The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (Doc. 14) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
Findings and Recommendation Following Notice By Plaintiff
Plaintiff Chauncey Hollis ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on December 2, 2008. On March 23, 2009, the Court dismissed the complaint with leave to file an amended complaint within thirty days. On May 26, 2009, after receiving an extension of time, Plaintiff filed his first amended complaint. On October 14, 2009, the Court screened the first amended complaint and found that it stated a cognizable claim against Defendant Sweeney for violation of the Fourth Amendment, and against Defendant Gonzales for retaliation in violation of the First Amendment, but failed to state any other cognizable claims. The Court ordered Plaintiff either to file a second amended complaint, curing the deficiencies identified, or notify the court of his willingness to proceed only against Defendant Sweeney or Defendant Gonzales. On November 16, 2009, Plaintiff notified the Court he did not wish to amend and is willing to proceed only against Defendant Sweeney. Accordingly, the Court issues the following Findings and Recommendation.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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 conclusions are not. Id. at 1949.
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, 986 F.2d at ...