# Acuna v. Godinez

> District Court, S.D. California · January 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10085069

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10085069

## How later opinions describe it (automated extraction)

- finding federal prisoner’s strip search 5 for contraband did not violate the Fourth Amendment because controlling contraband 6 within a prison is a legitimate penological interest and the regulation allowing visual strip 7 searches was reasonably related to that interest
- noting that claims 24 dismissed with leave to amend which are not re-alleged in an amended pleading may be 25 “considered waived if not repled.”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ALEX I. ACUNA, Case No.: 3:21-cv-02044-CAB-DEB
CDCR #P-85538,
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ORDER:
Plaintiff,
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vs. 1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS
SERGEANT C. GODINEZ,
15 [ECF No. 2]
Badge #41197,

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Defendant. AND
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2) DISMISSING COMPLAINT FOR
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FAILING TO STATE A CLAIM
19 PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND 28 U.S.C. § 1915A(b)
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22 Plaintiff Alex I. Acuna (“Plaintiff” or “Acuna”), while incarcerated at Richard J.
23 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se,
24 has filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. Plaintiff
25 alleges that Defendant Godinez (“Defendant” or Godinez”), an RJD Correctional Sergeant,
26 violated his Fourth and Eighth Amendment rights when he conducted a visual strip search
27 on Acuna. See ECF No. 1. See id. at 3-5. He seeks $450,000 in both general and punitive
28 damages. Id. at 7.
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2 Acuna has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to commence
3 a civil action. Instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant
4 to 28 U.S.C. § 1915(a). See ECF No. 2.
5 I. MOTION TO PROCEED IFP
6 All parties instituting any civil action, suit or proceeding in a district court of the
7 United States, except an application for writ of habeas corpus, must pay a filing fee of
8 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
10 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, however.
12 If granted leave to proceed IFP, they nevertheless remain obligated to pay the entire fee in
13 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.
14 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their actions are
15 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281
16 F.3d 844, 847 (9th Cir. 2002).
17 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to
18 submit a “certified copy of the trust fund account statement (or institutional equivalent) for
19 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
20 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
21 trust account statement, the Court assesses an initial payment of 20% of (a) the average
22 monthly deposits in the account for the past six months, or (b) the average monthly balance
23 in the account for the past six months, whichever is greater, unless the prisoner has no
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1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of
27 $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial
Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)).
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1 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
2 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
3 month’s income, in any month in which his account exceeds $10, and forwards those
4 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,
5 577 U.S. at 84.
6 In support of his IFP Motion, Acuna has submitted a copy of his California
7 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as well
8 as a prison certificate authorized by a RJD Accounting Officer Specialist. (ECF No. 3.)
9 See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These
10 documents show Acuna had no money in his account at the time he filed suit. (ECF No. 4
11 at 1-3.) Therefore, the Court GRANTS Acuna’s Motion to Proceed IFP (ECF No. 2), and
12 declines to assess any initial filing fee because his trust account statements show he “has
13 no means to pay it.” Bruce, 577 U.S. 84–85. Instead, the Court DIRECTS the Secretary
14 of the CDCR to collect the entire $350 balance of the filing fees required by 28 U.S.C.
15 § 1914 and to forward those fees to the Clerk of the Court pursuant to the installment
16 payment provisions set forth in 28 U.S.C. § 1915(b)(2). See id.
17 II. SCREENING
18 A. Standard of Review
19 Because Acuna is a prisoner and is proceeding IFP, his Complaint requires a
20 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
21 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion found
22 frivolous, malicious, failing to state a claim, or seeking damages from defendants who are
23 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing
24 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
25 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the
26 targets of frivolous or malicious suits need not bear the expense of responding.’”
