Collins v. Davis

• Court: District Court, N.D. California
• Decided: September 18, 2019
• Docket: 5:17-cv-06976
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SCOTT FORREST COLLINS, Case No.17-cv-06976-VKD

9 Plaintiff, ORDER GRANTING DEFENDANT’S 10 v. MOTION FOR SUMMARY JUDGMENT 11 RON DAVIS, Re: Dkt. No. 20 Defendant. 12

13 14 In this action, pro se plaintiff Scott Forrest Collins, a prisoner confined at San Quentin 15 State Prison (“SQSP”), challenges the prison’s policy for conducting unclothed body searches of 16 condemned inmates. Defendant Ron Davis is the SQSP warden. Both parties have consented to 17 magistrate judge jurisdiction. Dkt. Nos. 3, 15. 18 Mr. Collins asserts the following claims against Mr. Davis in his official and individual 19 capacities: (1) violation of his First Amendment right to free exercise of religion, (2) violation of 20 his right to religious exercise under the Religious Land Use and Institutional Person Act 21 (“RLUIPA”), (3) violation of his Fourth Amendment right against unreasonable searches, (4) 22 violation of his Eighth Amendment right against cruel and unusual punishment, and (5) violation 23 of his Fourteenth Amendment rights to equal protection and due process. Dkt. No. 1 ¶¶ 17-26; 24 Dkt. No. 8 at 2. Mr. Collins seeks an injunction, compensatory damages, and punitive damages. 25 Dkt. No. 1 ¶¶ 27-34. 26 Mr. Davis moves for summary judgment on the merits as to all asserted claims. In 27 addition, Mr. Davis moves for summary judgment on the basis that the Eleventh Amendment bars 1 RLUIPA claim for damages against Mr. Davis in his individual capacity seeks a remedy that is not 2 available under that statute, and that Mr. Collins has not made the requisite showing for injunctive 3 relief under RLUIPA. Finally, Mr. Davis contends that he is entitled to qualified immunity as to 4 Mr. Collins’s constitutional claims and that Mr. Collins may not recover punitive damages. Dkt. 5 No. 20. Mr. Collins opposes summary judgment as to all matters. Dkt. No. 21. 6 For the reasons discussed below, the Court grants Mr. Davis’s summary judgment motion. 7 I. BACKGROUND 8 The following facts are undisputed unless otherwise noted: 9 A. San Quentin State Prison 10 SQSP is a California state prison that houses convicted prisoners, including those who 11 have been condemned to death. See Dkt. No. 20-2 ¶ 4; Dkt. No. 22 ¶ 10. Condemned inmates are 12 housed in four different units: East Block, Donner Section, the Adjustment Center, and North 13 Segregation. Dkt. No. 20-2 ¶ 4; Dkt. No. 22 ¶¶ 10, 12. Most condemned inmates are held in the 14 East Block. Dkt. No. 20-2 at ¶ 4. Donner Section serves as overflow for the East Block. Dkt. No. 15 22 ¶ 10. The most violent condemned prisoners are held in the Adjustment Center. Id. ¶ 12; Dkt. 16 No. 20-2 ¶ 4. North Segregation houses condemned prisoners who have demonstrated particularly 17 good behavior and who do not have enemies among the other prisoners (referred to as “enemy 18 concerns”). Dkt. No. 20-2 ¶ 4. 19 North Segregation is a more desirable housing unit for condemned prisoners because those 20 housed there have open-tier access and more out-of-cell time.1 Id. ¶ 5. Generally, to be eligible 21 for placement in North Segregation, inmates must be discipline-free for at least five consecutive 22 years and cannot have any enemy concerns.2 Id. Housing capacity in North Segregation is 23

24 1 Mr. Collins disputes whether North Segregation prisoners are permitted more out-of-cell time than East Block prisoners. Dkt. No. 22 ¶ 32 (“Captain Avila gives the impression that North Seg. 25 has more privil[e]ges than East Block, this is not accurate, we are all classified as Grade A prisoners, North Seg. prisoners are allowed out of their cells during the same hours that East Block 26 prisoners have exercise yard time.”).

27 2 Mr. Collins disputes whether condemned prisoners housed in North Segregation have enemy 1 limited, and vacancies typically occur only when an inmate dies or seeks a transfer to another 2 condemned housing unit. Id. There is a waitlist for inmates seeking to be housed in North 3 Segregation. Id.; see also Dkt. No. 22 ¶ 31. 4 SQSP classifies condemned prisoners by security level, which determines the kind of 5 housing and programs to which they can be assigned. Dkt. No. 22 ¶ 13; see also Dkt. No. 20-2 ¶ 6 10. SQSP also classifies prisoners by “grade” according to security risk and disciplinary issues. 7 Dkt. No. 22 ¶ 9; Dkt. No. 25-6 at 4. Grade A inmates are considered general population inmates, 8 who do not present unusual security risks and have demonstrated a discipline-free adjustment to 9 incarceration. Dkt. No. 20-2 ¶ 6; Dkt. No. 22 ¶ 11. Condemned Grade B inmates are those with 10 disciplinary concerns or enhanced security risks. Dkt. No. 20-2 ¶ 6; Dkt. No. 22 ¶ 12. As a 11 general matter, Grade A prisoners have more privileges and fewer restrictions than Grade B 12 prisoners. See Dkt. No. 20-2 ¶ 6. However, their privileges and restrictions may also depend on 13 their housing assignment. See id. ¶ 5. 14 B. Mr. Collins 15 Mr. Collins is currently housed in the East Block. Dkt. No. 20-2 at ¶¶ 7, 15; Dkt. No. 20-3 16 ¶ 6. Like all condemned prisoners, Mr. Collins is classified as a security level 4 inmate, which 17 qualifies him for maximum security custody. Dkt. No. 20-2 ¶ 10; Dkt. No. 22 ¶ 13. Given this 18 custody level, Mr. Collins must be under direct and constant supervision. Dkt. No. 20-2 ¶ 10; see 19 also Dkt. No. 20-3 ¶ 10. Mr. Collins is also classified as a Grade A inmate with respect to his 20 security risks and discipline concerns. Dkt. No. 20-2 at ¶¶ 7, 15; Dkt. No. 20-3 ¶ 6. 21 In addition to his security level and grade classification, Mr. Collins’s Strategic Offender 22 Management System (“SOMS”) file is annotated with the following labels: (1) “DEA,” which 23 means that he is serving a death sentence; (2) “VIO,” meaning he has a history of violent behavior; 24 and (3) “ARS,” meaning he has a history of arson. Dkt. No. 20-2 ¶ 8, Ex. A. The DEA and VIO 25 labels were affixed to his record on December 29, 2014, and the ARS label was affixed on March 26 20, 1991. Id. 27 Mr. Collins’s SOMS record indicates that he has six non-confidential enemies, all of whom 1 from these prisoners at all times. Id. ¶ 9. In addition, according to Mr. Davis, Mr. Collins’s 2 SOMS record indicates that he has seven confidential enemies from whom he also must be 3 isolated at all times. Id. Mr. Davis does not identify the seven prisoners who are confidential 4 enemies of Mr. Collins. 5 Mr. Collins disputes that he has any enemies at all, but he provides specific evidence as to 6 only one of them, Randy Garcia. Dkt. No. 22 ¶ 30. Mr. Garcia is one of the six prisoners 7 identified as non-confidential enemies in Mr. Collins’s SOMS file. Dkt. No. 20-2 at ¶ 9, Ex. B. 8 Mr. Garcia submitted a declaration in support of Mr. Collins’s summary judgment opposition 9 testifying that he has known Mr. Collins for over 20 years, that they have always been on good 10 terms, and that the two of them have never been enemies. Dkt. No. 23 ¶ 5, 9. According to Mr. 11 Garcia, over 15 years ago, he and other individuals listed as Mr. Collins’s non-confidential 12 enemies were erroneously accused of assaulting Mr. Collins, and that following an investigation, 13 all charges were dropped. Id. ¶ 4. Mr. Collins asserts that he has not received any serious rules 14 violations reports for violence or contraband for over 20 years. Dkt. No. 20-2 ¶ 13, Ex. C at 1. 