NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT LEE JOHNSON, No. 17-56799
Plaintiff-Appellant, D.C. No.
2:15-cv-02138-TJH-KES
v.
ROBERT D. HEINS, #292902; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Argued and Submitted January 13, 2021
Pasadena, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and EZRA,** District
Judge.
Former inmate Robert Johnson sued various jail officials under 42 U.S.C.
§ 1983. He alleges that Deputies Jason Hill and Eddie Carter violated his Fourth
and Eighth Amendment rights and committed sexual battery under California law
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
by sodomizing him with a flashlight while conducting a strip search. He also alleges
that Custody Assistant Ryan Bishop is similarly liable for failing to intercede when
Hill and Carter sodomized him. See Cunningham v. Gates, 229 F.3d 1271, 1289
(9th Cir. 2000). Johnson further contends that Hill, Carter, Bishop, and Sergeant
Robert Heins shoved him into a wall with no discipline- or safety-related
justification, causing him physical injury, in violation of his Eighth Amendment
rights. The district court granted summary judgment to defendants. The court found
that defendants did not violate Johnson’s constitutional rights, and that they would
be entitled to qualified immunity even if they had. The court also found that
defendants did not commit a sexual battery.
We reverse and remand. “Summary judgment is appropriate only if, taking
the evidence and all reasonable inferences drawn therefrom in the light most
favorable to the non-moving party, there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.” Furnace v. Sullivan,
705 F.3d 1021, 1026 (9th Cir. 2013) (quotation marks and citation omitted). “With
respect to qualified immunity determinations on summary judgment, we assess
whether the contours of [the plaintiff’s rights] were clearly established with respect
to the alleged misconduct.” Id.
Applying those standards and beginning with the strip search, Johnson
established a triable issue of fact as to whether defendants Hill, Carter, and Bishop
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violated the Eighth Amendment prohibition against cruel and unusual punishment.
“Sexual harassment or abuse of an inmate by a corrections officer is a violation of
the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012).
Moreover, conduct that “began as an invasive procedure that served a legitimate
penological purpose” may become sexually abusive upon a showing that “the
guard’s conduct exceeded the scope of what was required to satisfy whatever
institutional concern justified the initiation of the procedure.” Bearchild v. Cobban,
947 F.3d 1144, 1145 (9th Cir. 2020).
According to the district court, Johnson’s complaint1 and two witness
declarations were ambiguous as to whether Hill and Carter sodomized him with the
flashlight, while Johnson’s deposition testimony “clarified that the flashlight was
merely touching the interior portion of his buttocks to prop open the area so
[defendants] had a clear view of his anus.” The district court’s analysis was wrong.
Johnson’s complaint describes the flashlight going “inside [his] rectum-anal area,”
“into [his] an[us],” “inside [his] private part,” and “into [his] rectum.” One witness
alleged that he “witnessed two deputies touch inmate Johnson, thereby pushing their
1
The complaint is proper summary judgment evidence because Johnson verified it
and was pro se when he filed it. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir.
2004). Given that Johnson’s deposition testimony was not inconsistent with his
complaint, we need not decide how the district court would have been required to
treat the pro se complaint were it materially contradicted by Johnson’s deposition
testimony. Cf. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009).
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flashlights into inmate Johnson’s anus.” The other witness “could see Deputy Hills
smiling” as the deputies were “pushing their flashlights into inmate Johnson[’s]
rectum area.” Although some parts of Johnson’s uncounseled deposition testimony
seem to refer to touching, he also testified that he “felt a flashlight on [his] rectum”
and that defendants “poke[d] it in there.” Viewing the evidence in the light most
favorable to Johnson, there is a triable issue of fact as to whether Hill and Carter
sodomized him with a flashlight, thereby far exceeding the scope of what was
required in connection with the strip search, subjecting Johnson to sexual abuse, and
violating the Eighth Amendment.
Defendants are not entitled to qualified immunity on this claim. “In the
simplest and most absolute of terms, the Eighth Amendment right of prisoners to be
free from sexual abuse was unquestionably clearly established prior to the time of
this alleged assault, and no reasonable prison guard could possibly have believed
otherwise.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000).
There is also a triable issue of fact as to whether the strip search violated the
Fourth Amendment prohibition against unreasonable searches. Considering the
“scope of the particular intrusion, the manner in which it [was] conducted, the
justification for initiating it, and the place in which it [was] conducted,” Bell v.
Wolfish, 441 U.S. 520, 559 (1979), sodomizing Johnson with a flashlight was not
part of a reasonable search.
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The alleged scope of the intrusion was extreme, “intrud[ing] beyond the
surface of [Johnson’s] body, interfering with his bodily integrity.” United States v.
Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). The alleged manner of the search was
outrageous, as it was conducted by jail officials who allegedly sodomized and then
taunted Johnson. See id. at 963–66. Though there may well have been justification
for a strip search, there was no justification for penetrating Johnson with a flashlight
during that search.
Defendants are not entitled to qualified immunity on this claim either. At the
time of the strip search, it “was clearly established . . . that body cavity searches of
inmates must be conducted in a reasonable manner, and that issues of privacy,
hygiene, and the training of those conducting the searches are relevant to
determining whether the manner of search was reasonable.” Vaughan v. Ricketts,
859 F.2d 736, 741 (9th Cir. 1988), abrogated on other grounds by Graham v.
Connor, 490 U.S. 386 (1989); see Tribble v. Gardner, 860 F.2d 321, 325 & n.6 (9th
Cir. 1988) (holding that it was clearly established that a digital rectal search that was
not “reasonably related to a legitimate penological need,” id. at 325, violated the
Fourth Amendment).
The alleged shove against the wall also violated the Eighth Amendment,
viewing the evidence in the light most favorable to Johnson. The magistrate judge
recommended summary judgment on this claim on the logic that Johnson’s claimed
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injuries were only de minimis, and the district court adopted that finding. The record
does not support such a finding, viewing the facts in Johnson’s favor.
Although the Supreme Court has held that the “Eighth Amendment’s
prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force,” Hudson v. McMillian,
503 U.S. 1, 9–10 (1992), the bar is not high, see id. at 10 (“[B]lows directed at
[Plaintiff], which caused bruises, swelling, loosened teeth, and a cracked dental
plate, are not de minimis for Eighth Amendment purposes.”); see also Furnace, 705
F.3d at 1029 (finding “burns, blisters, and skin irritation that persisted for three or
four days” were “moderate” injuries). Johnson’s alleged injuries from the shove—
which include dizziness, blackouts, a swollen face, a cut lip, a chipped tooth, cuts on
both wrists, a damaged crown, and two dislocated fingers—were not de minimis
under the established standard.
Defendants are not entitled to qualified immunity on this claim, as it was
clearly established at the time of their alleged conduct that “an unprovoked and
unjustified attack by a prison guard” violates the Eighth Amendment, even if the
guard inflicted only “minor injuries.” Felix v. McCarthy, 939 F.2d 699, 702 (9th
Cir. 1991).
The district court also erred in granting defendants summary judgment on
Johnson’s sexual battery claim. As the district court provided no independent
6
analysis of that claim, we assume that it relied on the same mistaken conclusion that
Johnson failed to adduce sufficient evidence that Hill and Carter sodomized him.
REVERSED AND REMANDED.
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