Fitzgerald v. Pollard

• Court: District Court, S.D. California
• Decided: December 22, 2020
• Docket: 3:20-cv-00848
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RHONDA R. FITZGERALD, an Case No.: 20cv848 JM(NLS) individual, and on behalf of all persons 12 similarly situated, ORDER ON MOTION TO DISMISS 13 Plaintiff, 14 v. 15 MARCUS POLLARD, an individual; 16 Lieutenant C. MOORE, an individual; Sergeant H. CRUZ, an individual; Officer 17 JACKSON, an individual; Officer 18 LITTLE, an individual; and DOES 1 through 10, inclusive, 19 Defendants. 20 21 Presently before the court, is a motion to dismiss pursuant to Federal Rules of Civil 22 12(b)(6) filed by Defendants M. Pollard, A. Jackson, C. Mann-Little, H. Cruz, and 23 C. Moore, (collectively “Defendants”). (Doc. No. 8.) The motion has been fully briefed 24 and the court finds it suitable for submission on the papers and without oral argument in 25 accordance with Civil Local Rule 7.1(d)(1). For the reasons set forth below, the motion is 26 denied. 27

28 1 I. Background 2 On May 5, 2020, Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging 3 that Defendants violated her civil rights and committed torts against her. (Doc. No. 1, 4 “Compl.”.) Plaintiff asserts: (1) her first claim for violation of her Fourth Amendment 5 right - search without reasonable suspicion against all Defendants; (2) her second claim for 6 violation of her Fourth Amendment right – search without reasonable suspicion against 7 Defendant Pollard and Doe 1; and (3) her third claim for violation of the Fourth 8 Amendment – failure to train and supervise, against Defendant Pollard and Doe 1. (Id. at 9 8-16.) Plaintiff’s fourth and fifth claims, intentional infliction of emotional distress and 10 negligence, are brought against all Defendants. (Id. at 16-19.1) 11 Plaintiff seeks to represent a Class consisting of: 12 those visitors to the Richard J. Donovan Correctional Facility in the Class Period2 who were required to submit to an unclothed search as a condition to 13 visiting an inmate and whose Notice of Request for Search Form states no 14 specific objective facts and rational inferences establishing individualized reasonable suspicion to believe that the person targeted for the search had an 15 intention of smuggling contraband into the Prison. 16 17 Id. ¶ 38. 18 Plaintiff seeks injunctive relief barring Defendants from performing further random 19 unclothed searches of visitors at the prison, money damages, and attorney's fees and costs. 20 (Id. at 20-21.) 21 On July 10, 2020, Defendants filed a motion seeking to dismiss the complaint in its 22 entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 8.) Plaintiff 23 filed her opposition to the motion on August 11, 2020, (Doc. No. 13), and Defendants filed 24 25 1 Document numbers and page references are to those assigned by CM/ECF for the docket 26 entry. 27 2 The Complaint defines the Class Period as running “from two years prior to the filing 28 1 a reply, (Doc. No. 14). At the request of Defendants, the parties were given the opportunity 2 to file supplemental briefing addressing recent Ninth Circuit case law regarding qualified 3 immunity in the context of searches of prison visitors. (Doc. Nos. 16-19.) 4 II. Allegations of the Complaint 5 On September 28, 2019, Plaintiff visited the Richard J. Donovan Correctional 6 Facility (“Prison”) located at 480 Alta Road, San Diego, California, 92179, to see her 7 friend, inmate Christopher Roberts. (Compl. ¶¶ 2, 13.) 8 Plaintiff was neither screened nor searched upon arrival at the visitor reception area. 9 (Id. ¶ 14.) Plaintiff waited in line, and when she reached the front desk, she was told by 10 Officer Little that she must submit to an unclothed search or that she would not be permitted 11 to visit Roberts. (Id. ¶¶ 15, 16.) When questioned as to why the search was being 12 performed, Little responded “that the search was random and that Warden Pollard 13 requested it.” (Id. ¶ 17.) 14 Little did not offer to perform the search via less intrusive means, such as a metal 15 detector, hand-held wand, electronic drug detector, ION scanner, canine search, or clothed 16 body search. (Id. ¶ 18.) No-one at the Prison explained to Plaintiff what an unclothed 17 search entailed. Plaintiff: 18 assumed the search would require removing her top and pants and being patted down to search for guns and contraband. Nowhere on the form did it state 19 that the search would include invasive measure such as removing all clothes, 20 including undergarments, and requiring her to spread her butt cheeks and cough multiple times while a guard visually inspected her “private parts.” 21 22 Id. ¶ 19. 23 Having driven 165 miles to see Roberts, Plaintiff acquiesced to the search “that she 24 understood to be non-intrusive.” (Id. ¶ 21.) Little produced a Notice of Request for Search 25 Form (the “Request to Search Form” or the “Form”). Plaintiff signed the Form, but neither 26 Little nor any of his supervisors signed the Notice in advance of the search. (Id. ¶¶ 22, 27 23.) 28 1 Officer Jackson was summoned by Little from the visitor area in Yard E. (Id. ¶ 24.) 2 Little grabbed a container, and she and Jackson led Plaintiff into a small room. (Id. ¶ 25.) 3 Plaintiff was instructed by Little to turn around, face the wall, and remove each item of 4 clothing. (Id.) As Plaintiff removed each item of clothing, Little patted the item down and 5 placed it in the container. (Id.) Jackson stood by the door and “looked uncomfortable.” 6 (Id.) 7 When Little requested that Plaintiff remove her underwear, Plaintiff asked what was 8 going on. (Id. ¶¶ 26-27.) Little responded that everything had to be removed so that a 9 body-cavity search could be performed. (Id. ¶ 27.) Little instructed Plaintiff to bend over, 10 spread her butt cheeks, and cough. (Id.) Little also told Plaintiff to lift her breasts. (Id.) 11 Little found nothing. (Id.) Jackson apologized. (Id. ¶ 28.) 12 Little refused to give Plaintiff a copy of the Request to Search Form, even though 13 the “gold copy” of the Request to Search Form is supposed to be given to the visitor. (Id. 14 ¶ 29.) 15 After being subjected to the strip search, Plaintiff found out that another visitor had 16 also undergone a strip search before she was permitted to visit an inmate and that such 17 searches were “common practice.” (Id. ¶ 31.) 18 No one at the Prison explained why such an intrusive search of Plaintiff was 19 necessary. (Id. ¶ 28.) Weeks later, Plaintiff was given a copy of the Request to Search 20 Form by Defendant Cruz, who signed the Form in front of her. (Id. ¶ 33.) Plaintiff believes 21 that Defendant Moore previously signed the Request to Search Form. (Id.) 22 In support of her allegations, Plaintiff points to California Code of Regulations, title 23 15. Section 3173.2, which regulates searches of Prison visitors. (Id. ¶¶ 34-36.) 