Fitzgerald v. Pollard

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RHONDA R. FITZGERALD, an Case No.: 20cv848 JM(NLS)

individual, and on behalf of all persons

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similarly situated, ORDER ON MOTION TO DISMISS

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Plaintiff,

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v.

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MARCUS POLLARD, an individual;

16 Lieutenant C. MOORE, an individual;

Sergeant H. CRUZ, an individual; Officer

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JACKSON, an individual; Officer

18 LITTLE, an individual; and DOES 1

through 10, inclusive,

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Defendants.

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21 Presently before the court, is a motion to dismiss pursuant to Federal Rules of Civil

22 12(b)(6) filed by Defendants M. Pollard, A. Jackson, C. Mann-Little, H. Cruz, and

23 C. Moore, (collectively “Defendants”). (Doc. No. 8.) The motion has been fully briefed

24 and the court finds it suitable for submission on the papers and without oral argument in

25 accordance with Civil Local Rule 7.1(d)(1). For the reasons set forth below, the motion is

26 denied.

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1 I. Background

2 On May 5, 2020, Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging

3 that Defendants violated her civil rights and committed torts against her. (Doc. No. 1,

4 “Compl.”.) Plaintiff asserts: (1) her first claim for violation of her Fourth Amendment

5 right - search without reasonable suspicion against all Defendants; (2) her second claim for

6 violation of her Fourth Amendment right – search without reasonable suspicion against

7 Defendant Pollard and Doe 1; and (3) her third claim for violation of the Fourth

8 Amendment – failure to train and supervise, against Defendant Pollard and Doe 1. (Id. at

9 8-16.) Plaintiff’s fourth and fifth claims, intentional infliction of emotional distress and

10 negligence, are brought against all Defendants. (Id. at 16-19.1)

11 Plaintiff seeks to represent a Class consisting of:

12 those visitors to the Richard J. Donovan Correctional Facility in the Class

Period2 who were required to submit to an unclothed search as a condition to

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visiting an inmate and whose Notice of Request for Search Form states no

14 specific objective facts and rational inferences establishing individualized

reasonable suspicion to believe that the person targeted for the search had an

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intention of smuggling contraband into the Prison.

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17 Id. ¶ 38.

18 Plaintiff seeks injunctive relief barring Defendants from performing further random

19 unclothed searches of visitors at the prison, money damages, and attorney's fees and costs.

20 (Id. at 20-21.)

21 On July 10, 2020, Defendants filed a motion seeking to dismiss the complaint in its

22 entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 8.) Plaintiff

23 filed her opposition to the motion on August 11, 2020, (Doc. No. 13), and Defendants filed

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1 Document numbers and page references are to those assigned by CM/ECF for the docket

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entry.

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2 The Complaint defines the Class Period as running “from two years prior to the filing

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1 a reply, (Doc. No. 14). At the request of Defendants, the parties were given the opportunity

2 to file supplemental briefing addressing recent Ninth Circuit case law regarding qualified

3 immunity in the context of searches of prison visitors. (Doc. Nos. 16-19.)

4 II. Allegations of the Complaint

5 On September 28, 2019, Plaintiff visited the Richard J. Donovan Correctional

6 Facility (“Prison”) located at 480 Alta Road, San Diego, California, 92179, to see her

7 friend, inmate Christopher Roberts. (Compl. ¶¶ 2, 13.)

8 Plaintiff was neither screened nor searched upon arrival at the visitor reception area.

9 (Id. ¶ 14.) Plaintiff waited in line, and when she reached the front desk, she was told by

10 Officer Little that she must submit to an unclothed search or that she would not be permitted

11 to visit Roberts. (Id. ¶¶ 15, 16.) When questioned as to why the search was being

12 performed, Little responded “that the search was random and that Warden Pollard

13 requested it.” (Id. ¶ 17.)

14 Little did not offer to perform the search via less intrusive means, such as a metal

15 detector, hand-held wand, electronic drug detector, ION scanner, canine search, or clothed

16 body search. (Id. ¶ 18.) No-one at the Prison explained to Plaintiff what an unclothed

17 search entailed. Plaintiff:

18 assumed the search would require removing her top and pants and being patted

down to search for guns and contraband. Nowhere on the form did it state

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that the search would include invasive measure such as removing all clothes,

20 including undergarments, and requiring her to spread her butt cheeks and

cough multiple times while a guard visually inspected her “private parts.”

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22 Id. ¶ 19.

23 Having driven 165 miles to see Roberts, Plaintiff acquiesced to the search “that she

24 understood to be non-intrusive.” (Id. ¶ 21.) Little produced a Notice of Request for Search

25 Form (the “Request to Search Form” or the “Form”). Plaintiff signed the Form, but neither

26 Little nor any of his supervisors signed the Notice in advance of the search. (Id. ¶¶ 22,

27 23.)

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1 Officer Jackson was summoned by Little from the visitor area in Yard E. (Id. ¶ 24.)

2 Little grabbed a container, and she and Jackson led Plaintiff into a small room. (Id. ¶ 25.)

3 Plaintiff was instructed by Little to turn around, face the wall, and remove each item of

4 clothing. (Id.) As Plaintiff removed each item of clothing, Little patted the item down and

5 placed it in the container. (Id.) Jackson stood by the door and “looked uncomfortable.”

6 (Id.)

7 When Little requested that Plaintiff remove her underwear, Plaintiff asked what was

8 going on. (Id. ¶¶ 26-27.) Little responded that everything had to be removed so that a

9 body-cavity search could be performed. (Id. ¶ 27.) Little instructed Plaintiff to bend over,

10 spread her butt cheeks, and cough. (Id.) Little also told Plaintiff to lift her breasts. (Id.)

11 Little found nothing. (Id.) Jackson apologized. (Id. ¶ 28.)

12 Little refused to give Plaintiff a copy of the Request to Search Form, even though

13 the “gold copy” of the Request to Search Form is supposed to be given to the visitor. (Id.

14 ¶ 29.)

15 After being subjected to the strip search, Plaintiff found out that another visitor had

16 also undergone a strip search before she was permitted to visit an inmate and that such

17 searches were “common practice.” (Id. ¶ 31.)

18 No one at the Prison explained why such an intrusive search of Plaintiff was

19 necessary. (Id. ¶ 28.) Weeks later, Plaintiff was given a copy of the Request to Search

20 Form by Defendant Cruz, who signed the Form in front of her. (Id. ¶ 33.) Plaintiff believes

21 that Defendant Moore previously signed the Request to Search Form. (Id.)

