Applegate v. Baines

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DANIEL GARY APPLEGATE, Case No. 3:23-cv-1368-SI

Plaintiff, OPINION AND ORDER

v.

R. BAINES and I. LOPEZ MENDOZA,

Defendants.

Michael H. Simon, District Judge.

Plaintiff Daniel Applegate, representing himself, sues Multnomah County Sheriff’s

Office (“MCSO”) deputies R. Baines and I. Lopez Mendoza.1 Plaintiff brings these claims

against Defendants under 42 U.S.C. § 1983. He alleges that on August 27, 2023, Defendants

violated the Eighth Amendment by subjecting Plaintiff to an unconstitutional strip search.

1 Plaintiff does not explicitly state whether he sues Defendants in their individual

capacities or in their official capacities as state officials. When a complaint does not state clearly

whether a plaintiff sues a defendant in their individual or official capacity, and the plaintiff seeks

damages, there is a strong presumption in favor of construing the pleading as an individual-

capacity suit, because an official-capacity suit for damages would be barred. See, e.g., Romano v.

Bible, 169 F.3d 1182, 1186 (9th Cir. 1999); Shoshone-Bannock Tribes v. Fish & Game Comm’n,

Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994). Because Plaintiff seeks only damages, the Court

construes Plaintiff’s complaint as suing Defendants in their individual capacities.

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. For the reasons discussed below, the Court denies Defendants’ motion for summary

judgment.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden,

“the moving party must either produce evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving party does not have enough evidence of an

essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. v.

Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving

party need only point out ‘that there is an absence of evidence to support the nonmoving party’s

case.’” (quoting Celotex, 477 U.S. at 325)). “Where the moving party will have the burden of

proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of

fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509

F.3d 978, 984 (9th Cir. 2007). “If the moving party meets its initial burden, the non-moving

party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that

there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986)).

Courts must view the evidence in the light most favorable to the non-movant and draw all

reasonable inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251

F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla of

evidence in support of the plaintiff’s position [is] insufficient.” Anderson, 477 U.S. at 252, 255.

“Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A court must liberally construe the filings of a self-represented, or pro se, plaintiff and

afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th

Cir. 2010). The Ninth Circuit further instructs that “an ordinary pro se litigant, like other

litigants, must comply strictly with the summary judgment rules. Pro se inmates are, however,

expressly exempted from this rule.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)

(citation omitted). For a pro se inmate, courts “should avoid applying summary judgment rules

strictly.” Id. “This rule exempts pro se inmates from strict compliance with the summary

judgment rules, but it does not exempt them from all compliance.” Soto v. Sweetman, 882

F.3d 865, 872 (9th Cir. 2018) (emphasis in original). The exception for pro se inmates does “not

entirely release [an inmate] from any obligation to identify or submit some competent evidence

supporting his claim.” Id.

BACKGROUND

A. Plaintiff’s Encounter with Defendants

At the time of the incident giving rise to this case, Plaintiff was a pretrial detainee2 at the

Multnomah County Detention Center. On August 27, 2023, Plaintiff resided in cell 4C07.

2 Defendants indicate that Plaintiff was a pretrial detainee at the relevant time—and not

already convicted—in their motion for summary judgment. ECF 20 at 8-11. As discussed below,

whether a plaintiff is a pretrial detainee or a convicted adult in custody determines the proper

constitutional analysis by which to evaluate that individual’s claims. Because nothing in the

ECF 22 at 21. At 7:30 AM that morning, Defendant Baines, the area sergeant on duty, was

delivering breakfast to adults in custody living on the fourth floor. Id. at 21. Baines stopped at

cell 4C07 and offered Plaintiff hot coffee, which Plaintiff accepted through the food port. Id. As

Baines prepared to move to the next cell, Plaintiff threw the coffee on him through the food port.

Id.; id. at 13. Baines then shut the food port with his foot. Id. at 21. Baines states that Plaintiff

laughed and said “gotcha.” Id.

After this incident, Baines decided to move Plaintiff from the 4C block to 4F, a

disciplinary block. Id. “Due to Applegate’s history of staff assaults,” Baines recruited multiple

deputies for the move to “help mitigate any issues that could arise and ultimately prevent injury

to staff or Applegate.” ECF 22 at 10. Baines, Lopez Mendoza, and three other deputies

approached cell 4C07 to move Plaintiff, id. at 6, 10. During the walk to 4F, Plaintiff “appeared to

be cooperating” and walking “quietly” and “without any issues.” Id. at 10, 13.