24 III. Legal Standard 25 Under Federal Rule of Civil Procedure 12(b)(6), a party may bring a motion to 26 dismiss based on the failure to state a claim upon which relief may be granted. A Rule 27 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts 28 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 1 544, 570 (2007). Ordinarily, for purposes of ruling on a Rule 12(b)(6) motion, the court 2 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the 3 light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. 4 Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But, even under the liberal pleading standard 5 of Rule 8(a)(2), which requires only that a party make “a short and plain statement of the 6 claim showing that the pleader is entitled to relief,” a “pleading that offers ‘labels and 7 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). 9 “Determining whether a complaint states a plausible claim for relief … [is] a context- 10 specific task that requires the reviewing court to draw on its judicial experience and 11 common sense.” Id. at 679. 12 IV. Discussion 13 The Defendants make four arguments for dismissal. First, they argue that since 14 Plaintiff consented to the search, her Fourth Amendment claim must fail. (Doc. No. 8 at 15 13-19.) Defendants’ second argument concerns the applicability of the qualified immunity 16 doctrine to Plaintiff’s Fourth Amendment Due Process Claims, with Defendants asserting 17 the claims are barred by their qualified immunity from civil damages liability. (Id. at 18 19- 21.) Third, Defendant Pollard argues that the absence of an underlying constitutional 19 violation necessitates the dismissal of the failure to train claim. (Id. at 21-22.) Fourth, all 20 Defendants move to dismiss the pendant state law claims. (Id. at 22.) 21 A. Fourth Amendment Search Conducted Without Reasonable Suspicion Claims Against Defendants and the Qualified Immunity Doctrine 22

23 Defendants seek dismissal of Plaintiff’s §1983 claims under the qualified immunity 24 doctrine, asserting Plaintiff has failed to allege any misconduct on their part, related to 25 Plaintiff’s strip search, that violated Plaintiff’s clearly established rights under the Fourth 26 Amendment. 27 “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 28 method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 1 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To 2 successfully plead a claim under 42 U.S.C. § 1983, a plaintiff must allege that the 3 defendant, while acting under color of state law, deprived the plaintiff of a right or privilege 4 conferred by the Constitution of the United States. See Nelson v. Campbell, 541 U.S. 637, 5 643 (2004) (citing 42 U.S.C. § 1983); Jones v. Williams, 297 F.3d 930, 930 (9th Cir. 2002). 6 “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived 7 of a right ‘secured by the Constitution and laws.’” Baker, 443 U.S. at 140. 8 “[G]enerally, a public employee acts under color of state law while engaged in his 9 official capacity or while exercising his responsibilities pursuant to state law.” West v. 10 Atkins, 487 U.S. 42, 49-50 (1988). An individual deprives a plaintiff “of a constitutional 11 right, within the meaning of section 1983, if he does an affirmative act, participates in 12 another's affirmative acts, or omits to perform an act which he is legally required to do that 13 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 14 (9th Cir. 1978). As defendant’s section 1983 liability can be “established not only by some 15 kind of direct personal participation in the deprivation, but also by setting in motion a series 16 of acts by others which the actor reasonably should know would cause others to inflict the 17 constitutional injury.” Id. at 743-44. 18 1. Constitutional Violation 19 The Fourth Amendment protects the “right of people to be secure in their persons, 20 houses, papers, and effects, against unreasonable searches and seizures....” U.S. Const. 21 amend. IV. “The reasonableness of a search is determined by reference to its context.” 22 Bull v. City & Cnty. of S.F., 595 F.3d 964, 971 (9th Cir. Feb. 9, 2010) (citing Michenfelder 23 v. Sumner, 860 F.2d 328, 332 (9th Cir.1988)). “To determine whether a particular search 24 is unreasonable, the intrusion on the individual’s privacy interests must be balanced against 25 ‘its promotion of legitimate governmental interests.’” Cates v. Stroud, 976 F.3d 972, 979 26 (9th Cir. 2020) (quoting Del. v. Prouse, 440 U.S. 648, 654 (1979)). 27 Because Plaintiff was subject to a search, the purpose of which was to remove 28 contraband or unauthorized substances from a prison, it necessarily furthers the 1 institutional security goals within a detention facility and thus implicates the principles 2 articulated in Bell v. Wolfish, 441 U.S. 520 (1979).3 In Bell, the Supreme Court explained 3 that detainees and inmates “retain some Fourth Amendment rights upon commitment to a 4 corrections facility” and noted that “[t]he Fourth Amendment prohibits only unreasonable 5 searches.” Id. at 558. The “test of reasonableness ... requires a balancing of the need for 6 the particular search against the invasion of personal rights that the search entails. Courts 7 must consider the scope of the particular intrusion, the manner in which it is conducted, 8 the justification for initiating it, and the place in which it is conducted.” Id. at 559. 9 Although the Court acknowledged that the strip search was invasive, id. at 558 n. 9, it 10 nonetheless concluded that the strip search policy at the corrections facility was reasonable 11 in light of the institution’s needs and objectives, particularly the cited security concerns. 12 Id. at 558-59. Thus, the Court held that a mandatory, routine strip search policy applied to 13 prisoners “after every contact visit with a person from outside the institution,” without 14 individualized suspicion, was facially constitutional. Id. at 558. 15 Until recently, the Ninth Circuit had not addressed in a published opinion, what if 16 any protections under the Fourth Amendment are afforded to prison visitors regarding strip 17 searches. 4 Courts of Appeals in numerous other circuits, however, have concluded, in the 18 19 20 3 In Bell, the Supreme Court upheld the detention facility’s policy of conducting mandatory 21 visual body cavity searches, including the requirement that detainees undergo such an inspection as part of a strip search “after every contact visit with a person from outside the 22 institution,” against Fourth and Fifth Amendment challenges. Several principles informed 23 the Court’s analysis including that: (1) pretrial detainees and prisoners do not forfeit all constitutional protections by virtue of incarceration, 441 U.S. at 545; (2) the retained 24 constitutional rights of prisoners and detainees alike were subject to restrictions and 25 limitations based on “institutional needs and objectives,” id at 546; and (3) restrictions that infringe upon “a specific constitutional guarantee” must be “evaluated in the light of the 26 central objective of prison administration, safeguarding institutional security.” Id. at 547. 