22 In support of her allegations, Plaintiff points to California Code of Regulations, title

23 15. Section 3173.2, which regulates searches of Prison visitors. (Id. ¶¶ 34-36.)

24 III. Legal Standard

25 Under Federal Rule of Civil Procedure 12(b)(6), a party may bring a motion to

26 dismiss based on the failure to state a claim upon which relief may be granted. A Rule

27 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts

28 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

1 544, 570 (2007). Ordinarily, for purposes of ruling on a Rule 12(b)(6) motion, the court

2 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the

3 light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins.

4 Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But, even under the liberal pleading standard

5 of Rule 8(a)(2), which requires only that a party make “a short and plain statement of the

6 claim showing that the pleader is entitled to relief,” a “pleading that offers ‘labels and

7 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

9 “Determining whether a complaint states a plausible claim for relief … [is] a context-

10 specific task that requires the reviewing court to draw on its judicial experience and

11 common sense.” Id. at 679.

12 IV. Discussion

13 The Defendants make four arguments for dismissal. First, they argue that since

14 Plaintiff consented to the search, her Fourth Amendment claim must fail. (Doc. No. 8 at

15 13-19.) Defendants’ second argument concerns the applicability of the qualified immunity

16 doctrine to Plaintiff’s Fourth Amendment Due Process Claims, with Defendants asserting

17 the claims are barred by their qualified immunity from civil damages liability. (Id. at

18 19- 21.) Third, Defendant Pollard argues that the absence of an underlying constitutional

19 violation necessitates the dismissal of the failure to train claim. (Id. at 21-22.) Fourth, all

20 Defendants move to dismiss the pendant state law claims. (Id. at 22.)

21 A. Fourth Amendment Search Conducted Without Reasonable Suspicion

Claims Against Defendants and the Qualified Immunity Doctrine

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23 Defendants seek dismissal of Plaintiff’s §1983 claims under the qualified immunity

24 doctrine, asserting Plaintiff has failed to allege any misconduct on their part, related to

25 Plaintiff’s strip search, that violated Plaintiff’s clearly established rights under the Fourth

26 Amendment.

27 “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

28 method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S.

1 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To

2 successfully plead a claim under 42 U.S.C. § 1983, a plaintiff must allege that the

3 defendant, while acting under color of state law, deprived the plaintiff of a right or privilege

4 conferred by the Constitution of the United States. See Nelson v. Campbell, 541 U.S. 637,

5 643 (2004) (citing 42 U.S.C. § 1983); Jones v. Williams, 297 F.3d 930, 930 (9th Cir. 2002).

6 “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived

7 of a right ‘secured by the Constitution and laws.’” Baker, 443 U.S. at 140.

8 “[G]enerally, a public employee acts under color of state law while engaged in his

9 official capacity or while exercising his responsibilities pursuant to state law.” West v.

10 Atkins, 487 U.S. 42, 49-50 (1988). An individual deprives a plaintiff “of a constitutional

11 right, within the meaning of section 1983, if he does an affirmative act, participates in

12 another's affirmative acts, or omits to perform an act which he is legally required to do that

13 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743

14 (9th Cir. 1978). As defendant’s section 1983 liability can be “established not only by some

15 kind of direct personal participation in the deprivation, but also by setting in motion a series

16 of acts by others which the actor reasonably should know would cause others to inflict the

17 constitutional injury.” Id. at 743-44.

18 1. Constitutional Violation

19 The Fourth Amendment protects the “right of people to be secure in their persons,

20 houses, papers, and effects, against unreasonable searches and seizures....” U.S. Const.

21 amend. IV. “The reasonableness of a search is determined by reference to its context.”

22 Bull v. City & Cnty. of S.F., 595 F.3d 964, 971 (9th Cir. Feb. 9, 2010) (citing Michenfelder

23 v. Sumner, 860 F.2d 328, 332 (9th Cir.1988)). “To determine whether a particular search

24 is unreasonable, the intrusion on the individual’s privacy interests must be balanced against

25 ‘its promotion of legitimate governmental interests.’” Cates v. Stroud, 976 F.3d 972, 979

26 (9th Cir. 2020) (quoting Del. v. Prouse, 440 U.S. 648, 654 (1979)).

27 Because Plaintiff was subject to a search, the purpose of which was to remove

28 contraband or unauthorized substances from a prison, it necessarily furthers the

1 institutional security goals within a detention facility and thus implicates the principles

2 articulated in Bell v. Wolfish, 441 U.S. 520 (1979).3 In Bell, the Supreme Court explained

3 that detainees and inmates “retain some Fourth Amendment rights upon commitment to a

4 corrections facility” and noted that “[t]he Fourth Amendment prohibits only unreasonable

5 searches.” Id. at 558. The “test of reasonableness ... requires a balancing of the need for

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

7 must consider the scope of the particular intrusion, the manner in which it is conducted,

8 the justification for initiating it, and the place in which it is conducted.” Id. at 559.

9 Although the Court acknowledged that the strip search was invasive, id. at 558 n. 9, it

10 nonetheless concluded that the strip search policy at the corrections facility was reasonable

11 in light of the institution’s needs and objectives, particularly the cited security concerns.

12 Id. at 558-59. Thus, the Court held that a mandatory, routine strip search policy applied to

13 prisoners “after every contact visit with a person from outside the institution,” without

14 individualized suspicion, was facially constitutional. Id. at 558.

15 Until recently, the Ninth Circuit had not addressed in a published opinion, what if

16 any protections under the Fourth Amendment are afforded to prison visitors regarding strip

17 searches. 4 Courts of Appeals in numerous other circuits, however, have concluded, in the

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3 In Bell, the Supreme Court upheld the detention facility’s policy of conducting mandatory

21 visual body cavity searches, including the requirement that detainees undergo such an

inspection as part of a strip search “after every contact visit with a person from outside the

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institution,” against Fourth and Fifth Amendment challenges. Several principles informed

23 the Court’s analysis including that: (1) pretrial detainees and prisoners do not forfeit all

constitutional protections by virtue of incarceration, 441 U.S. at 545; (2) the retained

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constitutional rights of prisoners and detainees alike were subject to restrictions and

25 limitations based on “institutional needs and objectives,” id at 546; and (3) restrictions that

infringe upon “a specific constitutional guarantee” must be “evaluated in the light of the

26 central objective of prison administration, safeguarding institutional security.” Id. at 547.

