Halliday et al v. Spjute et al

Filing 384

ORDER re: 369 Motion for Summary Adjudication, signed by District Judge Anthony W. Ishii on 4/19/2016. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL IOANE, et al,

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Plaintiffs

CASE NO. 1:07-CV-0620 AWI GSA
ORDER RE: MOTION FOR SUMMARY
ADJUDICATION

v.
KENT SPJUTE, et al,
(Doc. 369)

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Defendants

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I. History

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The current Plaintiffs are Michael Ioane Sr. and Shelly Ioane who lived at 1521 Fruitland

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Ave., Atwater, CA. They are a married couple involved in tax disputes with United States. Kent

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Spjute, Jean Noll, Jeff Hodges, Brian Applegate, and Michelle Casarez are Internal Revenue

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Service agents (“Federal Agents”). Based on the affidavit of Kent Spjute, the United States was

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able to obtain a search warrant for Plaintiffs’ residence to collect records related to taxation. The

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search was carried out by the Federal Agents on June 8, 2006. This search forms the basis for the

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claims in this suit.

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Michael Ioane Sr. and Shelly Ioane, together with former plaintiffs Glen Halliday, Ashley

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Ioane, and Michael Ioane Jr., filed suit against the Federal Agents and the United States on April

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20, 2007 and a First Amended Complaint shortly thereafter. Docs. 1 and 39. The case was stayed

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pending resolution of a criminal case against Michael Ioane Sr. for tax fraud conspiracy, based in

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part on the evidence seized during the search. Crim. Case. No. 09-0142 LJO. Michael Ioane Sr.

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was convicted on October 3, 2011 after a jury trial. He appealed the conviction, but it was

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affirmed. Michael Ioane Sr. has filed a habeas corpus petition under 28 U.S.C. § 2255. In the

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meantime, the stay was lifted in this case. Doc. 107.
Plaintiffs originally pursued several causes of action against the United States and the

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Federal Agents. Through several rounds of motions, the only claims left are for Fourth

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Amendment excessive force and violation of bodily privacy against Federal Agents Noll, Hodges,

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and Applegate. Specifically, Plaintiffs allege that Federal Agents pointed guns at the heads of

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Defendants and that one of the Federal Agents insisted upon entering the restroom with Shelly

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Ioane and witnessing her relieve herself. Defendants have filed a motion for summary judgment,

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seeking partial adjudication for all claims against Defendant Noll on the basis of qualified

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immunity. Doc. 369. Plaintiffs oppose the motion but raise only procedural defects without

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addressing the merits of Defendants’ arguments. Doc. 373. However, the record is sufficient for a

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ruling on Defendants’ motion.

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II. Legal Standards
Summary judgment is appropriate when it is demonstrated that there exists no genuine

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issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

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Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v.

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American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary

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judgment bears the initial burden of informing the court of the basis for its motion and of

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identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an

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absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is “material” if it

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might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat’l Trust & Savings

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Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is “genuine” as to a material fact if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178,

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1185 (9th Cir. 2006).

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Where the moving party will have the burden of proof on an issue at trial, the movant must
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affirmatively demonstrate that no reasonable trier of fact could find other than for the movant.

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving

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party will have the burden of proof on an issue at trial, the movant may prevail by presenting

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evidence that negates an essential element of the non-moving party’s claim or by merely pointing

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out that there is an absence of evidence to support an essential element of the non-moving party’s

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claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving

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party fails to carry its burden of production, then “the non-moving party has no obligation to

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produce anything, even if the non-moving party would have the ultimate burden of persuasion.”

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Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the

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moving party meets its initial burden, the burden then shifts to the opposing party to establish that

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a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot “‘rest upon the mere

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allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific

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facts showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records, 515

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F.3d 1019, 1030 (9th Cir. 2008).

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The evidence of the opposing party is to be believed, and all reasonable inferences that

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may be drawn from the facts placed before the court must be drawn in favor of the opposing party.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350

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F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the

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opposing party’s obligation to produce a factual predicate from which the inference may be drawn.

