“[W]here the plaintiff has previously been granted leave to amend and has 22 subsequently failed to add the requisite particularity to its claims, [t]he district court’s 23 discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted
How later courts described this case
- “[W]here the plaintiff has previously been granted leave to amend and has 22 subsequently failed to add the requisite particularity to its claims, [t]he district court’s 23 discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted
- “[W]holly random searches are essential to the effective security of penal 19 institutions.”
- “The uncertainty that attends random searches 4 of cells renders these searches perhaps the most effective weapon of the prison 5 administrator in the constant fight against the proliferation of knives and guns, illicit drugs, 6 and other contraband.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6)”
Written by the judges who cited it.
The opinion
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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 DISMISSING FIRST
Plaintiff,
13 AMENDED COMPLAINT FOR
vs. FAILING TO STATE A CLAIM
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PURSUANT TO 28 U.S.C. § 1915(e)(2)
SERGEANT C. GODINEZ,
15 AND 28 U.S.C. § 1915A(b)
Badge #41197,
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Defendant.
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23 I. Procedural History
24 On December 3, 2021, Plaintiff Alex I. Acuna (“Plaintiff” or “Acuna”), while
25 incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California,
26 and proceeding pro se, filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C.
27 § 1983. See ECF No. 1. Plaintiff alleged that Defendant Godinez (“Defendant” or
28 Godinez”), an RJD Correctional Sergeant, violated his Fourth and Eighth Amendment
1 rights when he conducted a visual strip search on Acuna. See id. at 3-5. He sought
2 $450,000 in both general and punitive damages. Id. at 7.
3 On January 4, 2022, the Court GRANTED Acuna’s Motion to Proceed In Forma
4 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) but sua sponte DISMISSED his
5 Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C.
6 § 1915A(b). See ECF No. 5. Acuna was granted leave to file an amended pleading and on
7 March 25, 2022, Acuna filed his First Amended Complaint (“FAC”). See ECF No. 8.
8 II. SCREENING
9 A. Standard of Review
10 As the Court previously informed Plaintiff, because he is a prisoner and is
11 proceeding IFP, his FAC requires a preliminary review pursuant to 28 U.S.C. § 1915(e)(2)
12 and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP
13 complaint, or any portion found frivolous, malicious, failing to state a claim, or seeking
14 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
15 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621
16 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of
17 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the
18 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)
19 (citation omitted).
20 “The standard for determining whether a plaintiff has failed to state a claim upon
21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
23 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
24 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
26 12(b)(6)”).
27 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain
28 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
1 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
2 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare
3 recitals of the elements of a cause of action, supported by mere conclusory statements, do
4 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the
5 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and
6 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
8 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
9 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
10 B. Factual Allegations & Claims
11 Acuna alleges that Defendant Godinez “conducted a strip search” of Plaintiff on
12 December 30, 2019. ECF No. 8 at 3. After “visually inspect[ing] [Acuna’s] buttocks and
13 anus,” Acuna “resumed a standing position.” Id. However, Godinez purportedly ordered
14 Acuna to bend over again and Acuna complied. See id. Acuna claims Godinez “forced
15 [Acuna] through screaming demands to stay bent over with [his] anus spread wide” for up
16 to two minutes and then repeated this demand four additional times. Id. Acuna claims that
17 these actions by Godinez were “contrary to policy” and in an attempt to “sexually abuse”
18 Acuna. Id. Acuna was “in fear that the Defendant would sexually batter” him. Id. Plaintiff
19 alleges that he suffers from “serious psychological harm, depression, [and] anxiety.” Id.
20 C. 42 U.S.C. § 1983
21 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
22 elements: (1) that a right secured by the Constitution or laws of the United States was
23 violated, and (2) that the alleged violation was committed by a person acting under the
24 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,
25 1035-36 (9th Cir. 2015).
26 D. Eighth Amendment claims
27 Acuna claims his Eighth Amendment rights have been violated when he was
28 subjected to a strip search by Godinez that he claims constituted “sexual abuse” and “sexual
1 assault.” ECF No. 8 at 3. The Eighth Amendment protects prisoners from inhumane
2 methods of punishment and inhumane conditions of confinement, and “[p]rison officials
3 have a duty to ensure that prisoners are provided with adequate shelter, food, clothing,
4 sanitation, medical care, and personal safety.” Farmer v. Brennan, 511 U.S. 825, 825
5 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state a cruel and unusual
6 punishment claim, Plaintiff must allege facts sufficient to satisfy two requirements. Id. at
7 834; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, he must allege his deprivation was
8 “objectively [and] ‘sufficiently serious.’” Farmer, 511 U.S. at 834 (quoting Wilson v.
9 Seiter, 501 U.S. 294, 298 (1991)); see also Peralta v. Dillard, 744 F.3d 1076, 1091 (9th
10 Cir. 2014).
11 Prison conditions are not objectively serious unless they amount to “unquestioned
12 and serious deprivations of basic human needs,” or of the “minimal civilized measure of
13 life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson, 501 U.S. at 298-
14 300. Second, Plaintiff’s FAC “must contain sufficient factual matter” to demonstrate that
15 each Defendant acted with a sufficiently culpable state of mind, that of “deliberate
16 indifference.” Iqbal, 556 U.S. at 678; Wilson, 501 U.S. at 303; Peralta, 744 F.3d at 1091.