Once inside cell 4F15, however, the encounter escalated. The parties dispute the details

of what happened next. Plaintiff states:

As I walked in the cell, they threw me face down on the floor and

while I’m in handcuffs[,] Deputy R. Baines punched me in the left

side of my face 6 times, after grabbing my glasses off my face and

bending and disfiguring them. After Baines assaulted me, Lopez

Mendoza slapped me in the right side of my face and he said to me

“I slapped you.” After they assaulted me they cut my clothes off

[and] left me naked.

ECF 1 at 3.3

record suggests the contrary, nor does Plaintiff dispute this statement, the Court accepts that

Plaintiff was in pretrial detention on August 27, 2023.

3 Plaintiff provides this description of the encounter in his verified complaint. “[A]

verified complaint may serve as an affidavit for purposes of summary judgment if it is based on

personal knowledge and if it sets forth the requisite facts with specificity.” Moran v. Selig, 447

F.3d 748, 759 n.16 (9th Cir. 2006).

Defendants offer a different explanation of what happened. Baines’s incident report

states:

As we entered the cell, Applegate began to push his body

backwards towards myself and the other escort. I helped Applegate

to the prone position on his mattress with the assistance from

another deputy. I was holding the right arm and shoulder of

Applegate with my left hand while deputies removed his pants.

When bracing myself with my right hand on the mattress while the

pants were being removed, Applegate turned his head and inched

towards my hand attempting to bite me. I quickly moved my hand

and placed it on the right side of Applegate’s cheek and side of his

forehead, holding his head against the mattress to prevent him

from biting myself or other staff until his clothing was removed.

Once Applegate had his pink and blue shirt cut and removed. A

RIPP restraint was applied by an escort to the handcuffs and

Applegate was escorted backwards to the cell door. Applegate’s

hands were secured through the food port I held Applegate’s right

hand while the handcuffs were removed and Applegate was

secured in his cell without any further issue.

ECF 22 at 16.

Finally, Lopez Mendoza’s report states:

Just before getting into 4F15 cell, Applegate refused to respond

when asked if he was going to cooperate with the process of a strip

search. Once in the cell, Applegate was asked again, and again

refused to give an answer. He began to give resistance and push

back in towards myself and the other escort. Due to his extensive

assault on staff history, it was agreed on that the safest way to

complete this process was to use the jail safety cutter to remove his

clothes.

I assisted Applegate by grabbing his arm and guiding him to a

prone position on his stomach. The escorts who were controlling

his lower body worked together to remove his shoes, socks, pants,

and boxers. While standing on the left side of Applegate, I

received the cutters and kneeled down to cut his shirts. I started by

cutting the sleeves along the seams and then made another cut

down the middle. This allowed all the shirts to be removed from

under his body. I handed the cutters to another staff member for

safety. At this point, I found it reasonable to attach my ripp

restraint to the handcuffs to remove them through the cell door’s

food port. Applegate was assisted off the floor and walked back

towards the door. As I exited the cell, I handed the ripp restraint to

another deputy to control. I disengaged from the scene while others

removed the handcuffs from Applegate. The food port was closed

with no issues, and Applegate was later seen by medical. No

injuries were reported.

Id. at 13-14. No party provides evidence of how long Plaintiff was left naked in his cell. Between

three and four hours after this encounter, MCSO Nurse Margaret Rogers evaluated Plaintiff and

his injuries. Id. at 18. In her report, she wrote that Plaintiff “reports he was hit in the head

pointing to the L side of cheek.” Id. She concluded that there was “[n]o swelling, bruising or

redness of area of reported injury.” Id. She did, however, prescribe him a week’s worth of

optional pain medication. Id.

Plaintiff alleges that Defendants’ conduct during this strip search violated the Eighth

Amendment. Plaintiff seeks $15,000 in damages.

B. Defendants’ Policies

Defendants submit segments of the MCSO 2017 Corrections Division Operational Policy

and Procedures Manual (“Policy and Procedures Manual”) and MCSO’s Agency Manual

(“Agency Manual”). The Policy and Procedures Manual outlines circumstances under which

prison staff may use force and how a use of force must be reported. See, e.g., ECF 30 at 5-7. The

Agency Manual similarly outlines rules for using force and the factors used to determine

reasonableness of force. See, e.g., id. at 18-19. MCSO Sergeant Brandon Pedro further provides

that “[w]hen transferring an adult in custody into a disciplinary housing cell, it is standard

practice for MCSO deputies to conduct a strip search prior to providing the adult in custody with

new, disciplinary housing-specific clothing.” Decl. of Brandon Pedro ¶ 5 (ECF 30).

