Goodrick v. Sandy et al

Filing 63

MEMORANDUM DECISION AND ORDER granting 33 Defendant's Motion for Summary Judgment; denying 55 Plaintiff's Motion to Strike; granting 58 Defendant's Motion for Extension of Time to File Response/Reply; denying 60 Defendant's Motion to Strike. This entire case is dismissed with prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAN GOODRICK,
Case No. 1:10-cv-00603-EJL
Plaintiff,
v.
ROBIN SANDY, JAY NIELSEN,
CAROLYN MELINE, BRENT
REINKE, PAM SONNEN, KEVIN
KEMPF, TEREMA CARLIN, GALE
MUNDEN, ERIC MacEACHERN, AMY
ANDERSON, WILLIAM UNGER,
PAMELA SWEARIGEN, SHIRLEY
ROANE, KRISTI LYNCH, DANIEL
BYBEE, RANDY HARTNESS, and C/O
HOUNDSHEL,

MEMORANDUM DECISION AND
ORDER

Defendants.

The following motions are currently pending before the Court in this prisoner civil
rights matter: (1) Defendants’ Motion for Summary Judgment (Dkt. 33); (2) Plaintiff’s
Motion to Strike and Disregard Portions of Defendants’ Memorandum in Support of
Summary Judgment and Portions of Affidavits of Carlin, Munden and Portions of
Undisputed Facts (Dkt. 55); (3) Defendants’ Motion for Extension of Time to File Reply
Brief in Support of Summary Judgment (Dkt. 58); and (4) Defendants’ Motion to Strike

MEMORANDUM DECISION AND ORDER - 1

the “Declaration of Dan Goodrick in Support of Plaintiff’s Response Opposing
Defendants Motion for Summary Judgment” (Dkt. 60).
The Court finds that the parties have adequately stated the facts and legal
arguments in their briefs and that the decisional process would not be significantly aided
by oral argument. Therefore, the Court will decide these matters on the written motions,
briefs and record without oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons that follow, the Court will deny Plaintiff’s Motion to Strike and
Disregard Portions of Defendants’ Memorandum in Support of Summary Judgment and
Portions of Affidavits of Carlin, Munden and Portions of Undisputed Facts. The Court
will also deny Defendants’ Motion to Strike the “Declaration of Dan Goodrick in Support
of Plaintiff’s Response Opposing Defendants Motion for Summary Judgment.”
Defendants’ Motion for Summary Judgment will be granted, as well as Defendants’
Motion for Extension of Time to File Reply Brief in Support of Summary Judgment.
BACKGROUND
At all times relevant to the Complaint, Plaintiff was housed at the Idaho
Correctional Institution in Orofino (ICI-O). On June 17, 2010, Plaintiff was accused of
engaging in prohibited sexual activity with another inmate named Gray. (Dkt. 32-2, ¶ 3.)
During the investigation of the incident, Plaintiff was also accused of engaging in
prohibited sexual activity with an inmate named Brown. (Id., ¶¶ 27-29.) ICI-O officials
pursued two disciplinary offense reports (DORs) against Plaintiff, (Id., ¶¶ 26, 30), in
which they relied upon information provided by confidential witnesses. (Id., ¶¶ 12, 27MEMORANDUM DECISION AND ORDER - 2