17 A prison official acts with deliberate indifference if he “knows of and disregards an
18 excessive risk to the prisoner’s health and safety.” Farmer, 511 U.S. at 837. In other words,
19 the prison official “must both be aware of facts from which the inference could be drawn
20 that a substantial risk of serious harm exists [to the prisoner], and [the prison official] must
21 also draw that inference.” Id.
22 “Sexual harassment or abuse of an inmate by a correctional officer is a violation of
23 the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012); see
24 also Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and most
25 absolute of terms . . . prisoners [have a clearly established Eighth Amendment right] to be
26 free from sexual abuse…”). Here, however, Acuna has only alleged that he believes the
27 strip search took longer than he believed was reasonable. He does not allege that he was
28 ever physically touched by Godinez or physically injured in any way during the search.
1 Moreover, he does not allege that Godinez ever said anything sexual to Acuna. Acuna
2 appears to believe that the strip search was conducted in a sexual manner but offers no
3 factual allegations that would support this claim. His only allegation is that Godinez
4 purportedly “scream[ed] demands” at him. ECF No. 3. The Court finds that Acuna’s FAC
5 is devoid of any plausible factual allegations that would demonstrate that Godinez knew
6 Acuna was subjected to an “excessive risk to [Acuna’s] health and safety” when he
7 conducted a visual strip search. Therefore, Acuna’s Eighth Amendment claims are
8 DISMISSED for failing to state a claim.
9 E. Fourth Amendment claims
10 “The Fourth Amendment proscription against unreasonable searches does not apply
11 within the confines of the prison cell,” Hudson v. Palmer, 468 U.S. 517, 526 (1984), and
12 courts have recognized only limited rights to bodily privacy in prison. See Bull v. City &
13 Cty. of San Francisco, 595 F.3d 964, 974‒75 (9th Cir. 2010); Mitchenfelder v. Sumner,
14 860 F.2d 328, 332 (9th Cir. 1988). Here, as stated above, Acuna claims that Godinez
15 conducted a strip search that took longer than other searches he had previously been
16 subjected to and the search lasted a total of eight to ten minutes. See ECF No. at 4.
17 Routine visual strip searches do not violate the Fourth Amendment. See Hudson,
18 468 U.S. at 529 (“[W]holly random searches are essential to the effective security of penal
19 institutions.”); Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318,
20 327–28 (2012) (“[D]eterring the possession of contraband depends in part on the ability to
21 conduct searches without predictable exceptions.”); Michenfelder, 860 F.2d at 333‒34
22 (upholding routine visual body cavity searches for contraband or weapons); Nunez v.
23 Duncan, 591 F.3d 1217, 1227–28 (9th Cir. 2010) (finding federal prisoner’s strip search
24 for contraband did not violate the Fourth Amendment because controlling contraband
25 within a prison is a legitimate penological interest and the regulation allowing visual strip
26 searches was reasonably related to that interest).
27 While the manner in which a bodily search is conducted may become so
28 unreasonable that it can violate the Fourth Amendment, Acuna’s accusation that the search
1 took longer than it was supposed to does not rise to level that was “excessive, vindictive,
2 harassing, or unrelated to any legitimate penological purpose.” Michenfelder, 860 F.2d at
3 332‒33; see also Hudson, 468 U.S. at 528 (“The uncertainty that attends random searches
4 of cells renders these searches perhaps the most effective weapon of the prison
5 administrator in the constant fight against the proliferation of knives and guns, illicit drugs,
6 and other contraband.”). While Plaintiff claims that Godinez’s actions were “solely
7 intended to further his own sexual gratification,” there simply are no factual allegations to
8 support this conclusory statement.
9 Accordingly, Acuna’s Fourth Amendment claims are DISMISSED for failing to
10 state a claim.
11 F. Leave to Amend
12 On January 4, 2022, the Court explained Acuna’s original pleading deficiencies, and
13 because it was not absolutely clear he could not allege additional facts to state plausible
14 Fourth or Eighth Amendment claims for relief, granted him leave to amend. See ECF No.
15 5 at 7 (citing Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). Despite having had this
16 opportunity, Acuna still fails to adequately plead any constitutional claim for relief against
17 Godinez. Therefore, the Court finds further amendment would be futile. See Gonzalez v.
18 Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can,
19 by itself, justify the denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d
20 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007
21 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend and has
22 subsequently failed to add the requisite particularity to its claims, [t]he district court’s
23 discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted)
24 (second alteration in original)).
25 / / /
26 / / /
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1 CONCLUSION AND ORDER
2 Accordingly, the Court DISMISSES this civil action sua sponte without further
3 || leave to amend for failure to state a claim upon which § 1983 relief can be pursuant to 28
4 1/U.S.C. § 1915(e)(2)(B) and § 1915A(b), CERTIFIES that an IFP appeal would not be
5 taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court
6 enter a final judgment of dismissal and to close the file.
7 IT IS SO ORDERED.
8 ||Dated: April 29, 2022 € □
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Hon. Cathy Ann Bencivengo
10 United States District Judge
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