DISCUSSION

Defendants make two arguments in support of summary judgment. First, Defendants

argue that no reasonable juror could find that Defendants used excessive force on Plaintiff.

Second, even if there is a dispute of fact on whether the force used was reasonable, Defendants

argue that they are entitled to qualified immunity.

A. Constitutional Claims Brought by Pretrial Detainees

Plaintiff alleges a claim of excessive force, in violation of the Eighth Amendment. The

Eighth Amendment, however, applies only to convicted individuals. See Ingraham v.

Wright, 430 U.S. 651, 671 n.40 (1977) (“Eighth Amendment scrutiny is appropriate only after

the State has complied with the constitutional guarantees traditionally associated with criminal

prosecutions.”); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (applying

Ingraham to hold that “[b]ecause there had been no formal adjudication of guilt against” a

person at the time that he was injured by the police, “the Eighth Amendment has no

application”). Because Plaintiff had not been convicted at the time that he was strip searched, his

claim cannot move forward under the Eighth Amendment.

“Where the State seeks to impose punishment without . . . an adjudication, the pertinent

constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.”

Ingraham, 430 U.S. at 671 n.40; see also Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979) (“The

Court of Appeals properly relied on the Due Process Clause rather than the Eighth Amendment

in considering the claims of pretrial detainees.”); Norbert v. City and County of San

Francisco, 10 F.4th 918, 928 (9th Cir. 2021) (noting that the claims of pretrial detainees “are

analyzed under the Fourteenth Amendment Due Process Clause, rather than under the Eighth

Amendment” (quotation marks omitted)). The appropriate framework by which to evaluate a

pretrial detainee’s due process rights depends on the type of allegation. Failure-to-protect

claims—when plaintiffs sue prison officials for injuries caused by other prisoners or prison

conditions—trigger a “deliberate indifference” inquiry analogous to a traditional Eighth

Amendment analysis. See Castro v. County of Los Angeles, 833 F.3d 1060, 1067-68 (9th

Cir. 2016); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). By contrast, Fourth Amendment

standards of reasonableness govern excessive force claims such as Plaintiff’s.4 See Lolli v.

County of Orange, 351 F.3d 410, 415 (9th Cir. 2003) (“[T]he Fourth Amendment sets the

applicable constitutional limitations for considering claims of excessive force during pretrial

detention.”); Dunham v. County of Monterey, 2020 WL 9395224, at *1 (N.D. Cal. Apr. 29, 2020)

(applying Fourth Amendment excessive force standards); Warren v. County of Riverside, 2021

WL 4594777, at *7 (C.D. Cal. Mar. 26, 2021) (same). Acknowledging that Plaintiff is

unrepresented, the Court will construe Plaintiff’s claim as alleging a violation of the Fourteenth

Amendment and evaluate it under the appropriate Fourth Amendment framework.

B. The Doctrine of Excessive Force under the Fourth Amendment

“Under the Fourth Amendment, police may use only such force as is objectively

reasonable under the circumstances.” LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th

Cir. 2000); see also Kingsley, 576 U.S. at 397 (“[T]he appropriate standard for a pretrial

detainee’s excessive force claim is solely an objective one.”); Holmes v. County of Orange, 2017

WL 11632298, at *2 (C.D. Cal. Aug. 17, 2017) (“Because Graham requires an objective inquiry,

4 In 2015, the Supreme Court decided Kingsley v. Hendrickson, 576 U.S. 389 (2015). The

Court held that to succeed on a § 1983 claim brought under the Fourteenth Amendment Due

Process Clause, a pretrial detainee “must show only that the force purposely or knowingly used

against him was objectively unreasonable” to prevail on an excessive force claim. Id. at 396-97

(emphasis added). In explaining what “objectively unreasonable” means, the Court relied heavily

on Graham v. Connor, 490 U.S. 386 (1989), a case that dealt with the meaning of that phrase

within the context of the Fourth Amendment. The Kingsley Court, however, did not expressly

state that a proper Fourteenth Amendment excessive force analysis is identical to Graham’s

Fourth Amendment excessive force analysis. Nevertheless, following the approach in Kingsley

and in Ninth Circuit cases deciding claims of pretrial detainees under the Fourteenth

Amendment, this Court will apply the Fourth Amendment excessive force framework outlined in

Graham, because the analysis will be the same.

an officer’s intentions—good or ill—have no bearing on whether he employed excessive force.”