15 Prison records indicate that he has been discipline-free since 2003. Dkt. No. 22 ¶ 34. 16 On January 3, 2018, Mr. Collins’s case came before the Unit Classification Committee 17 (“UCC”) for a review and possible adjustment of his security level assessment and his 18 classification. Dkt. No. 20-2 ¶¶ 10, 11. That review considered 42 review periods from December 19 1996 (when Mr. Collins first arrived at SQSP) to December 25, 2017. Id., Ex. C. at 1. The UCC 20 noted that Mr. Collins had a mandatory minimum placement score of 60 based on his 21 “condemned” status and had remained discipline-free since 2003. Id. However, the UCC also 22 noted Mr. Collins alleged gang associations dating back to the 1990s. Id., Ex. C at 1–4. The UCC 23 considered a probation officer’s report dated December 17, 1996 indicating that Mr. Collins is a 24 non-validated associate of the Mexican Mafia. Id., Ex. C at 1. The UCC also considered a 25 CDCR-1030 Form dated December 21, 1999, noting that Mr. Collins is likely to be murdered by 26 affiliates of the Mexican Mafia prison gang for misrepresenting himself as the liaison and 27 representative of the Mexican Mafia in the Adjustment Center housing unit. Id., Ex. C at 1, 4. 1 was the victim of a stabbing assault on the yard in which he sustained 28 puncture wounds. Id. 2 Other information in Mr. Collins’s inmate central file indicates that he is also a non-validated 3 member of the Barrio Watts street gang,3 as well as an association of the Aryan Brotherhood. Id., 4 Ex. C at 44. Based on its review of his file, case factors, and input from committee members, the 5 UCC decided to retain Mr. Collins’s current Grade A classification status. Id. ¶ 11. The UCC 6 also denied him East Block worker-status due to safety concerns. Id. In November 2015, Mr. 7 Collins was referred for consideration for placement on the North Segregation waitlist, as he had 8 been discipline-free since 2003 and had no in-custody predatory behavior. Id. ¶ 14; see also Dkt. 9 No. 25-10 at 1. However, given his gang history and the risks to his own safety described above, 10 the UCC decided not to place him in North Segregation. Dkt. No. 20-2 ¶ 14. 11 Mr. Collins denies that he has any recent or relevant gang associations. Dkt. No. 22 ¶ 29 12 (“With respect to gang association, I have tried to avoid gangs and what passes for prison politics 13 for nearly 20 years.”); see also Dkt. No. 22 ¶ 31; Dkt. No. 25-10 at 1 (“I have no enemy concerns 14 here. All my 1030s stem from one individual and my program has been messed up ever since.”). 15 Mr. Collins denies that he was stabbed in the prison yard in 2002. Id. Mr. Collins asserts that no 16 security concerns justify the denial of his request to be placed in North Segregation or at least on 17 its waiting list because he has no enemies housed there. Dkt. No. 22 ¶ 31. 18 C. SQSP’s Operating Procedures Manual 19 SQSP’s Operational Procedure 608, also known as the Condemned Manual (“the SQSP 20 Manual”), sets forth criteria and standards that govern the operation of the Specialized Housing 21 Division, which is responsible for the day-to-day programming of all condemned male inmates 22 housed at SQSP. Dkt. No. 20-2 ¶¶ 15, 18, Ex. D at 1. The Correctional Captain and Associate 23 Warden assigned to the Specialized Housing Division review the SQSP Manual annually, and any 24 changes are submitted for approval to Mr. Davis in his role as the Warden. Id. ¶ 17, Ex. D at 1; 25 3 The UCC also states that a 128-G form notes that at the time of his arrest on January 24, 1992, 26 Mr. Collins stated that he was once affiliated with the Watts Barrio Grape Street Gang, but that he had not been associated with them since 1984. Id. at 4. It is unclear whether the Barrio Watts 27 street gang Mr. Collins’s probation officer referenced is the same as the Watts Barrio Grape Street 1 Dkt. No. 20-3 ¶ 8. 2 Sections 422 and 4115 of the SQSP Manual state the circumstances in which prisoners 3 must undergo unclothed body searches, or strip searches, at SQSP. Dkt. No. 20-2 ¶ 16, Ex. D at 4 11, 22–24. The specific procedures for conducting an unclothed body search in California state 5 prisons is described in the California Department of Corrections and Rehabilitation Operations 6 Manual as follows: 7 The inmate subject to the search shall disrobe completely, and staff shall inspect and search each item of clothing and visually inspect 8 the inmate’s body. The inmate shall face the staff member who shall visually inspect the inmate’s hair, ears, mouth, nose, body, 9 armpits, hands, scrotum, genitals, and legs. The inmate shall turn away from staff upon instruction and staff shall then inspect the 10 inmate’s back, buttocks, thighs, toes, bottom of the feet, and lastly, the anal area by having the inmate bend over, spread the cheeks of 11 their buttocks, and cough. Unclothed body searches of inmates by staff of the opposite biological sex shall only be conducted in 12 emergency situations. 13 Dkt. No. 22 ¶ 19; Dkt. No. 25-3 § 52050.16; see also Dkt. No. 20-2 ¶¶ 24-25. 14 For Grade A prisoners like Mr. Collins, Section 422 of the SQSP Manual provides:

15 Upon a Condemned Grade A inmate entering a condemned housing unit, the Condemned Grade A inmate will be immediately placed in 16 a holding cell and given an unclothed body search, unless the Condemned Grade A inmate is returned to the condemned housing 17 unit after being escorted under direct supervision and control of custody staff during the entire time the Condemned Grade A inmate 18 is outside of the condemned housing unit, i.e., escort to the Central Health Services Building (CHSB) for a medical appointment. All 19 inmates will be given an unclothed body search prior to leaving their cell at any time. If a Condemned Grade A inmate has been under 20 supervision and control of custody staff during the entire escort, then the Condemned Grade A inmate will be returned to his assigned cell 21 without an unclothed body search. 22 Dkt. No. 20-2 ¶ 19, Ex. D at 11. Section 4115 of the SQSP Manual details yard release 23 procedures. Dkt. No. 20-2 ¶ 20, Ex. D at 22. All prisoners housed in the East Block, such as Mr. 24 Collins, are required to undergo unclothed body searches in their cells before they may exit the 25 housing unit and go to the yard. Id. Officers must also search the prisoners’ clothing. Id. 26 According to the SQSP Manual, a prisoner will not undergo an unclothed body search upon 27 returning to his cell if he has been “escorted under direct supervision and control of custody staff 1 According to Mr. Davis, SQSP conducts frequent and routine unclothed body searches of 2 condemned prisoners housed in the East Block because those prisoners housed there generally 3 present an increased risk to the safety and security of the institution, staff, and other prisoners due 4 to the nature of their crimes, enemy concerns, and in-custody behavior. Id. ¶ 22. Mr. Davis 5 acknowledges that unclothed body searches are always performed before East Block prisoners are 6 permitted to exit their cells for any purpose. Id. ¶¶ 22, 24, 27. When searches are conducted in an 7 inmate’s cell, the officer stands in the four-foot wide cell opening to obstruct the line of sight into 8 the cell. Id. ¶ 24. When the searches are conducted in holding cells, officers are trained to stand 9 around the inmates as they disrobe to preserve their privacy. Id. The unclothed body searches do 10 not involve any touching. Id. The inmates’ clothes are also inspected with an X-ray machine 11 known as a Rapiscan. Id. 12 Mr. Collins states that since September 2016, he has been subjected to approximately 13 1,000 strip searches while housed in the East Block. Dkt. No. 22 ¶ 25. He states that he has 14 missed religious services, showers, and exercise yard time “so as not to have to undergo strip 15 searches.” Id. In March 2017, Mr. Collins filed a grievance concerning the SQSP strip search 16 policy. Dkt. No. 22 ¶ 26; Dkt. No. 25-9 at 1; Dkt. No. 20-3 ¶ 11. That grievance was denied at 17 three levels of review, including by Mr. Davis at the second level. Dkt. No. 22 ¶ 26; Dkt. No. 25- 18 9 at 2, 5–6; Dkt. No. 20-3 ¶ 11. Having exhausted his administrative remedies, Mr. Collins filed a 19 verified complaint commencing this action on December 6, 2017. Dkt. No. 1. 