Frye v. Oleshea

Filing 78

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS' 68 MOTION FOR SUMMARY JUDGMENT. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 3/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KARLOS L. FRYE,
Plaintiff,

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United States District Court
For the Northern District of California

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v.

ORDER GRANTING
DEFENDANTS' MOTION
FOR SUMMARY
JUDGMENT

OFFICER OLESHEA, et al.,
Defendants.

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No. C 08-5288 CW

________________________________/

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Plaintiff Karlos L. Frye, an inmate at Salinas Valley State

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Prison (SVSP), has filed a civil rights complaint alleging that

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SVSP correctional officers violated his constitutional rights

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under the Fourteenth, Eighth and Fourth Amendments by subjecting

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him to two unclothed body searches and then placing him on

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contraband watch for approximately forty-eight hours.

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Defendants Correctional Officers D. Oleachea,2 A. Quitevis, J.
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Mora, Greeson, Newby, D. White, Nolta, Milenewicz and William

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Muniz, Sergeants M. Nilsson and L. Watson and Lieutenant W.

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Plaintiff's Equal Protection claim was dismissed without
leave to amend in the Court's September 28, 2010 Order.
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Defendant Oleachea's name is misspelled as Oleshea in the
complaint.

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Showalter move for summary judgment on all of Plaintiff's claims.

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Plaintiff has filed an opposition and Defendants have filed a

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reply.

The motion was taken under submission and decided on the

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papers.

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Having considered all the papers filed by the parties,

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the Court grants the motion for summary judgment.

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BACKGROUND
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For his version of events, Plaintiff cites his First Amended

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Complaint (1AC), which is signed under penalty of perjury, and the

United States District Court
For the Northern District of California

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declaration, dated December 11, 2007, he submitted with his

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administrative 602 appeal, which is attached as Exhibit A to his

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1AC.

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In his 1AC, Plaintiff states as follows:
Six officers rushed in the visiting room led by Officer
Oleachea and demanded that I along with my mother come with
them and submit to a strip search. I asked Officer why were
they doing this strip search and also why were they
terminating my visit? Officer John Doe responded by saying
that he observed my mother making suspicious movements. At
that point my visit was terminated.
I was then taken back to the area where inmate visitors are
received and made to submit to a strip search. After the
strip search produced negative results I asked if I could go
back and finish my visit, but I was then aggressively placed
in handcuffs and told my visit was terminated. . . .
The officers became extremely aggressive and hostile, grabbed
me forcefully by the arm and started to escort me from the
area. I was escorted back to my housing unit and
aggressively put in my cell. Immediately afterwards, the
officers came back to my cell and aggressively demanded that
I cuff up. I again complied, at which I was again
aggressively and forcefully snatched from my cell and taken
aggressively to a holding cage at the D facility patio area,
where once again I was told to submit to another strip

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Defendants' first names are not provided.
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search. Approximately 30 to 45 minutes later I was placed in
waist restraints with only a pair of underwear. . . .
1AC, Ex. A at 3-4.

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Plaintiff further states the following.

After he was taken

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from the holding cell, he was forced to kneel down on a chair and

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was placed in leg restraints.

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unknown officers taped Plaintiff's underwear to his bare skin at

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the waist and the legs.

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was then taken outside, where it was cold and windy, to the

United States District Court
For the Northern District of California

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Then he was told to stand up.

Two

Plaintiff, wearing only his underwear,

"feces-watch building."

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In this building, the conditions were harsh and inhumane.
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Plaintiff could see the goose bumps on his arm and legs and he was

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shaking from the cold.

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and placed in a cell with only a small wooden bench and a toilet

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that was covered with plastic bags and masking tape.

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little flies and bugs in it and the stench was horrible.

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Plaintiff was then taken to the C facility

The room had

On the first day, Plaintiff was not given a shirt or a
mattress.

Bright lights were kept on all of the time.

Plaintiff

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tried not to fall asleep, but dozed off while he was sitting on
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the bench, fell off the bench and injured his shoulder.
Plaintiff was not provided with utensils with which to eat

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his food nor was he allowed to wash his hands.

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and leg restraints were not taken off and, in order to eat, he had

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to place his food tray on the bench and get down on his knees and

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"eat like a savage animal."

Plaintiff's waist

There was a foul-smelling bucket in

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which Plaintiff relieved himself.