29.) Plaintiff was found guilty of sexual misconduct in both of the DORs, and he has
since been transferred to a more restrictive institution and placed in administrative
segregation. (Id., ¶¶ 35-36, 39-40, 46-48.)
Plaintiff filed this lawsuit in December 2010, alleging a variety of claims. (Dkt.
1.) Plaintiff thereafter filed a motion to amend his complaint, along with a proposed
Amended Complaint in August 2012 (Dkt. 7). The Court granted Plaintiff’s motion and
issued a Second Initial Review Order, as required by 28 U.S.C. § 1915A. (Dkt. 11.) The
Court found that Plaintiff stated claims under the following causes of action: (1)
Plaintiff’s rights under the First and Fourteenth Amendments were violated when certain
Defendants engaged in allegedly retaliatory conduct based on his previous litigation
activities; (2) Plaintiff was deprived of due process of law under the Fourteenth
Amendment because the two DORs for sexual misconduct were not supported by “some
evidence”; and (3) Plaintiff’s Fourth and Eighth Amendment rights were violated by a
strip search that resulted in naked photographs of Plaintiff. (Id., p. 3.)
Defendants have filed a motion for summary judgment, seeking to dismiss
Plaintiff’s claims with prejudice. (Dkt. 33.) Defendants argue the following: (1)
sovereign immunity bars Plaintiff’s damages claim against the named Defendants in their
official capacities; (2) Plaintiff fails to state a valid retaliation claim; (3) Plaintiff fails to
state a claim against Defendants Unger, Hartnett and Houndshel; (4) the “some evidence”
standard no longer applies to disciplinary offenses in light of the U.S. Supreme Court’s
decision in Swarthout; (5) even if the “some evidence” standard applies, there was some
MEMORANDUM DECISION AND ORDER - 3

evidence to support the discipline imposed against Plaintiff; (6) the photographing did not
violate Plaintiff’s Fourth Amendment rights; (7) the photographing of Plaintiff did not
constitute cruel and unusual punishment; and (8) neither the DORs, nor the placement of
the PRP alert and subsequent transfer of Plaintiff to administrative segregation were the
result of unlawful retaliation.
Plaintiff has filed a Plaintiff’s Motion to Strike and Disregard Portions of
Defendants’ Memorandum In Support of Summary Judgment and Portions of Affidavits
of Carlin, Munden and Portions of Undisputed Facts. (Dkt. 55.) Plaintiff contends that
Defendants’ references to Plaintiff’s prior convictions should be stricken, pursuant to
Federal Rules of Evidence 404(b) and 609(b). Defendants have also filed a Motion to
Strike the “Declaration of Dan Goodrick in Support of Plaintiff’s Response Opposing
Defendants’ Motion for Summary Judgment.” (Dkt. 60.)
PLAINTIFF’S MOTION TO STRIKE
Plaintiff seeks to strike portions of Defendants’ Memorandum in Support of
Summary Judgment, Defendants’ Disputed Facts, Defendant Carlin’s Affidavit and
Defendant Munden’s Affidavit, where such documents reference Plaintiff’s prior
convictions. (Dkt. 55.) Plaintiff argues such references are character evidence offered by
Defendants to prove Plaintiff acted in conformity therewith. (Dkt. 55, pp. 1-2.) He
further argues that the convictions are inadmissible under Rule 609, because the probative
value of the convictions is substantially outweighed by its prejudicial effect. (Id.) The
Court disagrees.
MEMORANDUM DECISION AND ORDER - 4

A trial court can only consider admissible evidence in ruling on a motion for
summary judgment. See Fed.R.Civ.P. 56(e); Orr. v. Bank of America, NT & SA, 285 F.3d
764 (9th Cir. 2002). The Federal Rules of Evidence govern the admissibility of evidence.
All relevant evidence is admissible unless otherwise stated by the Constitution, statute or
other Federal Rules. Fed.R.Evid. 402. Under Rule 401, evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.”
Fed.R.Evid. 401. Evidence that is not relevant is not admissible. Fed.R.Evid. 402.
Pursuant to Rule 403 of the Federal Rules of Evidence, the court may exclude
relevant evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”
Fed.R.Evid. 403. Rule 403 has been characterized, however, “as an extraordinary remedy
to be used sparingly because it permits the trial court to exclude otherwise relevant
evidence.” U.S. v. Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987).
Pursuant to Rule 404 of the Federal Rules of Evidence, character evidence is
generally not admissible to prove conduct. In particular, “evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Fed.R.Evid. 404(b). Other crimes, wrongs or acts are
admissible, however, to prove motive, opportunity, intent, preparation and plan. Id.

