The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND CERTAIN DEFENDANTS WITHOUT LEAVE TO AMEND ORDER GRANTING PLAINTIFF LEAVE TO AMEND THE 42 U.S.C. § 1983 CLAIM
Plaintiff Benny Shantel Hunter ("Plaintiff"), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 13, 2009. He names Bakersfield police officers Peter Beagley, Brent Stratton, Jeffery Martin, Ryan Kroeker, and Scott Thatcher, along with Does 1-50, as Defendants. His complaint arises out of an incident on October 4, 2009.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
B. Failure to State a Claim
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
In his complaint, Plaintiff alleges that on October 4, 2009, he was visiting the Western Nights Motel when the Bakersfield Police "rolled in and came running up the stairs to room 225." Complaint, p. 6. Plaintiff was standing by the stairs as they passed. However, Officer Paiz stopped Plaintiff and asked if he "had any illegal drugs." Plaintiff responded "with affirmative" that he "had some weed" and then Office Paiz asked him to "consent to a search in which [he] did not agree." Complaint, p. 6. Officer Paiz allegedly placed Plaintiff in handcuffs and arrested him for less than an ounce of marijuana.
Plaintiff further alleges that he was not aware until October 23, 2009, that Defendant Officer Peter Beagley claimed that he received a telephone call from a Confidential Reliable Informant on October 4, 2009, that the informant observed "several subjects selling what she/he [believed] to be Cocaine," that the informant described the subjects and that the informant advised that the suspects were concealing the suspected Cocaine Base in their buttocks." Complaint, p. 6-7.
Plaintiff contends that Defendants did not have probable cause to arrest him or reasonable suspicion to perform a cavity search incident to arrest. Plaintiff alleges that Defendants placed him in a chair for about 45 minutes and came back to do a second (cavity) search of Plaintiff. Plaintiff asserts that he protested and that Defendants Sgt. Thatcher, Officer Stratton and Officer Martin snatched him out of the chair, took him to room 225, commenced striking him and demanded that he submit to a cavity search. Plaintiff contends that he was held down and stripped from the waist down.
Plaintiff cites what he purports is Bakersfield Police Department Rules of Conduct and a draft strip search policy. Plaintiff appears to assert two claims: (1) violation of the Fourth Amendment to the United States Constitution; and (2) cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution "in that he was subject to lost [sic] of his liberty and endured irreparable damage physically and mentally via shackled, imprisoned and accused of a crime." However, Plaintiff also asserts that he seeks redress for violations of the California Constitution, Article 1, sections 7 and 13, and California Penal Code § 236.
Plaintiff seeks compensatory and punitive damages in the total ...