I agree with the vast majority of what Judge Farris says in this opinion.
Indeed, I must say, I'm somewhat shocked at the decision by the district court -- Judge Reed, a senior judge from the District of Nevada -- did below. It's a prisoner Section 1983 case, and as the Ninth Circuit rightly holds, it's fairly clear that the plaintiff has alleged a plethora of claims which, if true, state a claim. Why Judge Reed thought it was okay to dismiss these claims is beyond me.
Let me just give one example. Watison brings a half-dozen federal claims, and also around a dozen supplemental state law claims. The state law claims certainly seem plausible; theft, assault(ish), etc. But Judge Reed dismisses them without explanation and with prejudice. Huh? You've got to at least give a reason, right? Plus, I agree with the Ninth Circuit that I presume that these claims were simply dismissed because they were supplemental state law claims (and the federal claims had just been dismissed), but if that's the case, the dismissal has to be without prejudice. Which matters. A lot.
The strong sense I got from reading the opinion is that Judge Reed was either doing a quick-and-dirty (or sloppy) job resolving the case or, perhaps more likely, had such a strong distaste for the plantiffs' claims that he wanted them out of court -- any court -- come hell or high water, doctrine be damned. Personally, there's part of me that would understand such a reaction, as I'm not at all convinced that what plaintiff says occurred actually did occur. But it's at the pleading stage. If he's lying, that's something to deal with at a later point. We don't deal with it now. He says the guard rubbed his inner naked thigh while leering at him. If true, that states a claim. End of story.
For similar reasons, I also found Judge Noonan's partial dissent more persuasive on the Eighth Amendment point than the majority opinion. Here's the allegation in the complaint (as Judge Farris describes it): Watison "alleged that LaGier entered his (Watison’s) cell while Watison was on the toilet and began to search it, that Watison asked LaGier to leave the room, and that LaGier approached Watison while Watison was still on the toilet, rubbed his thigh against Watison’s thigh, 'began smiling in a sexual contact [sic],' and left the cell laughing."
Does that violate the Eighth Amendment? Well, I could reason from first principles, but we also have cases on the issue, and since those are binding on us, we'd best start there.
On the one hand, we have an en banc Ninth Circuit case from 1993, which held -- as Judge Farris describes it -- "that the Eighth Amendment prohibited clothed body searches of female prisoners by male guards directed by a prison policy to 'push inward and upward when searching the crotch and upper thighs of the inmate,' to 'squeeze and knead' 'the leg and the crotch area,' and to 'search the breast area in a sweeping motion, so that the breasts will be ‘flattened.’" So feeling up an opposite-sex, clothed inmate by physically touching her is prohibited.
On the other hand, we have a panel opinion from the Ninth Circuit from 1985 that holds -- again, as Judge Farris describes it -- that it isn't unconstitutional for a prison to "allow female guards to observe male inmates disrobing, showering, using the toilet, and being strip-searched, and allowing them to conduct pat-down searches including the groin area."
Judge Farris holds that the current case is more like the latter than the former. I don't see it. Seems to me like the holding of the earlier panel case might be severely undercut by the subsequent holding of the en banc court eight years later. And even if the latter case did survive, it seems to me like the current case is more like the former anyway. Here we have a someone sexually rubbing his own thigh against the naked thigh of someone else. That seems even worse than what was at issue in the en banc case. I know, because I had to undergo something very similar to what happened there at the hands of the TSA when I flew out of D.C. last weekend. Which I was fine with; a little stroking and pants-pulling -- and, believe me, they were very thorough -- is a lot less severe than if someone starting rubbing my naked thigh with his thigh.
Nor am I sure that the way that Judge Farris distinguishes the cases works. Judge Farris says that the en banc case involved female inmates, whereas "Watison is a male inmate." With respect, I don't think that makes a difference. There's no inherent gender difference in your reaction to unwanted sexual contact.
So although I like a lot of things Judge Farris says in this opinion, I'd have agreed with even more if he had also agreed with Judge Noonan.