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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SADAKAO A. WHITTINGTON,

Plaintiff,

v.

CALIFORNIA DEPARTMENT 

OF CORRECTIONS & 

REHABILITATION,

Defendants. /

No. C 09-2636 SI (pr)

ORDER OF DISMISSAL

INTRODUCTION

Sadakao A. Whittington, an inmate at San Quentin State Prison, filed a pro se civil rights

action under 42 U.S.C. § 1983. After he filed a complaint, he filed an amended complaint. His

amended complaint is now before the court for review under 28 U.S.C. § 1915A. 

BACKGROUND

Sadakao A. Whittington complains of two unrelated incidents in his amended complaint.

First, he alleges that he was strip-searched in front of female correctional staff and civilian staff

upon his arrival at North Kern State Prison on January 1, 2008. Second, he alleges that, while

he was in administrative segregation at San Quentin during the month of August 2008, he had

to shower on two occasions "in a cage that offered no mid-section screen to shield my genitals

from view by staff that would walk by. As a Muslim it is against my faith to be exposed to the

opposite sex." Amended Complaint, p. 3. His amended complaint also alleges that he received

the "run around" in his efforts to pursue an administrative appeal. Id.

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The amended complaint also lists as a defendant the California Department of

Corrections & Rehabilitation, but there are no allegations against that entity. The CDCR has no

liability based on the mere fact that it employs the alleged wrongdoers because there is no

respondeat superior liability in a § 1983 action. 

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DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner

seeks redress from a governmental entity or officer or employee of a governmental entity. See

28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss

any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,

or seek monetary relief from a defendant who is immune from such relief. See id. at

§1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

a right secured by the Constitution or laws of the United States was violated and (2) that the

violation was committed by a person acting under the color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988).

The amended complaint has a joinder problem. Federal Rule of Civil Procedure 20(a)(2)

provides that all persons may be joined in one action as defendants if "any right to relief is

asserted against them jointly, severally, or in the alternative with respect to or arising out of the

same transaction, occurrence, or series of transactions or occurrences" and "any question of law

or fact common to all defendants will arise in the action." The amended complaint lists as

defendants the "intake officers at Northern Kern State Prison on 1-1-08 as well as female ad-seg

officers in San Quentin State Prison." Amended Complaint, ¶. 3-4.1

 The strip search claim

against the correctional officials at North Kern is not properly joined with the shower claim

against the correctional officials at San Quentin because the two claims involve different

defendants and arise from acts and omissions that happened at two different times and places.

The two claims do not satisfy Rule 20(a)(2). Dismissal of the entire action is not necessary,

however, as the improper joinder problem can be solved by merely dismissing the improperly

joined party. See Fed. R. Civ. P. 21. Accordingly, the court will dismiss the defendant "intake

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officers at North Kern State Prison on 1-1-08" and the strip search claim for which they are the

defendants. The dismissal will be without prejudice to plaintiff presenting that claim in a new

action for which he pays a separate filing fee. If and when plaintiff files that new action, he

should file it in the Eastern District of California because venue is proper in that district (and not

in the Northern District of California). With the dismissal of that improperly joined claim, there

only remains the shower claim.

In his shower claim, Whittington alleges that he was required to shower on two occasions

in a shower that was unscreened, so that his genitals were not shielded from view of passers-by.

 The amended complaint alleges only the casual and occasional viewing by a correctional officer

of the opposite sex that has previously been determined not to violate a prisoner's constitutional

rights. Although incarcerated prisoners retain a limited right to bodily privacy, the Ninth Circuit

has held that occasional viewing of unclothed male prisoners by female correctional officers

does not violate the Fourth or Fourteenth Amendment rights of the inmates. See Michenfelder

v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988); Grummett v. Rushen, 779 F.2d 491, 494-95 (9th

Cir. 1985). Assigned positions of female guards that require only infrequent and casual

observation, or observation at a distance, of male prisoners and that are reasonably related to

prison needs are not so degrading as to warrant court interference. See Michenfelder, 860 F.2d

at 334; see, e.g., Somers v. Thurman, 109 F.3d 614, 620 (9th Cir. 1997) (defendants entitled to

qualified immunity because, as of the time of the 1993 searches, male inmates did not have a

clearly established Fourth Amendment privacy interest in avoiding visual body cavity searches

by female officials); id. at 622 ("it is highly questionable even today [in 1997] whether prison

inmates have a Fourth Amendment right to be free from routine unclothed searches by officials

of the opposite sex, or from viewing of their unclothed bodies by officials of the opposite sex.");

