SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Fateem L. Jackson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 27, 2007. This action for damages is proceeding on Plaintiff's amended complaint, filed on June 24, 2008, against Defendants Selbach, Rubin, Ortiz, Payan, Pantoja, Wood, Yoder, Fernandez, Carrasco, and Zanchi on Plaintiff's Fourth and Fourteenth Amendment claims arising out of cross-gender strip searches at California Correctional Institution (CCI) in Tehachapi, California.
On April 18, 2011, Plaintiff filed a motion for summary judgment. After obtaining an extension of time, Defendants Selbach, Rubin, Payan, Pantoja, Wood, Yoder, Carrasco, and Zanchi (Defendants) filed an opposition and a cross-motion for summary judgment.
Any party may move for summary judgment, and 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. Fed. R. Civ. P. 56(a) (quotation marks omitted);
In resolving cross-motions for summary judgment, the Court must consider each party's evidence.
In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence,
Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation and he was incarcerated at CCI from January 29, 2004, to August 30, 2007. While at CCI, Plaintiff was housed in Facility IVA, a maximum security general population yard. All inmates housed in Facility IVA, including Plaintiff, were classified as Level IV inmates, which is the highest security classification within the California prison system.
The following documented incidents occurred on Facility IVA at CCI. On July 5, 2005, a correctional officer was assaulted by an inmate. On November 29, 2005, an inmate was the victim of a stabbing by another inmate. On December 14, 2005, two inmates assaulted two correctional officers. On December 28, 2005, a plan was revealed by an anonymous informant that a major prison gang was planning to assault correctional staff. On February 11, 2006, four inmates assaulted three correctional officers. On October 7, 2006, an inmate attempted to murder a correctional officer with an inmate-manufactured stabbing weapon in the dining hall during yard release. On November 26, 2006, an anonymous note was discovered with a list of inmates and correctional officers targeted for an assault by a major prison gang. On December 5, 2006, an inmate was attacked by another inmate with a concealed weapon. On May 21, 2007, another anonymous note was discovered that identified several members of a major prison gang planning an assault on correctional officers. On June 19, 2007, a search of the library revealed numerous concealed weapons. Finally, on April 3, 2008, two inmates attempted to murder two correctional sergeants and one correctional officer in the IVA Unit Office using stabbing weapons.
Prior to October 2006, the inmates in CCI's Facility IVA were routinely searched in their boxer shorts and socks. These searches failed to prevent inmates from moving weapons out of their cells to various parts of the facility. After a number of violent incidents involving inmate manufactured weapons, including the attempted murder of a correctional officer in October 2006, it became known that Facility IVA inmates were hiding weapons in the lining of their boxer briefs or other clothing items, necessitating the unclothed body searches to prevent the movement of weapons and the ongoing violent attacks at Facility IVA. Because of the ongoing serious incidents of violence in Facility IVA, the ongoing presence of inmate-manufactured weapons discovered in the facility, and the heightened concern toward preventing the movement of weapons in that facility, in approximately October 2006, CCI implemented unclothed body searches for Facility IVA inmates entering and exiting the housing unit. These searches were the only practical means of preventing inmates from concealing weapons and other contraband inside and beneath their underwear and other clothing items. Metal detectors were an insufficient means of inspection as many prison weapons are made out of non-detectable substances such as plastic.
The unclothed body searches did not involve staff touching inmates but they included visual body cavity searches, and they were conducted whenever inmates entered or exited the Facility IVA housing unit. As part of CCI's unclothed body search policy at Facility IVA, under normal circumstances, male correctional officers performed the visual inspection of the inmates' bodies to ensure the inmates were not concealing weapons or other contraband, and female officers assigned to that facility typically provided security coverage and alarm response, and inspected inmates' clothing items.
Officers conducting the searches were separated from the inmates by a dining room table. There were six tables in the dining hall and six inmates were searched at a time, one inmate per table. Two correctional officers staffed each table, and one or two correctional officers would provide defensive cover from positions above. At each table, one correctional officer would conduct the visual search of the inmate while the other correctional officer would inspect the inmate's clothing from several feet away.
The searches lasted approximately 30 to 45 seconds from the inmate's arrival at the search area until the search was completed and the inmate left the area, depending on the amount of clothing and personal items in the inmate's possession at the time of the search. During the unclothed body search, an officer would give the inmate directions, referred to here as search directives. Once nude, inmates were instructed to raise their hands; open their mouths and waggle their tongues; flap the backs of their ears and hair; lift their genitals; turn around and lift their feet; bend over; and spread their buttocks, squat, and cough three times. (Amend. Comp., ¶28 n.8; Depo., 19:1-6.) In addition, some staff would instruct inmates with uncircumcised penises to pull the foreskin back. (Doc. 52, Jackson Dec., ¶5.)
Facility IVA is staffed by both male and female correctional staff. There were approximately twenty (20) to twenty-five (25) officers present during the Facility IVA unclothed body searches. To prohibit female staff from participating in these body searches would inhibit the ability to provide security to inmates and staff on Facility IVA, and an attempt to reassign female staff to other posts would impose a significant hardship. Typically, there were not enough male correctional officers assigned to Facility IVA to perform all the necessary functions required during the body searches.
There were also serious concerns regarding violation of correctional staff's union rights if staff were not permitted to bid on and work particular posts due to their sex/gender. Under the collective bargaining agreement, correctional staff were permitted to bid on particular posts (assignment in a particular facility) based on their seniority. Thus, denying female correctional staff the opportunity to bid on and accept a post in Facility IVA would violate their rights under the collective bargaining agreement. Further, the California Department of Corrections and Rehabilitation and CCI are equal employment opportunity employers, giving rise to concerns that the reassignment or removal of female correctional staff from their assigned posts based on their sex/gender might lead to noncompliance with the applicable laws regarding sex/gender discrimination.
Defendants Pantoja, Payan, Rubin, Selbach, Wood, and Yoder were female correctional officers at CCI during the relevant time period, and they were present for or involved in the unclothed body searches at issue on one or more occasions between May 20, 2007, and August 30, 2007, as described below. They did not play any role in the decision to implement the unclothed body search policy at CCI. Neither Defendant Zanchi nor Defendant Carrasco was present during any of the unclothed body searches, but they held supervisory positions at CCI.
On May 20, 2007, Defendants Pantoja and Wood were present during an unclothed body search of inmates during yard recall. (Amend. Comp., ¶28; Depo., 36:2-38:1, 52:7-20; Jackson Dec., ¶10.) Defendants Pantoja and Wood were approximately two to four feet away from Plaintiff, searching other inmates' clothing at the table next to Plaintiff, while a male officer was giving the search directives. (Amend. Comp., ¶28; Depo., 36:2-38:1, 52:7-20; Jackson Dec., ¶10.) During the search, Defendant Selbach, who was armed, was in the building 3 gun tower no more than approximately fifteen feet away, directly observing the searches. (Amend. Comp., ¶28; Depo., 26:14-27:5, 48:13-49:9; Jackson Dec., ¶10.)
On June 27, 2007, Defendant Yoder was searching clothing at the table next to Plaintiff's table, approximately three feet away, and Defendant Selbach was directly observing the search from the gun tower.
On July 2, 2007, Defendant Zanchi issued a memorandum directing custody staff to conduct unclothed body searches on inmates leaving for and returning from their educational and work assignments.
On July 17, 2007, Plaintiff sought counseling/therapy from the institutional clinical psychologist for the anxiety he experienced as a result of the strip searches.
On July 24, 2007, Defendant Selbach gave Plaintiff the search directives and searched his clothing while two male officers jeered and chuckled at Plaintiff and other inmates.
On July 25, 2007, Defendant Rubin gave Plaintiff the strip search directives, which included pulling back the foreskin of his penis, and searched his clothing.
On August 1, 2007, Defendant Selbach was positioned in the gun tower, observing the searches. (Amend. Comp., ¶44; Depo., 50:5-14; Jackson Dec., ¶19.)
On August 22, 2007, Defendant Payan gave Plaintiff the strip search directives while a male officer searched his clothing. (Amend. Comp., ¶46; Depo., 40:20-41:8; Jackson Dec., ¶20.)
On August 24, 2007, Defendant Rubin was stationed in the gun tower during yard recall and release, directly observing the searches.
Finally, on August 29, 2007, Defendant Selbach gave Plaintiff the search directives and searched his clothing while Defendant Payan was searching inmates' clothes two tables away. (Amend. Comp., ¶48; Depo., 43:11-24, 47:13-22, 50:15-20; Jackson Dec., ¶¶22, 23.)
On August 30, 2007, Plaintiff was transferred from CCI to Centinela State Prison. (Amend. Comp., ¶49; Depo., 5:22-24.)
In its screening order, issued prior to the transfer of this case to the undersigned, the Court framed Plaintiff's claims as seeking relief for violation of the Fourth Amendment's prohibition on unreasonable searches and the Fourteenth Amendment's right to privacy. In his amended complaint, Plaintiff alleges a Fourth Amendment privacy claim and a Fourteenth Amendment substantive due process claim. (Amend. Comp., 20:3-4 & 21:26-28.) In his deposition testimony and in moving for summary judgment, Plaintiff reiterates those bases for his claims. (Depo., 33:10-14; Motion, p. 1.) Accordingly, the Court treats Plaintiff's Fourteenth Amendment claim as brought for violation of the substantive component of the Due Process Clause, while Plaintiff's challenge to the reasonableness of the searches and to the invasion of his right to bodily privacy is brought under the Fourth Amendment.
The touchstone of due process is protection of the individual against arbitrary government action, whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.
Plaintiff's legal claims arise from the same set of facts, which involves strip searches conducted in the presence of, and on occasion by, female correctional officers. The Fourth Amendment protects Plaintiff from unreasonable searches and in analyzing the reasonableness of Fourth Amendment searches, the Ninth Circuit recently again recognized as longstanding "the desire to shield one's unclothed figure from the view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity."
Plaintiff and Defendants filed cross-motions for summary judgment seeking judgment as a matter of law on the merits of Plaintiff's Fourth Amendment claim. In addition, Defendants seek a determination that they are entitled to qualified immunity.
The Fourth Amendment prohibits only unreasonable searches.
Here, Plaintiff challenges not the general strip search policy initiated in 2006 or the reasonableness of the strip searches if conducted by a male officer. Rather, Plaintiff challenges the cross-gender nature of the routine, non-emergency strip searches when conducted by female officers or in the presence of female officers, in violation of his right to bodily privacy.
Qualified immunity is "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."
Qualified immunity shields government officials from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."
In resolving a claim of qualified immunity, courts must determine whether, taken in the light most favorable to the plaintiff, the defendant's conduct violated a constitutional right, and if so, whether the right was clearly established.
"For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right."
In 1985, the Ninth Circuit considered the claim by male inmates that female officers were viewing them partially or totally nude while dressing, showering, being strip searched, or using the toilet, in violation of their right to privacy.
In 1988, the Ninth Circuit considered a challenge to frequent, routine strip searches on the grounds that they were unreasonable and that they violated inmates' right to privacy because they were conducted within the view of female officers.
In
In 1992, the Ninth Circuit considered a female parolee's claim that a male parole officer violated her right to bodily privacy by entering the bathroom stall and observing her provide a urine sample while she was partially nude and seated on the toilet.
Then, in 1997, the Ninth Circuit considered a Fourth Amendment claim arising out of cross-gender strip searches in which, as here, female officers directly participated.
The district court found that the female officers violated the inmate's clearly established constitutional rights and the court denied them qualified immunity.
Relying on the
It bears repeating that "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgment about open legal questions."
The Ninth Circuit's most recent decision in
Nevertheless, the
Accordingly, the Court finds that Defendants are entitled to qualified immunity on Plaintiff's Fourth Amendment claim against them. As a result of this finding, the Court recommends that Plaintiff's motion for summary judgment on the merits be denied.
For the reasons set forth above, the Court HEREBY RECOMMENDS that:
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
IT IS SO ORDERED.
Nothing in the record provides any basis to find that Plaintiff attempted to create a disputed issue of fact through a sham declaration issued after his deposition.
As with the other searches in question, Defendants submit no evidence that Defendant Rubin was not stationed in the guard tower on August 24, 2007, as Plaintiff alleges. Therefore, the Court accepts as undisputed Plaintiff's evidence that Defendant Rubin was on duty in the guard tower on that date.