20 II. LEGAL STANDARD 21 A party may move for summary judgment on a “claim or defense” or “part of . . . a claim 22 or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 23 discovery, there is no genuine issue as to any material facts and the moving party is entitled to 24 judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 25 Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 26 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient 27 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 1 basis for its motion, and of identifying those portions of the pleadings and discovery responses 2 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where 3 the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no 4 reasonable trier of fact could find other than for the moving party. S. Calif. Gas. Co. v. City of 5 Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). 6 On an issue where the nonmoving party will bear the burden of proof at trial, the moving 7 party may discharge its burden of production either (1) by “produc[ing] evidence negating an 8 essential element of the nonmoving party’s case” or (2) after suitable discovery, by “show[ing] 9 that the nonmoving party does not have enough evidence of an essential element of its claim or 10 defense to discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., 11 Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. at 324–25. 12 Once the moving party meets its initial burden, the opposing party must then set forth 13 specific facts showing that there is some genuine issue for trial in order to defeat the motion. See 14 Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not 15 simply question the credibility of the movant to foreclose summary judgment.” Anderson, 477 16 U.S. at 254. “Instead, the non-moving party must go beyond the pleadings and by its own 17 evidence set forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., 18 Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non- 19 moving party must produce “specific evidence, through affidavits or admissible discovery 20 material, to show that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th 21 Cir. 1991). Conclusory or speculative testimony in affidavits and moving papers is insufficient to 22 raise a genuine issue of material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. 23 Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). 24 III. DISCUSSION 25 Mr. Collins does not challenge the manner in which SQSP conducts unclothed body 26 searches. Instead, he contends that, given how those searches are conducted, SQSP’s policy of 27 subjecting him to such searches every time he leaves his cell violates his constitutional rights and 1 justify the use of frequent and routine unclothed body searches. Mr. Collins contends that such 2 searches should only be conducted on an “unannounced, random basis” and “no more frequently 3 than necessary to control contraband, recover missing or stolen property, or maintain proper 4 security of the prison.” Dkt. No. 1 ¶ 29. The Court considers each alleged violation. 5 A. First Amendment 6 Mr. Collins says that the SQSP strip search policy violates his right to the free exercise of 7 his religious practice under the First Amendment. Dkt. No. 1 ¶ 18. Specifically, he claims that 8 being subjected to strip searches every time he leaves his cell deters his attendance at religious 9 services and his participation in his religious practice. Id. ¶¶ 10-11. On summary judgment, Mr. 10 Davis does not argue that Mr. Collins has failed to show that the strip search policy burdens a 11 religious practice or belief that is sincerely held. See Dkt. No. 20 at 10 (citing Shakur v. Schriro, 12 514 F.3d 878, 884–85 (9th Cir. 2008)). Rather, Mr. Davis contends that the policy as applied does 13 not violate the First Amendment because prison safety and security concerns justify routine strip 14 searches of prisoners in East Block. Id. at 11–13. 15 In order to establish a First Amendment violation with respect to the free exercise of 16 religious practice, Mr. Collins must show that the burden the strip search policy imposes on his 17 religious practice is not reasonably related to legitimate penological interests. Turner v. Safley, 18 482 U.S. 78, 89 (1987). The Court must consider the following factors in assessing Mr. Collins’s 19 challenge to the reasonableness of the strip search policy: (1) whether there is a “valid, rational 20 connection between the prison regulation and the legitimate governmental interest put forward to 21 justify it”; (2) “whether there are alternative means of exercising the right that remain open to 22 prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on 23 guards and other inmates and on the allocation of prison resources generally”; and (4) the 24 “absence of ready alternatives,” or, in other words, whether the rule at issue is an “exaggerated 25 response to prison concerns.” Id. at 89–90. 26 In considering these factors on Mr. Davis’s motion for summary judgment, the Court must 27 draw all justifiable inferences in favor of Mr. Collins as to disputed issues of fact. Beard v. Banks, 1 the Court’s inferences must accord deference to the views of prison authorities. Id. at 530. Unless 2 Mr. Collins can point to sufficient evidence showing the policy is not reasonably related to 3 legitimate penological objectives to allow him to prevail on the merits, he cannot prevail at the 4 summary judgment stage. Id. 5 With respect to the first Turner factor, Mr. Davis asserts that there is a rational connection 6 between the strip search policy and SQSP’s need to maintain prison order and to ensure the safety 7 and security of the prison, staff, and inmates. Dkt. No. 20 at 11; Dkt. No. 20-3 ¶ 13. Mr. Davis 8 relies on the declaration of N. Avila, the Facility Captain of the East Block housing unit at SQSP, 9 for an explanation of the penological objectives SQSP’s policy serves. According to Captain 10 Avila: 11 It is a common practice for inmates to manufacture pouches that they place close to their groin area to elude officers during a quick 12 pat-down of their outer clothing. The benefit of an unclothed body search is that it enables officers to check for false compartments that 13 might otherwise escape them during clothed searches. Inmates also hide contraband and weapons in their anal cavities, which is why 14 they are required to squat or bend over at the waist and cough. 15 Unclothed body searches . . . are used by custody staff as an invaluable tool for contraband interdiction in prisons all over the 16 State of California. Unlike unclothed body searches, clothed body searches would not be sufficient to dispel any suspicion that that the 17 inmates might hid contraband on their bodies. Clothed body searches are inconclusive in the sense that only items that protrude 18 from the inmate’s clothing would seem apparent to officers during a pat-down procedure, and only metal items can be identified by the 19 handheld metal detector. 