Opinion
CV 18-8133-PA(E)
01-24-2022
RUBEN F. MARTINEZ, Plaintiff, v. L. SCOTT, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
RELEVANT PROCEEDINGS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on September 19, 2018, against prison officials at Plaintiff's former place of incarceration, the California Men's Colony, East Facility (“CMC”). The original Complaint named as Defendants: (1) CMC prison officials L. Scott, Bravo and Blair; and (2) CMC Warden J. Gastelo. In the original Complaint, Plaintiff alleged that: (1) in June 2017, Defendant Scott subjected Plaintiff to an improper and retaliatory pat-down search of Plaintiff's “intimate parts”; and (2) two days later, Defendant Bravo conducted an improper and retaliatory search of Plaintiff's “intimate parts” with a handheld metal detector while Defendant Blair assertedly watched but did nothing to prevent the allegedly improper search. The case was then assigned to United States Magistrate Judge Patrick J. Walsh.
On February 19, 2019, Defendants Scott, Bravo, Blair and Gastelo filed a motion to dismiss the original Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion to dismiss did not challenge the legal sufficiency of Plaintiff's Eighth Amendment claims.
On June 12, 2019, Magistrate Judge Walsh filed a Report and Recommendation recommending the dismissal of certain claims with prejudice and the dismissal of the remaining claims without prejudice. On August 22, 2019, the District Judge accepted and adopted the Report and Recommendation, inter alia, dismissing the claims against Warden Gastelo with prejudice.
On August 21, 2020, the case was transferred to the undersigned Magistrate Judge. On August 26, 2020, Plaintiff filed a verified First Amended Complaint, identifying the Defendants as Defendants Scott, Bravo and Blair, sued in their individual capacities. The First Amended Complaint contained factual allegations similar to those in the original Complaint.
On September 29, 2020, Defendants Scott, Bravo and Blair filed a motion to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In Plaintiff's opposition, filed November 23, 2020, Plaintiff requested the dismissal of Defendant Blair from the action without prejudice. Plaintiff also indicated an intent to proceed only on the Eighth Amendment claims against Defendants Scott and Bravo, requesting the dismissal of all other claims.
On December 11, 2020, the Magistrate Judge filed a Report and Recommendation, recommending: (1) dismissal of any state law claims, retaliation claims and conspiracy claims alleged in the First Amended Complaint without prejudice and without leave to amend; and (2) dismissal of the action without prejudice as against Defendant Blair. The Magistrate Judge also recommended that the District Judge order Defendants Scott and Bravo to file an Answer to the Eighth Amendment claims contained in the First Amended Complaint within twenty-one (21) days of the date of the Order. On January 15, 2021, the District Judge issued an Order accepting and adopting the Report and Recommendation. Accordingly, Defendants Scott and Bravo are the only Defendants remaining in this action, and Plaintiff's Eighth Amendment claims against those Defendants are the only remaining claims in this action. /// ///
On February 4, 2021, Defendants Scott and Bravo (“Defendants”) filed an Answer to the First Amended Complaint. Also on February 4, 2021, the Magistrate Judge issued a scheduling order setting a June 4, 2021 discovery cut-off and a deadline of July 6, 2020 for the filing of summary judgment motions.
On March 15, 2021, Plaintiff filed a motion seeking, inter alia, an extension of the discovery cut-off and the deadline for filing summary judgment motions. On March 25, 2021, the Magistrate Judge denied the motion for want of any showing of good cause.
On May 17, 2021, Defendants filed a motion to modify the scheduling order. By Order filed June 4, 2021, the Magistrate Judge granted the motion in part, extending the discovery motion deadline to August 8, 2021 and the dispositive motion deadline to November 19, 2021.
On November 19, 2021, Defendants filed “Defendants' Motion for Summary Judgment.” On the same date, the Magistrate Judge issued a Minute Order advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999).
On December 13, 2021, Plaintiff filed a “Notice of Opposition and Opposition to Defendant's [sic] Motion for Summary Judgment, etc.” (“Opposition”). /// ///
STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
The Court must “view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party.” Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Prods., Inc., 454 F.3d at 988.
A factual dispute is “genuine” only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” only if it might affect the outcome of the lawsuit under governing law. Id.
“If a rational trier of fact could resolve a genuine issue of material fact in the nonmoving party's favor, summary judgment is inappropriate.” Lemos v. County of Sonoma, 5 F.4th 979, 982 (9th Cir. 2021) (citation and quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from facts are jury functions, not those of a judge.” Id. (citation, brackets and quotations omitted). Therefore “[a]t the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citation omitted).