27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
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1 “The standard for determining whether a plaintiff has failed to state a claim upon
2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
7 12(b)(6)”).
8 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain
9 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
10 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
11 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare
12 recitals of the elements of a cause of action, supported by mere conclusory statements, do
13 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the
14 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and
15 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
16 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
17 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
18 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
19 B. Factual Allegations & Claims
20 On December 30, 2019, Acuna returned from an “overnight family visit” and was
21 “escorted” to Defendant Godinez. Compl. at 3. Godinez collected a urine sample from
22 Plaintiff and conducted a “strip search of Plaintiff’s body.” Id. Godinez ordered Acuna to
23 “remove all of his clothing” and bend over “spreading his buttocks wide for examination.”
24 Id. Acuna alleges that he was asked to bend over “for a longer amount of time usually
25 required” for this type of search. Id. When Acuna began to stand up, he claims Godinez
26 “aggressively yelled at him” while “demanding he resume the position.” Id. Acuna
27 maintains that Godinez’s actions constituted “actions of sexual abuse.” Id. at 4. He
28 further claims that Godinez’s “conduct has caused the Plaintiff to suffer a significant degree
1 of ongoing psychological harm.” Id. As a result of this alleged psychological harm, Acuna
2 suffers from “depression, anxiety and sleep disturbances to this day.” Id.
3 C. 42 U.S.C. § 1983
4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
5 elements: (1) that a right secured by the Constitution or laws of the United States was
6 violated, and (2) that the alleged violation was committed by a person acting under the
7 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,
8 1035-36 (9th Cir. 2015).
9 D. Eighth Amendment claims
10 Acuna claims his Eighth Amendment rights have been violated when he was
11 subjected to a strip search by Godinez that he claims took a “longer amount of time than
12 usually required.” Compl., ECF No. 1 at 3. The Eighth Amendment protects prisoners from
13 inhumane methods of punishment and inhumane conditions of confinement, and “[p]rison
14 officials have a duty to ensure that prisoners are provided with adequate shelter, food,
15 clothing, sanitation, medical care, and personal safety.” Farmer v. Brennan, 511 U.S. 825,
16 825 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state a cruel and
17 unusual punishment claim, Plaintiff must allege facts sufficient to satisfy two requirements.
18 Id. at 834; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, he must allege his deprivation
19 was “objectively [and] ‘sufficiently serious.’” Farmer, 511 U.S. at 834 (quoting Wilson v.
20 Seiter, 501 U.S. 294, 298 (1991)); see also Peralta v. Dillard, 744 F.3d 1076, 1091 (9th
21 Cir. 2014).
22 Prison conditions are not objectively serious unless they amount to “unquestioned
23 and serious deprivations of basic human needs,” or of the “minimal civilized measure of
24 life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson, 501 U.S. at 298-
25 300. Second, Plaintiff’s Complaint “must contain sufficient factual matter” to demonstrate
26 that each Defendant acted with a sufficiently culpable state of mind, that of “deliberate
27 indifference.” Iqbal, 556 U.S. at 678; Wilson, 501 U.S. at 303; Peralta, 744 F.3d at 1091.
28 A prison official acts with deliberate indifference if he “knows of and disregards an
1 excessive risk to the prisoner’s health and safety.” Farmer, 511 U.S. at 837. In other words,
2 the prison official “must both be aware of facts from which the inference could be drawn
3 that a substantial risk of serious harm exists [to the prisoner], and [the prison official] must
4 also draw that inference.” Id.
5 Here, Acuna argues that Godinez’s strip search constituted “sexual abuse/assault.”
6 Compl. at 4. “Sexual harassment or abuse of an inmate by a correctional officer is a
7 violation of the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir.
8 2012); see also Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest
9 and most absolute of terms . . . prisoners [have a clearly established Eighth Amendment
10 right] to be free from sexual abuse…”). Here, however, Acuna has only alleged that he
11 believes the strip search took longer than he believed was reasonable. He does not allege
12 how long the search took place nor does he allege that he was ever physically touched by
13 Godinez or physically injured in any way during the search. The Court finds that Acuna’s
14 Complaint is devoid of any plausible factual allegations that would demonstrate that
15 Godinez knew Acuna was subject to an “excessive risk to [Acuna’s] health and safety”
16 when he conducted a visual strip search. Therefore, Acuna’s Eighth Amendment claims
17 are DISMISSED for failing to state a claim.
18 E. Fourth Amendment claims
