(PC) Hardy v. Santoro ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTIN HARDY, No. 1:21-cv-00327-NONE-EPG (PC) 12 Plaintiff, ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE 13 v. FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S CLAIMS 14 KELLY SANTORO, et al., (Doc. Nos. 16, 18) 15 Defendants. 16 17 Kristin Hardy (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action. This action proceeds on plaintiff’s first amended complaint against all 19 named defendants for violations of plaintiff’s First and Fourth Amendment rights in connection to 20 strip searches conducted between January 1 and January 6, 2019. (See Doc. No. 16.) The matter 21 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 22 Rule 302. 23 On May 7, 2021, the assigned magistrate judge entered findings and recommendations, 24 recommending that this action be dismissed due to plaintiff’s failure to state a claim. (Doc. No. 25 18.) Plaintiff was provided an opportunity to file objections to those findings and 26 recommendations and did so on June 1, 2021. (Doc. No. 19.) In accordance with the provisions of 27 28 U.S.C. § 636 (b)(1)(C), this court has conducted a de novo review of the case. Having carefully 28 ///// 1 reviewed the entire file, the court adopts the findings in recommendations in part and declines to 2 adopt them in part. 3 In his complaint plaintiff alleges as follows. Plaintiff was subjected to unclothed body 4 searches at North Kern State Prison on January 1, 2019 and January 6, 2019. After being 5 searched on January 1, plaintiff refused to consent to a fully unclothed search by defendant 6 Valencia on January 6. Plaintiff was then escorted to a holding cage in the prison gymnasium. 7 Plaintiff alleges that defendants Moreno, Chavez, Dohs, and Ceballos surrounded the cage and 8 tried to coerce plaintiff into removing his boxer shorts by verbally threatening to place plaintiff in 9 restricted housing if he did not comply with their directives. Defendant Ceballos then interjected 10 that plaintiff would be charged with murder unless he submitted to the search. Plaintiff was then 11 placed in a full x-ray “low dose” body scanner, and no contraband was found on his person. 12 After plaintiff was scanned and returned to the gymnasium cage, defendant Ceballos 13 refused to return plaintiff back to his assigned housing until he submitted to a fully unclothed 14 search, despite having just been searched via body scanner. According to plaintiff, he submitted 15 to the fully unclothed search in fear of further punitive actions by prison staff. Defendant 16 Ceballos conducted the search of plaintiff’s mouth, ears, hands, arms, and anal area; plaintiff does 17 not suggest in the allegations of his complaint that anyone other than defendant Ceballos 18 witnessed this search. Plaintiff’s assigned quarters were also searched, after which search he 19 found his mail and legal documents scattered about. 20 Plaintiff alleges that the unclothed search conducted on January 6, 2019, violated his 21 Fourth Amendment rights because the search was unnecessary and not based upon any reasonable 22 suspicion that he possessed contraband. (See Doc. Nos. 16 and 19.) Plaintiff further alleges that 23 both the January 6 searches were conducted in retaliation for plaintiff’s previously filed inmate 24 appeals challenging four cell and body searches conducted by correctional staff at North Kern 25 State Prison to which he was subjected between August 16, 2017 and June 22, 2018. Plaintiff 26 does not allege that the defendants conducting the January 6, 2019 strip search knew or had any 27 reason to know about plaintiff’s prior inmate appeals. Accordingly, the magistrate judge properly 28 found that plaintiff did not sufficiently allege a claim of retaliation against those defendants. The 1 magistrate judges also properly recommended the dismissal of plaintiff’s claims brought against 2 prison administrators and supervisors because plaintiff did not allege in his complaint a specific 3 connection between those defendants and the allegedly unreasonable search. 4 With respect defendants Valencia, Moreno, Chavez, Dohs, and Ceballos, however, the 5 undersigned concludes that the allegations of plaintiff’s complaint are sufficient to survive 6 screening and warrant a response from defendants. The Fourth Amendment applies to the 7 invasion of bodily privacy in prisons. Bull v. San Francisco, 595 F.3d 964, 947–975 (9th Cir. 8 2010); Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988). The Supreme Court has 9 recognized that inmate searches may be unreasonable where they are “unnecessary” or 10 “unjustified response[s] to problems of jail security.” Florence v. Bd. Of Chosen Freeholders of 11 Cnty. Of Burlington, 566 U.S. 318, 322–323 (2012). 12 Low-dose scanners like the one used in the first January 6, 2019 search of plaintiff “scan 13 the whole body in seconds, detecting the presence of contraband secreted or ingested inside the 14 human body.” Notice of Proposed Regulatory Action for Cal. Code Regs. tit 15 § 3287(b), (c) at 15 3. As such, according to at least a facial reading of California Regulations, “the use of this device 16 eliminates the need for an inmate to be subject to an unclothed body search.” Id. Yet, according 17 to the allegations of plaintiff’s complaint, immediately after plaintiff’s full body was scanned and 18 despite the fact that plaintiff was in the custody of the correctional officers after that body scan, 19 he was subjected to an additional strip search without obvious justification. Several circuit courts 20 have allowed inmates to pursue Fourth Amendment claims where, as here, the inmate was 21 subjected to multiple searches despite having no opportunity to obtain contraband between 22 inspections. See Turkmen v. Hasty, 789 F.3d 218, 261 n.44 (2d Cir. 2015) (strip searches where 23 an inmate has had no opportunity to acquire contraband may be unnecessary and therefore such 24 allegations are sufficient to state a constitutional claim) (citing Hodges v. Stanley, 712 F.2d 34, 25 35–36 (2d. Cir. 1983)); see also Parkell v. Danberg, 833 F.3d 313, 329 (3d Cir. 2016) (denying 26 summary judgment because a disputed issue of material fact existed regarding whether the strip 27 search of the inmate was constitutionally reasonable where that inmate had no opportunity to 28 procure contraband.). 1 Accordingly, 2 1. The findings and recommendations issued on May 7, 2021, (Doc. No. 18), are 3 adopted in part; 4 2. This action shall proceed on plaintiffs claims against defendants Valencia, 5 Moreno, Chavez, Dohs, and Ceballos for violation of plaintiff's right against 6 unreasonable search and seizure; 7 3. All other claims and defendants are dismissed from this action due to plaintiff’s 8 failure to state a cognizable claim; and 9 4. This matter is referred back to the magistrate judge for further proceedings 10 consistent with this order. 11 | IT IS SO ORDERED. a " 2 Dated: _ November 16, 2021 Ll A 5 Aan 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28