20 . . . If, instead, officers in these specialized housing units were to only perform unclothed body searches on a random basis, as 21 opposed to as a matter of course, the safety and security of the unit, staff, and other inmates would be seriously compromised. This is 22 because officers would have severely reduced control over the items going and coming into the housing unit—drugs, weapons, and other 23 contraband that condemned inmates may receive from others or manufacture themselves. 24 25 Dkt. No. 20-2 ¶¶ 25-27. Mr. Davis states that the strip search policy is “longstanding” and is 26 predicated on the security requirements of the particular housing unit and the risks the prisoners 27 within that housing unit pose. Dkt. No. 20-3 ¶¶ 9, 10. 1 reflected in the SQSP Manual exceeds the permissible use of unclothed body searches set by state 2 regulation, section 3287 of Title 15 of the California Code of Regulations, and therefore, the 3 policy cannot serve a legitimate penological objective. Dkt. No. 21 at 6–8, 10. Second, he says 4 that the policy does not actually serve the objectives Mr. Davis and Captain Avila say it does 5 because “excessive strip searches may indirectly create greater security risks.” Id. at 10. Finally, 6 Mr. Collins argues that the policy does not serve any legitimate objective because it is applied 7 “unevenly,” given that Mr. Collins’s security classification and other risk factors are not unique to 8 him or to the East Block, and others—such as prisoners in North Segregation—are not subject to 9 the same policy. Id. at 9, 10. 10 Mr. Davis has stated a rational connection between SQSP’s strip search policy and a 11 legitimate government interest: ensuring the safety and security of the prison, staff, and inmates. 12 See Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (prison security is a compelling state 13 interest). The policy principally serves as tool for the detection of contraband that could pose a 14 danger to the prisoners and staff. Mr. Davis offers evidence—which Mr. Collins does not 15 contradict—of the frequency with which contraband is discovered through unclothed body 16 searches and the insufficiencies of other forms of searching.4 17 The state regulation on which Mr. Collins relies does not preclude this policy. Section 18 3287 permits routine unclothed body searches whenever prisoners move “into or out of high 19 security risk areas.” Cal. Code. Regs. tit. 15, § 3287(b). The undisputed evidence reflects that 20 SQSP conducts unclothed body searches when prisoners move from one high security area (e.g., a 21 prison cell) into another (e.g., the showers). On its face, the policy is not inconsistent with the 22 regulation.5 The Court disagrees that the regulation must be read to prohibit unclothed body 23 searches if a prisoner moves among high security areas within a housing unit, but even if it did 24 4 The Court appreciates that the routine nature of the unclothed body searches may also serve to 25 deter efforts to conceal contraband in the first place. See Bell v. Wolfish, 441 U.S. 557, 559 (1979). 26

5 The Court disagrees that section 3287(a)(1), on which Mr. Davis also relies, authorizes routine 27 unclothed body searches within specialized housing units. That subsection concerns only 1 preclude such searches on a routine basis, it does not necessarily follow that SQSP’s strip search 2 policy has no rational connection to a legitimate penological interest or that it gives rise to a 3 constitutional claim. See, e.g., Wallace v. Davis, No. 17-CV-05488-SI, 2019 WL 652889, at *7 4 (N.D. Cal. Feb. 15, 2019) (“Compliance or non-compliance with state law has no bearing on the 5 analysis of the federal constitutional claims asserted in the complaint.”). 6 Mr. Collins may be correct that “excessive” strip searches undermine a prison’s goals of 7 maintaining safety and security, but the question of what is “excessive” is the type of issue on 8 which the Court generally must defer to the professional judgment of prison administrators. 9 Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Bell v. Wolfish, 441 U.S. 520, 547 (1979). While 10 there are certainly limits to this deference, Mr. Collins has not raised a triable issue of fact that the 11 circumstances of which he complains exceed those limits. Despite his commendable disciplinary 12 record while incarcerated, Mr. Collins is a maximum security prisoner serving a death sentence for 13 a violent crime, and as a result, he must be kept under direct and constant supervision. In addition, 14 Mr. Collins does not dispute that he has at least some enemies from whom he must be separated at 15 all times; he contradicts Mr. Davis’s evidence as to only one purported enemy. Mr. Collins is 16 housed in a specialized housing unit that must manage safety and security concerns relating to a 17 population of prisoners that includes not only Mr. Collins but also other condemned prisoners with 18 similar or even greater security concerns. The strip search policy is at least rationally connected to 19 this legitimate objective. 20 Mr. Collins cites no evidence that the strip search policy is applied “unevenly” with respect 21 to prisoners within East Block. To the contrary, he objects to the routine use of unclothed body 22 searches with respect to prisoners who, like him, reside in East Block but do not have a record of 23 disciplinary violations. To the extent Mr. Collins contends that he is more like prisoners housed in 24 North Segregation and should be subjected to unclothed body searches on the same basis as they 25 are, that argument fundamentally depends on challenges to Mr. Collins’s classification and 26 housing assignment that are not before the Court. 27 With respect to the second Turner factor, the constitutional right at issue is the First 1 attend religious services outside of his cell without subjecting himself to an unclothed body 2 search, and that such searches deter him from engaging in religious services. As Mr. Davis 3 observes, Mr. Collins does not explain the nature of his religious practice or identify which 4 religious services he has been deterred from attending. Mr. Collins does not respond to these 5 arguments, except to say that “Turner’s second factor does not apply.” Dkt. No. 21 at 10. 6 The record contains no evidence that SQSP discriminates against Mr. Collins on the basis 7 of his particular religious practice or that his religious practice is such that the strip search policy 8 is itself abhorrent to his religious beliefs. Mr. Collins has shown only that the strip search policy 9 indirectly interferes with his religious practice because he wishes to avoid being stripped searched 10 as a condition of exiting his cell to attend services. This is a relatively weak showing. 11 With respect to the third Turner factor, the Court considers the impact accommodation of 12 Mr. Collins’s free exercise right will have on guards and other inmates and on the allocation of 13 prison resources. Mr. Collins appears to argue that all of the constitutional and statutory rights he 14 asserts in this case (including his First Amendment right) may be accommodated by eliminating 15 the use of routine unclothed body searches in favor of less frequent, unannounced searches 16 conducted on a random basis in the East Block. Dkt. No. 21 at 10–11. He notes that conducting 17 searches on an unannounced, random basis is consistent with the guidance provided in state prison 18 regulations regarding the conduct of unclothed body searches, and that less frequent searches will 19 save time and expense for the prison. Mr. Davis responds that if the prison is not permitted to 20 conduct unclothed body searches every time a prisoner enters or exits his cell, the security of the 21 prison will be compromised. Mr. Davis does not specifically address the impact of Mr. Collins’s 22 proposed accommodation, which would require the prison to rely on unannounced, random 23 searches to discover contraband. 