A court may consider a verified complaint to be an affidavit within the meaning of Fed.R.Civ.P. 56(e) to the extent that the pleading demonstrates the plaintiff's personal knowledge of factual matters stated therein. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). However, parties generally may not rely on unsworn allegations in their pleadings or legal memoranda to defeat summary judgment. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). “Evidence may be offered ‘to support or dispute a fact' on summary judgment only if it could be presented in an admissible form at trial.” Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004). Conclusory statements are insufficient to defeat summary judgment. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950 n.9 (9th Cir. 2011) (en banc), cert. denied, 565 U.S. 1200 (2012); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.”).
SUMMARY OF PLAINTIFF'S ALLEGATIONS
In the verified First Amended Complaint, Plaintiff alleges:
On June 6, 2017, Defendant Scott strip searched Plaintiff in the Small Management Yard (“SMY”), which is a “see through” cage (First Amended Complaint, ¶¶ 10-11). On information and belief, it was CMC policy to strip search inmates in the SMY when yard time expired before inmates returned to their housing locations (id., ¶ 12). Plaintiff was wearing boxer-type underwear, a T-shirt and a towel (id., ¶ 13). Scott's strip search of Plaintiff consisted of a search of all of Plaintiff's clothing and a visual inspection of Plaintiff's naked person (id.).
After Plaintiff complied with Scott's instructions to dress, Scott handcuffed Plaintiff, opened the SMY gate and escorted Plaintiff without comment to the Administrative Segregation Unit (id., ¶ 14). Approximately 100 yards away from the SMY, and out of view of any inmate or “free staff, ” Scott subjected Plaintiff to a forceful pat down search (id., ¶¶ 15-16). Scott intentionally rubbed his hands over Plaintiff's T-shirt and boxers, rubbing Plaintiff's “intimate parts” several times (id., ¶¶ 17, 26). Plaintiff had not violated any prison rule and had not been in contact with another individual (id., ¶ 61).
CDCR correctional officers are trained concerning what is allowable lawfully when inspecting inmates' persons (id., ¶ 24). Scott knew that Plaintiff was being treated for mental illness and was “susceptible to injuries through mental distress” (id., ¶¶ 19-20). Scott knew it could be considered an “abuse of power to damage [Plaintiff's] interest by way of [Scott's] actions” (id., ¶ 21). Scott knew his actions could be considered unlawful and violative of CDCR policy (id., ¶ 22). Scott knew that his actions were unreasonable and likely to result in “infliction of mental illness through mental distress” (id., ¶ 25). Scott “fraudulently sexually battered” Plaintiff in violation of the Eighth Amendment (id., ¶ 61).
CDCR is an acronym for the California Department of Corrections and Rehabilitation.
Sometime after the incident, Inmate Degrise told Plaintiff that the inmate had heard Scott telling another officer that Scott performed the pat-down search to “teach [Plaintiff] a lesson” (id., ¶ 27). Scott knew Plaintiff had been accused of breaking a correctional officer's tooth at the Pelican Bay State Prison (id., ¶ 30). Other “John Doe” inmates told Plaintiff that Scott engaged in the challenged conduct because Plaintiff was in Administrative Segregation for breaking a correctional officer's tooth (id., ¶ 28).
As indicated above, Plaintiff's former retaliation claims are no longer a part of this action.
On June 14, 2017, Defendant Bravo used a metal detector to pat Plaintiff several times on Plaintiff's “intimate parts” (id., ¶ 31). Bravo considered it a “crime” for inmates to report misconduct by correctional officers (id., ¶ 43). Bravo was aware of Plaintiff's reports against multiple correctional officers and was aware that Plaintiff had been charged with breaking a correctional officer's tooth (id.). Bravo knew that Administrative Segregation procedures mandated a strip search of inmates before relocating them from the SMY to their housing locations (id., ¶ 45). Bravo knew that the strip searching process involved viewing an inmate's buttocks while the inmate squatted and coughed, thus exposing the space between the buttocks (id., ¶ 46). Bravo knew that correctional officer Blair (no longer a Defendant) had just strip searched Plaintiff prior to Bravo's challenged actions (id., ¶ 45). Because Plaintiff wore close-fitting and “semi transparent” boxer shorts, Bravo could see that Plaintiff had nothing concealed under his boxer shorts (id., ¶¶ 50-51). Bravo knew there was no reason to search Plaintiff's buttock for metallic contraband with a hand-held metal detector (id., ¶ 47). Bravo's actions were deliberate and violated CDCR policy (id., ¶¶ 36-37). Bravo “sexually battered” Plaintiff and violated the Eighth Amendment by patting Plaintiff's “inmate parts” several times while using a hand-held metal detector (id., ¶ 62).
