Blacher v. Johnson et al

Filing 6

ORDER DISMISSING 1 Action for Failure to State a Claim upon which Relief could be Granted signed by Magistrate Judge Gary S. Austin on 9/7/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MARLON BLACHER,

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Plaintiff,

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v.
S. JOHNSON, et al.,

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Defendants.

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1:12-cv-01159 GSA PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED

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I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c).

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.

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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under

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color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal

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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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II.

Plaintiff’s Claims

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A.

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Plaintiff, currently housed at California State Prison Lancaster, brings this civil rights action

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against defendant correctional officials employed by the CDCR at Corcoran State Prison. Plaintiff

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names as defendants Chief Deputy Warden S. Johnson and Appeals Examiner R. Davis. Plaintiff’s

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claim in this action stems from an unclothed body search.

Summary of Complaint

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Plaintiff alleges that while he was housed at Corcoran, he was assigned to work in the SHU

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kitchen. At the end of each workday, the inmates assigned to work in the kitchen were subjected to

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an unclothed body search before returning to their housing area. The searches were conducted by

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male correctional officers (C/Os). The area where the searches are conducted is located directly

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across from an open door where female C/Os are positioned. Plaintiff alleges that “many times, as

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plaintiff stood there naked during the search, plaintiff would be making direct eye contact with the

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female C.O.s, which would sometimes elicit a smirk or some other form of, seemingly

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condescending, response from a female C.O.”

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Plaintiff submitted an inmate grievance concerning the issue, indicating that the searches
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violated CDCR policy that required searches to be conducted outside the view of others not

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conducting the searches. Plaintiff alleges that the practice was never changed to conform with

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regulations, and therefore constituted an illegal search.

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B.

Unclothed Body Search

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Prisoners, despite their conviction and confinement, do not forfeit all constitutional

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rights. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Nevertheless, prisoner’s constitutional rights are

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subject to substantial limitations and restrictions in order to allow prison officials to achieve

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legitimate correctional goals and maintain institutional security. O’Lone v. Estate of Shabazz, 482

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U.S. 342, 348 (1987); Bell, 441 U.S. at 546-47. While inmates have a right to be free from

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unreasonable search and seizure, the reasonableness of a particular search must be considered in the

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prison context. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988).

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A prisoner’s legitimate expectation of bodily privacy from persons of the opposite sex it

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extremely limited. Jordan v. Gardner, 986 f.2d 1521, 1524 (9th Cir. 1993). Although a prisoner has

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an interest in shielding his unclothed body from persons of the opposite sex, strip searches that

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involve frequent or casual observation by members of the opposite sex or where observation is from

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a distance do not unreasonably infringe upon the prisoner’s privacy rights. Michenfelder, 860 F.2d

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at 333-334. Grummet v. Rushen, 779 F.2d 491 (9th Cir. 1985). Plaintiff’s allegations fail to

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demonstrate that any observation by members of the opposite sex are not restricted by distance or

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casual in nature and therefore fails to state a cognizable claim. Grummet, 779 F.2d at 495-96.

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C.

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Plaintiff alleges that the female C/Os “smirk,” or exhibit “some form of condescending

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response.” Prisoners have an Eighth Amendment right to be free from sexual abuse by prison

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officials. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Although the Ninth

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Circuit has held that sexual harassment can constitute an Eighth Amendment violation, there must

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be physical contact. Bowie v. California Dept. of Corrections, 99 F.3d 1145 (9th Cir. 1991), citing

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Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993); Hernandez v. Denton, 861 F.2d 1421 (9th Cir.),

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cert. denied, 112 S.Ct. 75 (1991). Here, Plaintiff alleges that unclothed body searches were

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conducted within view of female C/Os. Plaintiff does not allege that any C/O sexually harassed him

Sexual Harassment

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in a way that involved physical contact.

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III.

Conclusion and Order

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Plaintiff’s complaint does not state any cognizable claims under section 1983. Plaintiff’s

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claims arises from his allegation that the strip searches were conducted contrary to regulations that

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require them to be conducted outside the view of other correctional officers. That the searches at

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issue violate regulations does not subject Defendants to liability for a constitutional violation.

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Taking the facts of the complaint as true, the strip searches at issue do not violate the constitution.

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Because the Court finds that this deficiency is not capable of being cured by amendment, the

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complaint should be dismissed without leave to amend. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987).
Accordingly, IT IS HEREBY ORDERED that this action is dismissed, with prejudice, for
failure to state a claim. The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:
6i0kij

September 7, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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