1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN J. ERBACHER, No. 1:23-cv-01194-JLT-BAM (PC)

12 Plaintiff, ORDER REFUSING TO ADOPT THE

FINDINGS AND RECOMMENDATIONS

13 v. AND FINDING A CONGNIZABLE FOURTH

AND EIGHTH AMENDMENT CLAIM

14 ROBLES, (Doc. 12)

15 Defendants.

16 Justin J. Erbacher is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action pursuant to 42 U.S.C. § 1983. The assigned Magistrate Judge screened the first 18 amended complaint and issued findings and recommendations, which concluded that the action 19 should be dismissed with prejudice for failure to state a cognizable claim upon which relief may 20 be granted. (Doc. 12.) Plaintiff filed objections. (Doc. 15.) 21 In her objections, the plaintiff reiterates that the officer’s conduct in strip searching her 22 was due to her transgender status. (Doc. 15 at 1 -2) She alleged that the officer allowed some 23 inmates to enter the “Work Change” area without searching them, but that the officer required 24 that the plaintiff and other inmates in the immediate area to be searched. (Doc. 11 at 7-8) These 25 other inmates were required to remove their shirts. Id. However, despite plaintiff presenting her 26 “transgender card” and reporting that her “search preference chrono” had been approved, which 27 allowed her to be searched by female officers, the officer required the plaintiff to remove her 28 1 clothing and to “squat and cough” to determine whether she had items secreted in her body. Id. at 2 7-8. None of the other inmates who were cisgender, were required to display their genitals or to 3 perform the “cough and squat.” Id. 4 As correctly noted by the findings and recommendations, the Fourth Amendment does not 5 prohibit a cross-gender unclothed body search as described here. (Doc. 12 at 8-9) However, the 6 Ninth Circuit has adopted the four-factor balancing articulated in Bell v. Wolfish 441 U.S. 520, 7 559 (1979) to determine whether the Fourth Amendment is violated by a body search. Byrd v. 8 Maricopa County Sheriff's Dep't, 629 F.3d 1135, 1141 (9th Cir. 2011). 9 Though the officer did not touch the plaintiff, he made her remove all of her clothing 10 including her underwear and while nude, to squat and cough. (Doc. 11 at 8) The search occurred 11 within the view of two other male officers who were present in the office where the search 12 occurred. Id. The officer also commented on the plaintiff’s breasts, by indicating, “Those things 13 on your chest don’t make you special.” Id. The allegations demonstrate that the search was not an 14 emergency and there was no particular need to conduct it. Finally, the officer required the nude 15 search despite being apprised that the plaintiff had been approved for search by female officers 16 and without checking whether there was a female officer available Id. 17 Considering these allegations, the Court concludes that the significant intrusion into the 18 plaintiff’s personal rights and her desire to “shield one’s unclothed figure from [the] view of 19 strangers, and particularly strangers of the opposite sex . . .” (Byrd at 1141) when weighed against 20 the lack of justification for the search, states a claim under the Fourth Amendment. Though this 21 search occurred only on one occasion, this is not the type of incidental or casual observation 22 anticipated in Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985). The allegation that the 23 senior officer present at the search found that it was unnecessary for the plaintiff to remove her 24 undergarments supports this conclusion. 25 As to the sexual harassment claim brought under the Eighth Amendment, the complaint 26 does not allege that the officer touched the plaintiff or made any sexually charged comments, 27 except to note that her breasts did not “make her special.” Though this comment could be 28 interpreted different ways, mere verbal harassment alone, in general, does not state a claim under 1 | the Eighth Amendment. Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir.2000). However, this 2 || case involves more than a claim of verbal harassment, as described above. Forcing the plaintiff to 3 | strip nude and to position herself in a degrading manner without any showing or penological 4 | need, at this stage, appears to state a claim for sexual harassment. Thus, because the salient 5 | allegations made in the first amended complaint as recited above, arguably demonstrate sexual 6 | harassment under the Eighth Amendment, the Court finds that the plaintiff has stated a cognizable 7 | claim. 8 According to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this 9 | case. Having carefully reviewed the entire file, including Plaintiffs objections, the Court 10 | ORDERS: 11 1. The findings and recommendations issued on November 7, 2023, (Doc. 12), are not 12 adopted; 13 2. This action may proceed against Correctional Officer Robles under the Fourth 14 Amendment on the claim he conducted an unreasonable search of the plaintiff and on 15 the claim that he subjected her to sexual harassment as prohibited by the Eighth 16 Amendment. 17 3. The matter is referred to the Magistrate Judge including for all permissible purposes, 18 including issuing the order for service of process. 19 20 IT IS SO ORDERED. 21 | Dated: _December 27, 2023 Charis [Tourn

TED STATES DISTRICT JUDGE

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