United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION TO STRIKE
PLAINTIFF'S SUR-REPLY AND DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (ECF NOS. 106 & 121)
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). (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).
23, 2017, Defendant filed a motion for summary
judgment. (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. (ECF No. 118, p. 3).
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).
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.
DEFENDANT'S MOTION TO STRIKE
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).
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
Plaintiff's Allegations in the Complaint
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.
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).”
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.”
was made aware of the problem on January 3, 2012, yet failed
to take any corrective measures.
Screening and Ninth Circuit Ruling
September 7, 2012, the Court 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,
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.
DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
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).
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).
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).