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See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings,

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Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). “A genuine issue of material fact does

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not spring into being simply because a litigant claims that one exists or promises to produce

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admissible evidence at trial.” Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002);

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see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist

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Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a “motion for summary

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judgment may not be defeated ...by evidence that is ‘merely colorable’ or ‘is not significantly

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probative.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS
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Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in

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appropriate circumstances to consider materials that are not properly brought to its attention, but

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the court is not required to examine the entire file for evidence establishing a genuine issue of

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material fact where the evidence is not set forth in the opposing papers with adequate references.

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See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non-

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moving party fails to produce evidence sufficient to create a genuine issue of material fact, the

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moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz

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Companies, 210 F.3d 1099, 1103 (9th Cir. 2000).

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III. Statement of Material Facts
Defendant Noll filed a statement of undisputed facts. Doc. 369-2. Plaintiffs have not filed
a direct response to Defendant Noll’s statement of facts.

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1. Jean Noll was a duly commissioned Supervisory Special Agent for the Internal Revenue Service

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- Criminal Investigation. See attached Declaration former Supervisory Special Agent Jean Noll

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(“Noll Decl.”), ¶1. She is currently retired from this position. Id.

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2. During 2006, former Supervisory Special Agent Jean Noll and the other defendants in this

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matter were asked to assist in the execution of a search warrant as part of the criminal

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investigation of Michael Ioane, Sr. Noll. Decl. ¶4.

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3. Michael Scott Ioane, Sr. was under investigation for criminal tax fraud and conspiracy for tax

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years beginning in 1999. He was believed to use trusts to carry out that fraud. See Rec. Doc. 248-

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3. Declaration of Kent Spjute (“Spjute Decl.”) ¶5.

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4. With the assistance of IRS counsel, Kent Spjute, then a Special Agent, prepared an application

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for a warrant to search the Ioane residence. He also drafted a lengthy affidavit explaining why a

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search of that location was necessary. The affidavit was reviewed by an Assistant United States
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attorney and by IRS counsel. The affidavit was filed under seal because of the on-going criminal

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investigation. The affidavit is no longer under seal. See Rec. Doc. 248-3, Spjute Decl. ¶ 6.

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5. Prior to the execution of the search warrant, the warrant execution team, including Supervisory

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Special Agent Jean Noll, learned that there were likely firearms in the Ioane residence, as the

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Ioanes had registered weapons, including an AR-15 assault rifle. See Declaration of Aaron Bailey,

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Ex. 1 (Pre-Operational Plan) p.5; Rec. Doc. 131-9, Declaration of Brian Applegate (“Applegate

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Decl.”) ¶6; See Rec. Doc. 131-8, Declaration of Jeff Hodge (“Hodge Decl.”) ¶6; Rec. Doc. 248-3,

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Spjute Decl. ¶11.

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6. On June 8, 2006, several agents from IRS Criminal Investigation Division, including

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Supervisory Special Agent Jean Noll, helped execute a search warrant on the Ioane residence. See

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Rec. Doc. 131-9, Applegate Decl. ¶7; Rec. Doc. 131-8, Hodge Decl. ¶7.

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7. Only Michael Ioane, Sr. and Shelley Ioane were present at the residence. See Rec. Doc. 131-9,

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Applegate Decl. ¶10; Rec. Doc. 131-8, Hodge Decl. ¶8; Noll. Decl. ¶8.

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8. As is standard procedure during the execution of a search warrant, the Special Agents each

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carried their service weapon, a Glock semi-automatic handgun, issued by the Internal Revenue

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Service - Criminal Investigation. See Rec. Doc. 131-9, Applegate Decl. ¶ 8; Rec. Doc. 131-8,

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Hodge Decl. ¶9. Jean Noll never removed her service weapon from the holster. Noll Decl. ¶10.