The actions of Defendants Scott and Bravo caused Plaintiff to suffer anger, embarrassment, fear, grief, worry and disappointment, which aggravated Plaintiff's preexisting mental illness (id., ¶¶ 18, 38). Plaintiff's doctor diagnosed Plaintiff's illness as “mood disregulation” (id., ¶¶ 18, 38). Plaintiff hears “his voice in different ethnicity accents” (id.). Plaintiff's “mood disregulation” “presents itself as a Deslexia [sic] phenomenon” (id.). Scott's conduct also has caused Plaintiff to suffer “stressful relationships with his family, ” including complete loss of contact with one sibling and an “awkward vibe” with family members (id., ¶ 23). Plaintiff sought counseling for the emotional distress he suffered as a result of Defendants' actions (id., ¶ 44).
In the First Amended Complaint, Plaintiff seeks declaratory relief, an injunction requiring Defendants to “stay separated” from Plaintiff, and compensatory and punitive damages (id., ¶¶ 65-69).
SUMMARY OF EVIDENCE
I. Defendants' Evidence
Defendants rely on declarations, exhibits and Plaintiff's deposition testimony.
A. Defendant Scott's Declaration
In his declaration, Defendant Scott states the following:
On June 6, 2017, Plaintiff was housed temporarily in the administrative segregation unit at CMC (“Declaration of Scott in Support of Defendants' Motion for Summary Judgment” [“Scott Dec.”], ¶ 4). Inmates in administrative segregation are subject to heightened security measures (id.). An administrative segregation inmate is permitted outdoor exercise in a “small management yard” or “SMY” either alone or with cellmates (id., ¶ 5). However, inmates in adjacent SMY units have the ability to pass contraband to other inmates (id.). Therefore, at the conclusion of their “yard time, ” inmates in SMY units must undergo an unclothed body search, or “strip out, ” within the SMY unit (id.).
During the unclothed body search, the inmate is instructed to remove his clothing and shoes and pass them to an officer for inspection (id.). The officer then conducts a visual inspection of the inmate's unclothed body to ascertain whether the inmate is carrying any contraband (id.). The officer also physically searches the inmate's clothing (id.). If no contraband is found, the officer returns the inmate's clothing and shoes, and the inmate dresses and proceeds with an escort back to his housing unit (id.).
After arrival at his assigned administrative segregation unit, the inmate generally undergoes a search by a hand-held metal detector (id., ¶ 6). The searching officer waves a wand-like metal detector around the head area and down to the front and back of the body, keeping the detector approximately two to three inches away from the body (id.). Due to the heightened security risks associated with inmates in administrative segregation, the multiple searches, i.e. the unclothed body search and metal detector search, “aim to ensure institutional safety and security” (id.).
On June 6, 2017, Scott initially attempted to conduct an unclothed body search of Plaintiff while Plaintiff was in an SMY unit (id., ¶ 7). Plaintiff did not cooperate, “sarcastically spinning around in place with his hands in the air upon [Scott's] request to strip out” (id.). To avoid any unnecessary escalation of the situation, Scott calmly asked Plaintiff “to simply cuff up for escort instead” (id.). Scott expected that he eventually would conduct an alternative search to ascertain whether Plaintiff possessed any contraband (id.).
After Plaintiff arrived at his housing unit, and after Plaintiff underwent a metal detector search, Scott conducted a clothed body search or “pat down” of Plaintiff in lieu of the incomplete unclothed body search (id., ¶ 8). Because Scott had not completed the unclothed body search due to Plaintiff's prior lack of cooperation, Scott decided that conducting a pat down search “was a reasonable compromise between ensuring [Plaintiff] did not possess contraband and avoiding unnecessary escalation of the situation (id.).
