Kevin Smith, Jr. v. Los Angeles County

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 06 2011

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

KEVIN B. SMITH, Jr., No. 10-56066

Plaintiff - Appellant, D.C. No. 2:07-cv-07028-VAP-
MAN
v.

LOS ANGELES COUNTY; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding

Submitted September 27, 2011 **

Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

California state prisoner Kevin B. Smith, Jr. appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that his Fourth

and Fourteenth Amendment rights were violated during a partial strip search while

he was a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (failure to

state a claim); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (failure to

exhaust administrative remedies). We affirm.

The district court properly dismissed without prejudice four of Smith’s

claims because Smith failed to initiate an administrative grievance process as to

any of those claims before filing his action. See Woodford v. Ngo, 548 U.S. 81, 85,

93-95 (2006) (concluding that “proper exhaustion” is mandatory and requires

adherence to administrative procedural rules); McKinney v. Carey, 311 F.3d 1198,

1199 (9th Cir. 2002) (per curiam) (requiring exhaustion of administrative remedies

prior to filing suit).

The district court properly dismissed Smith’s Fourteenth Amendment claim

against Deputy Sanchez because Smith failed to allege any facts showing that

Sanchez acted with an “expressed intent to punish” or that the search was “not

reasonably related to a legitimate goal.” Bell v. Wolfish, 441 U.S. 520, 538-39

(1979). Smith also failed to allege facts establishing that Sanchez acted with

deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (a

prison official acts with deliberate indifference if “he knows that inmates face a

substantial risk of serious harm and disregards that risk by failing to take

2 10-56066
reasonable measures to abate it”); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.

1998) (applying the deliberate indifference standard to pretrial detainees).

The district court properly concluded that Smith failed to state a Fourth

Amendment claim against Sanchez because Smith failed to allege any facts

showing that the search was unreasonable in light of “the scope of the particular

intrusion, the manner in which it [wa]s conducted, the justification for initiating it,

and the place in which it [wa]s conducted.” Bell, 441 U.S. at 559 (upholding a

policy of visual body cavity searches of pretrial detainees).

Because Smith failed to state a constitutional violation, there can be no

municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)

(per curiam).

The district court properly dismissed without leave to amend Smith’s third

amended complaint because any amendment would have been futile. See Schucker

v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam).

Smith’s remaining contentions are unpersuasive.

AFFIRMED.

3 10-56066