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Blacher v. Johnson

United States District Court, E.D. California

November 7, 2017

MARLON BLACHER, Plaintiff,
v.
S. JOHNSON, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SUR-REPLY AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NOS. 106 & 121)

         I. PROCEDURAL HISTORY

         Marlon Blacher (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Both parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).[1] (ECF Nos. 5 & 26). This case now proceeds on Plaintiff's complaint (ECF No. 1) against Chief Deputy Warden S. Johnson (“Defendant”) on Plaintiff's claim relating to repeated unclothed body searches in the view of female correctional officers and others. (ECF Nos. 17 & 20).

         On May 23, 2017, Defendant filed a motion for summary judgment.[2] (ECF No. 106). On June 28, 2017, Plaintiff filed his opposition to the motion for summary judgment and objected to the admissibility of his deposition. (ECF Nos. 111 & 114). On July 3, 2017, Defendant filed a reply. (ECF No. 117). On July 14, 2017, Plaintiff filed an addendum to his declaration.[3] (ECF No. 118, p. 3).

         On July 3, 2017, Plaintiff filed what the Court construes as a sur-reply. (ECF No. 120). On July 31, 2017, Defendant filed a motion to strike Plaintiff's sur-reply. (ECF No. 121). On August 16, 2017, Plaintiff filed his opposition to Defendant's motion to strike Plaintiff's sur-reply. (ECF No. 122).

         Defendant's motion for summary judgment and motion to strike are now before the Court. For the reasons that follow, the Court will deny Defendant's motion to strike, and deny Defendant's motion for summary judgment.

         II. DEFENDANT'S MOTION TO STRIKE

         Defendant asks the Court to strike Plaintiff's sur-reply because Plaintiff was never given leave to file a sur-reply, and because “Plaintiff's improper sur-reply frivolously denies arguments made by Defendant in their [sic] moving papers and provides more inflammatory conjecture regarding correctional staff. Accordingly, the Court should grant this motion to strike, and strike Plaintiff's sur-reply.” (ECF No. 121, p. 2).

         Given the lack of prejudice to Defendant in allowing Plaintiff to file a sur-reply, the Court will treat the sur-reply as including a request to file a sur-reply, and grant it nunc pro tunc. Accordingly, Defendant's motion to strike will be denied. However, the Court notes that the sur-reply does not change the Court's analysis. Most of the sur-reply involves Plaintiff reiterating points he already made.

         III. BACKGROUND

         a. Plaintiff's Allegations in the Complaint

         While Plaintiff was housed at California State Prison, Corcoran, he was assigned to work in the Security Housing Unit (“SHU”) kitchen. At the end of each workday, the inmates assigned to work in the SHU kitchen were subjected to an unclothed body search before returning to their housing area. The searches were conducted by male correctional officers (C/Os). In the process of the search, the inmates were required to step up to the table, completely disrobe, move their genitals around, and squat and cough. These searches were conducted in plain view of everyone present, including other inmates and staff.

         The area where the searches were conducted was located near an open door where female C/Os were positioned. The female C/Os had a direct view of the search area. “Many times, as plaintiff stood there naked during the search, plaintiff would be making direct eye contact with the female C.O.s, which would sometimes elicit a smirk or some other form of, seemingly condescending, response from a female C.O. (usually either C.O. Gutierrez, Arnette, or Mills).”

         “Plaintiff was never in dispute of the need for staff to conduct the searches, the dispute arises from the way the searches were being conducted, which was in violation of established policy.” Plaintiff submitted an inmate grievance concerning the issue, indicating that the searches violated California Department of Corrections and Rehabilitation (“CDCR”) policy that required searches to “1) be conducted in a manner which avoids embarrassment and indignity to the inmate and 2) be outside the view of others whenever possible.”

         Defendant was made aware of the problem on January 3, 2012, yet failed to take any corrective measures.

         b. Screening and Ninth Circuit Ruling

         On September 7, 2012, the Court[4] dismissed this case, with prejudice, for failure to state a claim. (ECF No. 6, p. 4). Plaintiff appealed. (ECF No. 9). The United States Court of Appeals for the Ninth Circuit reversed in part, holding that “the district court erroneously dismissed Blacher's claim against defendant Chief Deputy Warden Johnson alleging an unreasonable search because the allegations in the amended complaint, liberally construed, were ‘sufficient to meet the low threshold for proceeding past the screening stage.' Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). The scope of the intrusions alleged by Blacher exceeds searches this court has previously sanctioned. See, e.g., Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (strip searches that involve female guards' infrequent or casual observation of nude male prisoners, or observation at a distance do not unreasonably infringe upon prisoners' privacy rights provided there is a legitimate reason underlying the observation); see also Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (setting forth requirements for supervisory liability).” (ECF No. 17, pgs. 2-3).

         In accordance with the Ninth Circuit's order, the Court issued an order finding service of the complaint appropriate, stating that “[t]his action therefore proceeds against Chief Deputy Warden S. Johnson on Plaintiff's claim relating to the unclothed body search.” (ECF No. 20, p. 2).

         IV. DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

         Defendant argues that “the undisputed facts reveal that the contested searches complied with policy and for security purposes, there were no alternative location for the searches to be conducted. Additionally, since Defendant Johnson took appropriate steps to investigate the searches and acted reasonably under the circumstances, she is entitled to qualified immunity.” (ECF No. 106-2, p. 1). Defendant also argues that the searches were reasonable under the applicable Fourth Amendment standards. (Id. at 3-6).

         According to Defendant, “[u]nclothed body searches following shifts in the SHU kitchen are conducted in the corridor of the vocation work area, as inmates leave the work change area. (DUF 8.) The remaining rooms in the work change area do not afford privacy, nor are they available for routine search procedures. (DUF 9.).” (ECF No. 106-2, p. 2).

         In his opposition, Plaintiff alleges that there were multiple available locations where the searches could have taken place with additional privacy. (ECF No. 114, pgs. 10-11). Additionally, according to Plaintiff, the searches that took place violated CDCR policy. (Id. at 6). Plaintiff also argues that Defendant is not entitled to qualified immunity because she violated Plaintiff's clearly established Fourth Amendment rights. (Id. at 6-7).

         V. LEGAL STANDARDS

         a. Sum ...


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