Pierre Fouché v. Scott A. Holencik

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIERRE FOUCHÉ,
Plaintiff - Appellant,
v.
SCOTT A. HOLENCIK,
Defendant - Appellee.
No. 12-56108
D.C. No. 5:10-cv-00087-MMM-
PJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Federal prisoner Pierre Fouché appeals pro se from the district court’s
judgment dismissing his action, brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging
constitutional violations in connection with new search policies employed at his
FILED
OCT 04 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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prison job site. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Hebbe v.
Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.
The district court properly dismissed Fouché’s Fourth Amendment claim
based on the “pat search” policy because the complaint and documents attached
thereto showed that the challenged policy was reasonably related to a legitimate,
penological interest, and that the searches were reasonable under the
circumstances. See Nunez v. Duncan, 591 F.3d 1217, 1227-28 (9th Cir. 2010)
(setting forth the standards for evaluating prison searches and prison policies that
allegedly infringe on prisoners’ constitutional rights, and explaining that
controlling contraband within a prison is a legitimate, penological interest); cf.
Michenfelder v. Sumner, 860 F.2d 328, 332-34 (9th Cir. 1988) (discussing the
limited circumstances under which an inmate strip search may be unconstitutional).
We reject Fouché’s contention that the challenged policy was
unconstitutional because it provided for searches that did not comport with the
definition of a “pat search” under a federal regulation.

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12-56108 3
We do not consider the dismissal of Fouché’s Fourth Amendment claim
based on the visual search policy because Fouché expressly states in his opening
brief that the visual searches are not at issue in this appeal.
AFFIRMED.

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