Belyew v. Hornea et al

Filing 79

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/17/23 ADOPTING 73 Findings and Recommendations, except as to sections IV(D)(i) and IV(F). Defendants' 65 motion for summary judgment is GRANTED in PART and DENIED in PART as fo llows: a. Granted with respect to Claims Two and Three on the ground that plaintiff did not exhaust her administrative remedies prior to filing suit; and b. Denied with respect to Claim One on the ground that plaintiff did not exhaust her administrative remedies. This matter is REFERRED back to the assigned magistrate judge for further findings and recommendations consistent with this order. (Kastilahn, A)

Case 2:17-cv-00508-KJM-AC Document 79 Filed 01/17/23 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA MARIE BELYEW,

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No. 2:17-cv-0508 KJM AC P

Plaintiff,
v.

ORDER

KORY L. HONEA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 30, 2022, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within twenty-one days. ECF No. 73. Plaintiff

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has filed objections to the findings and recommendations (ECF No. 74), to which defendants have

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responded (ECF No. 75).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis, except

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for sections IV(D)(i) and IV(F). Sections IV(D)(i) and IV(F) contain a discussion and analysis of
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Case 2:17-cv-00508-KJM-AC Document 79 Filed 01/17/23 Page 2 of 3
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the merits of plaintiff’s first claim for relief, which arises from a strip search conducted on

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plaintiff on December 24, 2016 by defendant Moreland. Review of the record shows plaintiff

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signed the operative complaint in this action, the first amended complaint, under penalty of

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perjury. See ECF No. 23 at 6. The first amended complaint is properly considered as an affidavit

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in opposition to defendants’ motion for summary judgment to the extent it contains admissible

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evidence within plaintiff’s personal knowledge. See Schroeder v. McDonald,

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55 F.3d 454, 460 (9th Cir. 1995). Plaintiff’s factual averments in Claim One of the first amended

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complaint are as follows:

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On or about December 24, 2016 I was strip-searched and forced to
squat and cough multiple times by Officer Moreland. I informed
MORELAND that I had severe back and knee problems that
prevented me from bending at my knees. MORELAND then told
me to place my face on the floor of the shower. I told her I did not
want to do this because it could put me in danger of contracting
Hepatitis A, B, C, HIV and/or Herpes. MORELAND threatened that
if I did not do it she would get some other officers and make me do
it. MORELAND made me cough and spread my anus and vagina
until she could “see inside.” Then I heard MORELAND tell a male
officer who was standing outside the door while this process was
going on, the door was kept open, and she told him “I don’t trust her
because she ‘leaked’ on herself.[“] Because of my extensive history
of sexual/physical abuse and rape this caused me extreme
psychological trauma and physical pain because my knee gave out
on me. I filed a grievance on MORELAND for this. I filed a
grievance for this incident on or about December 30, 2019 and it was
denied.

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ECF No. 23 at 3. These averments call into question the magistrate judge’s findings that

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defendants have established as undisputed that “the search was conducted in a private area and in

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a professional manner” and that defendant Moreland did not require plaintiff to go through search

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procedures “more times than was necessary to properly complete the search.” ECF No. 73 at 16-

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17. Good cause appearing, this matter will be referred back to the assigned magistrate judge for

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further findings and recommendations on the merits of plaintiff’s claim against defendant

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Moreland, and, as appropriate, findings and recommendations on defendant Moreland’s qualified

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immunity defense.

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Case 2:17-cv-00508-KJM-AC Document 79 Filed 01/17/23 Page 3 of 3
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed September 30, 2022, are adopted except as to

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sections IV(D)(i) and IV(F);
2. Defendants’ motion for summary judgment (ECF No. 65) is granted in part and denied
in part as follows:
a. Granted with respect to Claims Two and Three on the ground that plaintiff did
not exhaust her administrative remedies prior to filing suit; and
b. Denied with respect to Claim One on the ground that plaintiff did not exhaust
her administrative remedies; and
3. This matter is referred back to the assigned magistrate judge for further findings and

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recommendations consistent with this order.

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DATED: January 17, 2023.

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