Plaintiff complied with Scott's order to stand and face the wall (id., ¶ 9). Wearing latex gloves, Scott swept the palm side of his hand across the front and back of Plaintiff's torso, around his waist, and down the front and back of the legs (id.). Scott did not discover any contraband (id.). Scott observed that Plaintiff was wearing two boxer shorts, and Scott's gloved hand accidentally caught the outer boxer, causing it to pull down approximately one inch (id.). The inner boxer was not pulled (id.). The pulling of the outer boxer did not expose any skin (id.). This concluded the pat down (id.).
Although Scott's hand made contact with Plaintiff's waist area, Scott did not fondle or even touch Plaintiff's genitalia (id.). Scott's hand did not sweep Plaintiff's buttocks, although doing so would not have violated departmental practices and procedures (id.).
After Scott completed the pat down, Plaintiff became verbally belligerent and appeared upset by the search (id., ¶ 10). However, the search was consistent with standard procedures and regulations (id., ¶¶ 3, 10). To the extent Plaintiff contends that the pat down search was unnecessary because another search recently had been completed, Plaintiff is incorrect (id.). The attempted unclothed body search was not completed properly, making Scott's pat down search of Plaintiff “not only warranted but also required” (id.).
Attached to Scott's declaration as “Exhibit A” are pages from what appears to be CDCR's Department Operations Manual concerning, inter alia, clothed and unclothed body searches of inmates. In his declaration, Scott does not refer to any specific provision contained in the attachment.
B. Defendant Bravo's Declaration
In his declaration, Defendant Bravo states the following:
On or around June 14, 2017, when Plaintiff was housed temporarily in administrative segregation, one of Bravo's tasks was to conduct metal detector searches of inmates arriving from the SMY at their assigned administrative segregation housing unit (id., ¶ 4, 7). Generally, when Bravo conducts a metal detector search, he wands the detector around the inmate's head area and down the front and back of the body, keeping the detector approximately two to three inches away from the body (id., ¶ 7). When Bravo wands the buttocks area, he generally instructs the inmate
to bend slightly forward and lift his hands (which are handcuffed) slightly, so as to ensure the handcuffs do not trigger the detector (id.). When Bravo reaches the backs of the lower legs, Bravo often instructs the inmate to lift each foot back towards Bravo (id.). It is not uncommon for an inmate's foot to make temporary contact with the metal detector because the inmate cannot view fully the detector's location (id.).
As Bravo “wanded” Plaintiff's buttocks area, Plaintiff lifted his head toward Bravo's direction and indicated he did not approve of the manner in which Bravo was conducting the search (id., ¶ 8). Plaintiff said Bravo had touched Plaintiff's buttocks with the metal detector (id.). Bravo denied doing so (id.). Although Plaintiff “was not receptive to [Bravo's] denial, ” Plaintiff acquiesced in the rest of the search (id.). After completing the search, Bravo said that he would speak with Plaintiff later (id.).
Later that evening, Bravo approached Plaintiff's cell “with the goal of resolving any lingering misunderstanding” (id., ¶ 9). Plaintiff reiterated that Bravo had touched Plaintiff's buttocks (id.). Bravo again denied doing so (id.). Concluding that the two would not resolve the dispute, Bravo elected to apologize to Plaintiff “to the extent [Bravo] made [Plaintiff] feel uncomfortable, ” without admitting that Bravo had touched Plaintiff (id.).
Bravo did not sexually assault Plaintiff (id., ¶ 3). The search was consistent with standard procedures and regulations (id., ¶ 10). Even assuming for purposes of this litigation that Bravo's device made contact with Plaintiff's body, at most this contact would have been unintentional, brief and inadvertent (id.).
Bravo's declaration contains the same description of search procedures for inmates in SMY units as the description contained in Scott's declaration.
C. Plaintiff's Deposition
Defendants also rely on certain portions of Plaintiff's deposition appended to the “Declaration of Alan D. Romero in Support of Defendants' Motion for Summary Judgment.” Defendants also have lodged the entire deposition transcript. The following summary is based on the entire transcript.
Contemporaneous with the filing of this Report and Recommendation, the entire deposition transcript will be filed and docketed.
At deposition, Plaintiff testified as follows:
At the time of the incidents, Plaintiff was confined in the administrative segregation unit for an investigation of an alleged battery by Plaintiff on a correctional office at another prison (“Videoconference Deposition of Ruben Febronio Martinez, etc., ” pp. 40-41). At that time, the general process for escorting an inmate from the SMY back to his cell involved an officer's directive to the inmate to disrobe completely and undergo a “routine strip search”
(id., p. 41). The strip search involved an inspection of “every inch” of the inmate's body including looking at the anus and underneath the scrotum (id., pp. 41-42). Following the strip search, the inmate dressed and was handcuffed and escorted back to his building (id., pp. 42-43). Sometimes, but not always, the inmate was subjected to a metal detector search in front of the building (id., p. 43).