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9. Neither in their Complaint nor in their depositions have the Plaintiffs alleged that Special Agent

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Noll pointed a gun at either Michael or Shelley Ioane. See Rec. Doc. 61, Second Amended

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Complaint; Declaration of Aaron Bailey, Ex. 4, Deposition of Michael Ioane and Ex. 3,

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Deposition of Shelly Ioane.

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10. During the course of the search, a special agent secured several weapons, including a Colt AR5

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15 assault rifle. These weapons were not seized. See Bailey Decl., Ex. 2, Hodge Decl. ¶12.

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11. It is standard procedure to escort an individual to the restroom during the execution of a search

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warrant. It is also standard procedure for an agent to monitor an individual while they are in the

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restroom. In some instances a female agent may be inside the restroom in order to monitor a

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female using the restroom. In many instances the agent will maintain the individual in their field

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of vision in order to monitor her activity. See Noll. Decl. ¶ 11.

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IV. Analysis

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The only cause of action remaining in this case is a Bivens claim for violation of the

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Fourth Amendment based on excessive force and bodily privacy. The excessive force claims is

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based on the following allegation: “23. On rushing through the door, the agents had guns drawn

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and pointed them in a threatening manner at the heads of both Michael and Shelly Ioane without

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reason or provocation, and intended to cause and did cause these plaintiffs to fear for their lives.

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24. Although plaintiff Shelly Ioane was unarmed, and frantically screaming and crying for help,

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defendant Applegate continued approaching her and pointing his gun at her beyond any amount of

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time it might take for a reasonable person to determine she was unarmed and no threat to anyone.”

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Doc. 64, Second Amended Complaint, 3:27-4:5. The bodily privacy claim is based on an

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allegation that a Federal Agent accompanied Shelly Ioane into the bathroom. Doc. 64, Second

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Amended Complaint, 4:17-18 (“being watched by a federal agent while she attempted to relieve

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herself in the bathroom”). All other claims (including unreasonable search, First Amendment,

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retaliation, supervisor liability, and disclosure of tax information) have already been dismissed.

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A. Prior Motions

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Plaintiffs object that this motion must be properly construed as a motion for

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reconsideration which did not comply with Local Rule 230(j) which requires counsel for the

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moving party to “present to the Judge or Magistrate Judge to whom such subsequent motion is

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made an affidavit or brief, as appropriate, setting forth the material facts and circumstances
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surrounding each motion for which reconsideration is sought, including: (1) when and to what

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Judge or Magistrate Judge the prior motion was made; (2) what ruling, decision, or order was

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made thereon; (3) what new or different facts or circumstances are claimed to exist which did not

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exist or were not shown upon such prior motion, or what other grounds exist for the motion; and

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(4) why the facts or circumstances were not shown at the time of the prior motion.” Doc, 373, at 3-

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4. Defendants filed three motions termed motions to dismiss, or in the alternative for summary

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judgment. Docs. 35, and 44, 131. The first motion was mooted by an amended complaint. Doc.

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43. The second and third motions were disposed of as motions to dismiss; the court declined to

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convert them into motions for summary judgment. Doc. 61 and 163. The one clear motion for

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summary judgment was a request for partial adjudication of claims against Defendants Michele

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Casarez and Kent Spjute and to eliminate certain classes of damages. Doc. 248. The past motion

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was not for full adjudication of the case, but only a part of the controversy between the parties.

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The present motion is similarly limited. Defendants seek adjudication of claims against Defendant

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Noll based on qualified immunity, an issue that was not addressed in the prior summary judgment

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motion. Defendants’ motion is properly considered a motion for summary judgment and not a

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motion for reconsideration.

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B. Objection to Evidence
In support of their motion, Defendants have provided the deposition transcripts of Michael

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Ioane Sr. and Shelly Ioane. Docs. 369-7 and 360-8. Plaintiffs object that those transcripts are not

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certified copies of the original and that they do not include the corrections, retractions, and

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certification of the deponents. Doc. 381. Defendants respond that Plaintiffs’ modifications to their

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deposition transcript do not comply with the requirements of Fed. Rule Civ. Proc. 30(e) in that

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“The Plaintiffs’ retractions are in many instances devoid of explanation and in most respects are

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simply attempts to contradict or, as stated by the Plaintiffs, ‘retract’ their prior testimony. More

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importantly, they are irrelevant to the issue that is the subject of the motion.” Doc. 382, 2:9-11.