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Nolte and Milenewicz laughed when the tape was ripped off his skin

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so that he could relieve himself.

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toilet paper and, as a result, his hands were smeared with feces.

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He was not given soap and water to wash his hands and was forced

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Defendants Mora, Corona, White,

Plaintiff was not provided with

to eat his food with his dirty hands.

Plaintiff was released from

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these conditions on Tuesday, December 4, 2007 at approximately
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United States District Court
For the Northern District of California

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1:00 pm.

Plaintiff had been subjected to these inhumane

conditions for almost two days.

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Plaintiff's fiancée is white and Plaintiff alleges that he

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was profiled or subjected to race discrimination because he and

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his fiancée are of different races.

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alleges that other inmates and visitors in the visiting room, who

In his complaint, Plaintiff

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were not racially mixed, were eating with their families and were
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not subjected to being searched like he was.

However, in the

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declaration he submitted with his 602 appeal, Plaintiff states

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that he and his family were the only visitors in the visiting

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room.

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Defendants' version of events is as follows.

During

Plaintiff's visit with his family, Defendant Officer Oleachea
observed Plaintiff swallow an item Officer Oleachea believed to be

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contraband.

Other officers noticed Ms. Frye, Plaintiff's mother,

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attempting to conceal unidentified items in her clothing.

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Officers advised Ms. Frye of their observations and told her to

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enter the women's restroom.

At the same time, Plaintiff was
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escorted to another room for an unclothed body search.

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rushed ahead of the officers and into the restroom where she

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started to shake out her clothing.

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floor from Ms. Frye's clothing.

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a search, she was escorted to the visiting room and removed from

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Ms. Frye

Several items fell to the

When Ms. Frye did not consent to

the building.

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Plaintiff was immediately put on contraband watch.

SVSP

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personnel conduct contraband watches in accordance with SVSP

United States District Court
For the Northern District of California

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Operational Procedure 38, which provides for placing the inmate in

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a holding cell under continuous observation by an officer.

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inmate is permitted to wear a t-shirt, boxer shorts and socks.

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The cell is to contain only a mattress and no other

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accommodations.

The

The inmate is fed on a paper tray with one

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plastic utensil.

Approximately every thirty minutes, officers

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record pertinent activities or observations.
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During the time Plaintiff was on contraband watch, a record

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of his daily activities was maintained by the on-duty officers.

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Plaintiff was given a t-shirt and a blanket his first night on

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contraband watch.

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During the contraband watch, Plaintiff had two bowel movements and

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On his second night, he was given a mattress.

both were negative for contraband.

Plaintiff was released into

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the general population approximately fourteen and one-half hours
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after his first bowel movement.

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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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56.

Fed. R. Civ. P.

Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986);

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir.
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1987).

The court must draw all reasonable inferences in favor of

United States District Court
For the Northern District of California

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the party against whom summary judgment is sought.

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

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Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558

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(9th Cir. 1991).

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Matsushita

Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the
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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

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DISCUSSION

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I. Fourteenth Amendment Procedural Due Process Claim
Plaintiff claims that his procedural due process rights were
violated because he was placed on contraband watch without notice

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or a hearing.
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Interests that are procedurally protected by the due process

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clause may arise from two sources--the due process clause itself

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and laws of the states.

Meachum v. Fano, 427 U.S. 215, 223-27
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(1976).

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pertaining to liberty.

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affect the sentence imposed in an unexpected manner implicate the

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due process clause itself, whether or not they are authorized by

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state law.

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In the prison context, these interests are generally ones
Changes in conditions so severe as to

Sandin v. Conner, 515 U.S. 472, 484 (1995).

Deprivations that are authorized by state law and are less severe

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or more closely related to the expected terms of confinement may
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also amount to deprivations of a procedurally protected liberty

United States District Court
For the Northern District of California

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interest only if they impose "atypical and significant hardship on

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the inmate in relation to the ordinary incidents of prison life."

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Id.

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Whether a restraint is "atypical and significant" under
Sandin requires case-by-case consideration.

Ramirez v. Galaza,

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334 F.3d 850, 860 (9th Cir. 2003).