27 4 Although it had addressed strip searches being performed on detainees. See, e.g., Fuller 28 1 prison visitation context, that “after weighing the state’s legitimate interest in prison 2 security against the privacy rights of prison visitors, a visitor may only be [strip searched 3 when justified] by reasonable suspicion.” O’Con v. Katvich, No. 1:13-cv-1321-AWI-SKO, 4 2013 WL 6185212, at *5 (E.D. Cal. Nov. 26, 2013) (collecting cases). 5 Notably, in the detainee context, the Ninth Circuit has made clear that a visual body 6 cavity search cannot be justified based on a blanket strip search policy alone. In Fuller v. 7 M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991), the court wrote: “the fundamental 8 question under the fourth amendment is whether, ‘the grounds for a search . . . satisfy 9 objective standards’ of reasonableness.” The Ninth Circuit explained that strip searches of 10 detainees based on reasonable suspicion are allowable where the objective is to detect 11 contraband which poses a threat to the safety and security of the penal institution. Id. at 12 1447. See also, Bull, 595 F.3d at 981 (holding that “the rights of arrestees placed in 13 custodial housing with the general jail population ‘are not violated by a policy or practice 14 of strip searching each one of them as part of the booking process, provided that the 15 searches are no more intrusive on privacy interests than those upheld in the Bell case,” and 16 the searches are “not conducted in an abusive manner.’”) (quoting Powell v. Barrett, 17 541 F.3d 1298, 1314 (11th Cir. 2008)). 18 In Cates v. Stroud, 976 F.3d 972, 985 (9th 2020), the Ninth Circuit elucidates on 19 what constitutional rights prison visitors shed at the prison gates. Cates explained that 20 “like prisoners, prison visitors retain only those rights that are consistent with the prison’s 21 significant and legitimate security interests. But visitors’ privacy interests, and their threats 22 to prison security, are distinct from those of inmates and detainees.” Id. at 979. The Ninth 23 Circuit determined that, “[a]ny constraints on visitors rights must be ‘justified by the 24 considerations underlying our penal system’ and their curtailment necessary to the 25 institution’s needs.” Id. (quoting Hudson v. Palmer, 468 U.S. 517, (1984)). The Cates 26 court also provided the examples of pat-down searches and metal detector screenings of 27 visitors as “relatively inoffensive” searches and “less intrusive” prerequisites to visitation 28 1 that could be imposed “without any individualized suspicion, given the weighty 2 institutional safety concerns.” Id. at 979-80. 3 After noting that strip searches involving visual body-cavity searches “are 4 dehumanizing and humiliating,” the intrusiveness of which “cannot be overstated”, the 5 Court of Appeals distinguished between subjecting prisoners from prison visitors to strip 6 searches. Id. The Ninth Circuit explained how Supreme Court precedent and its own 7 earlier decisions permit searches of inmates only in limited circumstances, namely those 8 based on “‘reasonable suspicion’ in order ‘to protect prisons and jails from smuggled 9 weapons, drugs or other contraband which pose a threat to the safety and security of penal 10 institutions.” Id. (citing Fuller, 950 F.2d at 1447; Kennedy v. L.A. Police Dep’t, 901 F.2d 11 702, 711 (9th Cir. 1990)). Thus, the court held that prison visitors may be strip searched 12 when they threaten prison security if (1) the search is based on reasonable and 13 individualized suspicion and (2) it is justified by a legitimate security concern. Id. 14 In support of a reasonable and particularized suspicion standard, Cates discussed at 15 length when a prison visitor may be intrusively searched for the purpose of detecting 16 contraband: citing Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000) (noting the series 17 of unbroken decisions by its sister courts, stretching back four decades, establishing that 18 subjecting prison visitors to strip searches was unconstitutional in the absence of 19 reasonable suspicion that the visitor was carrying contraband); Blackburn v. Snow, 771 20 F.2d 556, 556-57 (1st Cir. 1985) and Calloway v. Lokey, 948 F.3d 194, 202 (4th Cir. 2020) 21 (stating that “the standard under the Fourth Amendment for conducting a strip search of a 22 prison visitor – an exceedingly personal invasion of privacy – is whether the prison officials 23 have a reasonable suspicion, based on particularized and individualized information, that 24 such search will uncover contraband on the visitor’s person on that occasion.” ). 25 In dicta, Cates recognized “existing case law has already clearly established that a 26 strip search of a prison visitor conducted without reasonable suspicion is unconstitutional,” 27 as if it were an unassailable principle of long standing. Cates, 976 F.3d at 985. 28 1 Under the reasonable suspicion standard, prison officials can justify the strip search 2 of a particular visitor by pointing to specific objective facts and rational inferences that 3 they are entitled to draw from those facts in light of their experience. See Terry v. Ohio, 4 392 U.S. 1, 21, 27 (1968). Inchoate, unspecified suspicions fall short of providing 5 reasonable grounds to suspect that a visitor will attempt to smuggle drugs or other 6 contraband into the prison. Id. at 22; see also Hunter v. Auger, 672 F.2d 668, 675 (8th Cir. 7 1982) (“in the absence of reasonable articulable grounds to suspect a particular visitor of 8 an attempt to smuggle drugs or other contraband by secreting them on his person, a strip 9 search of that visitor is unreasonable under the fourth amendment.”) And a justifiable 10 legitimate security concern “will not exist when the visitor is not in a position to introduce 11 contraband into the prison.” Cates, 976 F.3d at 980. Thus, after setting forth decisions in 12 the Sixth, Seventh and Eighth Circuits and its own precedent on prison searches, the Cates 13 court stated: 14 Because the ability of prison officials to conduct strip searches of visitors based on reasonable suspicion is premised on the need to prevent introduction 15 of contraband into the prison, a search of a visitor who no longer intends to 16 enter the portion of the prison where contact with a prisoner is possible, or who was leaving the prison, must rely on another justification. Ordinarily, a 17 visitor cannot introduce contraband into a prison simply by appearing in the 18 administrative area of the prison. If prison officials have reasonable suspicion that such a visitor is carrying contraband, the prison’s security needs would 19 justify a strip search only if the visitor insists on access to a part in the prison 20 where transfer of contraband to a prisoner would be possible. If the visitor would prefer to leave the prison without such access, the prison’s security 21 needs can be satisfied by simply letting the visitor depart.” 22 Id. at 982. 