(citing Graham, 490 U.S. at 397)).

“Objective reasonableness turns on the ‘facts and circumstances of each particular case.’”

Hyde v. City of Wilcox, 23 F.4th 863, 870 (9th Cir. 2022) (quoting Kingsley, 576 U.S. at 397).

Courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396

(quotation marks omitted). Thus, the Court first “assess[es] the gravity of the particular intrusion

on Fourth Amendment interests,” then “assess[es] the importance of the government interests at

stake,” and finally, “balances[s] the gravity of the intrusion on the individual against the

government’s need for that intrusion to determine whether it was constitutionally reasonable.”

Young v. County of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011) (quotation marks omitted).

“Although on summary judgment we view the evidence in the light most favorable to [the

nonmovant], the reasonableness of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Luchtel v.

Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) (cleaned up).

As summarized above, the parties present dramatically different recitations of the

incident.5 Plaintiff reports that Baines punched Plaintiff on the left side of his face six times and

5 The Court acknowledges that the record in this case is bare; all that is before the Court

is Plaintiff’s account of events, Defendants’ account of events, and a nurse’s two sentence

evaluation. Resolving this factual dispute would thus require the Court to make a credibility

determination as to whose version of events should be believed. This task is better presented to a

jury than a judge. See Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (“Because questions of

reasonableness are not well-suited to precise legal determinations, the propriety of a particular

use of force is generally an issue for the jury.”); Aranda v. City of McMinnville, 942 F. Supp. 2d

1096, 1107 (D. Or. 2013) (“Indeed, because the reasonableness of the use of force is necessarily

fact-specific, it is often a question that cannot be resolved at summary judgment.”); see also

Brown v. Grinder, 2019 WL 280296, at *10 (E.D. Cal. Jan. 22, 2019) (“[i]t is for the trier of fact,

that Lopez Mendoza slapped Plaintiff on the right side of his face. Baines, by contrast, states in

his narrative that he merely “placed” his hand (on the right side of Applegate’s face) and was

“holding” Plaintiff’s head against the mattress to prevent movement. Neither of Defendants’

narratives mention punches or a slap. Plaintiff states that after the encounter, he was left naked in

his cell. Neither defendant states whether they left Plaintiff naked or provided him with clothes.

Given these factual discrepancies, the Court construes the evidence in a light most favorable to

the nonmovant. If, even under Plaintiff’s recitation of the facts, Defendants’ conduct would not

amount to an excessive use of force, then Defendants are entitled to summary judgment.

1. Gravity of the Intrusion

The first step of the Graham analysis assesses the nature and quality of the intrusion on

Fourth Amendment interests. Graham, 490 U.S. at 396; Mattos v. Agarno, 661 F.3d 433, 441

(9th Cir. 2011). Courts in the Ninth Circuit classify closed fist strikes6—or punches—as

examples of significant intermediate uses of force.7 See Garlick v. County of Kern, 167 F.

not this court, to determine the level of resistance posed by [the plaintiff’s] movements and the

level of resistance the defendant officers reasonably perceived through those movements.”).

6 A court has held that several open-palm strikes to the back of an individual’s head could

also constitute intermediate force because they were so forceful that the individual lost

consciousness. See Carmona-Perez v. City of Salem, 2023 WL 6216167, at *8 (D. Or. Sept. 25,

2023). The Court declines to find, however, that a single slap that did not cause the recipient to

lose consciousness would constitute significant intermediate force.

7 Defendants note that when Corrections Health evaluated Plaintiff after the incident,

Corrections Health reported “[n]o swelling, bruising, or redness of area of reported injury.”

Courts may consider the severity of injuries in evaluating the amount of force used. See Felarca

v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018) (inferring from the minor nature of a plaintiff’s

injuries that the force applied was minimal). Although she found no swelling, bruising, or

redness on Plaintiff’s left cheek, Nurse Rogers still prescribed optional pain medication.

Moreover, the check-up occurred more than three hours after the encounter, meaning that certain

potential symptoms of injuries—such as redness—may have subsided before the appointment.

Therefore, the Court does not read Nurse Rogers’s report to conclusively undermine Plaintiff’s

allegations of injury in his verified complaint.