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Also, Defendants state that Plaintiffs have not returned the original deposition transcripts to

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Defendants despite numerous requests that they do so, forcing Defendants to submit the copies
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they have on hand. Doc. 382, 2: 15-19.
The court has reviewed Plaintiffs’ corrections. Shelly Ioane’s corrections solely concern

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Plaintiffs’ asserted economic losses and her mental distress. See Doc. 382-1. Michael Ioane Sr.’s

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corrections primarily deal with economic losses and mental distress. However, relevant to this

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motion, Michael Ioane Sr. initially stated that he could observe Jean Noll the whole time she was

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interacting with Shelly Ioane in their home office. Doc. 369-8, 42:16-22. Plaintiffs assert that

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some of the Federal Agents pointed guns at Shelly Ioane’s head while she was in the home office.

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He later sought to state instead that he does not remember if he could see Jean Noll the whole

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time. Doc. 382-2, 2:3-4.

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“A statement of reasons explaining corrections is an important component of errata

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submitted pursuant to FRCP 30(e), because the statement permits an assessment concerning

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whether the alterations have a legitimate purpose.... Rule 30(e) is to be used for corrective, and not

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contradictory, changes.” Hambleton Bros. Lumber Co. v. Balkin Enters., 397 F.3d 1217, 1224-25

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(9th Cir. 2005). Michael Ioane Sr.’s statement of reasons explained that “My testimony was

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without opportunity to review records, discuss with accountant, lawyer and while under mental

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disability caused by the trauma of the event. I misspoke numerous times and did not understand

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many of the economic injury questions. Now I have had time to review files and records I am able

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to better answer the questions.” Doc. 382-2, 4:6-10. First, his explanation of needing to review

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records could only plausibly address his testimony on economic losses. Second, the deposition

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took place on February 20, 2014, almost seven years after the search. There is no explanation as

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to why the trauma of the event would cause him to have a faulty memory on February 20, 2014

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only to have a clear memory on March 24, 2014 when he submitted his corrections. A party may

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not change a deposition transcript just because they thought better of their answer after the fact.

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As one court put it, “The purpose of Rule 30(e) is obvious. Should the reporter make a substantive

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error, i.e., he reported ‘yes’ but I said ‘no,’ or a formal error, i.e., he reported the name to be

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‘Lawrence Smith’ but the proper name is ‘Laurence Smith,’ then corrections by the deponent

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would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath.

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If that were the case, one could merely answer the questions with no thought at all then return
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home and plan artful responses. Depositions differ from interrogatories in that regard. A

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deposition is not a take home examination.” Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242

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(10th Cir. 2002), quoting Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La.

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1992).

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The transcripts submitted by Defendants may properly be considered for this motion.

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C. Excessive Force
Jean Noll states “I never pointed a weapon at either Mrs. Ioane or Mr. Ioane, nor did I

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remove my weapon from its holster.” Doc. 369-3, 3:9-11. At his deposition, Michael Ioane Sr.

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stated that Jean Noll was actively telling another Federal Agent to put down his gun and that she

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herself did not have gun in her hand. Doc. 369-8, 43:21-44:4 and 54:12-55:1. Shelly Ioane stated

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that “three or four men” pointed their guns at her; she does not mention any women doing so. Doc.

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369-7, 30:1-4. There is no evidence that suggests Jean Noll pointed a weapon at either of the

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Plaintiffs. Summary adjudication on this point is warranted.