However, some officers would not inspect the anus but rather would instruct the inmate to squat and cough (id., p. 45). It is unclear which procedure Plaintiff contends Scott used to search Plaintiff.
On the date of the incident, Scott performed a “normal” strip search of Plaintiff “according to procedure” (id., pp. 44-45, 58). After Plaintiff arrived back on the tier, and while Plaintiff was at the front of the tier on his way to his cell at the end of the tier, Scott said in Plaintiff's ear, in a “soft, almost a whisper voice”: “hold on, I haven't searched you. I didn't strip search you good enough, I want to pat you down now” (id., pp. 45, 80, 82).Plaintiff said, “what do you mean you didn't search me” and asked Scott to call the sergeant (id., p. 45). Plaintiff asked Scott to put him back in the cage and do another strip search of Plaintiff because Plaintiff “didn't want [Scott] to put his hands on [Plaintiff] after [Scott] had just [seen Plaintiff] completely naked. . . .” (id., p. 63).
Plaintiff claimed an officer would only whisper “if he was doing something that he wasn't supposed to do” (id., p. 83).
Scott tried to force Plaintiff either up against a wall or into an open cell (id., p. 45). Scott grabbed Plaintiff and subjected Plaintiff to a “rough pat down search” which included contact with Plaintiff's “groin area, ” inner thigh and buttocks (id., pp. 45, 60-62, 70). Scott did not fondle Plaintiff's genitals (id., p. 46). During a typical pat down search, the officer conducting the search goes over “buttocks, groin and inner thigh” (id., pp. 61-62).
However, Plaintiff also said Scott “only touched [Plaintiff's] buttocks” (id., p. 61).
Plaintiff did not know whether Scott was wearing gloves, which act “kind of like velcro” on clothing (id., pp. 46, 60). During the search, Plaintiff's boxer shorts were pulled down approximately four to six inches (id., pp. 46, 69-70). Plaintiff was not wearing anything underneath his boxers and had to walk down the tier to his cell with his boxers pulled down (id., p. 46). Scott also made “African racial comments” (id., pp. 46-47).
Plaintiff said he is “multinational” with a “white complexion, ” but an Hispanic last name (id., pp. 14-15, 99).
During the escort from the SMY to Plaintiff's cell, Plaintiff had been handcuffed and had never been out of Scott's physical grasp (id, p. 57). From the time Scott strip searched Plaintiff there was “no way” Plaintiff could “have anything on [Plaintiff]” (id.). The pat down search was unusual and unnecessary because Scott had just strip searched Plaintiff and thereafter Plaintiff was never out of Scott's eyesight or physical grasp prior to the pat down (id., p. 62).
On June 14, 2017, Officer Blair (no longer a Defendant) strip searched Plaintiff (id., p. 100-101). Bravo thereafter searched Plaintiff with a metal detector (id., pp. 92-93, 97). Plaintiff was dressed in boxers and a T-shirt, or possibly just boxers (id., p. 101). Prior to the search, Bravo was hostile to Plaintiff (id., pp. 99-100).
Plaintiff believes Bravo did not do a full search; Plaintiff thought Bravo only searched Plaintiff's buttocks and feet (id., p. 102). During the search, Bravo patted Plaintiff's buttocks with the metal detector no more than twice (id., p. 104). Plaintiff likened the patting to a “junior high school patting” akin to the swatting administered by a school principal (id., pp. 110-11). Plaintiff did not know why Bravo patted Plaintiff (although Plaintiff speculated it was because of Plaintiff's report of the Scott incident, reports “on the LAPD” and the Pelican Bay incident), and Plaintiff said he did not know whether the patting was intentional (id., pp. 104, 110).
Plaintiff “got hostile really quick” and asked Bravo what Bravo was doing (id., p. 104). Bravo just smiled (id., p. 105). In previous metal detector searches, officers had held the wand close to the buttocks but never had run it over Plaintiff's genitals or buttocks (id., p. 98). Bravo also tapped Plaintiff's feet with the metal detector (id., p. 106).
Bravo later came to Plaintiff's cell and apologized for the “incidental contact” while “smirking” (id., pp. 107, 108-11).