MEMORANDUM DECISION AND ORDER - 5

In a closely related vein, but contrary to the general rule on character evidence,
evidence of habit or routine practice is admissible to prove that the conduct of a person on
a particular occasion is in conformity with the habit or routine practice. Fed.R.Evid. 406;
see also Fed.R.Evid. 406 advisory committee notes (1972) (“character and habit are close
akin”). Habit is a person’s regular practice of meeting a particular kind of situation with a
specific type of conduct. (Id.)
Finally, Rule 609 of the Federal Rules of Evidence governs the admissibility of a
witness’s prior convictions for impeachment purposes. Pursuant to Rule 609(a), for
purposes of attacking the character for truthfulness of a witness, evidence that the witness
has been convicted of a felony “shall be admitted, subject to Rule 403 . . . if the court
determines that the probative value of admitting this evidence outweighs its prejudicial
effect to the accused.” Fed.R.Evid. 609(a)(1). In analyzing conviction evidence, the
court must engage in a “genuine balancing” of probative value and prejudicial effect.
U.S. v. Bagley, 772 F.2d 482, 487 (9th Cir. 1985). However, a conviction more than ten
years old (measured from the date of conviction or release from confinement for the
conviction, whichever is later), is generally not admissible “unless the court determines,
in the interests of justice, that the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial effect.” Fed.R.Evid.
609(b).
The Court finds that Plaintiff’s convictions and the length of his sentence are
relevant to Plaintiff’s claims and whether Defendants had a culpable state of mind for
MEMORANDUM DECISION AND ORDER - 6

purposes of retaliation and the claims under the Fourth and Eighth Amendments.
Defendants’ knowledge of an inmate’s criminal convictions and the length of an inmate’s
sentence informs their management decisions and is an important consideration in
assessing whether Defendants’ actions reasonably advanced a legitimate correctional
goal. Defendants did not offer the conviction evidence in question to show that Plaintiff
acted in conformity with such actions, but to show Defendants’ knowledge when they
investigated and transferred him. The probative value of this evidence is not substantially
outweighed by the danger of unfair prejudice to Plaintiff. Accordingly, Plaintiff’s Motion
to Strike and Disregard Portions of Defendants’ Memorandum in Support of Summary
Judgment and Portions of Affidavits of Carlin, Munden and Portions of Undisputed Facts
will be denied.
MOTION FOR SUMMARY JUDGMENT
1.

Standard

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id., at 327.
MEMORANDUM DECISION AND ORDER - 7

“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. Material facts are those “that might affect the
outcome of the suit.” Id., at 248. “Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The moving party is entitled to summary
judgment if that party shows that each material fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the
record, or show that the adverse party is unable to produce admissible evidence to
support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited
materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
insufficient. Rather, “there must be evidence on which the jury could reasonably find for
the [non-moving party].” Liberty Lobby, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations
MEMORANDUM DECISION AND ORDER - 8

submitted in support of or in opposition to a motion “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). If a
party “fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact,” the Court may consider that fact to be undisputed. Fed. R. Civ.
P. 56(e)(2). The Court may grant summary judgment for the moving party “if the motion
and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences which can be drawn
from the evidence must be drawn in a light most favorable to the non-moving party, T.W.
Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable
inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
To state a claim under § 1983, a plaintiff must allege a violation of rights protected
by the Constitution or created by federal statute proximately caused by conduct
of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th
Cir. 1991).

MEMORANDUM DECISION AND ORDER - 9

2.

Discussion
A.

Sovereign Immunity

Defendants argue that the doctrine of sovereign immunity bars Plaintiff’s damages
claims against the named Defendants in their official capacities. Plaintiff contends
Defendants were sued in their official capacities only for declaratory and injunctive
relief.
A state’s sovereign immunity from suit in federal court normally extends to suits
against its officers in their official capacities. Cardenas v. Anzai, 311 F.3d 929, 934 (9th
Cir. 2002). However, the Supreme Court has set forth an exception where a plaintiff
maintains a suit for prospective relief against a state official in his official capacity. Id.,
(citing Ex Parte Young, 209 U.S. 123 (1908)). Accordingly, any damage claims against
Defendants in their official capacities are barred by the Eleventh Amendment and will be
dismissed with prejudice. As to Plaintiff’s claims for declaratory and injunctive relief,
those claims will be dismissed with prejudice for the reasons discussed below.
B.