Typically, a court should

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consider the following factors: "1) whether the challenged
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condition 'mirrored those conditions imposed upon inmates in

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administrative segregation and protective custody,' and thus

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comported with the prison's discretionary authority; 2) the

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duration of the condition, and the degree of restraint imposed;

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and 3) whether the state's action will invariably affect the

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duration of the prisoner’s sentence."

Id. at 861.

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Defendants argue that, even if a liberty interest is
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implicated by placement in contraband-watch, Plaintiff's forty-

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eight hour placement was too short to trigger due process

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protection.

Defendants cite Meraz v. Reppond, 2009 WL 723841, *2
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(N.D. Cal.), in which the district court found that the

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plaintiff's seventy-two hour placement on contraband watch did not

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amount to atypical and significant hardship within the

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correctional system.

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in the contraband watch were more onerous than those plaintiff

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The court stated, "Although the conditions

normally faced in prison, his placement was simply too brief to

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implicate the Due Process Clause."

Id.

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Plaintiff cites Mendoza v. Blodgett, 960 F.2d 1425, 1429 (9th

United States District Court
For the Northern District of California

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Cir. 1992), where the Ninth Circuit held that the prison's former

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dry cell watch4 regulation created a liberty interest because it

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provided particularized standards and criteria for its

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implementation and duration.

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Id.

The plaintiff was held in a

contraband-watch cell for twenty-four hours.

Id.

The court held

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that a hearing five days after the watch ended was insufficient to
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accord the prisoner due process.

Id. at 1431.5

Mendoza is inapplicable here because it was decided before

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Sandin v. Conner, which changed the analysis for determining due

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process violations in a prison setting.

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F.3d 931, 932 (9th Cir. 1995), the Ninth Circuit explained that

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In Mujahid v. Meyer, 59

Sandin overruled Ninth Circuit cases that looked at the language

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of a prison regulation to determine if it created a liberty
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interest.

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The Mujahid court stated:

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This is another name for contraband watch.

In a later section, the court held that the defendants were
entitled to qualified immunity on this claim. Id.
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In Sandin, the Court determined that prison regulations on
confinement of an inmate did not create a liberty interest.
In making its decision the Court did not rely on the language
of the regulations . . . Rather the Court focused on the
particular discipline imposed and held that "it did not
present the type of atypical, significant deprivation in
which a state might conceivably create a liberty interest."

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Id.

The Mujahid court held that there was no liberty interest

implicated in being held in disciplinary segregation for fourteen

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days.

Id.

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Here, Plaintiff was on contraband watch for less than two

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United States District Court
For the Northern District of California

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days.

This is less than the three-day contraband watch that the

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Meraz court found to be too short to implicate the due process

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clause.

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duration of Plaintiff's prison sentence.

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conditions Plaintiff had to endure on contraband watch were harsh,

Furthermore, the contraband watch did not affect the
Therefore, although the

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they did not impose the kind of atypical and significant hardship
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in relation to the ordinary incidents of prison life that would
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implicate due process protection.

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rights were not violated, the Court need not address what process

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was due.

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Because Plaintiff's due process

Furthermore, Defendants are entitled to qualified immunity on
this claim.

The defense of qualified immunity protects

"government officials . . . from liability for civil damages

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insofar as their conduct does not violate clearly established
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statutory or constitutional rights of which a reasonable person

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would have known."

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(1982).

Harlow v. Fitzgerald, 457 U.S. 800, 818

A defendant may have a reasonable, but mistaken, belief
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about the facts or about what the law requires in any given

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situation.

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threshold question in qualified immunity analysis is:

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the light most favorable to the party asserting the injury, do the

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facts alleged show the officer's conduct violated a constitutional

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right?"

Saucier v. Katz, 533 U.S. 194, 205 (2001).

Id. at 201.

The
"Taken in

A court considering a claim of qualified

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immunity must determine whether the plaintiff has alleged the
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deprivation of an actual constitutional right and whether such

United States District Court
For the Northern District of California

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right was "clearly established."

Pearson v. Callahan, 555 U.S.

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223, 231 (2009).

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certain conduct constitutes a constitutional violation, the

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defendant cannot be on notice that such conduct is unlawful.

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Rodis v. City & County of San Francisco., 558 F.3d 964, 970-71

Where there is no clearly established law that

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(9th Cir. 2009).

The relevant, dispositive inquiry in determining

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whether a right is clearly established is whether it would be
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clear to a reasonable defendant that his conduct was unlawful in

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the situation he confronted.