Supp. 3d 1117, 1147 (E.D. Cal. 2016) (“[I]mpact blows by punching or kicking are considered

‘significant force.’”); Aranda, 942 F. Supp. 2d at 1105 (finding that closed fist and knee strikes

to an individual’s head is a “significant” use of force); Zawacky v. Clark County, 2024

WL 2133956, at *4 (W.D. Wash. May 10, 2024) (“Impact blows, such as face punches . . . are

generally considered significant intermediate force.”) (quotation marks omitted). Intermediate

force is “the most severe force authorized short of deadly force,” Smith v. City of Hemet, 394

F.3d 689, 702 (9th Cir. 2005), and “must be justified by a commensurately serious state interest,”

Young, 655 F.3d at 1163.

Pretrial detainees in institutional settings may be subjected to strip searches if they are

conducted in a reasonable manner. See Dolan v. Clawson, 2023 WL 4627680, at *4 (D. Alaska

July 13, 2023). Moreover, some pretrial detainees may be deprived of certain types of clothing—

or clothing altogether—for certain amounts of time based on their circumstances. See, e.g.,

Moret v. Millsap, 2021 WL 4786834, at *4 (D. Or. July 26, 2021) (finding that staff had a

legitimate reason to deprive a suicidal adult in custody of regular-issue clothing because torn

clothing can present safety risks), report and recommendation adopted, 2021 WL 4786470 (D.

Or. Oct. 13, 2021). What Ninth Circuit jurisprudence does not support, however, is the practice

of leaving an adult in custody naked purely as part of a show of force after that adult has been

restrained or subdued. Forcing an individual to remain naked, even for non-extensive periods of

time, can severely impinge on that person’s dignity, even if it does not result in a physical injury.

See Vazquez v. County of Kern, 949 F.3d 1153, 1165 (9th Cir. 2020) (explaining that in the Ninth

Circuit, “it is clearly established that the Fourteenth Amendment protects a sphere of privacy,

and the most basic subject of privacy [is] the naked body” (cleaned up)); Doe v. County of

Orange, 2022 WL 18776166, at *20 (C.D. Cal. Dec. 16, 2022) (explaining that although privacy

is necessarily curtailed during detention or incarceration, the naked body is “the most basic

subject of privacy” as protected by the Fourteenth Amendment).

2. Government’s Interest

Moving to the second step of the Graham analysis, the Court evaluates the government’s

interest by assessing the “core factors”: (a) the severity of the crime; (b) whether the suspect

posed an immediate threat to the officers’ or public’s safety; and (c) whether the suspect was

“actively resisting.” Graham, 490 U.S. at 396. These core factors are not exclusive, and the

Court looks to the totality of the circumstances. Bryan v. MacPherson, 630 F.3d 805, 826 (9th

Cir. 2010); Luchtel, 623 F.3d at 980 (explaining that courts must consider, “under the totality of

the circumstances, the ‘quantum of force’ used to arrest the plaintiff, the availability of

alternative methods of capturing or detaining the suspect, and the plaintiff’s mental and

emotional state” (citations omitted)). The Ninth Circuit has stated, however, that “the most

important single element of the three [Graham] factors” is whether the suspect posed an

immediate threat to the safety of the officer or others. Chew, 27 F.3d at 1441.

First, the Court considers the severity of Plaintiff’s conduct that resulted in Defendants’

use of force. According to Lopez Mendoza’s narrative, Plaintiff “refused to respond” when asked

to cooperate with the strip search, and then “began to give resistance and push back in towards

[Lopez Mendoza] and the other escort.” Baines states that after the escorts “helped” Plaintiff to a

prone position on the mattress, “Applegate turned his head and inched towards my hand

attempting to bite me.” Plaintiff does not dispute in his complaint that he initially resisted the

search in these ways.

The second core factor is whether Plaintiff posed an immediate threat to the officers’

safety.8 The same factual disputes exist again with respect to whether Plaintiff posed a threat to

the officers’ safety that would justify six punches and a slap. Viewing the evidence in the light

most favorable to Plaintiff, at the time of the alleged force he posed little or no threat to the

officers. He was not armed, was outnumbered five to one, was held down on the floor (or

mattress), and was already handcuffed by the time Defendants allegedly punched and slapped

him. Because of the parties’ factual disputes as to officer safety, the Court finds a genuine issue

for trial on whether Plaintiff posed a considerable “immediate threat” that would justify

intermediate force. See Brown, 2019 WL 280296, at *11 (“The disputes of material fact as to

officer safety preclude the court’s finding plaintiff posed a threat to anyone’s safety sufficient to

justify the force used by defendants.”); Mattos, 661 F.3d at 444 (concluding that a driver did not

pose an immediate safety threat because although she could have attempted to drive away

“rapidly and recklessly,” the officers confiscated her keys—thus terminating her means of

escape—before tasing her).

