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Malo v. Hernandez

United States District Court, Central District of California

November 5, 2014

JIMMY SIMEONA MALO, Plaintiff,
v.
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.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

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.

PROCEEDINGS

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.

PLAINTIFF'S CLAIMS

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.)

STANDARDS GOVERNING MOTIONS TO DISMISS

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).

FACTUAL ALLEGATIONS OF THE FAC

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 his feet, raise his arms, run his fingers through his hair, open his mouth, lift his genitals, and spread his buttocks. (FAC ¶ ¶ 30-35.) Chaudhry then ordered Plaintiff to dress. (FAC ¶ 37.)

During the search, Otuafi, Serrano, and Ruiz were within 15 yards of Plaintiff and saw Chaudhry conduct it. (FAC ¶ ¶ 20, 36.) Plaintiff also noticed that public traffic was about 30 yards away, a surveillance camera was about 75 yards away, and kitchen staff - along with inmate kitchen workers - were about 50 yards away (FAC ¶ 28); further, " non-officer female staff were in view of [the] unclothed visual body inspection" from a nearby kitchen and warehouse (FAC ¶ 29).

After Plaintiff put on his underwear, Chaudhry ordered him to gather his clothes and finish dressing about 25 yards away, in a designated area. (FAC ¶ 38.) Chaudhry denied his request to put on his boots before walking to the designated area. (FAC ¶ 39.) While walking, Plaintiff experienced sharp pain from the gravel on the road; because the pain was " unbearable, " Plaintiff stopped to pick gravel off the soles of his feet but was told to " keep moving." (FAC ¶ ¶ 40-43.) By the time Plaintiff got to the designated dressing area, his feet were in " excruciating pain" (FAC ¶ 45); he took more gravel off the soles of his feet and quickly got dressed to avoid more exposure to the cold weather (FAC ¶ ¶ 46-47). The pain in his feet lasted for 10 minutes. (FAC ¶ 50.)

Ruiz ordered Plaintiff and the other inmates to go to the front of the shop (FAC ¶ 53); they were supervised by " at least two defendants" while the other Defendants searched the shop (FAC ¶ 54). Ingredients to make alcohol were found and confiscated by Defendants. (FAC ¶ 55.) Ruiz was upset about repairs made to his personal car at the shop and ordered the strip searches to be done in a public manner as " reprisal." (FAC ¶ ¶ 58, 59.)

Plaintiff received medical care at the prison for his " frequent anxiety attacks, loss of appetite, loss of sleep, headaches, nightmares, and Post Traumatic Stress Disorder, " which all resulted from his unclothed body inspection.[3] (FAC ¶ 62.)

DISCUSSION

Defendants have moved to dismiss Plaintiff's entire action on the ground that he fails to state claims upon which relief can be granted. In the alternative, Defendants argue, they are entitled to qualified immunity.

I. Plaintiff has failed to state a claim for violation of his Eighth Amendment rights by any Defendant

Plaintiff asserts various Eighth Amendment claims against Defendants, stemming from the strip search, his exposure to the cold, and his forced walk barefoot across gravel.

A. Applicable Law

The Eighth Amendment protects prisoners from " inhumane methods of punishment" and " conditions of confinement." Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (as amended). To state a claim that a defendant has violated the Eighth Amendment, a plaintiff must " objectively show that he was deprived of something sufficiently serious" and " make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (internal quotation marks omitted).

As to the first prong, a deprivation is sufficiently serious when a prison official's " act or omission results in the denial of the minimal civilized measure of life's necessities." Id. (internal quotation marks omitted). In an Eighth Amendment claim based on a strip search, the plaintiff must allege a risk of harm beyond a " momentary discomfort." Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993). As to the second prong, the defendants must have had a " sufficiently culpable state of mind, " that is, " a state of mind more blameworthy than negligence." Farmer v. Brennan, 511 U.S. 825, 834-35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted).

A visual body-cavity search does not violate the Eighth Amendment if it is justified by legitimate penological interests and not conducted solely to inflict pain or humiliation.[4] See Somers v. Thurman, 109 F.3d 614, 622-23 (9th Cir. 1997) (visual body-cavity search during which female guards allegedly told jokes and pointed did not violate Eighth Amendment given that plaintiff did not allege that guards intended to humiliate him or that searches occurred without any penological justification). " Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks and citations omitted).

B. Analysis

Plaintiff has apparently abandoned his Eighth Amendment claims relating to having to undress in the cold and walk on gravel, not discussing them at all in his opposition to the motion to dismiss. In any event, as explained below, none of his Eighth Amendment claims can prevail.