23 As pled, Fitzgerald was the subject of a random visual body-cavity strip search that 24 was conducted without reasonable suspicion and unjustified by any legitimate security 25 concern. (See, e.g., Compl. at ¶¶ 79-80 (“On September 28, 2019, and consistent with the 26 policy or practice of Defendants POLLARD and DOE 1, Defendant LITTLE randomly 27 selected Plaintiff for an unclothed strip search. Defendants had no reasonable suspicion to 28 believe that Plaintiff was going to attempt to smuggle contraband into the Prison, that she 1 committed a crime, or that she intended to commit a crime.”); see also id. at ¶¶ 17, 50, 79, 2 80, 98, 99.) 3 The court, therefore, concludes that Defendants violated Plaintiff’s rights under the 4 Fourth Amendment by subjecting Plaintiff to a visual body-cavity strip search without 5 reasonable and individualized suspicion. See Cates, 976 F.3d at 985 (“Existing case law 6 has already clearly established that a strip search of a prison visitor conducted without 7 reasonable suspicion is unconstitutional.”). Having sufficiently alleged that the search was 8 randomly conducted without reasonable suspicion, the court need not reach the question of 9 whether Plaintiff was given the option of specifically leaving the prison rather than being 10 subjected to the search. 11 2. Qualified Immunity 12 The doctrine of qualified immunity shields government officials “from liability for 13 civil damages insofar as their conduct does not violate clearly established statutory or 14 constitutional rights of which a reasonable person would have known.” Wilson v. Lane, 15 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In 16 determining the applicability of the qualified immunity doctrine, the court conducts a two- 17 part test to decide: (1) if the alleged facts show a violation of a constitutional right; and 18 (2) whether the right at issue was clearly established at the time of defendant’s alleged 19 misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009); Saucier v. Katz, 533 U.S. 20 194, 201 (2001). Qualified immunity protects “all but the plainly incompetent or those 21 who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 22 An individual's clearly established rights are only violated by a defendant when “‘the 23 state of the law’ at the time of an incident provided ‘fair warning’ to the defendant that his 24 or her conduct was unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 656, (2014) (quoting 25 Hope v. Pelzer, 536 U.S. 730, 741 (2002)). In other words, “[a] clearly established right is 26 one that is sufficiently clear that every reasonable official would have understood that what 27 he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal 28 1 (1987) ("The contours of the right must be sufficiently clear that a reasonable official would 2 understand that what he is doing violates that right.”). The Supreme Court has stated that 3 “the clearly established right must be defined with specificity.” City of Escondido, Cal. v. 4 Emmons, 139 S. Ct. 500, 503 (2019). Ordinarily a court does “not require a case directly 5 on point, but existing precedent must have placed the statutory or constitutional question 6 beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). 7 A court “may look at unpublished decisions and the law of other circuits, in addition 8 to Ninth Circuit precedent.” Jessop v. City of Fresno, 936 F.3d 937, 941 (9th Cir 2019) 9 (quoting Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005)). See also 10 District of Columbia v. Wesby, 138 S. Ct. 577, 589-90, (2018) (stating that we must look 11 first to binding precedent, then we may consider a “robust consensus of cases of persuasive 12 authority”). But "while unpublished decisions of district courts may inform our qualified 13 immunity analysis ... it will be a rare instance in which, absent any published opinions on 14 point or overwhelming obviousness of illegality, we can conclude that the law was clearly 15 established on the basis of unpublished decisions only'" Rico v. Ducart, __ F.3d__, 2020 16 WL 6814679, at *7 (9th Cir. Nov. 20, 2020) (quoting Sorrels v. McKee, 290 F.3d 965, 971 17 (9th Cir. 2002)); see also 9th Cir. R. 36-3(a) (unpublished dispositions are not 18 precedential). 19 Notwithstanding these guidelines, “there can be the rare ‘obvious case,’ where the 20 unlawfulness of the officer's conduct is sufficiently clear even though existing precedent 21 does not address similar circumstances.” Wesby, 138 S. Ct. at 590. Thus, “[w]hen a 22 violation is obvious enough to override the necessity of a specific factual analogue, ... it is 23 almost always wrong for an officer in those circumstances to act as he did.” Sharp v. Cnty. 24 of Orange, 871 F.3d 901, 912 (9th Cir. 2017). 25 “Training materials and regulations are also relevant, although not dispositive, to 26 determining whether reasonable officers would have been on notice that their conduct was 27 unreasonable.” Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1165 (9th Cir. 2020) 28 (citing Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 1 2003); see also Hope v. Pelzer, 536 U.S. 730 (2002) (considering an Alabama Department 2 of Corrections regulation and a Department of Justice report in its qualified immunity 3 analysis)). 4 Defendants’ argument that the exact parameters of official authority to institute a 5 policy of randomly strip-searching prison visitors were not clearly established before the 6 Ninth Circuit issued its opinion in Cates is not persuasive.5 On numerous occasions the 7 Supreme Court has made that clear that no “iron curtain” separates prisons from the reach 8 of the Constitution. See, e.g., Wolf v. McDonnell, 418 U.S. 539, 555–556, (1974); Pell v. 9 Procunier, 417 U.S. 817 (1974); Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). The 10 Supreme Court has also determined that prisoners retain some Fourth Amendment 11 protections while incarcerated. See, e.g., Lanza v. New York, 370 U.S. 139, (1962); Bell, 12 441 U.S. at 559 (strip searches of prison inmates must be reasonable, and that this 13 reasonableness determination requires the court to balance “the need for the particular 14 search against the invasion of personal rights that the search entails.”). And, as discussed 15 above, the Ninth Circuit determined, pre-Cates, that prisoners may be subjected to visual 16 body-cavity strip searches based on “reasonable suspicion” in order to “protect prisons and 17 jails from smuggled weapons, drugs or other contraband, which pose a threat to the safety 18 and security of penal institutions.” Fuller, 950 F.2d at 1447; see also Kennedy, 901 F.2d 19 at 715. 