Michael Cheek v. Cosby et al
Filing
37
ORDER GRANTING 33 Motion for Summary Judgment and DENYING 30 34 Motions at MOOT signed by Chief Judge Ralph R. Beistline on 12/10/2014. CASE CLOSED. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL CHEEK,
Case No. 1:10-cv-01664-RRB
Plaintiff,
vs.
EZRA COSBY, et al.,
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT AT DOCKET 33
and
DENYING MOTIONS AT
DOCKETS 30 AND 34 AS MOOT
Defendants.
I.
PENDING MOTIONS
At Docket 33 Defendants P. Bisacca and E. Cosby filed a Motion for Summary
Judgment. Although provided with a Rand warning,1 Plaintiff has failed to timely oppose
the motion or to request additional time within which to oppose the motion.
Also pending before the Court are Plaintiff’s Pretrial Motions at Docket 30 and
Defendants’ Motion in Limine at Docket 34. Neither of which have been timely opposed.
Therefore, the pending motions are submitted for decision on the moving papers
without oral argument.2
II.
BACKGROUND/ISSUES PRESENTED
Plaintiff Michael Cheek, a civil committee held in the Coalinga State Hospital
appearing pro se, brought this civil rights action under 42 U.S.C. § 1983 against various
1
Docket 35.
2
L.R. 230(I).
officials and employees of the California Department of State Hospitals. After screening
the First Amended Complaint, the Court permitted Cheek to proceed on his Fourth
Amendment unreasonable search and seizure claim as against Officer Ezra Cosby and
OSI Investigator P. Bisacca; all other claims and defendants were dismissed.3
In his Amended Complaint Cheek contended that Defendants Cosby and Bisacca
orchestrated, ordered, or participated in an unlawful and unwarranted digital rectal cavity
search without probable cause. In their motion Defendants Cosby and Bisacca contend
(1) the search was conducted in accordance with the execution of a judicially authorized
search warrant; and (2) in any event, they were entitled to qualified immunity in executing
the search warrant.
The sole issue before this Court is whether or not the digital rectal cavity search
violated Cheek’s constitutional Fourth Amendment right to be free from unreasonable
searches and seizures.
II.
STANDARD OF REVIEW
Summary judgment is appropriate if, when viewing the evidence in the light most
favorable to the non-moving party, there are no genuine issues of material fact and the
moving party is entitled to judgment in its favor as a matter of law.4 Support and opposition
to a motion for summary judgment is made by affidavit made on personal knowledge of the
affiant, depositions, answers to interrogatories, setting forth such facts as may be
3
Docket 16.
4
Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc);
Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 33
Cheek v. Crosby, 1:10-cv-01664-RRB – 2
admissible in evidence.5
In response to a properly supported motion for summary
judgment, the opposing party must set forth specific facts showing that there is a genuine
issue for trial.6 The issue of material fact required to be present to entitle a party to
proceed to trial is not required to be resolved conclusively in favor of the party asserting
its existence; all that is required is that sufficient evidence supporting the claimed factual
dispute be shown to require a jury or judge to resolve the parties' differing versions of the
truth at trial. In order to show that a genuine issue of material fact exists a nonmoving
plaintiff must introduce probative evidence that establishes the elements of the complaint.7
Material facts are those which may affect the outcome of the case.8 A dispute as to a
material fact is genuine if there is sufficient evidence for a reasonable jury to return a
verdict for the non-moving party.9 "Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge, [when] he is ruling on a motion for summary judgment."10 The evidence of the nonmoving party is to be believed and all justifiable inferences are drawn in his favor.11 The
moving party has the burden of showing there is no genuine issue of material fact;
5
Fed. R. Civ. P. 56(e).
6
Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).
7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
8
Id.
9
Id.
10
Id. at 255.
11
Id.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 33
Cheek v. Crosby, 1:10-cv-01664-RRB – 3
therefore, he bears the burden of both production and persuasion.12 The moving party,
however, has no burden to negate or disprove matters on which the non-moving party will
have the burden of proof at trial. The moving party need only point out to the Court that
there is an absence of evidence to support the non-moving party's case.13 There is no
genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find
in favor of the party opposing the motion.14
In general, in ruling on a motion for summary judgment, a court may not weigh the
evidence or judge the credibility of witnesses.15 Instead, it generally accepts as true
statements made under oath.16 However, this rule does not apply to conclusory statements
unsupported by underlying facts,17 nor may the court draw unreasonable inferences from
the evidence.18
Although no opposition to the motion has been filed, the court may not automatically
grant summary judgment. In that case, as here, the court must determine from the moving
papers that the moving party has demonstrated the lack of a triable issue of fact and that
judgment must be entered in the moving party’s favor as a matter of law.19
12
Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).