II. Plaintiff's Evidence
In addition to the verified First Amended Complaint, Plaintiff relies on his declaration and exhibits, which are attached to his Opposition. In his declaration, Plaintiff alleges that he “did not refuse to strip out as Scott asserted” (“Declaration” attached to Opposition, ¶ 2). Plaintiff alleges that, under California prison regulations, Plaintiff would have received a Rules Violation Report for delaying an officer in his duties if Plaintiff had refused to strip out (id., ¶ 3). Plaintiff asserts that Scott “did strip search [Plaintiff] according to procedure then committed sexual assault by patting [Plaintiff] down still under [Scott's] escort at a different location without probable cause” (id., ¶ 5). Plaintiff further asserts that Defendant Bravo “committed sexual assault by patting [Plaintiff's] buttock with a hand held metal detector and the specifications don't require contact” (id.). /// /// /// ///
DISCUSSION
I. The Court Should Not Defer Consideration of the Present Motion.
In his Opposition, Plaintiff seeks an extension of time to conduct discovery (see Opposition, p. 3). Plaintiff attaches to the Opposition exhibits including: (1) an undated grievance in which Plaintiff complained that, on November 11, 2021, Plaintiff received only four of nine “boxes of property”; and (2) a copy of Plaintiff's “Motion to Enforce Subpoena” bearing a signature date of November 17, 2021 and filed herein on November 22, 2021.
On December, 1, 2021, the Magistrate Judge denied Plaintiff's November 22, 2021 “Motion to Enforce Subpoena” as vague and untimely.
Under Rule 56(d) of the Federal Rules of Civil Procedure, a court may defer consideration of a motion for summary judgment and allow additional time for discovery “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” “A party seeking to delay summary judgment for further discovery must state what other specific evidence it hopes to discover and the relevance of that evidence to its claims.” Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018), cert. denied, 139 S.Ct. 1222 (2019) (citations and internal quotations omitted). “[T]he requesting party must show that: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Id. (citation and internal quotations omitted). The requesting party also must show that he or she “diligently pursued [the party's] previous discovery opportunities. . . .” IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1127 (9th Cir. 2020) (citation and quotations omitted).
Plaintiff has failed to set forth, in any affidavit or declaration, what information he purportedly seeks to discover or how that information would be essential to opposing summary judgment. Plaintiff also has failed to show diligence. Plaintiff filed this action in 2018 and has had ample opportunity to take discovery. Accordingly, Plaintiff's Rule 56(d) request should be denied.
II. Both Defendants Are Entitled to Summary Judgment.
The Eighth Amendment prohibits the use of “excessive physical force” against prisoners. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hudson v. McMillian, 503 U.S. 1, 6 (1992) (“Hudson”). “Where a prison security measure is undertaken to resolve a disturbance . . . that indisputably poses significant risks to the safety of inmates and prison staff, . . . whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'” Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (citation omitted); see also Hudson, 503 U.S. at 5-6.
Under Ninth Circuit law, the Hudson standard does not require “proof of sadism, or pleasure from extreme cruelty.” Hoard v. Hartman, 904 F.3d 780, 787 (9th Cir. 2018). Rather, a plaintiff must show that correctional officers: “(1) acted for the very purpose of causing harm; (2) used excessive and unnecessary force under all of the circumstances; and (3) caused the plaintiff harm.” Reid v. United States, 825 Fed. App'x 442, 445 (9th Cir. 2020) (quoting Hoard v. Hartman) (quotations omitted); see also Lafferty v. Williams, 2019 WL 7340757, at *2 (D. Nev. Oct. 24, 2019), adopted, 2019 WL 7323315 (D. Nev. Dec. 26, 2019), rev'd in part on other grounds, 848 Fed. App'x 757 (9th Cir. 2021) (under Hoard v. Hartman, proof “that the officer enjoyed the use of force” is not required; rather “the focus is on whether the officer had purpose to cause harm”).
There are two general components of an excessive force claim: “(1) a ‘subjective' inquiry into whether prison staff acted ‘with a sufficiently culpable state of mind'; and (2) an ‘objective component' that asked whether ‘the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.'” Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020) (“Bearchild”) (citation omitted). A court may consider several factors in determining whether prison officials subjected a prisoner to excessive force: (1) the extent of injury suffered by an inmate; (2) the need for an application of force; (3) the relationship between that need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing Hudson, 504 U.S. at 7).