Grummett, 779 F.2d at 494-95 (rejecting prisoners' Fourth and Fourteenth Amendment claims

against female guards who were assigned to positions that required infrequent and casual

observation or observation at a distance of sometimes disrobed prisoners). Whittington alleges

only two instances when he showered in an unshielded area in which he could have been

observed by female (and male) guards passing by the area. He has not stated a claim upon which

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relief may be granted for an invasion of his limited right to bodily privacy. The allegation in the

amended complaint that the lack of shielding in the shower went against his Muslim beliefs does

not convert the two non-actionable incidents into a constitutional violation because the same

legitimate penological purposes that require rejection of the invasion-of-bodily-privacy claim

protect the defendants from a First Amendment claim. See Canedy v. Boardman, 91 F.3d 30,

33-34 (7th Cir. 1996) (defendants entitled to qualified immunity against Muslim inmate's claim

that female prison guards' participation in strip searches and daily observation of male inmate

violated his right to privacy and First Amendment freedom of religion); cf. Johnson v. Phelan,

69 F.3d 144, 147 (7th Cir. 1996) ("There are too many permutations to place guards and

prisoners into multiple classes by sex, sexual orientation, and perhaps other criteria, allowing

each group to be observed only by the corresponding groups that occasion the least

unhappiness"). 

Within the last year, the Ninth Circuit has issued two opinions concerning strip searches,

but neither is of assistance in the resolution of Whittington's shower claim (although they may

provide some information to him for purposes of considering whether to press forward with his

strip search claim in the Eastern District). The Ninth Circuit recently held that a Sheriff's policy

requiring the strip search of all arrestees who were to be introduced into the county jail's general

population for custodial housing did not violate the inmates' constitutional rights in Bull v. City

and County of San Francisco, --- F.3d —, 2010 WL 431790 (9th Cir. Feb. 9, 2010) (en banc).

Although Bull stands for the proposition that strip searches pursuant to a blanket policy (e.g.,

everyone entering the prison population may be searched without the need for individualized

suspicion) are permissible, it is unhelpful with regard to the narrower issue of whether such a

search of male prisoners may be done in the presence of female correctional staff because the

policy at issue in Bull directed the searches to be performed by an officer of the same sex as the

arrestee. See id. at *3. A case that may answer that question is now pending in the Ninth

Circuit: Byrd v. Maricopa County Sheriff's Dept., 565 F.3d 1205, reh'g en banc granted, 583

F.3d 673 (9th Cir. 2009). The panel's decision in Byrd upheld against Fourth and Fourteenth

Amendment challenges a cross-gender partial strip search and pat down of a male pretrial

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detainee by a female sheriff's cadet. However, the order granting rehearing en banc stated that

the panel opinion could not be cited as precedent by or to any court in the Circuit. Although

these two cases give strong hints as to which way the law is trending, they do not control here

because Bull is factually distinguishable and Byrd has no precedential value. 

Finally, it is not clear whether Whittington included the allegations in his amended

complaint about his administrative appeals in order to allege a claim or to explain the apparent

non-exhaustion of administrative remedies. There is no constitutional right to a prison

administrative appeal or grievance system. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

1988); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). The State of California has

not created a protected interest in an administrative appeal system in prison or the county jails.

Sections 1073 and 3084.1 of title 15 of the California Code of Regulations grant prisoners in the

county jails and state prisons a purely procedural right: the right to have an administrative

appeal. The regulations simply require the establishment of a procedural structure for reviewing

prisoner complaints and set forth no substantive standards; instead, they provide for flexible

appeal time limits, see Cal. Code Regs. tit. 15, § 3084.6, and, at most, that "no reprisal shall be

taken against an inmate or parolee for filing an appeal," id. § 3084.1(d). A provision that merely

provides procedural requirements, even if mandatory, cannot form the basis of a constitutionally

cognizable liberty interest. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see also

Antonelli, 81 F.3d at 1430 (prison grievance procedure is procedural right that does not give rise

to protected liberty interest requiring procedural protections of Due Process Clause).

Whittington had no federal constitutional right to a properly functioning appeal system. An

incorrect decision on an administrative appeal or failure to handle it in a particular way therefore

did not amount to a violation of his right to due process. Any claims that correctional officials

erred in their handling of an inmate appeal, or failed to find in Whittington's favor on the

administrative appeal, are therefore dismissed without leave to amend. 

/ / /

/ / /

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CONCLUSION

For the foregoing reasons, this action is dismissed. The dismissal is without prejudice

to plaintiff filing a new action against the North Kern intake officer for the strip search he

experienced upon his arrival at North Kern State Prison. 

IT IS SO ORDERED.

Dated: March 3, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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