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Malo v. Hernandez

United States District Court, Central District of California

November 5, 2014

MR. HERNANDEZ et al., Defendants

Jimmy Simeona Malo, Plaintiff, Pro se, Norco, CA.

For Mr Hernandez, individual, Mr Serrano, individual, Mr Accevedra, individual, Mr Chaunadry, individual, Mr Ruiz, individual, Mr Jordan, individual, Mr Otuafi, individual, Defendants: Andrew M Gibson, CAAG - Office of the Attorney General, Los Angeles, CA.

For Mr Hernandez, Correctional Officer, official capacity, Defendant: Andrew M Gibson, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.


JEAN ROSENBLUTH, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable S. James Otero, U.S. District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the U.S. District Court for the Central District of California.


Plaintiff, a state prisoner incarcerated at the California Rehabilitation Center in Norco, filed pro se a civil-rights action on October 10, 2013, after being granted in forma pauperis status. On November 7, 2013, because much of the Complaint failed to state a claim upon which relief might be granted, the Court dismissed it with leave to amend. On December 6, 2013, Plaintiff filed a First Amended Complaint (" FAC"), asserting that Defendants M. Hernandez, L. Serrano, C. Saavedra, A. Chaudhry, J. Ruiz, P. Jordan, and E. Otuafi violated his Fourth and Eighth amendment rights.[1] (FAC at 3-8.)[2] Plaintiff seeks compensatory, punitive, and nominal damages. (FAC at 17.)

On May 12, 2014, Defendants moved to dismiss the FAC. On June 20, 2014, Plaintiff filed opposition, and on July 2 Defendants filed a reply. On July 23, 2014, Defendant Jordan filed a notice of joinder in the motion to dismiss. For the reasons discussed below, the Court recommends that Defendants' motion be granted.


I. Defendants ordered Plaintiff " to perform [an] unclothed visual body inspection in the view of public traffic, surveillance camera, women, non-officers, and inmates, " violating the Eighth Amendment. (FAC ¶ 2.)

II. Defendants deprived Plaintiff " of sanitary, warm, and healthy conditions to conduct unclothed visual body inspection, " violating the Eighth Amendment. (FAC ¶ 3.)

III. Defendants deprived Plaintiff " of personal safety and clothing by ordering [him] to walk barefoot[] approximately 25 yards on a gravel covered cracked road, " violating the Eighth Amendment. (FAC ¶ 4.)

IV. Defendants performed an " unclothed visual body inspection in the view of public traffic, surveillance, camera, women, non-officers, and inmates" in an " unnecessarily public manner, " violating the Fourth Amendment. (FAC ¶ ¶ 5-7.)


Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is " proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (as amended) (internal quotation marks omitted). In considering whether a complaint is sufficient to state a claim, a court must accept as true all the factual allegations in it. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court need not accept as true, however, " allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks omitted). Although a complaint need not include detailed factual allegations, it " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when it " allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. " A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations and internal quotation marks omitted).


On October 4, 2011, at about 9 a.m., Plaintiff arrived at the vocational automotive shop at California Rehabilitation Center in Norco, California. (FAC ¶ 8.) About 15 minutes later, Defendants Ruiz, Jordan, Hernandez, Chaudhry, Serrano, Otuafi, and Saavedra entered the shop and ordered the inmates to sit on the ground. (FAC ¶ ¶ 9-10.) Hernandez and Saavedra specifically ordered Plaintiff to sit on the ground until further notice. (FAC ¶ 11.) Ruiz ordered (1) Otuafi, Chaudhry, and Serrano to conduct an unclothed visual body inspection of the inmates outside the shop, (2) Jordan to move the inmates from the " classroom through the garage and outside the back garage door, " and (3) Hernandez and Saavedra to supervise the inmates sitting on the floor. (FAC ¶ 12.) Plaintiff sat on the floor for about 10 minutes until Hernandez and Saavedra ordered him to walk to Jordan at the rear garage door; Jordan told Plaintiff to wait until the next available officer was free to search him outside. (FAC ¶ ¶ 14-15.) While waiting, Plaintiff saw Otuafi, Chaudhry, and Serrano conduct unclothed visual body inspections - under Ruiz's supervision - of three inmates, which caused him to experience an anxiety attack. (FAC ¶ ¶ 16-18.)

Chaudhry told Plaintiff to walk outside the shop so that he could conduct a visual body inspection of him. (FAC ¶ 19.) He ordered Plaintiff to take off his shirt so he could inspect it, which caused Plaintiff to shiver from the cold. (FAC ¶ ¶ 23-24.) Chaudhry then ordered Plaintiff to remove his boots, socks, pants, and underwear so that he could inspect them; this caused Plaintiff to shiver, with teeth chattering, and he developed goose bumps and an increased heart rate, all while his anxiety attack persisted. (FAC ¶ ¶ 25-27.) All this lasted for about 10 minutes, except that his anxiety attack continued for about 20 minutes. (FAC ¶ ¶ 48-49.) During the search, Chaudhry ordered Plaintiff to show his palms and backs of his hands as well as the soles of ...

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