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4 Although it had addressed strip searches being performed on detainees. See, e.g., Fuller

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1 prison visitation context, that “after weighing the state’s legitimate interest in prison

2 security against the privacy rights of prison visitors, a visitor may only be [strip searched

3 when justified] by reasonable suspicion.” O’Con v. Katvich, No. 1:13-cv-1321-AWI-SKO,

4 2013 WL 6185212, at *5 (E.D. Cal. Nov. 26, 2013) (collecting cases).

5 Notably, in the detainee context, the Ninth Circuit has made clear that a visual body

6 cavity search cannot be justified based on a blanket strip search policy alone. In Fuller v.

7 M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991), the court wrote: “the fundamental

8 question under the fourth amendment is whether, ‘the grounds for a search . . . satisfy

9 objective standards’ of reasonableness.” The Ninth Circuit explained that strip searches of

10 detainees based on reasonable suspicion are allowable where the objective is to detect

11 contraband which poses a threat to the safety and security of the penal institution. Id. at

12 1447. See also, Bull, 595 F.3d at 981 (holding that “the rights of arrestees placed in

13 custodial housing with the general jail population ‘are not violated by a policy or practice

14 of strip searching each one of them as part of the booking process, provided that the

15 searches are no more intrusive on privacy interests than those upheld in the Bell case,” and

16 the searches are “not conducted in an abusive manner.’”) (quoting Powell v. Barrett,

17 541 F.3d 1298, 1314 (11th Cir. 2008)).

18 In Cates v. Stroud, 976 F.3d 972, 985 (9th 2020), the Ninth Circuit elucidates on

19 what constitutional rights prison visitors shed at the prison gates. Cates explained that

20 “like prisoners, prison visitors retain only those rights that are consistent with the prison’s

21 significant and legitimate security interests. But visitors’ privacy interests, and their threats

22 to prison security, are distinct from those of inmates and detainees.” Id. at 979. The Ninth

23 Circuit determined that, “[a]ny constraints on visitors rights must be ‘justified by the

24 considerations underlying our penal system’ and their curtailment necessary to the

25 institution’s needs.” Id. (quoting Hudson v. Palmer, 468 U.S. 517, (1984)). The Cates

26 court also provided the examples of pat-down searches and metal detector screenings of

27 visitors as “relatively inoffensive” searches and “less intrusive” prerequisites to visitation

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1 that could be imposed “without any individualized suspicion, given the weighty

2 institutional safety concerns.” Id. at 979-80.

3 After noting that strip searches involving visual body-cavity searches “are

4 dehumanizing and humiliating,” the intrusiveness of which “cannot be overstated”, the

5 Court of Appeals distinguished between subjecting prisoners from prison visitors to strip

6 searches. Id. The Ninth Circuit explained how Supreme Court precedent and its own

7 earlier decisions permit searches of inmates only in limited circumstances, namely those

8 based on “‘reasonable suspicion’ in order ‘to protect prisons and jails from smuggled

9 weapons, drugs or other contraband which pose a threat to the safety and security of penal

10 institutions.” Id. (citing Fuller, 950 F.2d at 1447; Kennedy v. L.A. Police Dep’t, 901 F.2d

11 702, 711 (9th Cir. 1990)). Thus, the court held that prison visitors may be strip searched

12 when they threaten prison security if (1) the search is based on reasonable and

13 individualized suspicion and (2) it is justified by a legitimate security concern. Id.

14 In support of a reasonable and particularized suspicion standard, Cates discussed at

15 length when a prison visitor may be intrusively searched for the purpose of detecting

16 contraband: citing Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000) (noting the series

17 of unbroken decisions by its sister courts, stretching back four decades, establishing that

18 subjecting prison visitors to strip searches was unconstitutional in the absence of

19 reasonable suspicion that the visitor was carrying contraband); Blackburn v. Snow, 771

20 F.2d 556, 556-57 (1st Cir. 1985) and Calloway v. Lokey, 948 F.3d 194, 202 (4th Cir. 2020)

21 (stating that “the standard under the Fourth Amendment for conducting a strip search of a

22 prison visitor – an exceedingly personal invasion of privacy – is whether the prison officials

23 have a reasonable suspicion, based on particularized and individualized information, that

24 such search will uncover contraband on the visitor’s person on that occasion.” ).

25 In dicta, Cates recognized “existing case law has already clearly established that a

26 strip search of a prison visitor conducted without reasonable suspicion is unconstitutional,”

27 as if it were an unassailable principle of long standing. Cates, 976 F.3d at 985.

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1 Under the reasonable suspicion standard, prison officials can justify the strip search

2 of a particular visitor by pointing to specific objective facts and rational inferences that

3 they are entitled to draw from those facts in light of their experience. See Terry v. Ohio,

4 392 U.S. 1, 21, 27 (1968). Inchoate, unspecified suspicions fall short of providing

5 reasonable grounds to suspect that a visitor will attempt to smuggle drugs or other

6 contraband into the prison. Id. at 22; see also Hunter v. Auger, 672 F.2d 668, 675 (8th Cir.

7 1982) (“in the absence of reasonable articulable grounds to suspect a particular visitor of

8 an attempt to smuggle drugs or other contraband by secreting them on his person, a strip

9 search of that visitor is unreasonable under the fourth amendment.”) And a justifiable

10 legitimate security concern “will not exist when the visitor is not in a position to introduce

11 contraband into the prison.” Cates, 976 F.3d at 980. Thus, after setting forth decisions in

12 the Sixth, Seventh and Eighth Circuits and its own precedent on prison searches, the Cates

13 court stated:

14 Because the ability of prison officials to conduct strip searches of visitors

based on reasonable suspicion is premised on the need to prevent introduction

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of contraband into the prison, a search of a visitor who no longer intends to

16 enter the portion of the prison where contact with a prisoner is possible, or

who was leaving the prison, must rely on another justification. Ordinarily, a

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visitor cannot introduce contraband into a prison simply by appearing in the

18 administrative area of the prison. If prison officials have reasonable suspicion

that such a visitor is carrying contraband, the prison’s security needs would

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justify a strip search only if the visitor insists on access to a part in the prison

20 where transfer of contraband to a prisoner would be possible. If the visitor

would prefer to leave the prison without such access, the prison’s security

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needs can be satisfied by simply letting the visitor depart.”