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Saucier, 533 U.S. at 202.

On these facts, viewed in the light most favorable to

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Plaintiff, Defendants prevail as a matter of law on their

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qualified immunity defense because the Court has found no due

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process violation.

However, even if a constitutional violation

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had occurred with respect to Plaintiff's due process claim, in
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light of clearly established principles at the time of the

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incident, Defendants could have reasonably believed their conduct

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was lawful.

See Mujahid, 59 F.3d at 932 (fourteen days in
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disciplinary segregation did not implicate due process

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protection).

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The Court grants Defendants' motion for summary judgment on

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Plaintiff's due process claim.

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II. Eighth Amendment Claim

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Plaintiff claims that, by placing him on contraband watch,

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Defendants violated his Eighth Amendment right to be free from
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cruel and unusual punishment.

United States District Court
For the Northern District of California

10

The treatment a prisoner receives in prison and the

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conditions under which he is confined are subject to scrutiny

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under the Eighth Amendment.

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(1993).

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Eighth Amendment places restraints on prison officials, who may

Helling v. McKinney, 509 U.S. 25, 31

In its prohibition of "cruel and unusual punishment," the

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not, for example, use excessive force against prisoners.

Hudson

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v. McMillian, 503 U.S. 1, 6-7 (1992).

The Eighth Amendment also

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imposes duties on these officials, who must provide all prisoners

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with the basic necessities of life, such as food, clothing,

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shelter, sanitation, medical care and personal safety.

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Brennan, 511 U.S. 825, 832 (1994); DeShaney v. Winnebago County

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Dep't of Social Servs., 489 U.S. 189, 199-200 (1989).

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Farmer v.

A prison official violates the Eighth Amendment when two

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requirements are met: (1) the deprivation alleged must be,
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objectively, sufficiently serious, Farmer, 511 U.S. at 834 (citing
Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison

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official must possess a sufficiently culpable state of mind, id.

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(citing Wilson, 501 U.S. at 297).

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In determining whether a deprivation of a basic necessity is

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sufficiently serious to satisfy the objective component of an

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Eighth Amendment claim, a court must consider the circumstances,

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nature, and duration of the deprivation.

The more basic the need,

the shorter the time it can be withheld.

Johnson v. Lewis, 217

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F.3d 726, 731 (9th Cir. 2000).

Prison conditions that are

United States District Court
For the Northern District of California

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restrictive and harsh are part of ordinary prison life and do not

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fall under Eighth Amendment protection.

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U.S. 337, 347 (1981).

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civilized measure of life's necessities are sufficient to

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implicate the Eighth Amendment.

Rhodes v. Chapman, 452

Only those deprivations denying the minimal

Hudson, 503 U.S. at 9; see e.g.,

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Johnson, 217 F.3d at 732-733 (substantial deprivations of shelter,
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food, drinking water and sanitation for four days sufficiently
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serious to satisfy objective component of Eighth Amendment claim);

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Hearns v. Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005)

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(allegations of serious health hazards in disciplinary segregation

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yard for period of nine months enough to state claim of

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unconstitutional prison conditions).

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Plaintiff's placement on contraband watch for less than two

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days was not long enough to rise to the level of an Eighth
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Amendment violation; he was released and returned to the general

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population as soon as officers were satisfied that he had not

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hidden contraband in his body.

See Meraz, 2009 WL 723841, at *2
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(seventy-two hour contraband watch did not amount to Eighth

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Amendment violation).

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Plaintiff endured were not sufficiently serious to implicate the

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Eighth Amendment.

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(9th Cir. 1988), judgment vacated on other grounds, 493 U.S. 801

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Furthermore, the types of deprivations that

See Hernandez v. Denton, 861 F.2d 1421, 4124

(1989) (sleeping without a mattress for one night insufficient to

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state Eighth Amendment violation and no amendment can alter that
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insufficiency); Minifield v. Butikofer, 298 F. Supp. 2d 900, 904

United States District Court
For the Northern District of California

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(N.D. Cal. 2004) (four-hour deprivation of ventilation and water

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not an Eighth Amendment violation); Evans v. Fogg, 466 F. Supp.