Third, the Court considers whether Plaintiff was “actively resisting.” “Resistance that is

not ‘particularly bellicose’ does not support the use of intermediate force.” Zawacky, 2024

WL 2133956, at *5 (quoting Smith, 394 F.3d at 703). Plaintiff does not challenge Defendants’

narratives that Plaintiff ignored officer instructions, pushed against officers, or moved his head to

bite Baines. Thus, even if Plaintiff did resist the strip search in the ways that Defendants claim,

that resistance was brief and ceased when the officers pinned Plaintiff down. Cf. Smith, 394 F.3d

at 703 (intermediate force was inappropriate where plaintiff ignored officers’ commands and

8 Given that at the time of the encounter, Plaintiff was an adult in custody inside a

detention facility, the Court does not find that his conduct posed any public safety concern.

briefly physically resisted arrest). Furthermore, Plaintiff was physically restrained at the point

when Defendants punched him, stripped him, and ultimately left him naked in his cell.

An additional factor that courts may consider in a Graham analysis “is the availability of

alternative methods of capturing or subduing a suspect.” Id.; see also Aranda, 942 F. Supp. 2d

at 1106. In this case, an alternative method of subduing Plaintiff was available, as evidenced by

how Defendants describe the encounter. Baines states that he needed only to “hold” Plaintiff’s

head against the mattress and “place” his hand on Plaintiff’s cheek and forehead. Lopez

Mendoza claims that he only “guid[ed]” Plaintiff to the ground. Plaintiff was unarmed,

outnumbered, and handcuffed by the time Baines allegedly punched him. And it was after

Defendants restrained Plaintiff that they conducted the strip search and left Plaintiff naked. If

Plaintiff already was subdued before the strip search, leaving Plaintiff naked was not a necessary

element of subduing him. Viewing the evidence in the light most favorable to Plaintiff and

accepting his version of events, then Defendants’ version of events would be a reasonable

alternative method of conducting the strip search. A reasonable jury could thus find that

Defendants had less forceful methods of subduing Plaintiff.

Finally, “a court must take account of the legitimate interests in managing a jail,

acknowledging as part of the objective reasonableness analysis that deference to policies and

practices needed to maintain order and institutional security is appropriate.” Kingsley, 576 U.S.

at 399-400.9 The Court notes that both officers adapted their behavior based on the Plaintiff’s

9 Defendants argue that the Court must consider whether Defendants acted “maliciously

and sadistically to cause harm,” citing Wood v. Beauclair, 692 F.3d 1041, 1049-50 (9th

Cir. 2012). The Ninth Circuit in Wood, however, was analyzing the subjective prong of Eighth

Amendment jurisprudence. As the Supreme Court has concluded, that standard does not apply in

excessive force claims under the Fourteenth Amendment. Kingsley, 576 U.S. at 400-02 (rejecting

argument that under the Fourteenth Amendment “the plaintiff must prove that the use of force

apparent history of assaulting prison staff.10 The Court also notes that strip searching is “standard

practice” for MCSO deputies when transferring adults in custody to disciplinary housing. That

does not, however, justify objectively unreasonable force in carrying out the strip search. Indeed,

the Agency Manual explicitly states that staff shall “only use the amount of force that they

reasonably believe appears necessary to effectively control an incident.” ECF 30 at 15 (emphasis

added). Further, the Court finds no provision in either the Policy and Procedures Manual or the

Agency Manual that authorizes leaving an adult custody naked in his cell as punishment after an

encounter requiring force has ended.

3. Balancing Intrusion Against Interests

Balancing the significant intrusion of Plaintiff’s Fourth Amendment interests against the

government’s need for that intrusion weighs in favor of Plaintiff. As discussed, viewing the facts

in a light most favorable to the nonmovant, the degree of force used against Plaintiff while he

was restrained, unarmed, and outnumbered—six punches and a slap to the head, and being left

naked in his cell—was significant, and the government interests at stake did not justify that level

of force. Of course, the Court must also consider the perspective of a reasonable officer in

Defendants’ shoes at the time of the incident. See Aranda, 942 F. Supp. 2d at 1105. The Court

understands that Plaintiff may have had a history of violence against facility staff that would

have led the officers to fear a similar outcome during the transfer. The Court, however, finds a

was not ‘applied in a good-faith effort to maintain or restore discipline’ but, rather, was applied

‘maliciously and sadistically to cause harm’”).