22 Id. at 982.

23 As pled, Fitzgerald was the subject of a random visual body-cavity strip search that

24 was conducted without reasonable suspicion and unjustified by any legitimate security

25 concern. (See, e.g., Compl. at ¶¶ 79-80 (“On September 28, 2019, and consistent with the

26 policy or practice of Defendants POLLARD and DOE 1, Defendant LITTLE randomly

27 selected Plaintiff for an unclothed strip search. Defendants had no reasonable suspicion to

28 believe that Plaintiff was going to attempt to smuggle contraband into the Prison, that she

1 committed a crime, or that she intended to commit a crime.”); see also id. at ¶¶ 17, 50, 79,

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80, 98, 99.)

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The court, therefore, concludes that Defendants violated Plaintiff’s rights under the

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Fourth Amendment by subjecting Plaintiff to a visual body-cavity strip search without

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reasonable and individualized suspicion. See Cates, 976 F.3d at 985 (“Existing case law

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has already clearly established that a strip search of a prison visitor conducted without

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reasonable suspicion is unconstitutional.”). Having sufficiently alleged that the search was

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randomly conducted without reasonable suspicion, the court need not reach the question of

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whether Plaintiff was given the option of specifically leaving the prison rather than being

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subjected to the search.

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2. Qualified Immunity

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The doctrine of qualified immunity shields government officials “from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Wilson v. Lane,

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526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

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determining the applicability of the qualified immunity doctrine, the court conducts a two-

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part test to decide: (1) if the alleged facts show a violation of a constitutional right; and

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(2) whether the right at issue was clearly established at the time of defendant’s alleged

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misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009); Saucier v. Katz, 533 U.S.

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194, 201 (2001). Qualified immunity protects “all but the plainly incompetent or those

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who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

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An individual's clearly established rights are only violated by a defendant when “‘the

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state of the law’ at the time of an incident provided ‘fair warning’ to the defendant that his

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or her conduct was unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 656, (2014) (quoting

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Hope v. Pelzer, 536 U.S. 730, 741 (2002)). In other words, “[a] clearly established right is

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one that is sufficiently clear that every reasonable official would have understood that what

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he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal

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1 (1987) ("The contours of the right must be sufficiently clear that a reasonable official would

2 understand that what he is doing violates that right.”). The Supreme Court has stated that

3 “the clearly established right must be defined with specificity.” City of Escondido, Cal. v.

4 Emmons, 139 S. Ct. 500, 503 (2019). Ordinarily a court does “not require a case directly

5 on point, but existing precedent must have placed the statutory or constitutional question

6 beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

7 A court “may look at unpublished decisions and the law of other circuits, in addition

8 to Ninth Circuit precedent.” Jessop v. City of Fresno, 936 F.3d 937, 941 (9th Cir 2019)

9 (quoting Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005)). See also

10 District of Columbia v. Wesby, 138 S. Ct. 577, 589-90, (2018) (stating that we must look

11 first to binding precedent, then we may consider a “robust consensus of cases of persuasive

12 authority”). But "while unpublished decisions of district courts may inform our qualified

13 immunity analysis ... it will be a rare instance in which, absent any published opinions on

14 point or overwhelming obviousness of illegality, we can conclude that the law was clearly

15 established on the basis of unpublished decisions only'" Rico v. Ducart, __ F.3d__, 2020

16 WL 6814679, at *7 (9th Cir. Nov. 20, 2020) (quoting Sorrels v. McKee, 290 F.3d 965, 971

17 (9th Cir. 2002)); see also 9th Cir. R. 36-3(a) (unpublished dispositions are not

18 precedential).

19 Notwithstanding these guidelines, “there can be the rare ‘obvious case,’ where the

20 unlawfulness of the officer's conduct is sufficiently clear even though existing precedent

21 does not address similar circumstances.” Wesby, 138 S. Ct. at 590. Thus, “[w]hen a

22 violation is obvious enough to override the necessity of a specific factual analogue, ... it is

23 almost always wrong for an officer in those circumstances to act as he did.” Sharp v. Cnty.

24 of Orange, 871 F.3d 901, 912 (9th Cir. 2017).

25 “Training materials and regulations are also relevant, although not dispositive, to

26 determining whether reasonable officers would have been on notice that their conduct was

27 unreasonable.” Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1165 (9th Cir. 2020)

28 (citing Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir.

1 2003); see also Hope v. Pelzer, 536 U.S. 730 (2002) (considering an Alabama Department

2 of Corrections regulation and a Department of Justice report in its qualified immunity

3 analysis)).

4 Defendants’ argument that the exact parameters of official authority to institute a

5 policy of randomly strip-searching prison visitors were not clearly established before the

6 Ninth Circuit issued its opinion in Cates is not persuasive.5 On numerous occasions the

7 Supreme Court has made that clear that no “iron curtain” separates prisons from the reach

8 of the Constitution. See, e.g., Wolf v. McDonnell, 418 U.S. 539, 555–556, (1974); Pell v.

9 Procunier, 417 U.S. 817 (1974); Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). The

10 Supreme Court has also determined that prisoners retain some Fourth Amendment

11 protections while incarcerated. See, e.g., Lanza v. New York, 370 U.S. 139, (1962); Bell,

12 441 U.S. at 559 (strip searches of prison inmates must be reasonable, and that this

13 reasonableness determination requires the court to balance “the need for the particular

14 search against the invasion of personal rights that the search entails.”). And, as discussed

15 above, the Ninth Circuit determined, pre-Cates, that prisoners may be subjected to visual

16 body-cavity strip searches based on “reasonable suspicion” in order to “protect prisons and

17 jails from smuggled weapons, drugs or other contraband, which pose a threat to the safety

18 and security of penal institutions.” Fuller, 950 F.2d at 1447; see also Kennedy, 901 F.2d

19 at 715.

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5 The court is mindful that the language of Cates, “[e]xisting case law has already

23 established that a strip search of a prison visitor conducted without reasonable suspicion is

unconstitutional,” may be interpreted as dicta. Cates, 976 F.3d at 985. The court is also

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aware that Cates was decided one year after the Defendants’ alleged violation and

25 therefore, it would be inappropriate to view it as controlling authority. Moreover, this case

is readily distinguishable because Plaintiff specifically alleges that Defendants had no

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reasonable suspicion to believe that she was smuggling contraband into the prison on which

27 to base the body cavity strip search. See Compl. ¶ 50. (“Defendants had no reasonable

suspicion to believe that Plaintiff was going to attempt to smuggle contraband into the

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1 The admonition of Blackburn over 35 years ago, that absent an unusual need, “the

2 Constitution requires a more particularized level of suspicion before individuals wishing

3 to visit a jail may permissibly be subject to a strip search,” stands just as true today.