Retaliation Claim

Defendants seek summary judgment on the claim that Plaintiff’s rights under the
First and Fourteenth Amendments were violated when certain Defendants engaged in
allegedly retaliatory conduct based on his previous litigation activities. Defendants argue
that Plaintiff failed to allege sufficient facts in the Amended Complaint to support his
claim and that his briefing only argues generalities.

MEMORANDUM DECISION AND ORDER - 10

A retaliation claim must allege the following: “(1) An assertion that a state actor
took some adverse action against an inmate (2) because of (3) that prisoner’s protected
conduct, . . . that such action (4) chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Although a
“chilling effect on First Amendment rights” is enough to state an injury, Gomez v.
Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of arbitrary retaliation”
are insufficient to state a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n. 4 (9th
Cir. 1985). “A prisoner suing prison officials under section 1983 for retaliation must
allege that he was retaliated against for exercising his constitutional rights and that the
retaliatory action does not advance legitimate penological goals, such as preserving
institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.
1994) (per curiam); see also Turner v. Safley, 482 U.S. at 89 (“[W]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.”). While “timing can be properly considered as
circumstantial evidence of retaliatory intent,” there must generally be something more
than simply timing to support an inference of retaliatory intent. Pratt v. Rowland, 65 F.3d
802, 808 (9th Cir. 1995).

Plaintiff disputes many “facts” underlying Defendants’ contention that he has not
come forward with sufficient evidence upon which a jury could find that the elements of
a retaliation claim can be met. (Dkt. 56-1.) He relies on two past incidents to show that
MEMORANDUM DECISION AND ORDER - 11

Defendants had reason to retaliate against him.
First, he alleges that he sued Defendant Terema Carlin and Amy Anderson in a
prior lawsuit, 1:09-cv-00017-BLW, and this provided them with a reason to retaliate
against him. The prior lawsuit terminated with an order concluding that Plaintiff had filed
his lawsuit beyond the statute of limitations. (Dkts. 45, 60 in Case No. 1:09-cv-00017BLW.) The basis of that lawsuit was that, in 2005, an inmate had accused Plaintiff of
having sexual relations with him, and that the disciplinary offense report (DOR) that
Plaintiff was issued was eventually dismissed, but Plaintiff was never told nor restored to
the privileges taken from him as a result of the DOR. (Dkt. 56-2, ¶ 7.)
Second, he alleges that an incident in December 2009 provided reason to retaliate
against him. In that particular incident, another inmate, Mr. Cruz, accused Plaintiff of
inappropriate sexual behavior and Defendant Carlin reported that the results of that
investigation were “inconclusive.” (Dkts. 12-3, 56-2, ¶¶ 8-16.) Plaintiff was suspicious
that this inmate falsely accused him of sexual improprieties as a means of revenge after
Plaintiff had him removed as his cellmate. (Id.) Plaintiff became more suspicious when
prison officials refused to produce the lie detector test results and other investigatory
findings to a third party for review, pursuant to an informal (non-litigation) request by the
American Civil Liberties Union, on behalf of Plaintiff. (Dkt. 56-2, ¶ 13.) Plaintiff claims
that due to the pressure he was putting on Defendants, he began to be harassed and
rumors started to circulate about sexual misconduct. (Id., ¶ 14.)

