United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE
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.
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)
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.
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.
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).
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).
complaint, plaintiff invokes her right to be free from cruel
and unusual punishment under the Fourteenth
Amendment. 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
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,  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).
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).
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 ...