The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS'
MOTION TO DISMISS BE GRANTED, WITH PREJUDICE, FOR FAILURE TO STATE
CLAIM, BASED ON THE DOCTRINE OF RES JUDICATA (Doc. 40.)
OBJECTIONS, IF ANY, DUE IN 30 DAYS
Latanya Cramer ("Plaintiff"), CDC#W-96158, a state prisoner proceeding pro se, filed this civil rights action on March 17, 2008. (Doc. 1.) This case now proceeds on Plaintiff's Fifth Amended Complaint filed on September 15, 2011, against defendants S. Dickinson and Patricia A. Johnson ("Defendants"), for conducting a cavity search in violation of the Fourth Amendment and the Eighth Amendment. (Doc. 35.)
On November 4, 2011, Defendants filed a motion to dismiss Plaintiff's claims under Rule 12(b)(6), based on the grounds that the doctrine of res judicata bars this lawsuit. (Doc. 40.) Plaintiff filed an opposition to the motion on December 3, 2012. (Doc. 64.) Defendants filed a reply to the opposition on December 5, 2012. (Doc. 65.)
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS
This action now proceeds with the Fifth Amended Complaint against defendants C/O S. Dickinson and Nurse P. A. Johnson, for forcefully removing Plaintiff's clothing and forcefully conducting a cavity search on her without any reason to believe she had contraband, in violation of the Fourth and Eighth Amendments. Plaintiff alleges as follows:
On December 19, 2005 at Valley State Prison for Women ("VSP") in Chowchilla, California, C/O S. Dickinson searched Plaintiff for contraband, without any reasonable suspicion.*fn1 C/O
Dickinson checked Plaintiff's pockets, which were empty, then took Plaintiff to the restroom to conduct a strip search. C/O Dickinson directed Plaintiff to "cough and squat," and Plaintiff complied. This examination, which showed Plaintiff did not have any contraband, should have been sufficient. (The "cough and squat" procedure is used for California inmates' strip searches, and if there is still suspicion of contraband, they are placed on "potty watch" and never given an invasive cavity search.) Plaintiff cooperated and was courteous and respectful. Plaintiff was allowed to get dressed, then handcuffed, and C/O Dickinson roughed her up. Plaintiff consented to have an x-ray taken, because it would be non-invasive, and she was escorted to the infirmary. There, C/O Dickinson whispered in Nurse Johnson's ear. Then C/O Dickinson and Nurse Johnson forced Plaintiff to bend over and pulled down her clothing. C/O Dickinson told Plaintiff not to refuse or she would get hurt. Although Plaintiff protested, Plaintiff was subjected to an invasive cavity search by Nurse Johnson, without a warrant. C/O Dickinson laughed and boasted, "It can happen again." Fifth Amd Cmp, Doc. 35 at 6. Plaintiff was intimidated and humiliated.
Plaintiff proceeds on a Fourth Amendment claim for unreasonable search, and an Eighth Amendment Claim for deliberate indifference.
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which 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). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 679; Moss, 572 F.3d at 969. 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 ...