1. Visual strip and body-cavity search

Plaintiff alleges that Defendants ordered him " 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.) As related above, Plaintiff alleges that after he was ordered to strip, Chaudhry had him display various parts of his body. (FAC ¶ ¶ 30-35.) Nowhere does he allege that the search involved physical contact. Further, although Plaintiff alleges that public traffic was about 30 yards away, a surveillance camera was about 75 yards away, kitchen staff were about 50 yards away (FAC ¶ 28), and " non-officer female staff were in view of [the] unclothed visual body inspection" (FAC ¶ 29), he alleges no facts that anyone besides Defendants actually witnessed the strip search. He does allege, however, that he suffered " frequent anxiety attacks, loss of appetite, loss of sleep, headaches, nightmares and Post Traumatic Stress Disorder" as a result of the strip search. (FAC ¶ 62.) Thus, he has alleged more than just momentary discomfort.

But even assuming that Plaintiff's allegations are sufficient to satisfy the objective Eighth Amendment prong, they are insufficient to meet the subjective " deliberate indifference" standard. In order to satisfy this standard, Plaintiff must allege facts demonstrating that Defendants were " deliberately indifferent to [his] suffering." Jordan, 986 F.2d at 1528. Plaintiff has not done so. For example, he has not alleged that Defendants knew anything that would put them on notice that Plaintiff risked serious emotional or mental trauma if he was subjected to a body search. Further, he has not alleged that after the search any serious medical needs were ignored by prison authorities. Indeed, he alleges that he received medical and mental-health attention from prison healthcare services. (See FAC ¶ 62.)

Thus, Plaintiff has not adequately alleged an Eighth Amendment violation concerning the strip search. See Somers, 109 F.3d at 622-23 (holding that searches viewed by members of the opposite sex " cannot be called inhumane" and therefore do not rise to level of Eighth Amendment violation (internal quotation marks omitted)).

2. Undressing in the cold

Plaintiff alleges that Defendants deprived him " of sanitary, warm, and healthy conditions to conduct unclothed visual body inspection, " in violation of the Eighth Amendment, by forcing him to undress outdoors and remain naked for about five minutes. (FAC ¶ ¶ 3, 47.) He alleges that he shivered from the cold after removing his shirt (FAC ¶ 24), and that after removing his underwear, he " shiver[ed] violently, " his teeth chattered, he had " goosebumps all over his body", and his heart beat rapidly (FAC ¶ 27). He continued experiencing these symptoms for about 10 minutes. (FAC ¶ 48.) Plaintiff does not allege, however, any prolonged discomfort or adverse consequence stemming from his brief exposure to the cold; indeed, he alleges that the symptoms lasted for only 10 minutes. As Plaintiff appears to recognize by not opposing Defendants' motion on this ground, these allegations are insufficient to satisfy the objective Eighth Amendment prong at the pleading stage. See Swenson v. Cnty. of Kootenai, No. 2: 13-cv-00026-EJL-REB, 2014 WL 585726, at *16 (D. Idaho Feb. 14, 2014) (finding plaintiff's allegations that she walked through three inches of snow in sandals insufficient to state Eighth Amendment claim in part because she alleged " no adverse result from her brief exposure to cold weather"), accepted by 2014 WL 1247801 (D. Idaho Mar. 25, 2014); Tyler v. Watson, Civil Action No. 7: 09-cv-00174, 2009 WL 4110304, at *1, *3 (W.D. Va. Nov. 25, 2009) (granting summary judgment on plaintiff's Eighth Amendment claim involving five-minute-long strip search outside in " freezing thirty-degree temperature" because " he did not suffer any objectively serious injury").

Plaintiff's allegations are also insufficient to satisfy the " subjective indifference" standard. He does not allege that Defendants were deliberately indifferent to any suffering he experienced as a result of the cold weather. Indeed, he does not allege that it was a particularly cold day when the search occurred or that Defendants knew of anything to put them on notice that he was sensitive to cold weather or susceptible to the environment.

Thus, Plaintiff has not adequately alleged a constitutional violation concerning undressing outdoors. See Rocha v. Zavaras, Civil Action No. 10-cv-00357-CMA MEH, 2011 WL 1158003, at *11 (D. Colo. Feb. 23, 2011) (Plaintiff's allegations that he was forced to walk short distance five days a week for several months in " subzero weather and freezing winds" didn't state Eighth Amendment violation because he " describe[d] no adverse result from the assumptively brief exposure to cold weather"), accepted by 2011 WL 1154636 (D. Colo. Mar. 29, 2011).