MEMORANDUM DECISION AND ORDER - 12

The incidents at issue center on whether Plaintiff had sexual relations with
William “Katlynn” Gray in June 2010 and Jason Brown. In the incidents at issue,
Plaintiff alleges that Carlin and Anderson coerced the inmate witnesses into giving false
statements against him by suggesting to them what their answers in the interview should
be. Some of the witnesses have given conflicting statements, depending upon whether
their opinion was solicited by Plaintiff or prison officials.
While Plaintiff’s disputed facts may be sufficient to show that Carlin and
Anderson may have had a motive to retaliate, Plaintiff has produced insufficient evidence
to show that the transfer was not for a legitimate penological purpose. The larger record
of the investigation of the Brown and Gray incidents reveals that the inmates provided
corroborating information upon which Defendants could reasonably conclude that
Plaintiff posed a safety risk to the inmates on his tier and that a transfer was appropriate
to address the safety needs of the other inmates. (Dkt. 34, 35.)
Of the ten inmates interviewed in the investigation (conducted by Sergeant
Roane), ten said that Plaintiff engaged in intimidation. (Dkt. 34, p. 3.) Ten out of ten
inmates said that Plaintiff was engaged in running a “store” at rates of two for one, three
for two, or three for one. (Id.) Some said that he used this tactic to get younger inmates
into debt, and then asked them for sexual favors to settle their debt with him. (Id.)
Plaintiff was referred to as a “Chicken Hawk” and a “will pay [for sex]” in the housing
unit. (Id.) Some of the inmates knew that Plaintiff and Gray were having sexual
relations, and they believed it was consensual. (Id.) One inmate said Plaintiff had
MEMORANDUM DECISION AND ORDER - 13

propositioned him, and another admitted to having engaged in oral sex with Plaintiff.
Another inmate stated that Plaintiff said to him, “let me give you a — or why don’t you
come into the cell and we can wrestle naked.” (Dkt. 34, p. 31.). Other evidence included
the fact that Plaintiff had given Brown gifts; that Plaintiff kept a journal that corroborated
a pattern of behavior and obsession with Brown, then Gray, then a third inmate; and that
Plaintiff had a history of sexual crimes, including predatory crimes. (Id., p. 5; Dkt. 33-9,
Affidavit of Terema Carlin in Support of Defendants’ Motion for Summary Judgment, ¶
5.) Importantly, the record reflects that the two inmates Plaintiff was accused of having
sexual relationships with were both vulnerable individuals in need of special protection
–Jason Brown, a developmentally-challenged inmate, and William “Katlynn” Gray, a
transgender inmate. (Dkt. 34, 35.)
Thus, while Plaintiff’s disputed facts suggest that motives for retaliation may have
existed, he has provided insufficient evidence to show that Plaintiff’s DORs regarding
Brown and Gray, the sexual predator alert, and his transfer to administrative segregation
did not reasonably advance legitimate correctional goals – including eliminating prison
rape, discouraging sexual activity in the prisons, and protecting vulnerable inmates.
Accordingly, Plaintiff’s claim of retaliation is subject to summary judgment.
C.

Due Process Claim

Defendants seek summary judgment on the claim that Plaintiff was deprived of
due process of law under the Fourteenth Amendment because the two DORs for sexual
misconduct were not supported by “some evidence.” Defendants argue that the “some
MEMORANDUM DECISION AND ORDER - 14

evidence” standard no longer applies to disciplinary offenses in light of the U.S. Supreme
Court’s decision in Swarthout v. Cooke, 131 S.Ct. 859 (2011).
The right to due process of law under the Fourteenth Amendment prohibits the
government from depriving an individual of a liberty or property interest without
following the proper procedures for doing so. Wolff v. McDonnell, 418 U.S. 539, 558-66
(1974). Because liberty interests protected by the Due Process Clause are “generally . . .
limited to freedom from restraint,” a prisoner asserting a due process claim based on
defects in the prison’s disciplinary process must show that he has been subjected to an
“atypical and significant hardship . . . in relation to ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995).
Plaintiff was sentenced to thirteen days in disciplinary segregation, with an
accompanying loss in certain privileges, for each sexual misconduct offense. (Dkt. 1-5,
pp. 28-29; 1-6, p. 11-12; Exhibits 22 and 25 to Plaintiff’s Complaint.) This Court set
forth in its Initial Review Order (Dkt. 6, p. 6), that this punishment was not an atypical
and significant hardship in relation to the ordinary incidents of prison life, see Sandin,
515 at 475-76 (allowing thirty days of administrative segregation), and therefore Plaintiff
was not deprived of a liberty interest that would concern the Due Process Clause. This
Court also concluded that Plaintiff did not allege sufficient facts to show that he had a
liberty interest at stake when he was transferred to a different institution and apparently
placed in administrative segregation there. See Meachum v. Fano, 427 U.S. 215, 225-27
(1976) (holding that prisoners have no due process interest protecting against a transfer
MEMORANDUM DECISION AND ORDER - 15

