Haraszewski v. Brannan et al

Filing 50

ORDER denying 49 Motion for Reconsideration; granting 49 Motion for Extension of Time to File Amended Complaint; plaintiff may file his amended complaint no later than Thursday, November 17, 2011; Signed by Judge Larry Alan Burns on 10/27/11. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HUBERT DYMITR HARASZEWSKI,

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CASE NO. 10cv0546-LAB (PCL)

Plaintiff,

ORDER GRANTING EXTENSION
OF TIME TO FILE AMENDED
COMPLAINT; AND

vs.
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ORDER DENYING MOTION FOR
RECONSIDERATION

LISA BRANNAN, et al.,
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Defendants.
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On September 30, 2011, the Court issued an order dismissing certain claims, and

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allowing Plaintiff, if he wished, to file an amended complaint no later than October 21, 2011.

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The purpose of allowing Plaintiff to amend was to permit him to file a clean complaint that

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included only his one surviving claim, a Due Process claim regarding pretrial detention. On

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October 20, 2011, Plaintiff filed a motion seeking additional time in which to amend,

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explaining that he needed additional time to reorganize his complaint. For good cause

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shown, the request is GRANTED. Plaintiff may file his amended complaint (which is not to

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include any dismissed claims) no later than Thursday,

17, 2011.

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As part of the same motion, Plaintiff sought reconsideration of the Court’s order. His

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request for reconsideration says he believes the Court may have misconstrued his

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complaint. Plaintiff says he believes certain searches of his cell while he was a pretrial

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10cv0546

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detainee were motivated by a desire to harass and punish, and he thinks the Court erred by

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considering only Fourth Amendment theories of recovery, rather than an Eighth Amendment

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theory.

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This objection is baseless. Plaintiff cites Hudson v. Palmer, 468 U.S. 517, 530 (1984)

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as holding that, even though the plaintiff there did not enjoy a reasonable expectation of

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privacy in his cell, the Eighth Amendment provides a remedy for cruel and unusual

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punishment by means of harassing searches. But the plaintiff in Hudson was a prisoner, not

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a pretrial detainee. Hudson does not hold that the Eighth Amendment supports claims by

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pretrial detainees for improper searches. Such claims based on allegedly improper searches

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(including searches conducted merely to harass) are properly brought as Fourth or

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Fourteenth Amendment claims, and the Court analyzed them as such.

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The Court did not err in declining to apply the Eighth Amendment to claims allegedly

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arising while Plaintiff was a pretrial detainee. See Bell v. Wolfish, 441 U.S. 520, 537 n.16

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(1979) (holding that the court properly declined to rely on the Eighth Amendment in

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considering the claims of pretrial detainees). The motion for reconsideration is therefore

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DENIED.

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IT IS SO ORDERED.
DATED: October 27, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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10cv0546