4 Blackburn, 771 F.2d at 564-65. Indeed, this “basic constitutional norm” is so obvious that

5 the case law in this area focuses on the constitutional protections afforded detainees and

6 prison visitors who have been suspected of carrying contraband – namely the reasonable

7 suspicion standard. If searches of prisoners must be reasonable, logic and common sense

8 dictate that searches of those not detained must at least meet this minimal standard. In

9 other words, if reasonable suspicion is required to search someone suspected of carrying

10 contraband, the obvious illegality of conducting a random visual body-cavity strip search

11 of a prison visitor absent reasonable suspicion violates the most fundamental principles of

12 personal privacy and dignity for which the Fourth Amendment stands. Wesby, 138 S. Ct.

13 at 590 (“there can be a rare ‘obvious case,’ where the unlawfulness of the officer’s conduct

14 is sufficiently clear even though existing precedent does not address similar

15 circumstances.”). See also Terry, 392 U.S. at 22 (to justify even the intrusion on personal

16 privacy involved in a pat frisk of outer clothing, more than an “inarticulate hunch” of

17 wrongdoing is required). Moreover, this court can find no support for the proposition that

18 a random body-cavity strip search of a prison visitor may be performed when no reasonable

19 and individualized suspicion is required.

20 Looking to sister circuits as of the date of the alleged incident, we see further support

21 for the proposition that a strip search of a prison visitor not based on reasonable suspicion

22 was already established as unconstitutional and beyond debate. See al-Kidd, 563 U.S. at

23 741 (“existing precedent must have placed the ... question beyond debate.”). In her briefing

24 Plaintiff cites to Daugherty v. Campbell, 935 F.2d 785 (6th Cir. 1991), Burgess v. Lowery,

25 201 F.3d 942, 945 (7th Cir. 2000), Blackburn v. Snow, 771 F.2d 556, 562 (1st Cir. 1985);

26 Thorne v. Jones, 765 F.2d 1270, 1276 (5th Cir. 1985); Hunter v. Auger, 672 F.2d 668, 674

27 (8th Cir. 1982); Martinez v. County of San Diego, 962 F.2d 14 (at *2, n.7) (9th Cir. 1992);

28 and Mack v. Williams, 2019 WL 4675365 at 7 n.7 (D. Nev. Sept. 25, 2019) to illustrate that

1 the right was clearly established at the time of the incident. (Doc. No. 13 at 12-17.) Three

2 cases, Blackburn, Thorne and Hunter are worth discussing in more detail because they are

3 consistently cited by other courts, including Cates, when analyzing what, if any,

4 protections the Fourth Amendment affords to prospective visitors to penal institutions

5 regarding body-cavity strip searches.

6 Of the cases cited by Plaintiff the most factually analogous is Blackburn v. Snow,

7 771 F.2d 556 (1st Cir. 1985). In Blackburn, Sheriff Linwood Snow had instituted a policy

8 that mandated that all visitors to the Plymouth County Jail be strip searched, regardless of

9 whether or not there was cause to believe the visitor was carrying contraband. Blackburn,

10 771 F.2d at 559. When plaintiff Ruth Blackburn arrived at the jail she saw a sign posted

11 announcing that all visitors would be “skin searched.” Id. at 560. She submitted, on three

12 separate occasions, to these strip searches in order to be allowed to visit her brother. Id.

13 The strip searches involved female officers examining Blackburn's armpits, lifting her

14 breast area and crouching to view her anus. Id. After completion of the third strip

15 search, Blackburn was informed, without being told why, that she had been barred from

16 visiting the jail. Id. Sheriff Snow later testified that he given this order because he believed

17 that Blackburn had made an obscene gesture towards him at the close of a conversation

18 between them at the end of the visit that occurred after Blackburn's second strip search. Id.

19 Blackburn later challenged the constitutionality of the policy. Id.

20 Sheriff Snow never disputed that Blackburn was not suspected of attempting to

21 secretly bring contraband into the institution. Id. As explained by the First Circuit, the

22 Sheriff "emphatically stated that Blackburn was strip searched as a matter of routine

23 procedure which, under the terms of his order, applied equally to all visitors—including

24 infants and children. Indeed, the Sheriff believed that it was in the very uniformity of the

25 strip search policy in which its fairness inhered; by strip searching all visitors, without

26 regard to any individualized suspicion." Id. at 560-61. Blackburn concluded that "a rule

27 requiring all prison visitors to submit to a body cavity strip search, without any predicate

28

1 requirement of individualized suspicion or showing of special and highly unusual

2 institutional need, cannot satisfy the Fourth Amendment." Id. at 562. The court explained:

3 we think it is clear that society is 'prepared to recognize' that free citizens

entering a prison, as visitors, retain a legitimate expectation of privacy, albeit

4

one diminished by the exigencies of prison security. To be sure, those visiting

5 a prison cannot credibly claim to carry with them the full panoply of rights

they normally enjoy. But neither may they constitutionally be made to suffer

6

a wholesale loss of rights—nor even one commensurate with that suffered by

7 inmates.

8 Id. at 563.

9 The court noted that its holding was in accord with all the published federal court

10 opinions of which it was aware that involve Fourth Amendment challenges by prison

11 visitors.6 As here, the defendants in Blackburn also argued that the strip searches did not

12 violate the Fourth Amendment because Blackburn consented to them. Id. at 567. The First

13 Circuit was not persuaded by this argument, finding the number of times Blackburn had

14 signed visitor slips consenting to a search of her person and property and the fact that she

15 was free to leave the jail and forego the visit to be irrelevant. Id. The court found, as a

16 matter of law, Blackburn's submission to the searches under the circumstances could not

17 properly constitute consent because her access to the jail was impermissibly conditioned

18 on that submission. Id. The Court of Appeals stated, “it has long been settled that

19 government may not condition access to even a gratuitous benefit or privilege it bestows

20 upon the sacrifice of a constitutional right." Id. at 568. The court cited Frost v. Railroad

21 Commission, 271 U.S. 583, 593–94 (1925), and several other cases to illustrate how the

22 doctrine of unconstitutional conditions has been applied in the context of numerous

23 constitutional protections. Id. Thus, the court concluded:

24

25

26

6 In support the court cited Hunter, 672 F.2d 668, Thorne v. Maggio, 585 F. Supp. 910

27 (M.D.La.1984); Black v. Amico, 387 F. Supp. 88 (W.D.N.Y.1974); cf. Security & Law

Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984) (prison employees retain

28

1 [i]rrespective of whether Blackburn had a constitutional right to visit the Jail,

as the district court thought, or a mere privilege, as the appellants argue, the

2

principle established in the cases we have cited is that the Sheriff was not free

3 to condition the visitation opportunity on the sacrifice of Blackburn's

protected Fourth Amendment rights. Nor is it any answer to say that

4

Blackburn could have left at any time, or declined to return after the first strip

5 search, for it is the very choice to which she was put that is constitutionally

intolerable—and it was as intolerable the second and third times as the first.