from one institution to another); cf. Wilkinson v. Austin, 545 U.S. 209, 224 (2005)
(holding that indefinite confinement in a supermax prison with exceptionally limited
human contact is atypical and significant). Without a constitutional liberty interest at
stake, Plaintiff cannot demonstrate that he was deprived of various procedural rights
during the DOR and restrictive housing hearings.
Nevertheless, the Court allowed Plaintiff to continue with his claim, because the
Ninth Circuit has held that a prisoner can still state a due process claim if a disciplinary
punishment is not supported by at least “some evidence,” regardless whether the prisoner
can satisfy the Sandin test. Burnsworth v. Gunderson, 179 F.3d 771, 774 (9th Cir. 1999)
(citing Superintendent v. Hill, 472 U.S. 445 (1985)). Defendants argue that the “some
evidence” standard is no longer applicable given the U.S. Supreme Court’s decision in
Swarthout v. Cooke, 131 S.Ct. 859 (2011).
In Swarthout, supra, the U.S. Supreme Court reviewed the granting of habeas
relief in a parole matter based on California’s “some evidence” rule under the Due
Process Clause. The Supreme Court stated that as with any due process claim, it first
must determine whether there exists a liberty or property interest of which a person has
been deprived, and if so whether the procedures followed by the State were
constitutionally sufficient. Id., at 862-63. The Supreme Court then held that a due
process interest in parole-related issues can be found only where a state-created liberty
interest exists. (Id.) Therefore, Ninth Circuit case law permitting due process claims in

inmate settings where no liberty interest is found, e.g. Burnsworth v. Gunderson, 179
MEMORANDUM DECISION AND ORDER - 16

F.3d 771, 775 (9th Cir. 1999), no longer provide viable legal grounds for relief.
Accordingly, since this Court has already determined that Plaintiff’s due process
claims do not pertain to a protected liberty interest under the Fourteenth Amendment,
these claims are subject to summary judgment.
D.

Fourth Amendment Claim

Defendants seek summary judgment on the claim that Plaintiff’s rights under the
Fourth Amendment were violated by a strip search that resulted in naked photographs of
Plaintiff. Defendants argue Plaintiff has not come forth with any evidence to raise a
genuine issue of material fact under the Fourth Amendment.

Whether a search is reasonable under the Fourth Amendment requires a case-bycase “balancing of the need for the particular search against the invasion of personal
rights that the search entails . . . .” Bell v. Wolfish, 441 U.S. 520, 559 (1979). The
required factors for courts to consider include: (1) “the scope of the particular intrusion,”
(2) “the manner in which it is conducted,” (3) “the justification for initiating it,” and (4)
“the place in which it is conducted.” Byrd v. Maricopa County Sheriff’s Dept., 629 F.3d
1135, 1141 (9th Cir. 2011), quoting Bell v. Wolfish, 441 U.S. at 559. However, the
constitutional rights of convicted prisoners are subject to limitations arising “both from
the fact of incarceration and from valid penological objectives -- including deterrence of
crime, rehabilitation of prisoners, and institutional security.” O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987).

MEMORANDUM DECISION AND ORDER - 17

The Court agrees with Defendants that all four factors weigh in favor of
reasonableness. As to the first factor, the intrusion subjected Plaintiff to a visual body
cavity search and to the photographing of his nude body for potential evidence of sexual
assault, rape or sexual activity. (Dkt. 33-3, Affidavit of Shirley Roane in Support of
Defendants’ Motion for Summary Judgment (“Roane Aff.”), ¶¶ 19-22; Dkt. 33-11,
Affidavit of Daniel Bybee in Support of Defendants’ Motion for Summary Judgment
(“Bybee Aff.”), ¶¶ 9-10.) With regard to the second factor, the search was conducted
privately and by a member of the same sex. (Dkt. 33-3, Roane Aff., ¶¶ 23-24; Dkt. 33-11,
Bybee Aff., ¶¶ 11-13.) As to the third factor, the search was initiated to preserve any
potential evidence of a crime and/or disciplinary offense. (Dkt. 33-3, Roane Aff., ¶¶ 2022.) And with regard to the fourth factor, the search was conducted in a private
administrative segregation cell, with only Plaintiff and the male correctional officer
conducting the search present. (Dkt. 33-3, Roane Aff. ¶¶ 23-24; Dkt. 33-11, Bybee Aff.,
¶¶ 8,11.)