24 While Mr. Collins may be correct that less frequent searches could result in short term 25 savings with respect to prison resources, he does not address Mr. Davis’s evidence that routine 26 searches are critical to maintaining prison security. Although Mr. Collins contends that there have 27 been no murders committed by condemned inmates within SQSP during the past 20 years, see 1 prison staff to search for contraband that might otherwise be concealed from other modes of 2 searching, such as metal detection, clothes scanning, or clothed body searches, and that SQSP’s 3 security concerns extend beyond simply preventing murders. In short, Mr. Collins does not point 4 to evidence that the cost savings he envisions would justify the heightened security risk that 5 elimination of routine, unclothed body searches would pose. In addition, Mr. Collins does not 6 show that the substantial deference owed to the professional judgment of prison administrators in 7 weighing the costs and benefits of routine searches compared to random searches could be 8 overcome by contrary evidence in this case. 9 Finally, with respect to the fourth Turner factor, the Court considers whether SQSP’s strip 10 search policy represents an exaggerated response to the prison’s security concerns and whether 11 there are ready alternatives to that policy. Turner, 482 U.S. at 90. Here, Mr. Collins has the 12 burden to show that there are “obvious, easy alternatives” to that policy. O’Lone v. Estate of 13 Shabazz, 482 U.S. 342, 343 (1987). 14 As an alternative to SQSP’s current strip search policy, Mr. Collins advocates that 15 unclothed body searches in East Block should be conducted on an “unannounced, random basis” 16 and “no more frequently than necessary to control contraband, recover missing or stolen property, 17 or maintain proper security of the prison.” Dkt. No. 1 ¶ 29. He does not advocate for the 18 elimination of unclothed body searches altogether; rather, he argues that, given the nature of such 19 searches and the frequency with which they are conducted (i.e., on a routine basis), unclothed 20 body searches represent an exaggerated response to security concerns as applied to a prisoner with 21 his security profile. Mr. Davis insists that it is critical to prison security for prison staff to be able 22 to strip search prisoners whenever they leave or return to their cells. 23 The Court acknowledges the very substantial invasion of privacy that an unclothed body 24 search represents, no matter how professionally and respectfully it is conducted. Such a search is 25 “indisputably a frightening and humiliating invasion, even when conducted with all due 26 courtesy.” Way v. Cty. of Ventura, 445 F.3d 1157, 1160 (9th Cir. 2006) (internal quotation marks 27 and citations omitted); see also Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489–90 (9th Cir. 1 view of all persons other than the party performing the search, does not negate the fact that a strip 2 search is a significant intrusion on the person searched . . . .”) (citation omitted); Thompson v. City 3 of Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989) (“The feelings of humiliation and degradation 4 associated with forcibly exposing one's nude body to strangers for visual inspection is beyond 5 dispute.”). The fact that SQSP conducts these searches on a routine basis makes the intrusion 6 more serious, rather than less. Cf. Dkt. No. 20 at 19 (suggesting that the routine nature of the 7 search makes it less objectionable). 8 But for the undisputed evidence of Mr. Collins’s security profile and housing assignment, 9 the Court would find it difficult to conclude, as a matter of law, that SQSP’s security concerns 10 justify the routine and frequent use of unclothed body searches. Critically, the SQSP strip search 11 policy does not authorize unclothed body searches in those circumstances where a prisoner has 12 had no opportunity to conceal contraband outside his cell—i.e., where the prisoner has been 13 escorted under direct supervision and control of prison staff during such time. See Dkt. No. 20-2 ¶ 14 19, Ex. D at 11. Given Mr. Collins’s security profile, the fact that he is currently housed in East 15 Block, and the security concerns described in Captain Avila’s declaration with respect to that 16 housing unit, the Court is not persuaded that the less frequent, non-routine search alternative Mr. 17 Collins advocates is obviously an effective alternative to the existing strip search policy, 18 particularly where the only evidentiary support for this alternative is Mr. Collins’s own declaration 19 and a 1982 law review article that does not specifically discuss conditions in SQSP. See Dkt. No. 20 22 ¶ 41; Dkt. No. 25-8. The Court acknowledges Mr. Collins’s contention that he has been 21 assigned incorrectly to a housing unit based on concerns about his own safety and security that he 22 believes are inaccurate and unfounded, but the correctness of Mr. Collins’s housing assignment 23 and whether that assignment is inconsistent with state law or regulation is not before this Court. 24 On summary judgment, this Court’s task is to determine whether Mr. Collins has shown 25 that he could prevail on the merits of his claim that the strip search policy as applied to him is not 26 reasonably related to legitimate penological objectives, in view of the considerations outlined in 27 Turner and in view of the deference that must be accorded the professional judgment of prison 1 made a sufficient showing to raise a genuine issue of fact for trial, and Mr. Davis is entitled to 2 summary judgment on Mr. Collins’s First Amendment claim. Cf. Way, 445 F.3d at 1158 (finding 3 county’s policy of strip searching all arrestees charged with any controlled substance offense 4 unconstitutional); Warrior v. Gonzalez, No. C 08-00677 CRB, 2013 WL 6174788 at *5 (E.D. Cal. 5 Nov. 20, 2013) (denying defendant’s motion to dismiss prisoner’s claim that mandatory strip 6 search twice per day for thirty nights of Ramadan violated his constitutional rights). The Court 7 grants summary judgment on the First Amendment claim in favor of Mr. Davis. 8 B. RLUIPA 9 As relevant to this case, RLUIPA provides that the state cannot impose a substantial 10 burden on an institutionalized person’s religious exercise unless the state demonstrates that 11 imposition of the burden furthers a compelling government interest and is the least restrictive 12 means of furthering that compelling government interest. 42 U.S.C. § 2000cc-1(a). Mr. Collins 13 has the burden to show the SQSP strip search policy imposes a substantial burden on his religious 14 exercise. Id. § 2000cc-2(b). If he makes that showing, the burden shifts to Mr. Davis to show that 15 the burden furthers a compelling government interest and is the least restrictive means of 16 furthering that interest. Id. Mr. Davis’s burden here is much higher than it is with respect to Mr. 17 Collins’s First Amendment claim under Turner, which requires only that Mr. Davis show that the 18 policy is reasonably related to legitimate penological interests. 