ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 132
NANDOR J. VADAS, Magistrate Judge.
Plaintiffs are inmates in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). They complain of incidents that began in 2006 when they were housed at the Correctional Training Facility at Soledad, California. They allege that defendant E. Abanico, a correctional officer, violated their rights under the Eighth Amendment by sexually assaulting them under the guise of performing routine clothed full-body searches. They allege that defendant B. Curry, the warden, also violated their Eighth Amendment rights when he allowed Abanico to continue performing the searches despite widespread complaints that Abanico's conduct was inappropriate. Plaintiff Trask further alleges that Defendants retaliated against him for filing grievances complaining of Abanico's conduct, in violation of his rights under the First and Fourteenth Amendment.
Defendants move for summary judgment only as to plaintiffs Trask, Huff, Morris and Jones, arguing that their recent deposition testimony demonstrates that their claims are meaningless; they also move for summary judgment as to Trask's retaliation claim on the ground it is barred by res judicata.  Oral argument was heard on August 1, 2013.
Summary judgment is appropriate only when 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). An issue is "genuine" only if there exists sufficient evidence that would allow a reasonable finder of fact to find for the non-moving party; a dispute is "material" only if it could affect the outcome of the action under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the record "taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsuhita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Inferences drawn from the evidence must be viewed in the light most favorable to the non-moving party. Eastman Kodak Co. v. Image Technical Svcs., Inc., 504 U.S. 451, 456 (1992).
A. Claims Based On Abanico's Full Body Searches.
All parties agree that correctional officers are required to check an inmate's entire body, including his groin, during body searches. CDCR trains its employees to search for contraband in the following manner:
"Using the palm side of your left hand, check the hip area and high into the left groin area. Your left hand simultaneously searches the left rear hip and buttock area. Using a firm touch continue searching down the left leg to the foot." The officer then repeats this procedure for the inmate's right side. While searching an inmate's groin, one officer is also directed to "cup the groin and check for contraband." While an inmate's scrotum should not be squeezed, failing to pat-down an inmate's groin during a clothed body search is an insufficient search.
Doc. No. 132 at 4 (quoting CDCR Body, Cell, Area and Grid Search Student Workbook).
Abanico contends that he followed proper procedure. He admits that he patted down Plaintiffs' "rear pockets, and  pass[ed his] hand in a sweeping motion from the inner thigh across the groin in order to check that area for contraband." Doc. No. 132 at 5 (quoting previously-filed Abanico Declaration).
Plaintiffs describe Abanico's searches as far more than "pass[ing the] hand in a sweeping motion" across the groin. Trask testified that Abanico spent three to four seconds searching his groin; that Abanico would squeeze and caress his scrotum and his penis roughly for two to three seconds; and that sometimes, after the searches, Trask experienced pain in his scrotum. Ex. 139 at 26-27, 43. Plaintiff Huff testified that Abanico "grabbed" his genitalia and "held them momentarily like a second or two and it was real firm and hard." Ex. 133-2 at 14; see also id. at 17-18, 53 (describing Abanico's search as more aggressive than that of other officers, and deviating from CDCR regulations). Plaintiff Morris testified that Abanico's searches were long enough and hard enough to inflict pain in the groin, and that Abanico "pinched the head of [his] penis." Ex. 133-3 at 14, 17-19. Plaintiff Jones testified that Abanico "grabbed [his] dick" for two to three seconds. Ex. 133-4 at 10.
Defendants are mistaken when they argue that the allegations "concern nothing more than an officer conducting routine body searches in accordance with prison policy." Doc. No. 132 at 11. In the light most favorable to Plaintiffs, a reasonable jury could conclude that Abanico did not follow the search protocols and repeatedly inappropriately touched the Plaintiffs. Moreover, Defendants admit that "an inmate's scrotum should not be squeezed" during the searches ( see supra ), but fail to address the testimony by the individual Plaintiffs that Abanico did squeeze their scrotums and/or their penises. Sexual abuse of prisoners violates the Eighth Amendment. See Schwenck v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Plaintiffs have alleged, and provided evidence that, Abanico's touching was repetitive, was widespread, and was severe enough to cause two of them pain. Whether the conduct rises to the level of an Eight Amendment violation must be resolved by a jury.
The cases Defendants cite do not dictate a different outcome because there is a triable issue regarding whether Abanico followed CDCR protocol when searching Plaintiffs. The district court in John-Charles v. Abanico, 2011 U.S. Dist. LEXIS 17513 (N.D. Cal. Feb. 23, 2011) found that "a finder of fact could reasonably conclude that Defendant Abanico's actions constituted a sexual assault in violation of Plaintiff's Eighth Amendment right." Id. at *26. However, because Abanico followed the search protocols, the court found that it would not have been clear to him that his conduct constituted a Constitutional violation, and thus he was entitled to qualified immunity. Id. at *28-*32. In Rice v. King County, 2000 U.S.App. LEXIS 29897 (9th Cir. 2000), the Ninth Circuit affirmed the district court's grant of summary judgment on numerous claims brought by a prisoner. One of the claims was that a female correctional officer violated the male prisoner's Eighth Amendment rights during a clothed-search by "shov[ing] her hand very hard into [his testicles]." Id. at *10. The Ninth Circuit did not address whether the pat-down method was consistent with regular practice or constituted any form of physical abuse; instead, it concluded that "in general, cross-gender pat-down searches of male inmates by female prison guards are constitutionally permissible." Id. The court also found that the plaintiff had "presented insufficient evidence of a more-than-de-minimis injury to establish a valid" excessive force claim. Id. at *11 n.4. The court in Montero v. Crusie, 153 F.Supp.2d 368, 373-75 (S.D.NY. 2001) did find that "throwing kisses" at an inmate, squeezing the inmate's genitalia during a pat-down search, and requesting sexual favors from an inmate, were insufficient to constitute an Eighth Amendment violation. However, the Defendant denied the squeezing incident and the request ...