6

7 Id.

8 In Hunter v. Auger, 672 F.2d 688 (8th Cir. 1982), a handful of prison visitors were

9 selected for strip-searches at three Iowa state penitentiaries on the basis of anonymous and

10 uncorroborated tips that they would be attempting to smuggle drugs into the facilities. The

11 visitors were, like Fitzgerald, given the option of submitting to the search or foregoing their

12 visits. Hunter, 672 F.2d at 670-671. Two visitors acquiesced to the searches in order to

13 visit inmates, others did not. Id. The searches did not turn up any contraband. Id. The

14 prisoner officials freely admitted, “even though attempts to corroborate an unidentified

15 informant's tip are unsuccessful, a strip search notation may nevertheless be placed near a

16 visitor's name on an inmate's visiting card.” Id. at 673. Such notations could remain on an

17 inmate’s visiting card indefinitely. Id.

18 The Eight Circuit held that a strip search of a prison visitor is unreasonable under

19 the Fourth Amendment in “the absence of reasonable, articulable grounds to suspect a

20 particular visitor of an attempt to smuggle drugs or other contraband by secreting them on

21 his person.” Id. at 675. In so finding the court reasoned:

22 After weighing the interest of correctional officials in preserving institutional

security against the extensive intrusion on personal privacy resulting from a

23

strip search, we conclude that the Constitution mandates that a reasonable

24 suspicion standard govern strip searches of visitors to penal institutions.

…

25

26 To justify the strip search of a particular visitor under the reasonable suspicion

standard, prison officials must point to specific objective facts and rational

27

inferences that they are entitled to draw from those facts in light of their

28 experience…

1 Id. at 674. The court explained that the standard it was adopting required “individualized

2 suspicion, specifically directed to the person who is targeted for the strip search.” Id. at

3 675. The Hunter court concluded by outlining:

4 In the context of strip searches of visitors to correctional facilities, prison

officials must have reasonable grounds, based on objective facts, to believe

5

that a particular visitor will attempt to smuggle contraband by secreting and

6 carrying it on his person. While we recognize that reason to suspect a visitor

of smuggling contraband may require a body search since the nature of the

7

criminal activity is the concealment of contraband on the person, we

8 emphasize that a generalized suspicion of smuggling activity is insufficient to

justify the extensive intrusion of a strip search.

9

10 Id.

11 In Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985) Mr. and Mrs. Thorne separately

12 attempted to visit their two sons who were being held at Louisiana State Penitentiary on

13 two consecutive days. Prior to the Thornes’ visits a shift commander had received

14 information from an inmate that Scott Thorne was regularly receiving narcotics through

15 the visiting room, probably from his mother. Thorne, 765 F.2d at 1271. On the warden’s

16 instructions all shifts were notified that Mrs. Thorne was to be asked to submit to a strip

17 search before being allowed to visit her son. Id. Faced with the choice of either submitting

18 to the strip search or foregoing the visit, Mrs. Thorne left the prison. Id. The next day, Mr.

19 Thorne arrived at prison to visit his son. Id. Upon being told that a search would be

20 required, he consented to the search, no contraband was found, and the visit took place. Id.

21 The Thorne family sued, with Mr. Thorne alleging a violation of his Fourth Amendment

22 right to be free from unreasonable searches. Id.

23 Citing, Hunter and Security and Law Enforcement Employees, District Council 82

24 v. Carey, 737 F.2d 187, 205 (2d Cir.1984) (adopting Hunter’s reasonable suspicion

25 standard for strip searches of prison employees), the Fifth Circuit found no authority for

26 the prison’s proposition that strip searches of prison visitors are per se reasonable as a

27 matter of law. Id. at 1276. Next, the court rejected the arguments that either Mr. Thorne

28 consented to the search or that he waived his Fourth Amendment rights when he entered

1 the prison. Id. As in this case, the prison pointed to the form Mr. Thorne signed and the

2 warning notices posted at the prison gates. Id. However, the court explained “[i]f accepted,

3 this argument would render reasonable a strip search of any such prison visitor; as

4 discussed above, such at-will, random searches are not reasonable under the Fourth

5 Amendment.” Id. (citing Carey, 737 F.2d at 202 n. 23 (rejecting similar “consent”

6 argument)).

7 Turning to the strip search of Mr. Thorne, the Firth Circuit concluded the search to

8 “to have been without reasonable suspicion, and therefore in violation of the fourth

9 amendment.” Thorne, 765 F.2d at 1277. The court noted the absence of any specific

10 objective facts upon which reasonable suspicion could have been grounded, explaining:

11 “‘reasonable suspicion’ must be specifically directed to the person to be searched.... [T]he

12 fourth amendment does not permit any automatic or casual transference of ‘suspicion.’”

13 Id. (quoting United States v. Afanador, 567 F.2d 1325, 1331(5th Cir. (1978)). The court

14 went on to quote the reasonable suspicion standard set forth in Hunter.7

15 Further, the court’s research revealed additional earlier cases from sister circuits

16 requiring reasonable and particularized suspicion before a prison visitor may be

17 constitutionally strip searched. See, e.g., Wood v. Clemons, 89 F.3d 922, 929 (1st Cir.