19 The Court considers first whether the strip search policy imposes a substantial burden on 20 Mr. Collins’s religious exercise. As explained above, Mr. Collins describes the religious exercise 21 at issue as attendance at religious services.6 Although he does not explain the nature of those 22 services, the Court will assume for purposes of this motion that they satisfy RLUIPA’s broad 23 definition of “religious exercise.” Id. § 2000cc-5(7)(A). Mr. Collins argues that the SQSP strip 24 search policy burdens his religious exercise because he must subject himself to a search if he 25 wishes to leave his cell to attend services. A policy imposes a “substantial burden” on religious 26 6 Mr. Collins’s opposition does not discuss his RLUIPA claim or Mr. Davis’s challenge to it. 27 However, the Court will consider the arguments and evidence offered by Mr. Collins in support of 1 exercise if it is “‘oppressive’ to a ‘significantly great’ extent.” Warsoldier v. Woodford, 418 F.3d 2 989, 995 (9th Cir. 2005). More specifically, if a policy “puts significant pressure on inmates 3 . . . to abandon their religious beliefs by [modifying their behavior], it imposes a substantial 4 burden on [the inmates’] religious practice.” Id. at 996 (punishing an inmate for refusing to cut his 5 hair, which would violate his religious beliefs, constituted a substantial burden); see also Sherbert 6 v. Verner, 374 U.S. 398, 404–06 (1963) (requiring Seventh-Day Adventist to choose between 7 working on Saturdays, a day of rest under her faith, and eligibility for unemployment benefits 8 constituted a substantial burden under the First Amendment). However, a practice that offends a 9 plaintiff’s religious sensibilities but does not force the plaintiff to act contrary to his or her beliefs 10 is not a “substantial burden.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1063 (9th Cir. 11 2008). As explained above, Mr. Collins’s complaint and opposition papers do not discuss or 12 explain the severity of the burden alleged or how they have required him to act contrary to his 13 religious beliefs. At most, Mr. Collins says that he has “missed religious services . . . so as not to 14 have to undergo strip searches.” Dkt. No. 22 ¶ 25. This showing is insufficient to support Mr. 15 Collins’s claim that the SQSP strip search policy imposes a substantial burden on his religious 16 exercise. Accordingly, the Court does not reach the remaining elements of the RLUIPA claim. 17 The Court concludes that Mr. Collins has failed to establish the strip search policy imposes 18 a substantial burden on his religious exercise under RLUIPA, or to show that there are genuine 19 issues of material fact on that point. Mr. Davis is entitled to summary judgment on this claim. 20 C. Fourth Amendment 21 Mr. Collins says that the SQSP strip search policy violates his right to be free from 22 unreasonable and excessive searches under the Fourth Amendment. Dkt. No. 1 ¶ 19. Specifically, 23 he claims that being subjected to strip searches every time he leaves or returns to his cell is 24 unreasonable and excessive, given that he currently is not subject to disciplinary action and has not 25 received any serious rules violations reports for violence or contraband for over 20 years. Id. ¶ 9. 26 Mr. Davis argues that the policy does not violate the Fourth Amendment because the strip 27 searches are justified by prison safety and security concerns. Dkt. No. 20 at 16–18. 1 searches. Bull v. San Francisco, 595 F.3d 964, 974–75 (9th Cir. 2010) (en banc) (prisoners have 2 Fourth Amendment rights with respect to invasion of bodily privacy); see also Bell, 441 U.S. at 3 558 (assuming, without deciding, that strip searches implicate pretrial detainees’ Fourth 4 Amendment rights). In order to establish a Fourth Amendment violation, Mr. Collins must show 5 that the burden the strip search policy imposes on his privacy rights is not reasonably related to 6 legitimate penological interests under Turner. See Bull, 595 F.3d at 973; Michenfelder v. Sumner, 7 860 F.2d 328, 333–34 (9th Cir. 1988). The Court must also consider the scope of the particular 8 intrusion, the manner in which it was conducted, the justification for initiating it, and the place in 9 which it was conducted as required under Bell. See Bull, 595 F.3d at 973 (“Although Bell 10 continues to provide definitive guidance for analyzing detention-facility strip searches under the 11 Fourth Amendment, Turner v. Safley is also relevant to our analysis.”); Thompson v. Souza, 111 12 F.3d 694, 699–700 (9th Cir. 1997) (applying Turner and Bell); Michenfelder, 860 F.2d at 332–33 13 (same). In other words, the Court must “consider the reasonableness of [the intrusion under Bell] 14 to help [it] determine if [the intrusion] was reasonably related to legitimate penological interests 15 [under Turner].” Thompson, 111 F.3d at 700. 16 The Court first considers the nature of SQSP’s strip search policy under Bell. Although 17 Mr. Collins challenged the manner and place in which SQSP conducts strip searches in his 18 complaint (see Dkt. No. 1 ¶ 15), he appears to abandon that challenge in opposing summary 19 judgment. See generally Dkt. No. 21 (no mention of cross-gender or other observation of strip 20 searches). This leaves only the scope of and justification for the strip searches for consideration. 21 As these considerations are also part of the Court’s inquiry under Turner, the Court will assess 22 them in the context of that analysis. 23 With respect to the first Turner factor, the Court has already found that Mr. Davis has 24 stated a rational connection between SQSP’s strip search policy and a legitimate government 25 interest: ensuring the safety and security of the prison, staff, and inmates. See supra Section III.A. 26 As explained above, the SQSP Manual requires that a prisoner submit to unclothed body searches 27 every time he leaves his cell and every time he returns to his cells, unless he has been escorted 1 cell. These searches are conducted on a frequent and routine basis, without any requirement of 2 probable cause or suspicion to believe a prisoner had concealed contraband on his body. The 3 searches are conducted inside the prisoner’s cell with a prison guard standing inside the cell 4 doorway to obscure the view. As the searches are limited to those circumstances in which a 5 prisoner may have an opportunity to obtain and conceal contraband, the Court concluded with 6 respect to Mr. Collins’s First Amendment challenge that there is a rational connection between the 7 policy and SQSP’s interest in ensuring the security of the prison, its staff, and its prisoners. The 8 analysis and conclusion are the same with respect to Mr. Collins’s Fourth Amendment challenge. 9 See Michenfelder, 860 F.2d at 330, 332–33 (routine strip search policy applied to state’s “most 10 dangerous prisoners” served a legitimate penological purpose “so long as a prisoner is presented 11 with the opportunity to obtain contraband or a weapon while outside of his cell”).7 12 With respect to the second Turner factor, the constitutional right at issue is the right to be 13 free from unreasonable and excessive searches that invade a prisoner’s bodily privacy. 