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D. Bodily Privacy
A Fourth Amendment based “right to bodily privacy was established in this circuit in

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1963.” Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 1992), citing York v. Story, 324 F.2d

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450 (9th Cir. 1963). Jean Noll’s observation of Shelly Ioane in the restroom must be measured

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against that standard. “A detention conducted in connection with a search may be unreasonable if

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it is unnecessarily painful, degrading, or prolonged, or if it involves an undue invasion of privacy.”

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Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). Jean Noll states “I do not recall escorting

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Ms. Ioane to the restroom and do not recall being alone with her at any time.” Doc. 369-3, 3:7-8.

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Michael Ioane Sr. stated that Jean Noll accompanied Shelly Ioane to the bathroom. Doc. 369-8,

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55:8-19. Shelly Ioane described the incident:

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Q. And when you got to the rest room what happened?

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A. I went into the bathroom and I went to shut the door and she said she had to
come in with me. And I asked her to please just stand outside, I just have to use the
rest room and she said she had to come in with me.

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Q. And then what happened?

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A. And then she asked me to remove my clothing so that she could make sure that I
had nothing under there and I asked her why did I need to do something like that.
And she said she wanted to make sure that I didn’t hide anything or destroy
something, that it was a procedure.

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Q. And when you say remove your clothing, what clothing did she ask you to
remove?

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A. I had a long sundress on.

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Q. So all of your clothing?

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A. She just said remove my clothing. So I pulled my dress up so she could see I had
nothing under there. And then she made me hold it up like this and then I had to use
one hand to pull my underwear down and she watched me go to the bathroom.

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Q. She was facing you during the entire time?

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A. Absolutely.

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Q. Was the door to the bathroom open or closed?

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A. Closed. I asked her if she could please turn to the side and she said she had to
make sure I wasn’t disposing or destroying anything. I had showed her I had
nothing.

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Q. Did she have a weapon out during that time?

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A. No, it was in her, what are they called, holders.

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Doc. 369-7, 41:17-42:22. Michael Ioane Sr. contrasted her treatment with what happened when he

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went to the restroom:

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A....And what was, I thought, unusual was -- not at the time but now. I mean, I
don’t know why we were both treated differently, but the officer went into the
bathroom, you know, opened a couple of drawers, looked in the shower, and then
exited the bathroom and stood outside and closed the door. And told me, ‘I’ll be
standing outside.’ And I went to the bathroom. And when I was done, I opened the
door and we went back into the kitchen.
Q. Was that a male officer with you?
A. That was a male officer.
Doc. 369-8, 55:21-56:6.
Defendants argue Jean Noll is entitled to qualified immunity because the observation of

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Shelly Ioane in the restroom as described by in her deposition does not constitute a constitutional

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violation. Further, even if that conduct does constitute a constitutional violation, the contours of
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that right were not clearly established as of June 8, 2006 when the search took place. A court

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employs a two step analysis for determining qualified immunity. See Saucier v. Katz, 533 U.S.

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194, 200-2 (2001); CarePartners LLC v. Lashway, 545 F.3d 867, 876 n.6 (9th Cir. 2008). Under

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the first step, the court determines whether, “taken in the light most favorable to the party asserting

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the injury, do the facts show the officer’s conduct violated a constitutional right”; if the answer is

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“no,” then the inquiry ends and the plaintiff cannot prevail; if the answer is “yes,” the court

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continues the analysis. Saucier v. Katz, 533 U.S. 194, 201 (2001); Bingue v. Prunchak, 512 F.3d

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1169, 1173 (9th Cir. 2008). Under the second step, the court determines “whether the right was

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clearly established,” and applies an “objective but fact-specific inquiry.” Inouye v. Kemna, 504

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F.3d 705, 712 (9th Cir. 2007). The critical question is whether “the contours of the right were

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sufficiently clear that a reasonable official would understand that what he is doing violates the

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right” with the understanding that the analysis must be “undertaken in light of the specific context

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of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201-2 (2001). If

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the officer could have reasonably, but mistakenly, believed that his conduct did not violate a

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clearly established constitutional right, then the officer will receive qualified immunity. Saucier v.

