William Bouse v. Donald L. Bussey, Oregon State Police Officer, Crook County, Prineville, Oregon

573 F.2d 548 William BOUSE, Plaintiff-Appellant, v. Donald L. BUSSEY, Oregon State Police Officer, Crook County, Prineville, Oregon, Defendant-Appellee. No. 76-1274. United States Court of Appeals, Ninth Circuit. July 21, 1977. William Bouse, pro. per., submitted on briefs. Paul N. Daigle, Portland, Ore., submitted on briefs, for appellee. Appeal from the United States District Court for the District of Oregon. Before SNEED and KENNEDY, Circuit Judges, and RICHEY, * District Judge. PER CURIAM: 1 Appellant William Bouse, a prison inmate, brought suit in propria persona under 42 U.S.C. § 1983 against Donald L. Bussey, an Oregon state police officer, in essence alleging that Bussey had violated his right under the fourth and fourteenth amendments to be free from an unreasonable search and seizure. The district court granted appellee's motion to dismiss the complaint. Since Bouse's allegations, if true, are sufficient to constitute a claim on which relief might be granted, we reverse. 2 The pleadings, viewed in the light most favorable to appellant, Belt v. Johnson Motor Lines, Inc., 458 F.2d 443, 444 (5th Cir. 1972); see Boddicker v. Arizona State Dental Association, 549 F.2d…

concurring:

I concur in the reversal of the district court’s judgment dismissing the action on the pleadings. Complaints under the Civil Rights Act are to be liberally construed and should be dismissed for failure to state a claim only if the plaintiff can prove no set of facts which would entitle him to relief. Sherman v. Yakahi, 549 F.2d 1287 (9th Cir., 1977). I agree with the majority opinion insofar as it holds that the complained of procedure was a “search and seizure” within the meaning of the Fourth Amendment and therefore subject to constitutional scrutiny. I also agree with the majority’s directive that the failure of the police to obtain a search warrant should be considered in assessing the reasonableness of the procedure. However, I depart from the majority ruling to the extent it holds that the absence of a search warrant renders the procedure unlawful per se.

In his complaint, appellant alleged, inter alia, that the challenged procedure was carried out against his will by use of threats and force, that he was thereby placed in fear of bodily harm, and that he suffered pain and humiliation at the hands of appellee. Thus, on its face, the complaint posed the issue…

Appellant William Bouse, a prison inmate, brought suit in propria persona under 42 U.S.C. § 1983 against Donald L. Bussey, an Oregon state police officer, in essence alleging that Bussey had violated his right under the fourth and fourteenth amendments to be free from an unreasonable search and seizure. The district court granted appellee’s motion to dismiss the complaint. Since Bouse’s allegations, if *550 true, are sufficient to constitute a claim on which relief might be granted, we reverse.

The pleadings, viewed in the light most favorable to appellant, Belt v. Johnson Motor Lines, Inc., 458 F.2d 443, 444 (5th Cir. 1972); see Boddicker v. Arizona State Dental Association, 549 F.2d 626, 628 (9th Cir. 1977), disclose the following facts: During appellant’s incarceration as a pretrial detainee in the county jail on a charge of rape, he was taken to a small holding cell. While appellant was in the cell Officer Bussey demanded that appellant give him a sample of pubic hair, apparently for the purpose of comparing the sample to hair believed to have come from the perpetrator of the rape. Appellant repeatedly refused to comply. Officer Bussey, with the help of another officer, then…