3. Walking on gravel

Plaintiff alleges that Defendants deprived him " of personal safety and clothing by ordering [him] to walk barefoot[] approximately 25 yards on a gravel covered cracked road." (FAC ¶ ¶ 4, 38-39.) He claims to have " experience[d] sharp pain on his feet" (FAC ¶ 40) that later became " unbearable" (FAC ¶ 41); further, he alleges that when he stopped to remove gravel from the bottom of his feet, he was ordered to keep moving (FAC ¶ 43) despite an " obvious display of pain and discomfort" (FAC ¶ 44). Plaintiff alleges that he experienced throbbing pain in his feet for about 10 minutes and that his feet had " imprint marks" from the gravel for about two hours. (FAC ¶ ¶ 50-51.) These allegations are insufficient to satisfy the objective Eighth Amendment prong at the pleading stage. Plaintiff does not allege that he suffered any lingering cuts, scrapes, or injury from walking on the gravel; indeed, he alleges that he was in pain for just 10 minutes.

Plaintiff's allegations are also insufficient to satisfy the " subjective indifference" standard. Although Plaintiff alleges that he was ordered to walk on the gravel despite his " obvious display of pain and discomfort" (FAC ¶ 44), he does not allege that he told Defendants he was in pain or that they were deliberately indifferent to his suffering.[5] Plaintiff also alleges that he stopped walking because of the pain but was told to " keep moving" (FAC ¶ ¶ 41-43); he does not allege, however, that Defendants were aware he had stopped because of the pain.

For all these reasons, Plaintiff has not adequately alleged a constitutional violation concerning having to walk barefoot on gravel. See Harbridge v. Pasillas, No. 1: 10-cv-00473 AWI JLT (PC), 2011 WL 130157, at *17 (E.D. Cal. Jan. 14, 2011) (plaintiff didn't state Eighth Amendment claim based on allegation that he was ordered to walk over grass and gravel while barefoot when he didn't allege that he suffered any injury, that defendant knew " walking on these surfaces would cause harm, " or that route was chosen " for the purpose of causing [p]laintiff harm"), reconsideration granted on other grounds by 2012 WL 639476 (E.D. Cal. Feb. 24, 2012).

II. Plaintiff may have stated a claim against Defendants Ruiz and Chaudhry for violating his Fourth Amendment rights, but they are in any event entitled to qualified immunity[6]

Plaintiff alleges that Defendants ordered him to perform 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.)

A. Applicable Law

The Fourth Amendment guarantees " [t]he right of the people to be secure . . . against unreasonable searches." U.S. Const. amend. IV. The right " extends to incarcerated prisoners." Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). Prisoner strip searches and visual body-cavity searches must be conducted in a reasonable manner. See Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (overturning lower courts' ruling that visual body-cavity search, unlike strip search, required probable cause). Determining if a search is reasonable under the Fourth Amendment requires that a court conduct a case-by-case " balancing of the need for the particular search against the invasion of personal rights that the search entails." Id. at 559. " The required factors for courts to consider include: (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted." Byrd v. Maricopa Cnty. Sheriff's Dep't, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc) (internal quotation marks omitted).

Generally, strip searches of prisoners don't violate the Fourth Amendment. See Michenfelder, 860 F.2d at 333-34 (noting that " incarcerated prisoners retain a limited right to bodily privacy"). But strip searches that are " excessive, vindictive, harassing, or unrelated to any legitimate penological interest" may be unconstitutional. Id. at 332. In considering such a claim, a court must determine if the officials acted with a sufficiently culpable state of mind and if the alleged wrongdoing was so objectively harmful as to establish a constitutional violation. Hudson, 503 U.S. at 8.

B. Analysis

Plaintiff alleges that Defendants conducted a visual body inspection of him outside the prison vocational auto shop (FAC ¶ ¶ 12, 21), with public traffic approximately 30 yards away, a surveillance camera approximately 75 yards away, and nonofficer kitchen and inmate staff approximately 50 yards away (FAC ¶ 28). He alleges that " upon information and belief non-officer female staff were in view of unclothed visual body inspection from adjacent Main Kitchen and Main Warehouse." (FAC ¶ 29.)

The mere presence of female prison staff in the general vicinity likely did not violate the Fourth Amendment. See Michenfelder, 860 F.2d at 334 (noting that assigned positions of female guards " requir[ing] only infrequent and casual observation, or observation at distance, and that are reasonably related to prison needs are not so degrading as to warrant court interference"); Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985) (same).[7]

It also appears from Plaintiff's allegations that the search served a legitimate penological interest. Plaintiff alleges that Defendants " lacked penological and/or security justification" for the search (FAC ¶ 60), but he also acknowledges in the complaint that Defendants " confiscated alcohol manufacturing ingredients from the Vocational Automotive Shop" (FAC ¶ 55). Although he alleges that Ruiz ordered the search as " reprisal" for repairs done to his personal car, he states no facts to support this conclusory allegation. See Iqbal, 556 U.S. at 678 (courts need not accept as true " [t]hreadbare, " " conclusory statements" reciting elements of cause of action).