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Katz, 533 U.S. 194, 205-6 (2001); Johnson v. County of L.A., 340 F.3d 787, 794 (9th Cir. 2003).

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Courts need not strictly follow the steps in sequence, but instead have the discretion to dispose of

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the issue at step two without addressing step one. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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Defendants assert that they “were faced with serious safety concerns during the execution

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of the warrant. Plaintiffs were in possession of a large number of weapons, including unregistered

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handguns and a registered assault rifle.” Doc. 369-1, 11:17-19. Defendants cite to U.S. Supreme

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Court precedent for the proposition that it is sometimes necessary for police to observe individuals

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while naked to ensure that they have no weapons when executing a search warrant: “The orders by

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the police to the occupants [to get out of bed even though they were naked], in the context of this

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lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies.

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Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm,

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factors which underscore this point. The Constitution does not require an officer to ignore the

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possibility that an armed suspect may sleep with a weapon within reach....The deputies needed a
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moment to secure the room and ensure that other persons were not close by or did not present a

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danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve

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clothing or to cover themselves with the sheets.” L.A. County v. Rettele, 550 U.S. 609, 614-15

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(2007). The circumstances of Rettele are distinguishable. The police first encountered the

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residents of the house when they were undressed and so had to ensure that they did not have

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weapons. As soon as they checked, they allowed the residents to dress; the invasion of privacy

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was the minimum necessary to accomplish the purpose: “there is no allegation that the deputies

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prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler

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was unclothed for no more than two minutes, and Rettele for only slightly more time than that.

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Sadler testified that once the police were satisfied that no immediate threat was presented, ‘they

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wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes

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on.’” L.A. County v. Rettele, 550 U.S. 609, 615 (2007). Holding an individual for an extended

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period of time naked after it has been determined he/she is not armed is an unwarranted invasion

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of bodily privacy. Franklin v. Foxworth, 31 F.3d 873, 877 (9th Cir. 1994) (“we can conceive of no

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reason why Curry was not given clothing or covering before he was carried from his bed to the

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living room, so that his genitals would not be exposed to the view of 23 armed strangers”). The

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incident involving Shelly Ioane was not one where the Federal Agents first came upon her while

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she was unclothed. Shelly Ioane had already been detained by the Federal Agents for about 30

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minutes. That allowed for plenty of time for the Federal Agents to check for weapons. It is

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alleged that Jean Noll had Shelly Ioane briefly undress to show that she had no weapon on her

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person, allaying that concern. As for the possibility of guns in the restroom, there would have

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been “no risk at all once the officers searched [the] room and made certain that there were no

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weapons or contraband present.” Franklin v. Foxworth, 31 F.3d 873, 877 (9th Cir. 1994). Indeed,

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that may have been the safety procedure undertaken when Michael Ioane Sr. went to the restroom.

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At this point, taking all reasonable inferences in favor of the non-moving party, there does not

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appear to have been a need for Jean Noll to accompany Shelly Ioane into the restroom when other

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precautions could have been taken.

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Defendants also argue that Shelly Ioane “would have been in a position, if unobserved, to
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potentially destroy evidence by disposing of it down the toilet, seriously compromising the

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efficacy of the search. In the age of thumb drives, the possibility that large amounts of

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incriminating data may be secreted on the body of a suspect and disposed of in such a manner

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cannot be ignored.” Doc. 369-1, 11:11-16. As with weapons, Defendants have not established an

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evidentiary basis to find that an objectively reasonable officer would have thought such direct

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observation was necessary in that circumstance. Fear that electronic media would be flushed

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down the toilet can not be relied upon to justify Jean Noll’s observation of Shelly Ioane at this

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stage.

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The main thrust of Defendants’ argument is that there is no right for “a detainee (in some

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state of undress) being free from observation by an officer of the same sex.” Doc. 369-1, 11:3-5.