“Sexual harassment or abuse of an inmate by a corrections officer is a violation of the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012) (citations omitted). A sexual assault on a prisoner by a prison guard “is deeply offensive to human dignity.” Bearchild, 974 F.3d at 1143 (quoting Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). “[S]exual contact between a prisoner and a prison guard serves no legitimate role and is simply not part of the penalty that criminal offenders pay for their offenses against society.” Bearchild, 974 F.3d at 1143 (citations and quotations omitted). “A prisoner presents a viable Eighth Amendment claim where he or she proves that a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member's own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.” Id. at 1144.
This definition recognizes that there are occasions when legitimate penological objectives within a prison setting require invasive searches. It also accounts for the significant deference courts owe to prison staff, who work in challenging institutional settings with unique security concerns. In a case like Bearchild's, where the allegation is that a guard's conduct began as an invasive procedure that served a legitimate penological purpose, the prisoner must show that the guard's conduct exceeded the scope of what was required to satisfy whatever institutional concern justified the initiation of the procedure. Such a showing will satisfy the objective and subjective components of an Eighth Amendment claim. Id. at 1144-45 (footnotes omitted). An inmate “need not prove that an injury resulted from sexual assault in order to maintain an excessive force claim under the Eighth Amendment.” Id. at 1144 (citation omitted).
However, in the prison context, brief unconsented touching, particularly without accompanying sexual comments, usually will not satisfy the objective prong of the Eighth Amendment analysis. In Watison v. Carter, 668 F.3d 1108 (9th Cir. 2012), the Ninth Circuit affirmed the dismissal of an inmate's Eighth Amendment sexual harassment claim against a prison guard who allegedly entered the plaintiff's cell while the plaintiff was on the toilet, rubbed the guard's thigh against the plaintiff's thigh, “began smiling in a sexual contact (sic), ” and then left the cell laughing. Id. at 1112. The Ninth Circuit ruled that the humiliation the plaintiff allegedly suffered due to the officer's conduct did not “rise to the level of severe psychological pain required to state an Eighth Amendment claim, ” and hence the officer's alleged wrongdoing “was not objectively harmful enough to establish a constitutional violation. . . .” Id. at 1113-14 (citations, quotations and brackets omitted).
In so ruling, the Watison Court cited with approval, inter alia, the Eighth Circuit's decision in Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998). In that case, the prisoner alleged that one guard grabbed him by the shoulders, another guard “grabbed his buttocks with one hand briefly” and a third “grabbed Berryhill's buttocks for a moment, ” but there were no sexual comments. Id. at 1074-76. The Eighth Circuit affirmed a grant of summary judgment for the defendants, because “there [was] no evidence that Berryhill suffered anything more than a brief unwanted touch on his buttocks, ” Berryhill did not assert that he feared sexual abuse during the incident, and “the two brief touches to his buttocks in the circumstances of this case simply cannot be construed as a sexual assault.” Id. at 1076.
In the present case, the evidence with respect to Defendant Scott, viewed in the light most favorable to Plaintiff, shows at most: (1) Scott conducted a partial clothed pat down of Plaintiff's buttocks, inner thigh and groin area, without touching Plaintiff's genitals; (2) during the pat down, Scott's hand or glove caught on Plaintiff's boxer shorts, pulling them down approximately four to six inches; (3) Plaintiff was not wearing anything underneath his boxers; and (4) Plaintiff had to walk down the tier with his boxers partially pulled down. No. evidence controverts Scott's sworn statement that the pulling down of Plaintiff's boxers was accidental. No. evidence suggests that Scott made any sexual comments to Plaintiff before, during or after the incident.
With respect to Defendant Bravo, Plaintiff testified at deposition that Bravo was “hostile” to Plaintiff, tapped Plaintiff on the buttocks with the metal detector (no more than twice) and smiled. There is no evidence that Bravo made any sexual comments to Plaintiff before, during or after the incident. Plaintiff admitted in his deposition that correctional officers sometimes conduct metal detector searches after having conducted strip searches.
