on toilet and to have begun smiling before leaving cell laughing); Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (no Eighth Amendment violation where employees briefly touched inmate's buttocks with apparent intent to embarrass him). A prisoner must therefore establish that the alleged sexual harassment was egregious, pervasive, and/or widespread in order to state an Eighth Amendment claim. Compare Jordan, 986 F.2d at 1525-31 (prison policy requiring male guards to conduct body searches on female prisoners inflicted pain sufficient to violate the Eighth Amendment) and Watson v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (finding Eighth Amendment violation where correctional officer sexually harassed two inmates on almost daily basis for two months by conducting deliberate examination of genitalia and anus) with Green v. Thompson, No. C 10-5721 WHA (PR), 2013 WL 550621, *2 (N.D. Cal. Feb. 12, 2013) (granting defendants' motion for summary judgment on prisoner's Eighth Amendment claim that over the course of three weeks and between one and three times, prison guard grabbed prisoner's buttocks and testicles, and made sexual comments to prisoner because it did not rise to the level of constitutional violation). In comparison, mere verbal sexual harassment does not necessarily amount to an Eighth Amendment violation. Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004) (upholding summary judgment dismissal of Eighth Amendment claim where prison guard exposed himself to prisoner in elevated, glass-enclosed control booth for no more than 30-40 seconds). Lastly, courts must accord prison administrators wide-ranging deference in the adoption and execution of policies and practices to further institutional order and security. Bell v. Wolfish, 441 U.S. 520, 547 (1979); Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001).
Here, the record shows that the ISU received information that Plaintiff and his cellmate were in possession of cellphones, which was confirmed by the cell search and subsequent confiscation because they are considered to be contraband. Brown Decl. ¶¶ 4, 12, Ex. A. Moreover, according to prison regulations, such searches, including "[r]andom or spot-check inspections of inmates," are permitted in prison especially where a reasonable suspicion exists that an inmate may have unauthorized or dangerous items concealed on his person. See Cal. Code Regs. tit. 15, § 3287(b). Overall, the goal of such searches is "to prevent possession and movement of unauthorized or dangerous items and substances into, out of, or within the institution." Id. Moreover, the record shows that the searches of Plaintiff's cell and his person were one of several searches conducted in Plaintiff's housing unit that morning, including a similar search of his cellmate, as mentioned above. Brown Decl. ¶ 13. While Plaintiff seems to "contest[] the possession of the cellphone [D]efendants allege was inside the cell where Plaintiff was assigned," see Pl. Decl. ¶ 14, Plaintiff has not submitted evidence contradicting that the ISU received the aforementioned tip that led to the search. Meanwhile, Defendants have offered evidence that such a search is permitted when correctional staff are searching for illegal contraband. On these facts, Plaintiff has not shown that the unclothed body search was done for the purpose of harassment. Instead, the Court notes that prison regulations allow for such searches in order to further institutional order and security, and as stated above, this Courts must accord prison administrators wide-ranging deference in the adoption and execution of such policies. See Bell, 441 U.S. at 547; Jeffers, 267 F.3d at 917.
Nor do Plaintiff's allegations rise to the level of the egregious, pervasive, and/or widespread conduct necessary to establish an Eighth Amendment violation. Defendants have presented undisputed evidence shows that no Defendant physically touched Plaintiff during the unclothed body search or while Defendant Patterson took photographs of Plaintiff. Defendants' alleged conduct—laughing at Plaintiff during the search—does not rise to the level of pain sufficient to violate the objective component of the Eighth Amendment. See, e.g., Watison v. Carter, 668 F.3d 1108, 1112-13 (9th Cir. 2012) (affirming dismissal of Eighth Amendment claim alleging that guard humiliated inmate when the guard approached the inmate while the inmate was on the toilet, rubbed the inmate's thigh, "began smiling in a sexual [way], and left the cell laughing"); Austin, 367 F.3d at 1171-72 (concluding that claim that a guard exposed himself to inmate while making crude comments was not sufficiently serious to satisfy an Eighth Amendment violation because it was an isolated incident that was short in duration and there was no allegation of physical contact between the guard and the inmate); Somers v. Thurman, 109 F.3d 614, 622-23 (9th Cir. 1997) (holding that female officials' observation of unclothed male inmate, accompanied by "gawking, pointing, and joking" but without physical contact, was not sufficient to meet "objectively harmful" prong of Eighth Amendment test stating, "[t]o 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").
