1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRICIO PULIDO SEGURA, Case No. 24-cv-06667-RMI

8 Plaintiff,

ORDER OF SERVICE

v. 9

10 C. BASS, et al., Defendants. 11

12 13 Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 14 1983. He has been granted leave to proceed in forma pauperis. 15 LEGAL STANDARDS 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 18 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 19 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 21 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 22 Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 24 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement 25 need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 26 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state a 27 claim a complaint “does not need detailed factual allegations . . . a plaintiff’s obligation to provide 1 formulaic recitation of the elements of a cause of action will not do . . . [f]actual allegations must 2 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 4 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 5 recently explained the “plausible on its face” standard of Twombly as such: “[w]hile legal 6 conclusions can provide the framework of a complaint, they must be supported by factual 7 allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their 8 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 9 v. Iqbal, 556 U.S. 662, 679 (2009). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 11 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 12 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 13 487 U.S. 42, 48 (1988). 14 DISCUSSION 15 Plaintiff alleges that he was subject to an unclothed body search in view of female staff. 16 A cross-gender strip search that involves touching the inmate’s genitalia and searching 17 inside his anus is unreasonable as a matter of law in a non-emergency situation. Byrd v. Maricopa 18 Cnty. Sheriff's Dep’t, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc) (“Byrd I”). Even so, not all 19 searches by guards of a different gender are illegal. See Grummett v. Rushen, 779 F.2d 491, 494 20 (9th Cir. 1985) (affirming use of female officers within a correctional facility who occasionally 21 viewed male inmates in various stages of undress and conducted routine pat-downs of fully 22 clothed inmates). This is not inconsistent with Byrd I. See Byrd I, 629 F.3d at 1142. Assigned 23 positions of female guards that require only infrequent and casual observation, or observation at a 24 distance, of unclothed male prisoners and that are reasonably related to prison needs are not so 25 degrading as to warrant court interference. See Michenfelder v. Summer, 860 F.2d 328, 334 (9th 26 Cir. 1988); Grummett, 779 F.2d at 494-95; see also Jordan v. Gardner, 986 F.2d 1521, 1524-25 27 (9th Cir. 1993) (en banc) (privacy interest in freedom from cross-gender clothed body searches not 1 unclothed inmates of the opposite sex without a legitimate reason for doing so. See Michenfelder, 2 860 F.2d at 334; cf. Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 922-25 (9th Cir. 3 2017) (“Byrd II”) (reversing dismissal for failure to state a claim when pretrial detainee alleged 4 that defendants’ policy of permitting female guards to regularly view his bathroom and shower use 5 from 4-5 feet away violates his 4th and 14th Amendment rights). 6 Plaintiff states that on October 8, 2022, the Defendant prison staff members directed that 7 Plaintiff and more than 100 other prisoners be subject to an unclothed body search on the prison 8 yard in view of female correctional staff, nursing staff, and kitchen staff. 1 The search occurred 9 without the use of any type of privacy shielding. Plaintiff seeks money damages. Liberally 10 construed, this claim is sufficient to proceed. 11 CONCLUSION 12 The Court orders that the following Defendants be served electronically at San Quentin 13 Rehabilitation Center: Lieutenant C. Bass, Sergeant M. Taylor, Sergeant E. Simpson, and 14 Correctional Officer E. Castillo. 15 Service on the listed Defendant will be effected via the California Department of 16 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners 17 in CDCR custody. In accordance with the program, the Clerk is directed to serve on CDCR via 18 email the following documents: the operative complaint (dkt. 1), this order of service, the notice of 19 assignment of prisoner case to a United States magistrate judge and accompanying magistrate 20 judge jurisdiction consent or declination to consent form, a CDCR Report of E-Service Waiver 21 form and a summons. The Clerk is also requested to serve a copy of this order on the plaintiff. 22 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 23 the Court a completed CDCR Report of E-Service Waiver advising the Court which Defendants 24 listed in this order will be waiving service of process without the need for service by the United 25 States Marshal Service (USMS) and which Defendants decline to waive service or could not be 26