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949, 950-51 (S.D.N.Y. 1979) (housing in a refuse-strewn cell for

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twenty-four hours and in a flooded cell for two days did not

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amount to cruel and unusual punishment); Holloway v. Gunnell, 685

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F.2d 150, 156 (5th Cir. 1982) (two days in dirty, hot cell without
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water did not rise to Eighth Amendment violation).
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Plaintiff cites out-of-circuit cases holding that confinement

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in a cell with unsanitary conditions constituted an Eighth

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Amendment violation.

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confined for a longer period or the conditions were more egregious

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than in Plaintiff's case.

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However, in these cases the inmate was

See e.g., Young v. Quinlan, 960 F.2d

351, 363 (3rd Cir. 1992) (unsanitary living conditions for four

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days constituted Eighth Amendment violation); Kimbrough v. O'Neil,
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523 F.2d 1057, 1058-59 (7th Cir. 1975) (pretrial detainee's three
days in solitary confinement with no toilet, water or mattress and

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where water was thrown on him at night was Eighth Amendment

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violation).

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Plaintiff also argues that his placement on contraband watch

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violated the Eighth Amendment because he and his fiancée are of

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different races and, thus, Defendants' conduct was motivated by

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racial discrimination.

He concludes that he and his family were

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targeted on the basis of race because all the other families in
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the visiting room were of the same race, and Plaintiff and his

United States District Court
For the Northern District of California

10

mother were the only people asked to submit to a strip search.

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However, in the December 11, 2007 declaration attached to his 602

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appeal, Plaintiff states contradictorily that he, his mother and

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fiancée were the only visitors in the visiting room when Officer

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Oleachea demanded that he and his mother submit to a strip search.

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Thus, Plaintiff presents no evidence to create a dispute of fact
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that Officer Oleachea, or any officer, was motivated by racial
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animus; Plaintiff cannot create a dispute of fact by contradicting

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himself.

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Officer Oleachea explains his motivation by stating that, on

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December 2, 2007, he was assigned to patrol the SVSP visiting room

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and was responsible for observing the interactions between inmates

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and their visitors to ensure that no contraband was passed from

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the visitor to the inmate.

Oleachea Dec. ¶ 5.

Officer Oleachea

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observed Plaintiff, in his mother's presence, place an unknown

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item in his mouth.

Oleachea Dec. ¶ 7.

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may have sought to conceal contraband by ingesting it, Officer
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Suspecting that Plaintiff

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Oleachea conducted an unclothed body search of Plaintiff, but did

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not find any contraband.

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officer escorted Plaintiff to his cell and, because he had lost

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visual contact with Plaintiff while Plaintiff was inside his cell,

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Officer Oleachea conducted another unclothed body search of

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Id.

Officer Oleachea and another

Plaintiff, with negative results.

Oleachea Dec. ¶ 8.

After these

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two searches, Officer Oleachea was relieved by additional staff
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and had no further dealings with Plaintiff.

Id.

Thus, Officer

United States District Court
For the Northern District of California

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Oleachea only conducted the strip searches; he was not responsible

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for the conditions in the contraband watch cell.

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Accordingly, Plaintiff's Eighth Amendment rights were not

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violated.

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favorable to Plaintiff, Defendants prevail as a matter of law on

Furthermore, viewing the facts in the light most

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their qualified immunity defense because the record establishes no
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Eighth Amendment violation occurred.

Even if a constitutional

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violation had occurred, in light of clearly established principles

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at the time of the incident, Defendants could have reasonably

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believed that placing Plaintiff on contraband-watch, under the

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conditions he describes, for a two-day period after an officer

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observed him ingesting what could have been contraband, was

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lawful.

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Therefore, Defendants' motion for summary judgment on
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Plaintiff's Eighth Amendment claim is granted.

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III. Fourth Amendment Claim Against Oleachea and Quitevis

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Plaintiff claims that Officers Oleachea and Quitevis

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violated his Fourth Amendment right to be free from unreasonable

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searches when they performed two invasive strip searches without

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reasonable suspicion.

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The Fourth Amendment proscribes "unreasonable searches and

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seizures."

U.S. Const. amend. IV; Allen v. City of Portland, 73

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F.3d 232, 235 (9th Cir. 1995); Franklin v. Foxworth, 31 F.3d 873,

United States District Court
For the Northern District of California

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875 (9th Cir. 1994).

The Fourth Amendment applies to the invasion

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of bodily privacy in prisons and jails.