As explained above, Defendants have provided the Court with copies of the photographs taken by Defendant Patterson, which the Court has ordered to be filed under seal. See Galvan Decl. ¶ 8, Ex. A. Specifically, the exhibit includes the photographs Defendant Patterson took of Plaintiff on June 29, 2016, following the unclothed body search. Id. ¶¶ 3-4. Upon conducting a review of the photographs, the Court finds that in all of the photographs except for the ones depicting only the upper portions of Plaintiff's body, it is clear that Plaintiff is wearing boxer shorts. Id., Ex. A. None of the pictures show any part of Plaintiff's genitalia. To the extent Plaintiff argues that the taking of photographs of Plaintiff in his boxer shorts violated the Eighth Amendment, the Court finds that there is an absence of evidence that the taking of photographs was sufficiently harmful such that it violated contemporary standards of decency. See, e.g., Goodrick v. Sandy, No. 1:10-cv-00603-EJL, 2013 WL 5409653, * 10 (D. Idaho Sept. 25, 2013) (granting defendants' motion for summary judgment on prisoner's claim that he was subjected to strip search and photographing of his naked body because claim did not satisfy objective or subjective components of Eighth Amendment), aff'd by Goodrick v. Carlin, No. 13-35923, 616 Fed. Appx. 222 (9th Cir. Sept. 4, 2015) (unpublished memorandum disposition)
Finally, it seems that Plaintiff takes issue with the fact that a female correctional officer (Defendant Patterson) participated in the search and argues that the prison violates the male inmates' constitutional rights by "continuing to use female staff to conduct unsecure, non-emergency strip searches of male inmates (cross-gender)." Dkt. 1 at 5. However, by itself, "[c]ross-gender searches cannot be called inhumane and therefore do[] not fall below the floor set by the objective component of the [E]ighth [A]mendment." Somers v. Thurman, 109 F.3d 614, 623 (9th Cir. 1997) (quoting Johnson v. Phelan, 69 F.3d 144, 150-51 (7th Cir. 1995)). In contrast, the Ninth Circuit has upheld a district court's finding that there was sufficient "infliction of pain" to trigger the Eighth Amendment in a cross-gender search case with exacerbating circumstances. See Jordan, 986 F.2d at 1525-27. In Jordan, the Ninth Circuit relied upon several facts that, combined with the policy of a clothed pat down search, was sufficient to support a finding of "infliction of pain" capable of satisfying the objective component of the Eighth Amendment. Specifically, the evidence in Jordan showed that female inmates were forced to undergo clothed, intrusive, pat down searches conducted by male prison officials; there were physical, emotional, and psychological differences between men and women; and some of the women subject to search were women who had been physically and sexually abused in the past. In sum, the Ninth Circuit recognized that the evidence in Jordan showed that the female inmates had certain vulnerabilities that would cause a cross-gender pat down search to exacerbate pre-existing mental conditions which could cause severe psychological trauma. Id.
The unclothed body search at issue in instant matter is distinguishable from the pat down searches in Jordan. Viewing the facts in the light most favorable to Plaintiff, the June 29, 2016 incident was the only time these specific Defendants ordered Plaintiff to submit to an unclothed body search. Defendants claim that the search took approximately one minute, while Plaintiff asserts it was longer than one minute. However, the record does not indicate that the search lasted for an inordinate amount of time. Furthermore, Plaintiff has not come forth with supporting evidence showing that he suffered from any pre-existing condition that would have been exacerbated by the unclothed body search.
In sum, the Court finds Plaintiff has failed to create a genuine issue of material fact as to whether Defendants' actions during the June 29, 2016 unclothed body search violated Plaintiff's Eighth Amendment rights. Accordingly, the Court GRANTS Defendants' motion for summary judgment on the merits as to Plaintiff's Eighth Amendment claim against Defendants Brown and Patterson, who are the served Defendants.
Defendants claim, in the alternative, that qualified immunity would protect them from liability. Dkt. 14 at 29-31.
"Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The issue of qualified immunity generally entails a two-step process, which requires the court to determine first whether the defendant violated a constitutional right, and then to determine whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court modified the Saucier test and "gave courts discretion to grant qualified immunity on the basis of the `clearly established' prong alone, without deciding in the first instance whether any right had been violated." James v. Rowlands, 606 F.3d 646, 650-51 (9th Cir. 2010) (discussing Saucier standard after Pearson). The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202; see, e.g., Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002) (court may grant qualified immunity by viewing all of the facts most favorably to plaintiff and then finding that under those facts the defendants could reasonably believe they were not violating the law). In the instant case, the Court has concluded that Plaintiff's constitutional rights were not violated. Thus, viewing the record in the light most favorable to Plaintiff, Defendants prevail as a matter of law on their qualified immunity defense because the record establishes no Eighth Amendment violation. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
However, even if a constitutional violation occurred with respect to Plaintiff's June 29, 2016 unclothed body search, Defendants argue that they remain entitled to qualified immunity as to the Eighth Amendment claim. Dkt. 14 at 31. Defendants argue that "[a]t the time of the search on June 29, 2016, it was clearly established that cross-gender observation of a strip search by prison personnel, at least in cases where there were no allegations of physical contact or other harassing behavior, does not violate the Constitution." Id. (citing Morris v. CDCR, Case No. 16-cv-5547, 2017 WL 2494654 (C.D. Cal. Mar. 3, 2017); Malo v. Hernandez, Case No. 13-cv-01781-SJO, 2014 WL 7246730, (C.D. Cal. Dec. 18, 2014); Carlin v. Manu, 72 F.Supp.2d 1177 (D. Oregon 1999); Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997) (holding that strip searches conducted within view of female staff are generally permissible); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (holding that visual body cavity searches "involving no touching" are reasonable); Grummett v. Rushen, 779 F.2d 491, 493 n.1 (9th Cir. 1985) (declining to reach Plaintiff's Eighth Amendment challenge to strip search observed by female prison guards because it did not involve "the type of shocking and barbarous treatment protected against by the [E]ighth [A]mendment.").
The Court agrees with Defendants. In light of clearly established principles at the time of the incident, Defendants could have reasonably believed that their conduct of subjecting Plaintiff to an unclothed body search was lawful, especially after they received a tip that Plaintiff may be in possession of contraband. See Bell, 441 U.S. at 561 (prisoners may be subjected to strip searches and body cavity searches); Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985) (routine pat-down searches which include the groin area, even when performed by guards of the opposite sex, do not violate a prisoner's constitutional rights). In addition, district courts within the Ninth Circuit have generally found no Eighth Amendment violation from a prisoner's claim that officials conducted an unclothed body search without physical contact or took nude photographs. See, e.g., Dawson v. Beard, No. Case No. 1:15-cv-01867 DLB, 2016 WL 1137029, *5 (E.D. Cal. March 23, 2016) (report and recommendation dismissing prisoner's Eighth Amendment claim that two unclothed body searches, one of which was in front of inmates and female officers, for failure to state a claim); Wilson v. Soto, Case No. CV 15-9546-PSG (JPR), 2016 WL 825194, *4-*5 (C.D. Cal. Jan. 21, 2016) (report and recommendation dismissing with leave to amend prisoner's claim that prison officials violated Eighth Amendment when prisoner was forced to strip naked and submit to a cavity search in the prison yard in front of inmates, female and male guards, and some guards pointed and laughed); Goodrick, 2013 WL 5409653, *10 (granting defendants' motion for summary judgment on prisoner's claim that he was subjected to strip search and photographing of his naked body because claim did not satisfy objective or subjective components of Eighth Amendment); Carroll v. Read, No. CV 10-6964-CJC (DTB), 2013 WL 1858866, * (C.D. Cal. Jan. 31, 2013) (report and recommendation dismissing for failure to state an Eighth Amendment claim prisoner's allegation that prison official conducted an unclothed body search on plaintiff, and ordered plaintiff to expose his buttocks to them two separate times because prisoner's claim showed nothing more than a minimal or momentary discomfort); Blacher v. Johnson, No. 1:12-cv-01159 GSA PC, 2012 WL 12906134, *2 (E.D. Cal. Sept. 7, 2012) (report and recommendation dismissing prisoner's Eighth Amendment claim that female correctional officers smirked or were condescending when prisoner was subjected to unclothed body search).
Accordingly, Defendants are entitled to qualified immunity, and their motion for summary judgment will be GRANTED on this ground as well.
Summary judgment may be properly entered in favor of unserved defendants where (1) the controlling issues would be the same as to the unserved defendants, (2) those issues have been briefed, and (3) Plaintiff has been provided an opportunity to address the controlling issues. Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802-03 (9th Cir.) (citing, inter alia, Silverton v. Dep't of the Treasury, 644 F.2d 1341, 1345 (9th Cir 1981)), cert. denied, 516 U.S. 864 (1995).