13
Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477 U.S. at 325.
14
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
15
Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).
16
Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005).
17
Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990).
18
See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); McLaughlin
v. Liu, 849 F.2d 1205, 1207–1209 (9th Cir. 1988).
19
See Fed. R. Civ. P. 56(a); Martinez v. Stanford, 323 F.3d 1178, 1182–83 (9th Cir. 2003).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 33
Cheek v. Crosby, 1:10-cv-01664-RRB – 4
III.
DISCUSSION
As relevant to the pending motion for summary judgment, the pertinent facts in this
case are undisputed:
1.
Upon the Affidavit of Defendant P. Bisacca, the Fresno County Superior Court
issued a search warrant authorizing inter alia the search of the “body cavities and
person of Michael Cheeks.”20
2.
The body cavity search was conducted by Jagsir Sandhu, M.D., in the presence of
the declarant, also a medical doctor, in a medical examining room pursuant to the
search warrant.21
The warrant itself clearly authorized the search of Cheek’s body cavities, and the
search itself was conducted by a physician. Thus, not only was the body cavity search
authorized by the search warrant, but the manner in which it was conducted was not
unreasonable. 22 Here, as Defendants correctly note, Cheek’s Amended Complaint does
not challenge the validity of the search warrant. Indeed, while acknowledging the existence
of the search warrant, Cheek specifically alleged:
4. That it should be noted that nowhere within the Warrant did it instruct or
authorize the defendants to perform an invasive physical search of my
internal organs for contraband;
* * * *
11. That Defendant Bisacca informed me that he was going to now search
my body by having my intestines searched by hand;
20
Declaration of Bisacca, Exhibit A, Docket 33-3, pp 9–15.
21
Declaration of Perlita A. McGuiness, M.D., Docket 33-6.
22
See United States v. Fowlkes, 770 F.3d 748, 759 (9th Cir. 2014) (discussing the factors
considered in evaluating the whether the manner in which a body search is conducted is
reasonable); United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976)).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 33
Cheek v. Crosby, 1:10-cv-01664-RRB – 5
12. That I informed Defendant Bisacca that there was no authority to conduct
such an invasive search, without cause;
l3. That I stated that the Warrant indicated a Visual Body Cavity Search, XRay and "Potty Watch" if reasonable;23
It is clear that the gravamen of Cheek’s action is that the digital search of his body was not
authorized by the search warrant, not that the search warrant itself was invalid.
Based upon the record before it, it is indisputable that: (1) the search of Cheek’s
body cavities was authorized by the search warrant; and (2) the manner in which the
search was conducted did not violate any constitutional right cognizable in this Court.
Accordingly, based upon the facts and the law, Cheek is not entitled to the relief requested,
or any relief at all.
Although unnecessary to resolution of the pending motion, the Court also notes that
the Defendants in this case are more likely than not also entitled to qualified immunity.
Qualified immunity is analyzed using the two-step inquiry set forth in Saucier.24 The first
step of the Saucier analysis requires the court to decide whether the search of his person
violated his constitutional rights.25 If so, “the next, sequential step is to ask whether the
right was clearly established.” Id. For a right to be clearly established, its contours “‘must
be sufficiently clear that a reasonable official would understand that what he is doing
violates the right.’”26 The protection afforded by qualified immunity “safeguards ‘all but the
23
Docket 15 “Plaintiff’s Declaration of Facts in Support of Complaint for Damages Pursuant
to 42 USC §1983.”
24
Saucier v. Katz, 533 U.S. 194 (2001).
25
Id. at 201.
26
Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1997)).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 33
Cheek v. Crosby, 1:10-cv-01664-RRB – 6
plainly incompetent or those who knowingly violate the law.’”27 In this case, as noted
above, Cheek’s Amended Complaint fails to satisfy either prong of the Saucier test.
IV.
ORDER
Based upon the foregoing, Defendants’ Bisacca’s and Cosby’s Motion for Summary
Judgment at Docket 33 is GRANTED. The Amended Complaint is hereby DISMISSED
in its entirety as against all defendants.
Plaintiff’s Pretrial Motions at Docket 30 and Defendants’ Motion in Limine at Docket
34 are DENIED as moot.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of Plaintiff’s constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any appeal would be frivolous or taken in bad faith.28 Therefore, Plaintiff's in
forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter judgment of dismissal, with prejudice,
stating that the dismissal counts as a “strike” under 42 U.S.C. § 1915(g).
IT IS SO ORDERED
Dated this 10th day of December, 2014
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
27
Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir.
1998) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
28
28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir.
2002) (revocation of in forma pauperis status is appropriate if the appeal is frivolous).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 33
Cheek v. Crosby, 1:10-cv-01664-RRB – 7
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