20 21 22 5 The court is mindful that the language of Cates, “[e]xisting case law has already 23 established that a strip search of a prison visitor conducted without reasonable suspicion is unconstitutional,” may be interpreted as dicta. Cates, 976 F.3d at 985. The court is also 24 aware that Cates was decided one year after the Defendants’ alleged violation and 25 therefore, it would be inappropriate to view it as controlling authority. Moreover, this case is readily distinguishable because Plaintiff specifically alleges that Defendants had no 26 reasonable suspicion to believe that she was smuggling contraband into the prison on which 27 to base the body cavity strip search. See Compl. ¶ 50. (“Defendants had no reasonable suspicion to believe that Plaintiff was going to attempt to smuggle contraband into the 28 1 The admonition of Blackburn over 35 years ago, that absent an unusual need, “the 2 Constitution requires a more particularized level of suspicion before individuals wishing 3 to visit a jail may permissibly be subject to a strip search,” stands just as true today. 4 Blackburn, 771 F.2d at 564-65. Indeed, this “basic constitutional norm” is so obvious that 5 the case law in this area focuses on the constitutional protections afforded detainees and 6 prison visitors who have been suspected of carrying contraband – namely the reasonable 7 suspicion standard. If searches of prisoners must be reasonable, logic and common sense 8 dictate that searches of those not detained must at least meet this minimal standard. In 9 other words, if reasonable suspicion is required to search someone suspected of carrying 10 contraband, the obvious illegality of conducting a random visual body-cavity strip search 11 of a prison visitor absent reasonable suspicion violates the most fundamental principles of 12 personal privacy and dignity for which the Fourth Amendment stands. Wesby, 138 S. Ct. 13 at 590 (“there can be a rare ‘obvious case,’ where the unlawfulness of the officer’s conduct 14 is sufficiently clear even though existing precedent does not address similar 15 circumstances.”). See also Terry, 392 U.S. at 22 (to justify even the intrusion on personal 16 privacy involved in a pat frisk of outer clothing, more than an “inarticulate hunch” of 17 wrongdoing is required). Moreover, this court can find no support for the proposition that 18 a random body-cavity strip search of a prison visitor may be performed when no reasonable 19 and individualized suspicion is required. 20 Looking to sister circuits as of the date of the alleged incident, we see further support 21 for the proposition that a strip search of a prison visitor not based on reasonable suspicion 22 was already established as unconstitutional and beyond debate. See al-Kidd, 563 U.S. at 23 741 (“existing precedent must have placed the ... question beyond debate.”). In her briefing 24 Plaintiff cites to Daugherty v. Campbell, 935 F.2d 785 (6th Cir. 1991), Burgess v. Lowery, 25 201 F.3d 942, 945 (7th Cir. 2000), Blackburn v. Snow, 771 F.2d 556, 562 (1st Cir. 1985); 26 Thorne v. Jones, 765 F.2d 1270, 1276 (5th Cir. 1985); Hunter v. Auger, 672 F.2d 668, 674 27 (8th Cir. 1982); Martinez v. County of San Diego, 962 F.2d 14 (at *2, n.7) (9th Cir. 1992); 28 and Mack v. Williams, 2019 WL 4675365 at 7 n.7 (D. Nev. Sept. 25, 2019) to illustrate that 1 the right was clearly established at the time of the incident. (Doc. No. 13 at 12-17.) Three 2 cases, Blackburn, Thorne and Hunter are worth discussing in more detail because they are 3 consistently cited by other courts, including Cates, when analyzing what, if any, 4 protections the Fourth Amendment affords to prospective visitors to penal institutions 5 regarding body-cavity strip searches. 6 Of the cases cited by Plaintiff the most factually analogous is Blackburn v. Snow, 7 771 F.2d 556 (1st Cir. 1985). In Blackburn, Sheriff Linwood Snow had instituted a policy 8 that mandated that all visitors to the Plymouth County Jail be strip searched, regardless of 9 whether or not there was cause to believe the visitor was carrying contraband. Blackburn, 10 771 F.2d at 559. When plaintiff Ruth Blackburn arrived at the jail she saw a sign posted 11 announcing that all visitors would be “skin searched.” Id. at 560. She submitted, on three 12 separate occasions, to these strip searches in order to be allowed to visit her brother. Id. 13 The strip searches involved female officers examining Blackburn's armpits, lifting her 14 breast area and crouching to view her anus. Id. After completion of the third strip 15 search, Blackburn was informed, without being told why, that she had been barred from 16 visiting the jail. Id. Sheriff Snow later testified that he given this order because he believed 17 that Blackburn had made an obscene gesture towards him at the close of a conversation 18 between them at the end of the visit that occurred after Blackburn's second strip search. Id. 19 Blackburn later challenged the constitutionality of the policy. Id. 20 Sheriff Snow never disputed that Blackburn was not suspected of attempting to 21 secretly bring contraband into the institution. Id. As explained by the First Circuit, the 22 Sheriff "emphatically stated that Blackburn was strip searched as a matter of routine 23 procedure which, under the terms of his order, applied equally to all visitors—including 24 infants and children. Indeed, the Sheriff believed that it was in the very uniformity of the 25 strip search policy in which its fairness inhered; by strip searching all visitors, without 26 regard to any individualized suspicion." Id. at 560-61. Blackburn concluded that "a rule 27 requiring all prison visitors to submit to a body cavity strip search, without any predicate 28 1 requirement of individualized suspicion or showing of special and highly unusual 2 institutional need, cannot satisfy the Fourth Amendment." Id. at 562. The court explained: 3 we think it is clear that society is 'prepared to recognize' that free citizens entering a prison, as visitors, retain a legitimate expectation of privacy, albeit 4 one diminished by the exigencies of prison security. To be sure, those visiting 5 a prison cannot credibly claim to carry with them the full panoply of rights they normally enjoy. But neither may they constitutionally be made to suffer 6 a wholesale loss of rights—nor even one commensurate with that suffered by 7 inmates. 8 Id. at 563. 9 The court noted that its holding was in accord with all the published federal court 10 opinions of which it was aware that involve Fourth Amendment challenges by prison 11 visitors.6 As here, the defendants in Blackburn also argued that the strip searches did not 12 violate the Fourth Amendment because Blackburn consented to them. Id. at 567. The First 13 Circuit was not persuaded by this argument, finding the number of times Blackburn had 14 signed visitor slips consenting to a search of her person and property and the fact that she 15 was free to leave the jail and forego the visit to be irrelevant. Id. The court found, as a 16 matter of law, Blackburn's submission to the searches under the circumstances could not 17 properly constitute consent because her access to the jail was impermissibly conditioned 18 on that submission. Id. The Court of Appeals stated, “it has long been settled that 19 government may not condition access to even a gratuitous benefit or privilege it bestows 20 upon the sacrifice of a constitutional right." Id. at 568. The court cited Frost v. Railroad 21 Commission, 271 U.S. 583, 593–94 (1925), and several other cases to illustrate how the 22 doctrine of unconstitutional conditions has been applied in the context of numerous 23 constitutional protections. Id. Thus, the court concluded: 24 25 26 6 In support the court cited Hunter, 672 F.2d 668, Thorne v. Maggio, 585 F. Supp. 910 27 (M.D.La.1984); Black v. Amico, 387 F. Supp. 88 (W.D.N.Y.1974); cf. Security & Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984) (prison employees retain 28 1 [i]rrespective of whether Blackburn had a constitutional right to visit the Jail, as the district court thought, or a mere privilege, as the appellants argue, the 2 principle established in the cases we have cited is that the Sheriff was not free 3 to condition the visitation opportunity on the sacrifice of Blackburn's protected Fourth Amendment rights. Nor is it any answer to say that 4 Blackburn could have left at any time, or declined to return after the first strip 5 search, for it is the very choice to which she was put that is constitutionally intolerable—and it was as intolerable the second and third times as the first. 6 7 Id. 8 In Hunter v. Auger, 672 F.2d 688 (8th Cir. 1982), a handful of prison visitors were 9 selected for strip-searches at three Iowa state penitentiaries on the basis of anonymous and 10 uncorroborated tips that they would be attempting to smuggle drugs into the facilities. The 11 visitors were, like Fitzgerald, given the option of submitting to the search or foregoing their 12 visits. Hunter, 672 F.2d at 670-671. Two visitors acquiesced to the searches in order to 13 visit inmates, others did not. Id. The searches did not turn up any contraband. Id. The 14 prisoner officials freely admitted, “even though attempts to corroborate an unidentified 15 informant's tip are unsuccessful, a strip search notation may nevertheless be placed near a 16 visitor's name on an inmate's visiting card.” Id. at 673. Such notations could remain on an 17 inmate’s visiting card indefinitely. Id. 18 The Eight Circuit held that a strip search of a prison visitor is unreasonable under 19 the Fourth Amendment in “the absence of reasonable, articulable grounds to suspect a 20 particular visitor of an attempt to smuggle drugs or other contraband by secreting them on 21 his person.” Id. at 675. In so finding the court reasoned: 22 After weighing the interest of correctional officials in preserving institutional security against the extensive intrusion on personal privacy resulting from a 23 strip search, we conclude that the Constitution mandates that a reasonable 24 suspicion standard govern strip searches of visitors to penal institutions. … 25

26 To justify the strip search of a particular visitor under the reasonable suspicion standard, prison officials must point to specific objective facts and rational 27 inferences that they are entitled to draw from those facts in light of their 28 experience… 1 Id. at 674. The court explained that the standard it was adopting required “individualized 2 suspicion, specifically directed to the person who is targeted for the strip search.” Id. at 3 675. The Hunter court concluded by outlining: 4 In the context of strip searches of visitors to correctional facilities, prison officials must have reasonable grounds, based on objective facts, to believe 5 that a particular visitor will attempt to smuggle contraband by secreting and 6 carrying it on his person. While we recognize that reason to suspect a visitor of smuggling contraband may require a body search since the nature of the 7 criminal activity is the concealment of contraband on the person, we 8 emphasize that a generalized suspicion of smuggling activity is insufficient to justify the extensive intrusion of a strip search. 9

10 Id. 11 In Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985) Mr. and Mrs. Thorne separately 12 attempted to visit their two sons who were being held at Louisiana State Penitentiary on 13 two consecutive days. Prior to the Thornes’ visits a shift commander had received 14 information from an inmate that Scott Thorne was regularly receiving narcotics through 15 the visiting room, probably from his mother. Thorne, 765 F.2d at 1271. On the warden’s 16 instructions all shifts were notified that Mrs. Thorne was to be asked to submit to a strip 17 search before being allowed to visit her son. Id. Faced with the choice of either submitting 18 to the strip search or foregoing the visit, Mrs. Thorne left the prison. Id. The next day, Mr. 19 Thorne arrived at prison to visit his son. Id. Upon being told that a search would be 20 required, he consented to the search, no contraband was found, and the visit took place. Id. 21 The Thorne family sued, with Mr. Thorne alleging a violation of his Fourth Amendment 22 right to be free from unreasonable searches. Id. 23 Citing, Hunter and Security and Law Enforcement Employees, District Council 82 24 v. Carey, 737 F.2d 187, 205 (2d Cir.1984) (adopting Hunter’s reasonable suspicion 25 standard for strip searches of prison employees), the Fifth Circuit found no authority for 26 the prison’s proposition that strip searches of prison visitors are per se reasonable as a 27 matter of law. Id. at 1276. Next, the court rejected the arguments that either Mr. Thorne 28 consented to the search or that he waived his Fourth Amendment rights when he entered 1 the prison. Id. As in this case, the prison pointed to the form Mr. Thorne signed and the 2 warning notices posted at the prison gates. Id. However, the court explained “[i]f accepted, 3 this argument would render reasonable a strip search of any such prison visitor; as 4 discussed above, such at-will, random searches are not reasonable under the Fourth 5 Amendment.” Id. (citing Carey, 737 F.2d at 202 n. 23 (rejecting similar “consent” 6 argument)). 7 Turning to the strip search of Mr. Thorne, the Firth Circuit concluded the search to 8 “to have been without reasonable suspicion, and therefore in violation of the fourth 9 amendment.” Thorne, 765 F.2d at 1277. The court noted the absence of any specific 10 objective facts upon which reasonable suspicion could have been grounded, explaining: 11 “‘reasonable suspicion’ must be specifically directed to the person to be searched.... [T]he 12 fourth amendment does not permit any automatic or casual transference of ‘suspicion.’” 13 Id. (quoting United States v. Afanador, 567 F.2d 1325, 1331(5th Cir. (1978)). The court 14 went on to quote the reasonable suspicion standard set forth in Hunter.7 15 Further, the court’s research revealed additional earlier cases from sister circuits 16 requiring reasonable and particularized suspicion before a prison visitor may be 17 constitutionally strip searched. See, e.g., Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 18 1996) (explicitly stating “‘reasonable suspicion’ is indeed the proper standard by which to 19 gauge the constitutionality of prison-visitor strip searches. That standard guards against 20 arbitrary or clearly unfounded searches by placing non-trivial constraints upon the ability 21 of prison officials to strip search visitors.”); Varrone, 123 F.3d 75, 79 (2d Cir. 1997) 22 (“correctional officers needed reasonable suspicion to strip search prison visitors without 23 violating their constitutional rights”); Spear, 71 F.3d at 632 (6th Cir. 1995) (holding that a 24 25 7 “To justify the strip search of a particular visitor under the reasonable suspicion standard, 26 prison officials must point to specific objective facts and rational inferences that they are 27 entitled to draw from those facts in light of their experience. Inchoate, unspecified suspicions fall short of providing reasonable grounds to suspect that a visitor will attempt 28 1 digital body-cavity search of a prison visitor “may be conducted only when there is 2 reasonable suspicion [and] also demands that the person to be subjected to such an invasive 3 search be given the opportunity to depart”); Smothers v. Gibson, 778 F.2d 470, (8th Cir. 4 1980) (“While prison officials have the right to conduct reasonable searches of prison 5 visitors, with far greater latitude than in other settings, the right to indiscriminately strip 6 search anyone who enters is not and cannot be authorized.”). Coupled with Blackburn, 7 Hunter and Thorne, these cases provide “a consensus of cases of persuasive authority such 8 that a reasonable officer could not have believed that his actions were lawful.” Wilson, 9 526 U.S. at 613. 10 Further, California’s own state regulations governing prison visitors support the 11 conclusion that the Fourth Amendment right asserted by Plaintiff was delineated clearly at 12 the time of the September 2019 search. See Vasquez, 949 F.3d at 1165 (“Training materials 13 and regulations are relevant …to determining whether reasonable officers would have been 14 on notice that their conduct was reasonable.) Title 15, section 3173.2 provides that 15 inspection of a visitor’s person, personal property and vehicle(s) may occur when there is 16 reasonable suspicion to believe the visitor is attempting to introduce or remove contraband 17 or unauthorized items or substances into or out of the institution/facility. CAL CODE REGS. 18 tit. 15, § 3172.2. Further, section 3173.2(d)(7) defines an unclothed body search as: 19 a security procedure that involves visual inspection of a person’s body with all of their clothing removed and a thorough inspection of the person’s 20 clothing for purposes of detecting contraband. This procedure may be 21 conducted with the visitor’s consent when there is a reasonable suspicion that the visitor is carrying contraband and when no less intrusive means are 22 available to conduct the search. 23 24 CAL CODE REGS. tit. 15, § 3173.2(d)(7). 25 In sum, the obviousness of the alleged unlawful conduct, the consensus of persuasive 26 authority and the state regulations existing at the time Officers Pollard, Moore Cruz, 27 Jackson and Little alleged act made it clear to “any reasonable officer” in their position 28 that conducting a random visual body-cavity strip search of a prison visitor without 1 reasonable suspicion was unconstitutional. See Sheehan, 135 S. Ct. at 1774 (“An officer 2 cannot be said to have violated a clearly established right unless the right’s contours were 3 sufficiently definite that any reasonable official in his shoes would have understood that he 4 was violating it …). Accordingly, at this stage of the litigation, this court cannot conclude 5 that Defendants are entitled to qualified immunity and DENIES the motion to dismiss on 6 this ground. 7 B. Failure to Train Claim Brought Against Pollard 8 Defendants argue that because Plaintiff fails to state a Fourth Amendment violation, 9 and because Defendants are entitled to qualified immunity for any alleged violation, the 10 failure to train claim against Pollard should be dismissed. (Doc. No. 8 at 21-22.) 11 Under 42 U.S.C. § 1983, “[e]very person who, under color of any statute ... custom, 12 or usage of any State ... subjects, or causes to be subjected, any ... person within the 13 jurisdiction of [the United States] to the deprivation of any rights, privileges or immunities 14 secured by the Constitution and laws, shall be liable to the party injured in an action at 15 law.” A state official is not vicariously liable for the deprivation of constitutional rights by 16 employees. Monell v. N.Y.C. Dept. of Soc. Services, 436 U.S. 2018, 694(1978). 17 Here, to sufficiently allege her claim, Plaintiff must allege that Pollard, in his 18 individual capacity, “was deliberately indifferent to the need to train subordinates, and the 19 lack of training actually caused the constitutional harm or deprivation of rights.” Flores v. 20 Cnty. of L.A. 758 F.3d 1154. 1159 (9th Cir. 2014) (quoting Connick v. Thompson, 21 131 S. Ct. 1350, 1358, (2011)). This means that Plaintiff must allege facts to show that 22 Pollard “disregarded the known or obvious consequence that a particular omission in the 23 training program would cause [prison] employees to violate citizens' constitutional rights.” 24 Id. (citation omitted). A “pattern of similar constitutional violations by untrained 25 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of 26 failure to train.” Connick, 131 S. Ct. at 1360. 27 28 1 It is alleged that Pollard “failed to train and supervise Prison corrections officers in 2 the Constitutional requirements for unclothed searches of visitors.” (Compl. ¶ 97.) It is 3 also alleged that during the class period: 4 it was clearly established in the Ninth Circuit and all other circuits that strip searches of prison visitors are permissible only when prison officials can point 5 to specific objective facts and rational inferences establishing individualized 6 reasonable suspicion to believe that the person targeted for the strip search will attempt to smuggle contraband by secreting and carrying it on his or her 7 person. 8 9 Id. ¶ 96. As explained, the court has concluded that Plaintiff has sufficiently alleged a 10 Fourth Amendment violation. (See supra, section IV, A, 1.) Moreover, Plaintiff 11 specifically identifies Pollard as the warden of the prison, and that “Plaintiff was being 12 searched because Pollard had requested it.” (Id. ¶¶ 3, 17, 95.) And, it is alleged that “on 13 September 28, 2019, as a proximate result of the lack of training and supervision at the 14 Prison, Defendant LITTLE randomly selected Plaintiff for an unclothed search.” (Id. ¶ 15 98.) See Starr v. Baca, 652 F.2d 1202, 1208 (9th Cir. 2011) (casual connection may be 16 established by the supervisor’s “own culpable action or inaction in the training, supervision 17 or control of his subordinates; … his acquiescence in the constitutional deprivation; or … 18 conduct that showed a reckless or callous indifference to the rights of others.”) 19 Additionally, according to the complaint, “Defendants conduct invasive strip and visual 20 body-cavity searches pursuant to a policy or practice that does not require any 21 particularized suspicion that the visitor is concealing anything in his/her body cavities.” 22 (Compl. ¶¶ 20, 103.) Relatedly, it is alleged that Plaintiff “was advised by another Prison 23 visitor that such a search was common practice and that she too had to undergo a strip 24 search before she was permitted to visit an inmate.” (Id. ¶¶ 31, 110.) See Connick, 131 S. 25 Ct. at 1360 (a pattern of similar constitutional violations by untrained employees normally 26 demonstrates deliberate indifference). Finally, Plaintiff alleges that the moving force 27 behind the unclothed search of Plaintiff and the class members “was the lack of training 28 1 and supervision [] regarding the Constitutional requirements of unclothed visitor searches.” 2 (Compl. at ¶ 112.) 3 As currently pled, Plaintiff has sufficiently alleged facts which “might plausibly 4 suggest” that Pollard “disregarded the known and obvious consequences” of failing to 5 educate officers on the need to have reasonable suspicion that a prison visitor is trying to 6 smuggle contraband into the prison before conducting a visual body-cavity strip search, 7 thereby causing prison officers to violate vistors’ constitutional rights. Flores, 758 F.3d at 8 1159. Accordingly, the court DENIES Defendants’ motion to dismiss the failure to train 9 claim brought against Pollard. 10 C. Plaintiff’s Consent 11 Defendants contend that Plaintiff’s complaint should be dismissed because it 12 illustrates that she consented to the search before it happened, she did not limit the search’s 13 scope nor object to it when it began to exceed what she assumed it would entail, and officers 14 in Defendants’ positions would have reasonably believed that Plaintiff consented to the 15 search that was performed. 16 Ordinarily, “a search conducted pursuant to a valid consent is constitutionally 17 permissible.” United States v. Mendenhall, 446 U.S. 544, (1980); Schneckloth v. 18 Bustamonte, 412 U.S. 218, (1973). Whether consent has been feely given is based on an 19 examination of the totality of the circumstances. Schneckloth, 412 U.S. at 222, 229 (“In 20 examining all the surrounding circumstances to determine if in fact the consent to search 21 was coerced, account must be taken of subtly coercive police questions, as well as the 22 possibly vulnerable subjective state of the person who consents.”); Crowe v. Cnty. of San 23 Diego, 608 F.3d 406, 437 (9th Cir. 2010). 24 The Ninth Circuit has identified five factors a court should consider when 25 determining whether a person voluntarily consented to a search: (1) whether defendant 26 was in custody; (2) whether the arresting officers had their guns drawn; (3) whether 27 Miranda warnings were given; (4) whether the defendant was notified that she had a right 28 not to consent; and (5) whether the defendant had been told a search warrant could be 1 obtained.” United States v. Patayan, 361 F.3d 494, 502 (9th Cir. 2004). The voluntariness 2 of a consent to a search is a question of fact to be determined from the totality of the 3 circumstances. Id. at 501. The Ninth Circuit has recognized that “each factual situation 4 surrounding consent is unique,” and a court “may take into account any other factors that 5 [it] deem[s] relevant.” Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011). 6 Here, because Plaintiff is alleging that she did not knowingly consent to the strip 7 search, Defendants bear the burden of proving that her consent was, in fact, freely and 8 voluntarily given. Crowe, 608 F.3d at 437. See also Schneckloth, 412 U.S. at 222. 9 Defendants rely heavily on the Consent to Search Form Plaintiff signed as evidence that 10 she consented to the search. While Defendants refer to the Form as Exhibit A, see Doc. 11 No 8 at 17-18, no exhibit was attached to the motion. As such, the court cannot consider 12 the contents of the Request to Search Form and must rely on the allegations contained in 13 the complaint.8 14 It is alleged that the Request to Search Form did not state that the search would 15 include invasive measures such as removing all clothes, including undergarments, nor 16 require Plaintiff to spread her butt cheeks and cough multiple times while a guard visually 17 inspected her “private parts.” (Compl. ¶ 19.) Plaintiff also claims she acquiesced to a 18 search “that she understood to be non-intrusive.” (Id. ¶ 21.) And, Plaintiff alleges that 19 had she not consented to the search, she would have not been allowed to visit Roberts. (Id. 20 ¶ 16.) Further, it is alleged that the search was conducted in a small room about the size of 21 a walk-in closet, and performed by two Corrections Officers Jackson and Little, with 22 Officer Jackson standing by the door. (Id. ¶¶ 25, 27.) Once Plaintiff had voluntarily 23 removed her top and pants, she was told by Little that “everything had to be removed so 24 25 8 The fact that the Request to Search Form was later attached as an Exhibit to Defendants’ 26 Supplemental Brief, see Doc. No. 18-1 at 3, does not alter the court’s position. As a 27 consequence, any determination of whether the Form establishes reasonable suspicion would not be appropriate. 28 1 || that a body-cavity search could be performed.” (/d. §] 27.) Little told Plaintiff to “bend 2 ||over, spread her butt cheeks, and cough” and then “Little instructed Plaintiff to lift her 3 || breasts.” (U/d.) Although Plaintiff asked Little what was going on, it is not alleged that she 4 ||objected to the visual body-cavity search. Ud. § 26.) Absent from the complaint are 5 |{allegations that Plaintiff was given the option of leaving before the visual body-cavity 6 || portion of the strip search began or that the officers informed Plaintiff that a search warrant 7 || could be obtained. 8 For purposes of the motion to dismiss, the court accepts as true the factual allegations 9 || of the complaint that Plaintiff did not consent to the visual body-cavity strip search. The 10 |} voluntariness of Plaintiff's consent is a question of fact that is not appropriate for 11 determination at the pleading stage. Accordingly, the court DENIES Defendants’ motion 12 dismiss brought on this ground.’ 13 Vv. CONCLUSION 14 For the reasons set forth above, Defendants’ motion to dismiss is DENIED. 15 || Defendants have up to and including January 13, 2021 to answer Plaintiff's complaint. 16 IT IS SO ORDERED. 17 || Dated: December 22, 2020 Phil 18 . 19 n. Jeffrey. Miller nited States District Judge 20 21 22 |] 24 Because the court has concluded that it is not appropriate to determine the voluntariness 25 || of Plaintiffs consent on the pleadings, the court declines to address any arguments related 6 to whether requiring Plaintiff to sign the standard Request for Search Form in order to enter the prison constitutes valid consent. The court does, however, note the First Circuit’s 27 || directive in Blackburn vy. Snow, 771 F.2d 556, 567, (1st Cir. 1985), that “it has long been 0g settled that government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional nght.”