18 1996) (explicitly stating “‘reasonable suspicion’ is indeed the proper standard by which to

19 gauge the constitutionality of prison-visitor strip searches. That standard guards against

20 arbitrary or clearly unfounded searches by placing non-trivial constraints upon the ability

21 of prison officials to strip search visitors.”); Varrone, 123 F.3d 75, 79 (2d Cir. 1997)

22 (“correctional officers needed reasonable suspicion to strip search prison visitors without

23 violating their constitutional rights”); Spear, 71 F.3d at 632 (6th Cir. 1995) (holding that a

24

25

7 “To justify the strip search of a particular visitor under the reasonable suspicion standard,

26

prison officials must point to specific objective facts and rational inferences that they are

27 entitled to draw from those facts in light of their experience. Inchoate, unspecified

suspicions fall short of providing reasonable grounds to suspect that a visitor will attempt

28

1 digital body-cavity search of a prison visitor “may be conducted only when there is

2 reasonable suspicion [and] also demands that the person to be subjected to such an invasive

3 search be given the opportunity to depart”); Smothers v. Gibson, 778 F.2d 470, (8th Cir.

4 1980) (“While prison officials have the right to conduct reasonable searches of prison

5 visitors, with far greater latitude than in other settings, the right to indiscriminately strip

6 search anyone who enters is not and cannot be authorized.”). Coupled with Blackburn,

7 Hunter and Thorne, these cases provide “a consensus of cases of persuasive authority such

8 that a reasonable officer could not have believed that his actions were lawful.” Wilson,

9 526 U.S. at 613.

10 Further, California’s own state regulations governing prison visitors support the

11 conclusion that the Fourth Amendment right asserted by Plaintiff was delineated clearly at

12 the time of the September 2019 search. See Vasquez, 949 F.3d at 1165 (“Training materials

13 and regulations are relevant …to determining whether reasonable officers would have been

14 on notice that their conduct was reasonable.) Title 15, section 3173.2 provides that

15 inspection of a visitor’s person, personal property and vehicle(s) may occur when there is

16 reasonable suspicion to believe the visitor is attempting to introduce or remove contraband

17 or unauthorized items or substances into or out of the institution/facility. CAL CODE REGS.

18 tit. 15, § 3172.2. Further, section 3173.2(d)(7) defines an unclothed body search as:

19 a security procedure that involves visual inspection of a person’s body with

all of their clothing removed and a thorough inspection of the person’s

20

clothing for purposes of detecting contraband. This procedure may be

21 conducted with the visitor’s consent when there is a reasonable suspicion that

the visitor is carrying contraband and when no less intrusive means are

22

available to conduct the search.

23

24 CAL CODE REGS. tit. 15, § 3173.2(d)(7).

25 In sum, the obviousness of the alleged unlawful conduct, the consensus of persuasive

26 authority and the state regulations existing at the time Officers Pollard, Moore Cruz,

27 Jackson and Little alleged act made it clear to “any reasonable officer” in their position

28 that conducting a random visual body-cavity strip search of a prison visitor without

1 reasonable suspicion was unconstitutional. See Sheehan, 135 S. Ct. at 1774 (“An officer

2 cannot be said to have violated a clearly established right unless the right’s contours were

3 sufficiently definite that any reasonable official in his shoes would have understood that he

4 was violating it …). Accordingly, at this stage of the litigation, this court cannot conclude

5 that Defendants are entitled to qualified immunity and DENIES the motion to dismiss on

6 this ground.

7 B. Failure to Train Claim Brought Against Pollard

8 Defendants argue that because Plaintiff fails to state a Fourth Amendment violation,

9 and because Defendants are entitled to qualified immunity for any alleged violation, the

10 failure to train claim against Pollard should be dismissed. (Doc. No. 8 at 21-22.)

11 Under 42 U.S.C. § 1983, “[e]very person who, under color of any statute ... custom,

12 or usage of any State ... subjects, or causes to be subjected, any ... person within the

13 jurisdiction of [the United States] to the deprivation of any rights, privileges or immunities

14 secured by the Constitution and laws, shall be liable to the party injured in an action at

15 law.” A state official is not vicariously liable for the deprivation of constitutional rights by

16 employees. Monell v. N.Y.C. Dept. of Soc. Services, 436 U.S. 2018, 694(1978).

17 Here, to sufficiently allege her claim, Plaintiff must allege that Pollard, in his

18 individual capacity, “was deliberately indifferent to the need to train subordinates, and the

19 lack of training actually caused the constitutional harm or deprivation of rights.” Flores v.

20 Cnty. of L.A. 758 F.3d 1154. 1159 (9th Cir. 2014) (quoting Connick v. Thompson,

21 131 S. Ct. 1350, 1358, (2011)). This means that Plaintiff must allege facts to show that

22 Pollard “disregarded the known or obvious consequence that a particular omission in the

23 training program would cause [prison] employees to violate citizens' constitutional rights.”

24 Id. (citation omitted). A “pattern of similar constitutional violations by untrained

25 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of

26 failure to train.” Connick, 131 S. Ct. at 1360.

27

28

1 It is alleged that Pollard “failed to train and supervise Prison corrections officers in

2 the Constitutional requirements for unclothed searches of visitors.” (Compl. ¶ 97.) It is

3 also alleged that during the class period:

4 it was clearly established in the Ninth Circuit and all other circuits that strip

searches of prison visitors are permissible only when prison officials can point

5

to specific objective facts and rational inferences establishing individualized

6 reasonable suspicion to believe that the person targeted for the strip search

will attempt to smuggle contraband by secreting and carrying it on his or her

7

person.

8

9 Id. ¶ 96. As explained, the court has concluded that Plaintiff has sufficiently alleged a

10 Fourth Amendment violation. (See supra, section IV, A, 1.) Moreover, Plaintiff

11 specifically identifies Pollard as the warden of the prison, and that “Plaintiff was being

12 searched because Pollard had requested it.” (Id. ¶¶ 3, 17, 95.) And, it is alleged that “on

13 September 28, 2019, as a proximate result of the lack of training and supervision at the

14 Prison, Defendant LITTLE randomly selected Plaintiff for an unclothed search.” (Id. ¶

15 98.) See Starr v. Baca, 652 F.2d 1202, 1208 (9th Cir. 2011) (casual connection may be

16 established by the supervisor’s “own culpable action or inaction in the training, supervision

17 or control of his subordinates; … his acquiescence in the constitutional deprivation; or …

18 conduct that showed a reckless or callous indifference to the rights of others.”)

19 Additionally, according to the complaint, “Defendants conduct invasive strip and visual

20 body-cavity searches pursuant to a policy or practice that does not require any

21 particularized suspicion that the visitor is concealing anything in his/her body cavities.”

22

(Compl. ¶¶ 20, 103.) Relatedly, it is alleged that Plaintiff “was advised by another Prison

23

visitor that such a search was common practice and that she too had to undergo a strip

24

search before she was permitted to visit an inmate.” (Id. ¶¶ 31, 110.) See Connick, 131 S.