This evidence shows only that Defendants subjected Plaintiff to brief touchings during clothed searches, in the absence of any sexual comments or any touching of Plaintiff's genitals. From this evidence, a rational trier of fact could not conclude that either Defendant committed any Eighth Amendment violation. See Watison v. Carter, 668 F.3d at 1113-14; Berryhill v. v. Schriro, 137 F.3d at 1074-75; see also Benjamin v. Stevens County, 839 Fed. App'x 100, 101 (9th Cir. 2020) (allegations that guard made sexual comments to inmate on a daily basis and touched inmate without her consent, including brushing dirt off inmate's thigh and putting hand on inmate's back while conversing, insufficient to show an Eighth Amendment violation); Rivera v. Schultz, 556 Fed. App'x 500, 501 (7th Cir.), cert. denied, 574 U.S. 885 (2014) (affirming judgment as a matter of law on Eighth Amendment claim where evidence showed that guard conducting pat down of plaintiff grabbed plaintiff's pants and pulled them down, exposing plaintiff's underwear, then made a comment eliciting laughter from other guards); Foust v. Ali, 2021 WL 4975183, at *3 (E.D. Cal. Oct. 26, 2021) (allegations that prison guard touched plaintiff twice on the buttocks insufficient to allege Eighth Amendment claim); Horton v. Billingsley, 2019 WL 7630863, at *4 (C.D. Cal. Dec. 3, 2019), adopted, 2020 WL 362634 (C.D. Cal. Jan. 20, 2020) (incident in which guard drew his finger down Plaintiff's neck insufficient to allege Eighth Amendment violation, even where guard made sexually suggestive comments); Gonzalez Castillo v. Renteria, 2019 WL 4271521, at *1 (S.D. Cal. Sept. 10, 2019), aff'd, 831 Fed. App'x 282 (9th Cir. 2020) (granting summary judgment for defendants where evidence showed prison guard “momentarily squeez[ed] Plaintiff's buttocks during a fully clothed pat-down, ” the squeezing was only “seconds long” and not done in a “harsh way, ” and guard did not pat down plaintiff's groin area or make any sexually suggestive comments during the incident); Gonzalez Castillo v. Valencia, 2019 WL 2387764, at *3 (E.D. Cal. June 6, 2019), adopted, 2020 WL 5370907 (E.D. Cal. Sept. 8, 2020) (allegations that, pursuant to searches, one officer briefly touched plaintiff's buttock without sexual comment and another officer squeezed plaintiff's buttocks twice on each side did not “rise to the level of an Eighth Amendment violation”); Greene v. Karlow, 2019 WL 2369861, at *3 (E.D. Cal. June 5, 2019), adopted, 2019 WL 6894062 (E.D. Cal. Dec. 18, 2019) (allegations that prison guard groped the back of prisoner's leg just under his buttocks insufficient to state an Eighth Amendment claim); Palmer v. O'Connor, 2013 WL 1326207, at *4 (E.D. Cal. Mar. 29, 2013) (“Inmate sexual harassment claims that allege brief inappropriate touching by a correctional official are generally found to be noncognizable”); Fisher v. Dizon, 2008 WL 619149, at *10 & n.4 (E.D. Cal March 4, 2008), adopted, 2008 WL 863980 (E.D. Cal. Mar. 28, 2008) (on summary judgment, a guard's act of poking an prisoner twice in the buttocks with an item resembling a baton or flashlight did not violate the Eighth Amendment); compare Hill v. Rowley, 658 Fed. App'x 840, 841 (9th Cir. 2016) (prison guard's “gripping” of prisoner's buttocks sufficient to allege Eighth Amendment claim); Gleason v. Franklin, 2021 WL 4813647, at *10 (C.D. Cal. July 23, 2021), adopted, 2021 WL 4861785 (C.D. Cal. Oct. 13, 2021) (summary judgment for defendant denied on evidence that prison guard “squeezed and groped” plaintiff's buttocks, saying “You know you like it”).
In sum, Plaintiff has failed to show the existence of a genuine issue of material fact with respect to Plaintiff's Eighth Amendment claims against either Defendant Scott or Defendant Bravo. Defendants are entitled to summary judgment.
In light of this conclusion, the Court need not, and does not, address the issue of qualified immunity.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (a) accepting and adopting this Report and Recommendation; (b) denying Plaintiff's request for an extension of time to conduct discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure; (c) granting summary judgment in favor of Defendants Scott and Bravo; and (d) dismissing the action with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
PERCY ANDERSON UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that: (a) Plaintiff's request for an extension of time to conduct discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure is denied; (b) summary judgment is granted in favor of Defendants Scott and Bravo; and (c) the action is dismissed with prejudice.
IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order and the Judgment of this date on Plaintiff and counsel for Defendants.
JUDGMENT
PERCY ANDERSON UNITED STATES DISTRICT JUDGE.
IT IS ADJUDGED that the action is dismissed with prejudice.