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Hernandez v. Bernstein

United States District Court, D. Oregon

April 16, 2018

S. BERNSTEIN, et al., Defendants.



         Plaintiff, a former inmate at Washington County jail, filed this action pursuant to 42 U.S.C. § 1983. She alleges that defendants violated her constitutional rights by intentionally exposing her to other inmates and sheriff's deputies, including a male deputy, while she was showering. Defendants now move to dismiss this action on grounds that plaintiff's failure to allege an accompanying physical injury or sexual act bars her claims under the Prison Litigation Reform Act (PLRA). For the reasons below, defendants' motion to dismiss should be denied.


         Under Federal Rule of Civi l Procedure 12(b)(6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). In pro se cases particularly, the court must construe the complaint liberally and afford the plaintiff “the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). Dismissal of a pro se complaint for failure to state a claim “is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle [her] to relief.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). “Unless it is absolutely clear that no amendment can cure” defects in the complaint, “a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).


         Plaintiff was a pretrial detainee at the Washington County Jail at the time of the alleged incident. Construing plaintiff's complaint liberally, she alleges that Deputy Bernstein, a female, intentionally and without cause opened plaintiff's shower stall as she was bathing and forced plaintiff to walk half-naked in front of other inmates and guards, including one or more who were male. Compl. at 4 (ECF No. 2). Plaintiff alleges that she suffered embarrassment, anguish, and emotional distress.

         In moving for dismissal, defendants rely solely on the physical injury requirement of the PLRA and present no other argument in support of their motion. Defs.' Motion and Reply (ECF Nos. 9, 11). The PLRA provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e) (adopting the definition of “sexual act” provided in 18 U.S.C. § 2246). An alleged physical injury “must be more than de minimus, ” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002), and an alleged sexual act requires physical, sexual contact. 18 U.S.C. § 2246(2). Defendants are correct that plaintiff does not allege a physical injury or the commission of a sexual act arising from being forced to exit her shower stall.

         Nonetheless, several circuit courts have found that the PLRA's physical injury requirement is “merely a limitation on damages” and does not bar claims alleging constitutional violations, even if no physical injury is alleged. Munn v. Toney, 433 F.3d 1087, 1089 (8th Cir. 2006); King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015) (“The statute provides that a prisoner may not bring a civil action for mental or emotional injury.... It says nothing about claims brought to redress constitutional injuries, which are distinct from mental and emotional injuries.”); Calhoun v. DeTella, 319 F.3d 936, 940-41 (7th Cir. 2003); (holding that a prisoner may seek nominal and punitive damages for an allegedly harassing strip search under the Eighth Amendment); Thompson v. Carter, 284 F.3d 411, 417-18 (2d Cir. 2002) (holding that § 1997e(e) does not bar nominal and punitive damages for Eighth Amendment claims).

         Similarly, the Ninth Circuit has held that the PLRA does not bar claims alleging constitutional violations with no accompanying physical injury. “To the extent [a plaintiff] has actionable claims for compensatory, nominal or punitive damages - premised on violations of his Fourteenth Amendment rights, and not on any alleged mental or emotional injuries - we conclude the claims are not barred by 1997e(e).” Oliver, 289 F.3d at 630; see also Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (“The deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred.”); Shabazz-Wimberly v. Nichols, 2016 WL 4211896, at *6 (D. Or. Aug. 9, 2016) (failure to establish physical injury does not warrant summary judgment on constitutional claims but rather limits the recovery of damages); Hill v. Reinke, 2014 WL 7272939, at *15, n.4 (D. Idaho Dec. 18, 2014) (“Section 1997e(e) does not bar actionable claims for compensatory, nominal or punitive damages premised upon violation of one's constitutional rights, and not on any alleged mental or emotional injuries”); Curtis v. Benda, 2009 WL 1065204 at *2 (W.D. Wash. Apr. 20, 2009) (concluding that § 1997e(e) does not bar a Fourteenth Amendment claim for compensatory, nominal, and punitive damages arising from constitutional injury); Hill v. Arpaio, 2007 WL 1120305, at *3-4 (D. Ariz. Apr. 11, 2007) (accord).

         In her complaint, plaintiff invokes her right to be free from cruel and unusual punishment under the Fourteenth Amendment.[1] Plaintiff alleges that her naked body was exposed for gratuitous and lascivious purposes rather than a legitimate reason, causing the “wanton and needless infliction of significant discomfort, pain, anguish and emotional distress.” Compl. at 6; see also Pl's Response ¶¶ 27-37 (ECF No. 10); Jordan v. Gardner, 986 F.2d 1521, 1525-28 (9th Cir. 1993) (en banc) (finding cruel and unusual punishment based on the “unnecessary and wanton infliction” of psychological pain); see also Bell v. Wolfish, 411 U.S. 520, 538-39 (1979) (pretrial conditions that are intended to punish or unrelated to “a legitimate governmental objective” may run afoul of the Fourteenth Amendment).

         Further, the substance of plaintiff's allegations implicates her right to privacy, and plaintiff's response to defendants' motion expressly invokes her Fourth Amendment rights to privacy and against unreasonable searches. Pl.'s Response ¶¶ 14-24. Although plaintiff does not allege any physical contact or an actual strip search, [2] and recognizing an inmate has a limited expectation of bodily privacy, Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988), the Ninth Circuit has recognized, “[s]hielding one's unclothed figure from the view of strangers, particularly strangers of the opposite sex is impelled by elementary self-respect and personal dignity.” Id. (citing Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985)); see also Byrd v. Maricopa Cty., 845 F.3d 919, 923-24 (9th Cir. 2017). Thus, plaintiff's claims are premised on constitutional injury and are not barred by § 1997e(e).

         Although plaintiff's allegations may fall short of violating her Fourth or Fourteenth Amendment rights, defendants move for dismissal based solely on the PLRA physical injury requirement, and this case remains at the pleading stage. While plaintiff's “constitutional claims under the Fourth and Fourteenth Amendments may have little financial value, they are still cognizable” at this stage. Hammond v. Dep't of Pub. Safety, 2011 WL 6210869, at *3-4 (D. Haw. Dec. 14, 2011).


         Accordingly, defendants' Motion to Dismiss (ECF No. 9) should be denied. This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within ...

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