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Defendants point out that in the contexts of inmates (who have more limited Fourth Amendment

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rights than other persons), there is a clear distinction between observation/search of by a guard of

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the same or opposite gender. See, e.g. Somers v. Thurman, 1997 U.S. App. LEXIS 12272, *12-20

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(9th Cir. Cal. May 28, 1997), published opinion; Blanco v. Cnty. of Kings, 2015 U.S. Dist. LEXIS

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147753, *13-16 (E.D. Cal. Oct. 30, 2015); Pruitt v. Clark, 2012 U.S. Dist. LEXIS 108352, *6-8

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(E.D. Cal. Aug. 1, 2012); Edwards v. High Desert State Prison, 2013 U.S. Dist. LEXIS 27916,

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*55-57 (E.D. Cal. Feb. 27, 2013). In Sepulveda, involving a parolee and not an inmate, the Ninth

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Circuit denied qualified immunity when a male officer insisted upon observing a female parolee

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provide a urine sample in a toilet stall, emphasizing that the fact “the agent and parolee are of

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different sexes” was significant. Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992).

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Defendants also point to a Northern District of California case where “female [public] employees

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had to urinate in the presence of a same-sex supervisor standing to their side, in the same room,

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without any type of partition” for drug testing; the court concluded that while case law might

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eventually find such an action to be a bodily privacy violation, the law was uncertain at the time

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and definitely not clearly established. Hansen v. California Dep’t of Corrections, 920 F. Supp.

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1480, 1495-99 (N.D. Cal. 1996). Defendants are correct that when it is necessary for a detainee to

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be observed in a state of undress, it should generally be an officer of the same gender.

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However the case law cited dealt with situations where there was a good reason for a
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supervisor/police officer to observe another’s nakedness or act of urination. It is only when there

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is a valid reason for the observation that the gender of the observer matters. Thus, absent a valid

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reason, a police officer’s intentional viewing of a person naked or while they are relieving

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themselves constitutes a constitutional violation. If there is no reason for this invasion of privacy,

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it is irrelevant whether the observing police officer is of the same or opposite gender. At this

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summary adjudication stage, Defendants have not established a reason to justify the restroom

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observation. The potential justification for observation (potential destruction of evidence, safety

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concerns) is an issue for the fact finder at trial.

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This right to bodily privacy is longstanding and well established in the Ninth Circuit: “We

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cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one’s

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unclothed figured from view of strangers, and particularly strangers of the opposite sex, is

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impelled by elementary self-respect and personal dignity. A search of one’s home has been

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established to be an invasion of one’s privacy against intrusion by the police, which, if

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‘unreasonable,’ is arbitrary and therefore banned under the Fourth Amendment. We do not see

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how it can be argued that the searching of one’s home deprives him of privacy, but the

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photographing of one’s nude body, and the distribution of such photographs to strangers does

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not.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). In general, there is a baseline “reasonable

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expectation of privacy in the bodily function of urinating and that society is prepared to recognize

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that right.” National Assn. of Air Traffic Specialists v. Dole, 1987 U.S. Dist. LEXIS 14399, *24

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(D. Alaska 1987). In some circumstances, where there is a valid reason to conduct drug testing,

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courts have provided for procedures designed to minimize the infringement on bodily privacy. See

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American Federation of Government Employees, AFL-CIO, Local 2391 v. Martin, 969 F.2d 788,

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790 (9th Cir. 1992) (“The [district] court also prohibited direct observation of the provision of a

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urine sample while conducting reasonable suspicion testing”). The prohibition of police

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observation of someone naked or urinating without reasonable cause is clearly established.

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Qualified immunity for the bodily privacy claim is denied at this stage.

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V. Conclusion
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Defendants’ motion for summary adjudication is GRANTED in part and DENIED in part.

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Summary adjudication is granted in favor of Defendant Jean Noll regarding claims of excessive

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force. Summary adjudication is denied to Defendant Jean Noll regarding claims of bodily privacy.

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The parties are directed to submit new pretrial statements by 4:00 PM on May 3, 2014.

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IT IS SO ORDERED.
Dated: April 19, 2016
SENIOR DISTRICT JUDGE

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