While Plaintiff claims that the taking of the nude photographs were not necessary
and did not produce any evidence of sexual activity, the Court finds that the taking of
such pictures supports the legitimate penological purpose of identifying and preventing
prison rape. And as to Plaintiff’s argument that the search was not private and conducted
by a male officer, (because the photographs were turned over to Sergeant Roane – a
female), the Court finds that Roane’s brief viewing of the photographs for purposes of
her investigation is justified under the Fourth Amendment. See Grummett v. Rushen, 779
MEMORANDUM DECISION AND ORDER - 18

F.2d 491, 495-96 (9th Cir. 1985). Accordingly, Defendants are entitled to summary
judgment on Plaintiff’s Fourth Amendment claims.
E.

Eighth Amendment Claim

Defendants also seek summary judgment on Plaintiff’s claim that the
photographing of his naked body violated his Eighth Amendment right against cruel and
unusual punishment.
The Supreme Court has stated that only the “unnecessary and wanton infliction of
pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”
Somers v. Thurman, 109 F.3d 614, 622, (quoting Whitley v. Alvers, 475 U.S. 312, 319
(1986)). Thus, courts considering a prisoner’s claim must ask: 1) if the officials acted
with a sufficiently culpable state of mind; and 2) if the alleged wrongdoing was
objectively harmful enough to establish a constitutional violation. Id., (citing Hudson v.
McMillian, 503 U.S. 1, 8 (1992).
The Court finds that Plaintiff’s claim fails under the “subjective” component of the
analysis, because as set forth above, the Court has determined that the search occurred
with penological justification. The evidence in the record indicates that the search and
photographs were conducted to investigate and prevent prison rape. While Plaintiff
contends the Defendants’ actions were retaliatory and intended to humiliate him, he
offers no evidence to substantiate his claims.
Nor do his contentions establish conduct objectively harmful enough to establish a
constitutional violation. An inmate must objectively show that he has been deprived of
MEMORANDUM DECISION AND ORDER - 19

something “sufficiently serious.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 1997).
Claims of humiliation from unclothed body searches, without more, do not establish
sufficiently serious deprivations to invoke Eighth Amendment protection. Id., (citing
Somers v. Thurman, 109 F.3d at 616 (Eighth Amendment did not prohibit female guards
from performing visual body cavity searches on male inmates or watching male inmates
shower, despite one inmate’s allegation that the guards pointed, joked and “gawked” at
him)); see also Grummett v. Rushen, 779 F.2d at 494 n.1 (holding prison’s policy
allowing female guards to observe male inmates disrobing, showering, using the toilet
and being strip-searched, and allowing them to conduct pat-down searches in the groin
area, did not amount to “the type of shocking and barbarous treatment protected against
by the [E]ighth [A]mendment”). Thus, because Plaintiff has not alleged that he suffered
any physical or psychological harm from the photographs, Defendants are entitled to
summary judgment on this claim as well.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Strike and Disregard Portions of Defendants’
Memorandum in Support of Summary Judgment and Portions of Affidavits
of Carlin, Munden and Portions of Undisputed Facts (Dkt. 55) is DENIED.

2.

Defendants’ Motion for Summary Judgment (Dkt. 33) is GRANTED, and
this entire case is dismissed with prejudice.

MEMORANDUM DECISION AND ORDER - 20

3.

Defendants’ Motion for Extension of Time to File Reply Brief in Support of
Summary Judgment (Dkt. 58) is GRANTED.

4.

Defendants’ Motion to Strike the “Declaration of Dan Goodrick in Support
of Plaintiff’s Response Opposing Defendants Motion for Summary
Judgment” (Dkt. 60) is DENIED.

SO ORDERED.

DATED: September 25, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 21