10 Baines states that he gathered multiple deputies to move Plaintiff from 4C to 4F

because of Plaintiff’s “history of staff assaults” and to “help mitigate any issues that could arise

and ultimately prevent injury to staff or Applegate.” Similarly, Lopez Mendoza notes that he

used the jail safety cutter to remove Plaintiff’s clothes because “[d]ue to [Plaintiff’s] extensive

assault on staff history, it was agreed on that [this method] was the safest way to complete this

process.”

genuine issue for trial on whether it was reasonable for Defendants to believe that punching,

slapping, and leaving Plaintiff naked after he was subdued were all actions justified by a

commensurately serious state interest.11

C. Defendants’ Qualified Immunity Defense

“Whether qualified immunity can be invoked turns on the objective legal reasonableness

of the official’s acts. And reasonableness of official action, in turn, must be assessed in light of

the legal rules that were clearly established at the time the action was taken.” Ziglar v.

Abbasi, 582 U.S. 120, 151 (2017) (cleaned up). Thus,

[d]etermining whether officials are owed qualified immunity

involves two inquiries: (1) whether, taken in the light most

favorable to the party asserting the injury, the facts alleged show

the official’s conduct violated a constitutional right; and (2) if so,

whether the right was clearly established in light of the specific

context of the case.

Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). But “[w]here the officers’ entitlement to qualified immunity depends on the resolution

of disputed issues of fact in their favor, and against the non-moving party, summary judgment is

not appropriate” Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003).

As discussed in the preceding section, the Court finds that, taken in the light most

favorable to the party asserting injury, the record shows that Defendants’ conduct amounted to

an unconstitutional use of force. To determine whether a government official’s conduct violates

clearly established law, “a court must ask whether it would have been clear to a reasonable

officer that the alleged conduct was unlawful in the situation he confronted.” Abassi, 582 U.S.

11 For example, there were at least three other officers in the cell who could have assisted

in holding Plaintiff down to prevent him from resisting. Defendants could have also provided

Plaintiff with verbal warnings before resorting to physical force.

at 152 (quotation marks omitted). To be clearly established, “[i]t is not necessary . . . that the

very action in question has previously been held unlawful. That is, an officer might lose qualified

immunity even if there is no reported case directly on point. But in the light of pre-existing law,

the unlawfulness of the officer’s conduct must be apparent.” Id. at 151. (cleaned up). Thus, the

key inquiry in determining whether an officer has qualified immunity is whether the officer had

“fair warning” that his conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

see also Saucier, 533 U.S. at 202 (noting that the law need not be a “precise formulation of the

standard” as long as “various courts have agreed that certain conduct is a constitutional violation

under facts not distinguishable in a fair way from the facts presented in the case at hand”); Ellins

v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013) (“Rather, the relevant question is

whether ‘the state of the law at the time gives officials fair warning that their conduct is

unconstitutional.’” (quoting Bull v. City & County of San Francisco, 595 F.3d 964, 1003 (9th

Cir. 2010) (en banc)). Courts must avoid the “danger of a rigid, overreliance on factual

similarity.” Hope, 536 U.S. at 742-43 (concluding that reasonable officers received fair warning

from the “reasoning” of a case “though not the holding,” even though “the facts of the case are

not identical”).

A court in this circuit first looks to binding precedent from the Supreme Court or the

Ninth Circuit. Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004). “[I]n the absence of

binding precedent, [courts] look to whatever decisional law is available to ascertain whether the

law is clearly established for qualified immunity purposes, including decisions of state courts,

other circuits, and district courts.” Id. (quotation marks omitted).

Plaintiff’s altercation with Defendants occurred on August 27, 2023. There were several

cases that put Defendants on notice that their alleged actions were unlawful. As noted above,

Vazquez stated that protections for the naked body were “clearly established” by 2020. 949 F.3d

at 1165. Many cases put Defendants, such as the following, on notice that punching a person

who was pinned down or handcuffed was unlawful.

Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), sufficiently put Defendants

on notice that the use of intermediate force under the circumstances was excessive. In

Blankenhorn, officers arrested Gary Blankenhorn for trespassing outside of a shopping mall. Id.

at 468-69. Video footage showed three officers jumping on Blankenhorn; a brief struggle ensued.

Id. at 469. Blankenhorn alleged that during the struggle, one of the officers punched him several

times—including in the head—even after Blankenhorn was already on the ground. Id. at 469-70.

The officer claimed he punched Blankenhorn in order to get his arms out from underneath him

and secure handcuffs. Id. at 470, 480. Blankenhorn claimed that the officers never pinned his

arms underneath his body. Id. at 480. Crediting Blankenhorn’s version of events, the Ninth

Circuit concluded that “a rational jury could find that if Blankenhorn did not maneuver his arms

beneath his body it eliminated the need for any use of force to release them, and thus that [the

officer’s] punches were not reasonably justified by the circumstances as he claims.” Id. The

Ninth Circuit further explained that under Graham, “force is only justified when there is a need

for force,” and concluded that this “clear principle” would have “adequately put a reasonable

officer on notice” that punching Blankenhorn to free his arms when he was not moving his arms

to avoid arrest was a Fourth Amendment violation. Id. at 481.

The Court recognizes that Blankenhorn involved an arrest, whereas Plaintiff’s incident

occurred in pretrial detention. But that fact did not underlie the Ninth Circuit’s analysis on this

claim; rather, “[t]he court ultimately held that the justification for the punches turned on whether

they were necessary to ‘take control’ of the suspect so he could be handcuffed.” Andrich v.

Kostas, 2022 WL 2905043, at *12 (D. Ariz. July 22, 2022) (emphasis added) (quoting

Blankenhorn, 485 F.3d at 480). Construing the record in a light most favorable to Plaintiff, he

was on the ground and handcuffed before he was punched and left naked. In other words, the

officers already had control of Plaintiff before they used force. The Court thus finds that

Blankenhorn clearly established that once officers have subdued an individual, force is no longer

justified.12 Cf. Carmona-Perez v. City of Salem, 2023 WL 6216167, at *11 (D. Or. Sept. 25,

2023) (finding that Blankenhorn “squarely governs” whether officers who pin an individual

down and “palm strike” him are entitled to qualified immunity).

The Ninth Circuit again held that officer’s conduct violated clearly established law where

the officer pushed a handcuffed man into a wall multiple times, threw him to the ground, and

punched him in the face while he was on the ground. Davis v. City of Las Vegas, 478 F.3d 1048,

1052, 1057 (9th Cir. 2007). The Ninth Circuit explained that any reasonable officer should have

known that this was an excessive use of force. Id. at 1057. Notably, the Ninth Circuit repeatedly

has emphasized the importance of stopping the use of force after a person “surrenders and is

rendered helpless.” LaLonde, 204 F.3d at 961; see also Watkins v. City of Oakland, 145 F.3d

1087, 1090 (9th Cir. 1998).

Additionally, several district courts have held similar conduct as Plaintiff alleges

Defendants engaged in to be clearly established as unconstitutional. See, e.g., Contreras v. City

of Nogales, 2022 WL 22885295, at *6, *9 (D. Ariz. Sept. 8, 2022) (rejecting qualified immunity

when the plaintiff alleged that officers tackled the plaintiff while he was fleeing, hit him in the

head, and tased him); Sants v. Seipert, 2021 WL 465292, at *5-6 (E.D. Cal. Feb. 9, 2021)

12 The Ninth Circuit has also “clearly recognized a Fourteenth Amendment right to bodily

privacy,” even within the context of prisons. Vazquez, 949 F.3d at 1165.

(rejecting claim for qualified immunity because “any reasonable officer in Officer Seipert’s

position would have known that repeatedly striking Mr. Sants in the head would be an excessive

use of force”); Wallisa v. City of Hesparia, 369 F. Supp. 3d 990, 1003, 1015 (C.D. Cal. 2019)

(rejecting qualified immunity for officers who punched in the head, tased, and kneeled on a

suspect who had fled and was crawling out from underneath a bus to surrender at the time of the

encounter). Given all of the clearly established caselaw, the Court rejects Defendants’ summary

judgment motion based on qualified immunity.

CONCLUSION

The Court DENIES Defendants’ motion for summary judgment (ECF 20).

IT IS SO ORDERED.

DATED this 4th day of February, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge