Victor Houx v. Luke Koll

Ninth Circuit

Victor Houx v. Luke Koll

671 F. App'x 445

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 23, 2016

Docket15-17094

StatusUnpublished

This text of 671 F. App'x 445 (Victor Houx v. Luke Koll) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Victor Houx v. Luke Koll, 671 F. App'x 445 (9th Cir. 2016).

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MEMORANDUM **

California civil detainee Victor Houx appeals pro se from the district court’s judgment dismissing his action alleging Fourth Amendment claims arising out of a search of his person and his sleeping area. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part, reverse in part, and remand.

Houx alleged that defendant Roll conducted an unclothed strip search without cause. These allegations, liberally construed, were “sufficient to warrant ordering [defendant Roll] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Thompson v. Souza, 111 F.3d 694, 699-701 (9th Cir. 1997) (setting forth factors to evaluate whether a search is reasonable under the Fourth Amendment claim); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (“[N]ot all strip search procedures will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any legitimate penological interest.”). Accordingly, we reverse the judgement in part, and remand for further proceedings on Houx’s Fourth Amendment claim against defendant Roll stemming from his strip search.

In his opening brief, Houx fails to address how the district court erred in dismissing his claim relating to the search of his property and his claims against defendants Ring and Lewright. Thus, Houx has *446 waived his appeal of the dismissal of those claims. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.... ”).'

Houx’s motion, to take judicial notice, filed on January 25, 2016, is denied.

AFFIRMED in part, REVERSED in part, and REMANDED.

**

This disposition is not appropriate for publication and is not precedent 'except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

California civil detainee Victor Houx appeals pro se from the district court’s judgment dismissing his action alleging Fourth Amendment claims arising out of a search of his person and his sleeping area. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part, reverse in part, and remand.

Houx alleged that defendant Roll conducted an unclothed strip search without cause. These allegations, liberally construed, were “sufficient to warrant ordering [defendant Roll] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Thompson v. Souza, 111 F.3d 694, 699-701 (9th Cir. 1997) (setting forth factors to evaluate whether a search is reasonable under the Fourth Amendment claim); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (“[N]ot all strip search procedures will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any legitimate penological interest.”). Accordingly, we reverse the judgement in part, and remand for further proceedings on Houx’s Fourth Amendment claim against defendant Roll stemming from his strip search.

In his opening brief, Houx fails to address how the district court erred in dismissing his claim relating to the search of his property and his claims against defendants Ring and Lewright. Thus, Houx has *446 waived his appeal of the dismissal of those claims. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.... ”).'

Houx’s motion, to take judicial notice, filed on January 25, 2016, is denied.

AFFIRMED in part, REVERSED in part, and REMANDED.

**

This disposition is not appropriate for publication and is not precedent 'except as provided by Ninth Circuit Rule 36-3.

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