14 Consideration of whether Mr. Collins has alternative means to exercise this right is not particularly 15 meaningful here compared to the First Amendment context, as the right asserted is the inverse of 16 the wrong of which Mr. Collins complains. See id. at 331 n.1 (“Not all four factors will be 17 relevant to each case. For example, the second Turner factor—availability of other avenues for 18 exercising the right infringed upon—is much more meaningful in the first amendment context than 19 the fourth or eighth, where the right is to be free from a particular wrong.”). 20 With respect to the third and fourth Turner factors, the parties make essentially the same 21 arguments as they did with respect to Mr. Collins’s First Amendment claim. Mr. Collins contends 22 that routine unclothed body searches are unreasonable and excessive; Mr. Davis contends that 23 such routine searches serve to protect that safety and security of the prison. Mr. Davis adds, 24 however, that two federal appellate decisions, Michenfelder v. Sumner and Campbell v. Miller 25 have affirmatively “approved of policies that mandate strip searches of high-risk inmates when 26 7 The Court notes that in Michenfelder, the Ninth Circuit affirmed the district court’s rejection of a 27 constitutional challenge to Nevada’s routine strip search policy for the state’s most dangerous 1 coming and going from certain areas where they interacted with other inmates.” Dkt. No. 20 at 2 17. In Michenfelder, the Ninth Circuit affirmed the district court’s rejection of a constitutional 3 challenge to an even more onerous strip search policy for Nevada’s 40 most dangerous prisoners. 4 860 F.2d at 331–32. That policy, like the SQSP strip search policy, provided for unclothed body 5 searches whenever a prisoner leaves or returns to his cell. Unlike the SQSP strip search policy, 6 the policy at issue in Michenfelder provided for routine strip searches even when a prisoner returns 7 to his cell after having been under escort at all times. In Campbell, the Seventh Circuit affirmed 8 the district court’s rejection of a constitutional challenge to a federal prison’s policy of requiring 9 prisoners to submit to a strip search before and after using the prison law library. 787 F.2d 217, 10 227–28 (7th Cir. 1986). The challenged policy applied to a unit that housed maximum security 11 level prisoners deemed unfit for the general population because they posed a threat to others or to 12 the orderly operation of the prison. 13 Michenfelder and Campbell differ in important respects from this case. In Michenfelder, 14 the challenged prison regulations applied only to those prisoners deemed “most dangerous,” not 15 merely to all prisoners deemed “high risk,” and the policy at issue Campbell appears to have 16 applied to condemned prisoners in administrative segregation. Moreover, both Michenfelder and 17 Campbell were decided after a trial on the merits and therefore benefited from a fully developed 18 record. Michenfelder, 860 F.2d at 330; Campbell, 787 F.2d at 220–21. Nevertheless, the results 19 in both cases are consistent with the Court’s earlier conclusion, discussed above, that the SQSP 20 strip search policy represents an exaggerated response to the prison’s security concerns or that the 21 alternative search policy Mr. Collins urges will adequately address those concerns. See supra 22 Section III.A. 23 In view of the deference the Court is required to afford the professional judgment of prison 24 administrators, the Court concludes that Mr. Collins has not made a sufficient showing to raise a 25 genuine issue of fact for trial, and Mr. Davis is entitled to summary judgment on Mr. Collins’s 26 Fourth Amendment claim. 27 D. Eighth Amendment 1 and unusual punishment under the Eighth Amendment. Dkt. No. 1 ¶ 20. Specifically, he claims 2 that SQSP strip search policy is punitive and not justified by any conduct on Mr. Collins’s part or 3 any penological objective. Id. ¶ 9. Mr. Davis argues that the policy does not violate the Eighth 4 Amendment because the strip searches are not punitive, but are warranted by prison safety and 5 security concerns. Dkt. No. 20 at 18–19. 6 In order to establish a violation of the Eighth Amendment, Mr. Collins must show that 7 SQSP’s strip search policy (1) deprived him of “the minimal civilized measure of life’s 8 necessities” and exposed him to a “substantial risk of serious harm,” and (2) was “deliberately 9 indifferent” to his constitutional rights. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). Mr. 10 Collins argues that routine and frequent strip searches are degrading and result in psychological 11 damage. Dkt. No. 21 at 13; Dkt. No. 22 ¶ 24. Mr. Davis argues that the strip search policy was 12 implemented to ensure prison security and to keep prisoners and prison staff safe. Dkt. No. 20 at 13 19; Dkt. No. 20-3 ¶¶ 12-13. 14 Unlike the cases on which Mr. Collins principally relies, nothing in the record suggests 15 that the searches to which Mr. Collins is subjected are conducted in a demeaning or sexually 16 abusive manner. See Somers v. Thurman, 109 F.3d 614, 623 (9th Cir. 1997) (distinguishing 17 Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993)). The question is whether Mr. Collins’s 18 allegations regarding the routine nature of otherwise constitutionally acceptable searches and the 19 frequency with which those searches are conducted support a claim for violation of the Eighth 20 Amendment. 21 As the Court observed when considering Mr. Collins’s First Amendment challenge, an 22 unclothed body search represents a very substantial invasion of privacy that is both frightening 23 and humiliating, and it is hardly less so when a prisoner is subjected to such a search routinely. 24 However, Mr. Collins has done little to support his claim that these searches are so harmful as to 25 deprive him of life’s necessities or expose him to substantial risk of serious harm. See supra 26 Section III.A. But even if he had proffered evidence sufficient to prevail on the merits on that 27 point, Mr. Collins has made no showing whatsoever that Mr. Davis acted with deliberate 1 Davis implemented the SQSP strip search policy with any objective other than to address security 2 and safety concerns within the prison. 3 As Mr. Collins has not made a sufficient showing to raise a genuine issue of fact for trial 4 with respect to the question Mr. Davis’s deliberate indifference, Mr. Davis is entitled to summary 5 judgment on Mr. Collins’s Eighth Amendment claim. 6 E. Fourteenth Amendment 7 Mr. Collins argues that the SQSP strip search policy as applied to him results in the prison 8 treating him differently than similarly situated inmates, thereby violating his right to due process 9 and equal protection of the law under the Fourteenth Amendment. Dkt. No. 1 ¶ 10. 10 1. Equal protection 11 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 12 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 13 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 14 Living Center, 473 U.S. 432, 439 (1985). To establish an equal protection violation, Mr. Collins 15 must show that (1) Mr. Davis treated him differently from similarly situated prisoners; (2) such 16 unequal treatment was not reasonably related to a legitimate penological objective; and (3) such 17 unequal treatment was the result of intentional discrimination by Mr. Davis against Mr. Collins. 18 See Smith v. Woodford, No. 04-cv-4793 RMW (PR), 2012 WL 2061535, at *4 (N.D. Cal. Jun. 7, 19 2012). In considering Mr. Collins’s equal protection challenge, the Court must consider the 20 government’s interest in prison safety and security under Turner. Washington v. Harper, 494 U.S. 21 210, 223–25 (1990). 