27 1 Approximately seven other cases regarding this same unclothed body search were filed in this 1 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver and of the 2 notice of assignment of prisoner case to a magistrate judge and accompanying magistrate judge 3 jurisdiction consent or declination to consent form to the California Attorney General’s Office, 4 which, within 21 days, shall file with the Court a waiver of service of process for the Defendants 5 who are waiving service and, within 28 days thereafter, shall file a magistrate judge jurisdiction 6 consent or declination to consent form as to the defendants who waived service. 7 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk is requested to prepare 8 for each Defendant who has not waived service according to the CDCR Report of E-Service 9 Waiver a USM-285 Form. The Clerk will provide to the USMS the completed USM-285 forms 10 and copies of this order, the summons and the operative complaint for service upon each 11 Defendant who has not waived service. The Clerk will also provide to the USMS a copy of the 12 CDCR Report of E-Service Waiver. 13 In order to expedite the resolution of this case, the Court orders as follows: 14 No later than sixty days from the date of service, Defendants shall file their motion for 15 summary judgment or other dispositive motion. The motion shall be supported by adequate factual 16 documentation and shall conform in all respects to Federal Rule of Civil Procedure 56 and shall 17 include as exhibits all records and incident reports stemming from the events at issue. If 18 Defendants are of the opinion that this case cannot be resolved by such a motion, they shall so 19 inform the Court prior to the date that such motion is due. Moreover, all papers filed with the 20 Court shall be promptly served on Plaintiff. 21 At the time the dispositive motion is served, Defendants shall also serve, on a separate 22 paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th 23 Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003); see Woods 24 v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (finding that Rand and Wyatt notices must be 25 given at the time motions for summary judgment or motion to dismiss for non-exhaustion are 26 filed, not earlier); Rand, 154 F.3d at 960 (establishing the separate paper requirement). 27 Plaintiff’s opposition to the dispositive motion, if any, shall be filed with the Court and 1 Additionally, Plaintiff must read the attached page headed “NOTICE — WARNING,” which is 2 provided to him pursuant to Rand, 154 F.3d at 953-954, and Klingele v. Eikenberry, 849 F.2d 409, 3 || 411-12 (th Cir. 1988). 4 If Defendants file a motion for summary judgment claiming that Plaintiff failed to exhaust 5 his available administrative remedies as required by 42 U.S.C. § 1997e(a), Plaintiff should take 6 || note of the attached page headed “NOTICE — WARNING (EXHAUSTION),” which is provided 7 to him as required by Wyatt, 315 F.3d at 1120 n. 4. 8 If Defendants wish to file a reply brief, they shall do so no later than fifteen days after the 9 opposition is served. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. All 11 communications by Plaintiff with the Court must be served on Defendants, or Defendants’ 12 || counsel, if and when counsel has been designated, by mailing a true copy of the document to 13 Defendants or Defendants’ counsel. 14 Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 3 15 further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the parties a 16 || may conduct discovery. 3 17 Finally, it is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 18 || informed of any change of address by filing a separate paper with the clerk headed “Notice of 19 || Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 20 || do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 21 Civil Procedure 41(b). 22 IT IS SO ORDERED. 23 Dated: October 21, 2024 24 Mt Z 7 25

ROBERT M. ILLMAN

26 United States Magistrate Judge 27 28

1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. You have the right to 20 present any evidence you may have which tends to show that you did exhaust your administrative 21 remedies. Such evidence may be in the form of declarations (statements signed under penalty of 22 perjury) or authenticated documents, that is, documents accompanied by a declaration showing 23 where they came from and why they are authentic, or other sworn papers, such as answers to 24 interrogatories or depositions. If defendants file a motion for summary judgment for failure to 25 exhaust and it is granted, your case will be dismissed and there will be no trial.

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