The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIM
Plaintiff Chauncey Hollis, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 2, 2008. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted."
28 U.S.C. § 1915(e)(2)(B)(ii).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949. By order filed March 24, 2009, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. After obtaining an extension of time, Plaintiff timely filed a first amended complaint on May 26, 2009.
II. Summary of Plaintiff's First Amended Complaint
Plaintiff is currently confined at Central Valley Modified Community Correctional Facility in McFarland, California. The events giving rise to this action occurred at California Correctional Facility ("CCI") in Tehachapi, at Desert View Modified Community Correctional Facility ("Desert View MCCF") in Adelanto, and at the California Institute for Men ("CIM") in Chino. Plaintiff seeks money damages and equitable relief.
A. Visual Body Cavity Search
Plaintiff alleges that on October 23, 2008, a search was conducted in Building One, which included strip searches of all inmates. Plaintiff alleges that for inmates in his tier, the procedure involved strip searches of the inmates at their cell. Plaintiff states that he complied with the order to submit to a visual body cavity search. Plaintiff was then told to go to the recreation yard. As he was walking to the basketball court, defendant Sweeney, who is female, ordered Plaintiff to stop and strip. Plaintiff contends that she ordered Plaintiff to submit to a second visual body cavity search despite being informed by Plaintiff that one had just been conducted. Plaintiff contends that he complied with the order but that defendant Sweeney then threatened to have officers shoot Plaintiff if he did not comply more fully. Plaintiff alleges that he was ordered to submit to a second search by defendant Sweeney. Once the search was completed to defendant Sweeney's satisfaction, Plaintiff was ordered to sit on the rocks near the basketball court. Plaintiff alleges that he was not permitted to use the toilet and that he subsequently urinated on himself. Plaintiff further alleges that the cuffs were too tight and that his legs, buttocks and arms became numb after sitting for two hours on rocks.
Plaintiff seeks relief from defendant Sweeney for violation of the Fourth Amendment, Eighth Amendment, and the Equal Protection Clause of the Fourteenth Amendment.*fn1
Plaintiff contends that search of the Building was in response to a fist fight between two inmates occurring six days earlier. Plaintiff alleges that defendants Director of Corrections ("Director") and Warden Gonzalez are liable for having authorized a plan to conduct strip searches of the inmates using both female and male officers.
The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections extend to incarcerated prisoners. Bell v. Wolfish, 441 U.S. 520, 545 (1979). In determining the reasonableness of a search under the Fourth Amendment, "[c]courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id at 559. The reasonableness of a prisoner search is determined by reference to the prison context and strip searches that are excessive, vindictive, harassing or unrelated to any legitimate penological interest may not be reasonable. Michenfelder v. Sumner, 860 F.2d 328 at 332 (9th Cir. 1988). "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 79 (1987).
The Ninth Circuit has not yet held that a cross-gender search in a prison setting violates a prisoner's rights under the Fourth Amendment. Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (high potential for female guards to view male inmates disrobing, showering, and using toilet facilities did not render prison policies unconstitutional); Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir. 1993); Somers v. Thurman, 109 F.3d 614, 620 (9th Cir. 1997). Rather, a prisoner's legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir. 1993); see also Michenfelder, 860 F.2d at 328 (visual body-cavity searches of male inmates conducted within view of female guards held constitutional).
Plaintiff contends that the search conducted by defendant Sweeney was repetitive and harassing. Under the minimal federal notice pleading standard, Plaintiff's allegations that defendant Sweeney ordered Plaintiff to submit to a second visual body cavity search despite having knowledge that a search had just been conducted, and that she threatened to have Plaintiff shot during the search, are sufficient to state a cognizable Fourth Amendment claim against her. However, Plaintiff's claims are insufficient to state a viable claim against defendants Director and Gonzalez. Their approval of a plan that allows for visual body searches by ...