Victor Houx v. Luke Koll , 671 F. App'x 445 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HOUX, No. 15-17094
Plaintiff-Appellant, D.C. No. 1:15-cv-00146-LJO-SAB
v.
MEMORANDUM*
LUKE KOLL, Psych Tech Unit 8, CSH; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
California civil detainee Victor Houx appeals pro se from the district court’s
judgment dismissing his action alleging Fourth Amendment claims arising out of a
search of his person and his sleeping area. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo the district court’s dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order). We affirm in part, reverse in part, and remand.
Houx alleged that defendant Koll conducted an unclothed strip search
without cause. These allegations, liberally construed, were “sufficient to warrant
ordering [defendant Koll] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113,
1116 (9th Cir. 2012); see also Thompson v. Souza, 111 F.3d 694, 699-701 (9th Cir.
1997) (setting forth factors to evaluate whether a search is reasonable under the
Fourth Amendment claim); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.
1988) (“[N]ot all strip search procedures will be reasonable; some could be
excessive, vindictive, harassing, or unrelated to any legitimate penological
interest.”). Accordingly, we reverse the judgement in part, and remand for further
proceedings on Houx’s Fourth Amendment claim against defendant Koll stemming
from his strip search.
In his opening brief, Houx fails to address how the district court erred in
dismissing his claim relating to the search of his property and his claims against
defendants King and Lewright. Thus, Houx has waived his appeal of the dismissal
of those claims. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n
appeal, arguments not raised by a party in its opening brief are deemed waived.”);
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see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not
manufacture arguments for an appellant, and a bare assertion does not preserve a
claim . . . .”).
Houx’s motion to take judicial notice, filed on January 25, 2016, is denied.
AFFIRMED in part, REVERSED in part, and REMANDED.
3 15-17094