19 “The Fourth Amendment proscription against unreasonable searches does not apply
20 within the confines of the prison cell,” Hudson v. Palmer, 468 U.S. 517, 526 (1984), and
21 courts have recognized only limited rights to bodily privacy in prison. See Bull v. City &
22 Cty. of San Francisco, 595 F.3d 964, 974‒75 (9th Cir. 2010); Mitchenfelder v. Sumner,
23 860 F.2d 328, 332 (9th Cir. 1988). Here, as stated above, Acuna claims that Godinez
24 conducted a strip search that took longer than other searches he had previously been
25 subjected to. See Compl. at 4.
26 However, routine visual strip searches do not violate the Fourth Amendment. See
27 Hudson, 468 U.S. at 529 (“[W]holly random searches are essential to the effective security
28 of penal institutions.”); Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566
1 U.S. 318, 327–28 (2012) (“[D]eterring the possession of contraband depends in part on the
2 ability to conduct searches without predictable exceptions.”); Michenfelder, 860 F.2d at
3 333‒34 (upholding routine visual body cavity searches for contraband or weapons); Nunez
4 v. Duncan, 591 F.3d 1217, 1227–28 (9th Cir. 2010) (finding federal prisoner’s strip search
5 for contraband did not violate the Fourth Amendment because controlling contraband
6 within a prison is a legitimate penological interest and the regulation allowing visual strip
7 searches was reasonably related to that interest).
8 While the manner in which a bodily search is conducted may become so
9 unreasonable that it can violate the Fourth Amendment, Acuna’s accusation that the search
10 took longer than it was supposed to does not rise to level that was “excessive, vindictive,
11 harassing, or unrelated to any legitimate penological purpose.” Michenfelder, 860 F.2d at
12 332‒33; see also Hudson, 468 U.S. at 528 (“The uncertainty that attends random searches
13 of cells renders these searches perhaps the most effective weapon of the prison
14 administrator in the constant fight against the proliferation of knives and guns, illicit drugs,
15 and other contraband.”). Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997) (upholding
16 visual strip searches conducted outside prisoner’s cell as reasonably related to the
17 legitimate penological interest in keeping drugs out of the prison).
18 Accordingly, Acuna’s Fourth Amendment claims are DISMISSED for failing to
19 state a claim.
20 F. Leave to Amend
21 As discussed, the Court finds Acuna’s Complaint fails to state any claim upon which
22 relief can be granted and that it must be dismissed sua sponte and in its entirety pursuant
23 to 28 U.S.C. § 1915(e)(2)(b)(ii) and § 1915A(b)(1). Because Acuna is proceeding pro se,
24 the Court, having now provided him with “notice of the deficiencies in his complaint,” will
25 also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
26 Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
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1 III. CONCLUSION AND ORDER
2 Accordingly, the Court:
3 1. GRANTS Acuna’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
4 (ECF No. 2).
5 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from
6 Acuna’s trust account the $350 filing fee owed in this case by garnishing monthly payments
7 in an amount equal to twenty percent (20%) of the preceding month’s income and
8 forwarding those payments to the Clerk of the Court each time the amount in the account
9 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY
10 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
11 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
12 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-
13 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
14 4. DISMISSES Acuna’s Complaint sua sponte and in its entirety based on his
15 failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
16 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
17 5. GRANTS Acuna 60 days leave from the date of this Order in which to file an
18 Amended Complaint which cures the deficiencies of pleading noted. Acuna’s Amended
19 Complaint must be complete by itself without reference to his original pleading.
20 Defendants not named and any claim not re-alleged in his Amended Complaint will be
21 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
22 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
23 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
24 dismissed with leave to amend which are not re-alleged in an amended pleading may be
25 “considered waived if not repled.”).
26 If Acuna fails to file an Amended Complaint within 60 days, the Court will enter a
27 final Order dismissing this civil action based both on his failure to state a claim upon which
28 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his failure to
1 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427
2 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity
3 ||to fix his complaint, a district court may convert the dismissal of the complaint into
4 || dismissal of the entire action.”).
5 The Clerk of Court is directed to mail Plaintiff a court approved civil rights
6 |}complaint form for his use in amending.
7 IT IS SO ORDERED.
8 ||Dated: January 4, 2022 (fb
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Hon. Cathy Ann Bencivengo
10 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10085069. Public record. Not legal advice.