As mentioned above, two recently-named Doe Defendants have not been served and have not joined the other Defendants in their motion for summary judgment. The unserved Defendants in this case are Defendants Rodriguez and Salas. It is apparent, however, that the claims against the unserved Defendants are without merit and subject to summary adjudication. The allegations against the unserved Defendants in Plaintiff's original complaint are the same as those against the served Defendants. Specifically, Plaintiff's allegations relating to his Eighth Amendment claim against Defendants Rodriguez and Salas are the same claim as against the served Defendants. There is no suggestion in the complaint, the exhibits attached thereto, or in the briefs and exhibits filed in connection with the present dispositive motion, that the analysis differs with respect to the unserved Defendants as opposed to the served Defendants. Accordingly, Defendants Rodriguez and Salas are entitled to summary judgment as a matter of law as to the Eighth Amendment claim against them.
Plaintiff has filed a motion for appointment of counsel. Dkt. 21. Plaintiff requests the Court appoint counsel based upon the following: the complexity of the case; his imprisonment greatly limits his ability to litigate; he is unable to afford counsel; he has no legal education; and the appointment of counsel would "better enable Plaintiff to present evidence and cross-examine witnesses." Id. at 2. However, there is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social Servs., 452 U.S. 18, 25 (1981). 28 U.S.C. § 1915 confers on a district court only the power to "request" that counsel represent a litigant who is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). This does not give the courts the power to make "coercive appointments of counsel." Mallard v. U.S. Dist. Court, 490 U.S. 296, 310 (1989).
The Court may ask counsel to represent an indigent litigant under Section 1915 only in "exceptional circumstances," the determination of which requires an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under section 1915. Id. Neither the need for discovery, nor the fact that the pro se litigant would be better served with the assistance of counsel, necessarily qualify the issues involved as complex. Rand, 113 F.3d at 1525 (where plaintiff's pursuit of discovery was comprehensive and focused and his papers were generally articulate and organized, district court did not abuse discretion in denying request for counsel).
Because Plaintiff has adequately presented his claims and the Court has granted Defendants' dispositive motion as to Plaintiff's Eighth Amendment claim as well as allowed the parties to file briefs addressing Plaintiff's Fourth and Fourteenth Amendment claims, there are no exceptional circumstances presented requiring appointment of counsel. Accordingly, Plaintiff's motion for appointment of counsel is DENIED. Dkt. 21.
For the reasons outlined above, the Court orders as follows:
1. Plaintiff's motion to amend the complaint and motion for service of process are GRANTED. Dkts. 16, 17. ISU Correctional Sergeant S. Rodriguez and ISU Correctional Officer R. Salas are added as Defendants. The Court orders service of process on these newly-added Defendants, and the Clerk shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint (dkt. 1) and all attachments thereto, a copy of the Court's January 5, 2018 Order of Service (dkt. 7), Plaintiff's motion to amend the complaint (dkt. 16), and copies of this Order as well as the concurrently-filed "Order Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion" on:
2. The Court GRANTS Defendants' motion for administrative relief to file certain documents under seal. Dkt. 15. With respect to Defendants' dispositive motion, the Clerk is instructed to maintain under seal the following: Confidential Exhibit A, which is attached to the declaration of Litigation Coordinator Galvan in support of Defendants' Administrative Motion for an Order to File Confidential Documents Under Seal. The foregoing material shall be maintained under seal and not entered individually on the docket until the conclusion of this case and any appellate proceedings, after which time they should be returned to defense counsel upon timely request.
3. Defendants' motion to dismiss is GRANTED. Dkt. 14. The claims against Defendants in their official capacities and the claim for punitive damages are DISMISSED with prejudice.
The Eighth Amendment claim against Defendants Khan, Kelley and Truett is DISMISSED without leave to amend and with prejudice.
The Eighth Amendment claim against Defendants Kernan and Hatton is DISMISSED with leave to amend. If Plaintiff believes he can provide sufficient facts from which it can be inferred that Defendants Kernan and Hatton are liable under Section 1983, Plaintiff must file an amendment to the complaint no later than
4. Defendants' motion for summary judgment relating to the Eighth Amendment claim is GRANTED on the merits and based on qualified immunity as to served Defendants Brown and Patterson and as to unserved Defendants Rodriguez and Salas. Judgment will not be entered at this time, however, because there remain other claims that must be litigated. A single judgment will be entered after that is done.
5. By separate and concurrently-filed Order, the Court has reviewed the complaint and determined that it previously overlooked Plaintiff's Fourth and Fourteenth Amendment claims. See Order Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion. Thus, the portion of this Order granting Defendants' motion for summary judgment is limited to Plaintiff's Eighth Amendment claim.
6. Plaintiff's motion for appointment of counsel is DENIED. Dkt. 21.
7. This Order terminates Docket Nos. 14, 15, 16, 17, and 21.
