Summary
finding no Fourth Amendment violation where a prison visitor was subjected to "non-invasive body searches" based on reasonable suspicion that she was in possession of contraband
Summary of this case from Mack v. WilliamsOpinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, Presiding.
Before FARRIS, BRUNETTI, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Bradly Cunningham, an Oregon state prisoner, appeals pro se the district court's dismissal as frivolous of his 42 U.S.C. §§ 1983 and 1985(3) action. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion the district court's dismissal pursuant to 28 U.S.C. § 1915(d). See Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). We affirm.
The district court dismissed this action under former 28 U.S.C.§ 1915(d) which was redesignated 28 U.S.C. § 1915(e) by the Prison Litigation Reform Act, Pub.L. No. 104-155, 110 Stat. 1321 (1996) ( "PLRA").
We agree with the district court that Cunningham failed to state a claim under section 1985(3) because he did not allege that any of the defendants demonstrated a racial or class-based invidious discrimination. See Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir.1985). We also agree that Cunningham has failed to state a claim against Hermens and Rule because they are not people acting under color of state law. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.1991). Cunningham's allegations against district attorney Upham fail to state a claim because Upham is absolutely immune from liability for acts taken within his prosecutorial capacity. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir.1984).
We agree with the district court that Cunningham's claims against Gilliam and Shaver alleging that they deprived him of his property fail to state a constitutional claim because the Oregon Tort Claims Act provides him with an adequate post-deprivation remedy. See Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.1989). Likewise, we agree with the district court that Cunningham's claim that Damon gave false information about him to the media fails to state a constitutional claim. See Partington v. Gedan, 961 F.2d 852, 859 n. 6 (9th Cir.1992) ("[P]laintiff[s] must allege more than mere reputational damage to maintain a suit under Section 1983."). Cunningham's claims against Cook and Chandler are based on respondeat superior liability which is not cognizable under section 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Accordingly, the district court did not abuse its discretion by dismissing Cunningham's complaint. See Denton, 504 U.S. at 33.
Cunningham's remaining claims that the defendants violated his rights by wrongfully transferring him to another prison, limiting his access to the media, and intercepting his mail and telephone communications are resolved in a separate action, No. 95-1896, filed by Cunningham previous to this action. Pursuant to Cunningham's motion, an appeal from that action is being calendered concurrently with this action. See Cunningham v. Oregon Department of Corrections, No. 96-35760.