25

Ct. at 1360 (a pattern of similar constitutional violations by untrained employees normally

26

demonstrates deliberate indifference). Finally, Plaintiff alleges that the moving force

27

behind the unclothed search of Plaintiff and the class members “was the lack of training

28

1 and supervision [] regarding the Constitutional requirements of unclothed visitor searches.”

2 (Compl. at ¶ 112.)

3 As currently pled, Plaintiff has sufficiently alleged facts which “might plausibly

4 suggest” that Pollard “disregarded the known and obvious consequences” of failing to

5 educate officers on the need to have reasonable suspicion that a prison visitor is trying to

6 smuggle contraband into the prison before conducting a visual body-cavity strip search,

7 thereby causing prison officers to violate vistors’ constitutional rights. Flores, 758 F.3d at

8 1159. Accordingly, the court DENIES Defendants’ motion to dismiss the failure to train

9 claim brought against Pollard.

10 C. Plaintiff’s Consent

11 Defendants contend that Plaintiff’s complaint should be dismissed because it

12 illustrates that she consented to the search before it happened, she did not limit the search’s

13 scope nor object to it when it began to exceed what she assumed it would entail, and officers

14 in Defendants’ positions would have reasonably believed that Plaintiff consented to the

15 search that was performed.

16 Ordinarily, “a search conducted pursuant to a valid consent is constitutionally

17 permissible.” United States v. Mendenhall, 446 U.S. 544, (1980); Schneckloth v.

18 Bustamonte, 412 U.S. 218, (1973). Whether consent has been feely given is based on an

19 examination of the totality of the circumstances. Schneckloth, 412 U.S. at 222, 229 (“In

20 examining all the surrounding circumstances to determine if in fact the consent to search

21 was coerced, account must be taken of subtly coercive police questions, as well as the

22 possibly vulnerable subjective state of the person who consents.”); Crowe v. Cnty. of San

23 Diego, 608 F.3d 406, 437 (9th Cir. 2010).

24 The Ninth Circuit has identified five factors a court should consider when

25 determining whether a person voluntarily consented to a search: (1) whether defendant

26 was in custody; (2) whether the arresting officers had their guns drawn; (3) whether

27 Miranda warnings were given; (4) whether the defendant was notified that she had a right

28 not to consent; and (5) whether the defendant had been told a search warrant could be

1 obtained.” United States v. Patayan, 361 F.3d 494, 502 (9th Cir. 2004). The voluntariness

2 of a consent to a search is a question of fact to be determined from the totality of the

3 circumstances. Id. at 501. The Ninth Circuit has recognized that “each factual situation

4 surrounding consent is unique,” and a court “may take into account any other factors that

5 [it] deem[s] relevant.” Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011).

6 Here, because Plaintiff is alleging that she did not knowingly consent to the strip

7 search, Defendants bear the burden of proving that her consent was, in fact, freely and

8 voluntarily given. Crowe, 608 F.3d at 437. See also Schneckloth, 412 U.S. at 222.

9 Defendants rely heavily on the Consent to Search Form Plaintiff signed as evidence that

10 she consented to the search. While Defendants refer to the Form as Exhibit A, see Doc.

11 No 8 at 17-18, no exhibit was attached to the motion. As such, the court cannot consider

12 the contents of the Request to Search Form and must rely on the allegations contained in

13 the complaint.8

14 It is alleged that the Request to Search Form did not state that the search would

15 include invasive measures such as removing all clothes, including undergarments, nor

16 require Plaintiff to spread her butt cheeks and cough multiple times while a guard visually

17 inspected her “private parts.” (Compl. ¶ 19.) Plaintiff also claims she acquiesced to a

18 search “that she understood to be non-intrusive.” (Id. ¶ 21.) And, Plaintiff alleges that

19 had she not consented to the search, she would have not been allowed to visit Roberts. (Id.

20 ¶ 16.) Further, it is alleged that the search was conducted in a small room about the size of

21 a walk-in closet, and performed by two Corrections Officers Jackson and Little, with

22 Officer Jackson standing by the door. (Id. ¶¶ 25, 27.) Once Plaintiff had voluntarily

23 removed her top and pants, she was told by Little that “everything had to be removed so

24

25

8 The fact that the Request to Search Form was later attached as an Exhibit to Defendants’

26

Supplemental Brief, see Doc. No. 18-1 at 3, does not alter the court’s position. As a

27 consequence, any determination of whether the Form establishes reasonable suspicion

would not be appropriate.

28

1 || that a body-cavity search could be performed.” (/d. §] 27.) Little told Plaintiff to “bend

2 ||over, spread her butt cheeks, and cough” and then “Little instructed Plaintiff to lift her

3 || breasts.” (U/d.) Although Plaintiff asked Little what was going on, it is not alleged that she

4 ||objected to the visual body-cavity search. Ud. § 26.) Absent from the complaint are

5 |{allegations that Plaintiff was given the option of leaving before the visual body-cavity

6 || portion of the strip search began or that the officers informed Plaintiff that a search warrant

7 || could be obtained.

8 For purposes of the motion to dismiss, the court accepts as true the factual allegations

9 || of the complaint that Plaintiff did not consent to the visual body-cavity strip search. The

10 |} voluntariness of Plaintiff's consent is a question of fact that is not appropriate for

11 determination at the pleading stage. Accordingly, the court DENIES Defendants’ motion

12 dismiss brought on this ground.’

13 Vv. CONCLUSION

14 For the reasons set forth above, Defendants’ motion to dismiss is DENIED.

15 || Defendants have up to and including January 13, 2021 to answer Plaintiff's complaint.

16 IT IS SO ORDERED.

17 || Dated: December 22, 2020 Phil

18 .

19 n. Jeffrey. Miller

nited States District Judge

20

21

22

|]

24 Because the court has concluded that it is not appropriate to determine the voluntariness

25 || of Plaintiffs consent on the pleadings, the court declines to address any arguments related

6 to whether requiring Plaintiff to sign the standard Request for Search Form in order to enter

the prison constitutes valid consent. The court does, however, note the First Circuit’s

27 || directive in Blackburn vy. Snow, 771 F.2d 556, 567, (1st Cir. 1985), that “it has long been

0g settled that government may not condition access to even a gratuitous benefit or privilege

it bestows upon the sacrifice of a constitutional nght.”