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of San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en banc).

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To analyze a claim alleging a violation of this privacy right, the

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court must apply the test set forth in Turner v. Safley, 482 U.S.

Bull v. City and County

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78, 89 (1987), and determine whether a particular invasion of
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bodily privacy was reasonably related to legitimate penological
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interests.

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detainees in institutional settings may be subjected to strip

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searches and body cavity searches if they are conducted in a

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reasonable manner.

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Bell, the court explained the test for reasonableness under the

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Bull, 595 F.3d at 973.

Prisoners and pretrial

Bell v. Wolfish, 441 U.S. 520, 561 (1979).

In

Fourth Amendment "requires a balancing of the need for the

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particular search against the invasion of personal rights that the
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search entails.

Courts must consider the scope of the particular

intrusion, the manner in which it is conducted, the justification

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for initiating it, and the place in which it is conducted."

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at 559.

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Id.

In Bell, the Supreme Court evaluated the constitutionality of

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a blanket policy allowing strip searches with visual body cavity

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inspections, without regard to individualized suspicion, of all

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inmates at the county jail, including pretrial detainees, after

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every contact visit with a person from outside the institution.
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Id. at 559-60.

The Supreme Court upheld the policy because the

United States District Court
For the Northern District of California

10

possibility of smuggling drugs, weapons, and other contraband into

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the institution presented significant and legitimate security

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interests.

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rights of arrestees, placed in custodial housing with the general

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jail population, are not violated by a practice of strip searching

Id.

Similarly, the Ninth Circuit has held that the

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each one of them as part of the booking process, provided that the
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searches are no more intrusive on privacy interests than those
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upheld in Bell, and the searches are not conducted in an abusive

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manner.

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state of mind when conducting a search is not relevant to Fourth

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Amendment analysis; an action is reasonable, regardless of the

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individual officer's state of mind, as long as the circumstances,

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Bull, 595 F.3d at 980-82.

Furthermore, the officer's

viewed objectively, justify the action.

Nunez v. Duncan, 591 F.3d

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1217, 1228 (9th Cir. 2010) (citing Brigham City, Utah v. Stuart,
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547 U.S. 398, 404 (2006); see also Bull, 595 F.3d at 978

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(individualized suspicion is not a requirement for a strip search

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in a prison environment).
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1

Plaintiff's version of events, taken as true, is insufficient

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to establish that the two strip searches were unreasonable.

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First, as indicated by the Supreme Court in Bell, 441 U.S. at 559,

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controlling contraband within a prison is a legitimate penological

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interest and the balance between the need for strip searches and

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the invasion of personal rights that the search entails must be

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resolved in favor of the prison's security concerns.

Second, even

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9

considering Plaintiff's conclusory statement that Officers

United States District Court
For the Northern District of California

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Oleachea and Quitevis were "aggressive" when they searched him,

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his description of the actual searches establishes that they were

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not done in an excessive, vindictive or harassing manner.

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Plaintiff complains of being placed in waistchains and leg

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restraints.

However, these restraints are required by SVSP

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Operation Procedure 38, which lists the procedures to be used
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during a contraband watch.

See Respondent's Exhibit A, SVSP

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Operational Procedure 38 at ¶ 38.4.

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Plaintiff's Fourth Amendment

rights were not violated.

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Furthermore, Officers Oleachea and Quitevis are entitled to

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qualified immunity on Plaintiff's Fourth Amendment claim because

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no constitutional violation occurred.

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Even if Plaintiff's Fourth

Amendment rights had been violated, it would have been reasonable

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for the officers to have believed that conducting an unclothed
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body search of Plaintiff, after observing him ingest what Officer
Oleachea thought was contraband, was lawful.

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See Bell, 441 U.S.

1

at 561 (prisoners may be subjected to strip search if conducted in

2

reasonable manner).

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4

Therefore, Defendants' motion for summary judgment on
Plaintiff's Fourth Amendment claim is granted.

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CONCLUSION

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Based on the foregoing, Defendants' motion for summary

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judgment is granted.

A judgment in favor of Defendants shall be

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United States District Court
For the Northern District of California

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entered separately.

The parties shall bear their own costs of

suit.
IT IS SO ORDERED.

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Dated: 3/20/2012

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CLAUDIA WILKEN
United States District Judge

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