Plaintiff's allegations concerning the place and manner of the search may give rise to a viable Fourth Amendment claim, however. Strip searches must be conducted mindful of the " feelings of humiliation and degradation associated with forcibly exposing one's nude body to strangers." Byrd, 629 F.3d at 1136 n.1 (internal quotation marks omitted). Plaintiff alleges that the search of him was visible to the public, which, if true, would be a significant, and possibly unnecessary, intrusion on his privacy. See Mills v. White, No. 5: 05-cv-00304-BSM-JTK, 2011 WL 5402891, at *6 (E.D. Ark. July 21, 2011) (denying defendant's motion for summary judgment because visual body-cavity search was conducted outside in exercise yard, in view of public road), accepted by 2011 WL 5375026 (E.D. Ark. Nov. 7, 2011). Plaintiff also alleges that his search took place in view of a surveillance camera, another possibly unjustified intrusion on his privacy. See Byrd, 629 F.3d at 1137, 1143 (noting that strip and body-cavity search was videotaped, representing intrusion on inmate's dignity). Given these allegations, Plaintiff may have stated a violation of his Fourth Amendment rights based on his strip search outdoors, allegedly in view of the public. But even if Plaintiff has sufficiently alleged a constitutional violation, the law to that effect is not clearly established. As explained below, the officers are therefore entitled to qualified immunity.

C. Qualified Immunity

" [Q]ualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity applies " regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. (internal quotation marks omitted).

In addressing qualified immunity, a court must determine whether (1) the facts alleged, taken in the light most favorable to the party asserting the injury, show that the defendants' conduct violated a constitutional or statutory right, and (2) that right was " clearly established." Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 967 (9th Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson, 555 U.S. at 236)). Courts may " exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. (internal quotation marks omitted); see also Pearson, 555 U.S. at 236.

Unless the facts show both a constitutional violation and that the right violated was clearly established, Defendants are entitled to qualified immunity. See Cmty. House, 623 F.3d at 967. The dispositive inquiry with the second prong is whether it would have been clear to a reasonable official that her conduct was unlawful in the specific situation presented. Saucier, 533 U.S. at 202. Clearly established law should not be defined at a " high level of generality." Plumhoff v. Rickard, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (internal quotation marks omitted). " In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate." Id. (internal quotation marks omitted). This standard " gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (internal quotation marks omitted).

Even assuming that Plaintiff has stated a Fourth Amendment claim as to the strip search, the law governing the officers' conduct was not clearly established at the time of the search, which was shortly after Byrd came out. As discussed, it was then clearly established that cross-gender momentary or far-off observation of a strip search by prison personnel does not violate the Constitution. See Michenfelder, 860 F.2d at 334; Grummett, 779 F.2d at 494-95. It was also clearly established that strip searches of detainees and arrestees in a public place generally violate the Fourth Amendment. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) (stating as to search of detainee in public, " We think that, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity whether or not any actually viewed the search is a constitutionally valid governmental invasion of the personal rights that such a search entails" (alterations and internal quotation marks omitted)).

It does not appear, however, that the law was - or indeed is - settled on whether searches of prisoners, as opposed to detainees or arrestees, conducted on prison grounds but perhaps visible by the public at a distance can violate the Constitution. Indeed, the Court was able to find only one case even addressing the issue, and it is an unpublished district court decision from another circuit. See generally Mills, 2011 WL 5402891; cf. Smith v. City of Oakland, Nos. C 07-6298 MHP, C 07-4179 MHP, 2011 WL 3360451, at *31 (N.D. Cal. Aug. 4, 2011) (noting lack of cases addressing strip searches of parolees in public); Somers, 109 F.3d at 622 (finding officers entitled to qualified immunity because " it is highly questionable even today [1997] whether prison inmates have a Fourth Amendment right to be free from routine unclothed searches by officials of the opposite sex"). Accordingly, because the law concerning strip searches on prison grounds but in possible view of the public from a distance was not clearly established at the time of the search here, Defendants are entitled to qualified immunity.

RECOMMENDATION

IT THEREFORE IS RECOMMENDED that the District Judge issue an Order (1) accepting this Report and Recommendation and (2) granting Defendants' motion to dismiss.


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