22 Mr. Collins argues that other prisoners with the same security level and grade classification 23 are “similarly situated” to him, but they are housed in the North Segregation housing unit where 24 they do not endure routine strip searches. Dkt. No. 1 ¶ 10. He says that with the exception of 25 prisoners in administrative segregation, all other California state prisoners are only subjected to 26 unclothed body searches on an unannounced and random basis. Id. Mr. Davis argues that by 27 virtue of his assignment to East Block, which reflects the prison’s current assessment of his 1 North Segregation. Dkt. No. 20 at 20–21. Mr. Davis also argues that Mr. Collins is not similarly 2 situated to other prisoners in California who are not serving a death sentence and do not share Mr. 3 Collins’s security profile and enemy concerns. Id. at 21. Mr. Collins does not dispute that he is 4 treated the same as all other prisoners housed in East Block with respect to unclothed body 5 searches. He does not offer any evidence of intentional discrimination by Mr. Davis. 6 On this record, Mr. Collins has not shown a triable issue of fact regarding his claim that 7 Mr. Davis intentionally discriminated against him with respect to the application of the strip 8 search policy. Moreover, the Court has already concluded that Mr. Davis has shown that the strip 9 search policy is reasonably related to a legitimate penological objective. Accordingly, Mr. Davis 10 is entitled to summary judgment on this equal protection claim. 11 2. Due process 12 The due process clause of the Fourteenth Amendment protects individuals against 13 governmental deprivations of “life, liberty or property” without due process of law. Board of 14 Regents v. Roth, 408 U.S. 564, 570–71 (1972). The due process clause itself does not create a 15 liberty interest in less restrictive conditions of confinement. See Wilkinson v. Austin, 545 U.S. 16 209, 221–22 (2005). However, a liberty interest in avoiding particular conditions of confinement 17 may arise from state policies or regulations that impose “atypical and significant hardships” on a 18 prisoner “in relation to the ordinary incidents of prison life.” Id. at 222–23 (quoting Sandin v. 19 Conner, 515 U.S. 472, 483–84 (1995) (internal quotation marks omitted). 20 Mr. Collins asserts two due process violations. First, he says that he should not be subject 21 to routine strip searches unless he has first committed a rules violation and received due process 22 associated with a disciplinary action. Dkt. No. 1 ¶ 11. Second, he contends that denial of his 23 administrative grievance regarding the SQSP strip search policy was a denial of due process. Id. ¶ 24 25. 25 With respect to the first alleged due process violation, Mr. Collins has not identified any 26 state regulation or policy that gives rise to the liberty interest he claims. As the Court has already 27 explained, section 3287(b) of Title 15 of the California Code of Regulations permits the use of the 1 prisoner is first found to have committed a rules violation. Mr. Collins has not offered specific 2 facts showing that such searches constitute an “atypical and significant hardship . . . in relation to 3 the ordinary incidents of prison life” in the maximum security housing unit in which Mr. Collins is 4 confined, given the penological objectives Mr. Davis says the searches serve and to which this 5 Court owes deference. See Beard, 548 U.S. at 525. 6 With respect to the second alleged due process violation, Mr. Collins does not clearly 7 articulate the basis for his allegation that something improper occurred during the processing of 8 his grievance. It appears from his declaration that Mr. Collins believes Mr. Davis should have 9 recused himself from the second level of review in the grievance process, as Mr. Davis is 10 responsible for authorizing the strip search policy in the first instance. Dkt. No. 22 ¶ 26. Mr. 11 Collins also asserts that Mr. Davis falsified evidence, but he neither explains nor supports that 12 assertion with evidence. See id. 13 Mr. Collins does not have a constitutional right to a particular grievance or appeal 14 procedure. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Because as he has not shown that 15 he can establish any basis to challenge the particular grievance procedure in this case, he has not 16 carried his burden on summary judgment. Accordingly, Mr. Davis is entitled to summary 17 judgment on Mr. Collins’s due process claim. 18 F. Qualified Immunity 19 Mr. Davis contends he is entitled to qualified immunity. The defense of qualified 20 immunity protects government officials from liability for damages to the extent that their conduct 21 does not violate clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 22 (1982). To determine whether Mr. Davis is entitled to qualified immunity as a matter of law, the 23 Court must decide whether there is a triable issue of fact concerning whether his conduct violated 24 a constitutional right; and if so, whether it would be clear to a reasonable official that his conduct 25 was unlawful in the circumstances he confronted. Saucier v. Katz, 533 U.S. 194, 201–02 (2009). 26 The Court has concluded that Mr. Collins has not raised a triable issue of fact that any 27 violation of his constitutional rights occurred. For this reason, Mr. Davis prevails on the first part 1 damages as a matter of law. 2 G. Immunity for Claims Seeking Money Damages 3 Mr. Collins sues Mr. Davis in his individual and official capacities. Dkt. No. 1 ¶ 5. With 4 respect to all of Mr. Collins’s claims, Mr. Davis contends that the Eleventh Amendment prohibits 5 litigants from seeking money damages against state officials acting in their official capacity. In 6 addition, with respect to Mr. Collins’s claim under RLUIPA, Mr. Davis contends that he may not 7 be sued for money damages in either his official capacity or his individual capacity. Mr. Collins 8 does not respond to these arguments. 9 Mr. Davis is correct on both points. The Eleventh Amendment bars claims for money 10 damages against state officials acting in their official capacities. Bair v. Krug, 853 F.2d 672, 675 11 (9th Cir. 1988). And RLUIPA does not authorize suits for damages against state officials in either 12 their official capacities or their individual capacities. Jones v. Williams, 791 F.3d 1023, 1031 (9th 13 Cir. 2015). Mr. Davis is entitled to summary judgment as to these claims for relief. 14 H. Punitive Damages 15 Mr. Davis contends that punitive damages are not available in this case. Dkt. No. 20 at 16 24–25. Mr. Collins does not address this argument. 17 Mr. Davis is correct that punitive damages are not available with respect to any purported 18 violation of Mr. Collins’s constitutional rights absent a showing that Mr. Davis acted with an evil 19 motive or demonstrated reckless indifference to Mr. Collins’s constitutional rights. Smith v. 20 Wade, 461 U.S. 30, 56 (1983). The Court has concluded that Mr. Collins has not shown a triable 21 issue of fact with respect to violations of his constitutional rights. Moreover, Mr. Collins has 22 alleged no facts plausibly suggesting that Mr. Davis acted with an evil intent or a reckless 23 indifference to any such constitutional rights. Accordingly, Mr. Davis is entitled to summary 24 judgment as to these claims for relief. 25 IV. CONCLUSION 26 For the foregoing reasons, defendant Ron Davis’s motion for summary judgment is 27 granted. 1 IT IS SO ORDERED. 2 || Dated: September 18, 2019 3 4 ‘ VIRGINIA K. DEMARCHI 5 United States Magistrate Judge 6 7 8 9 10 11 12

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