783 Fed.Appx. 938 (11th Cir. 2019), 18-14212, Mehmood v. Guerra

Docket Nº:18-14212
Citation:783 Fed.Appx. 938
Opinion Judge:PER CURIAM
Party Name:Yasir MEHMOOD, Plaintiff-Appellant, v. GUERRA, SDDD, Krome SPC, Warden, Krome SPC, Acosta, AFDD, ICE, Ms. Magal, Mr. Carlos, Palmetto Hospital (Hialeah), et al., Defendants-Appellees.
Attorney:Yasir Mehmood, Pro Se Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Defendants-Appellees
Judge Panel:Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.
Case Date:August 26, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 938

783 Fed.Appx. 938 (11th Cir. 2019)

Yasir MEHMOOD, Plaintiff-Appellant,

v.

GUERRA, SDDD, Krome SPC, Warden, Krome SPC, Acosta, AFDD, ICE, Ms. Magal, Mr. Carlos, Palmetto Hospital (Hialeah), et al., Defendants-Appellees.

No. 18-14212

United States Court of Appeals, Eleventh Circuit

August 26, 2019

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

Yasir Mehmood, Pro Se

Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Defendants-Appellees

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:18-cv-22122-JEM

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

OPINION

PER CURIAM

Yasir Mehmood, proceeding pro se, appeals the district court’s order sua sponte dismissing his civil-rights complaint under 42 U.S.C. § 1983 and

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Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Palmetto General Hospital, the City of Hialeah, Miami-Dade County, the State of Florida, Immigration and Customs Enforcement ("ICE"), Department of Homeland Security ("DHS"), the United States, two ICE employees, and two nurses at Palmetto Hospital.

Mehmood is a native and citizen of Pakistan who was detained by ICE pending the outcome of his removal proceedings following a criminal conviction. During his detention, he filed a pro se complaint alleging that he was subjected to humiliating strip and body-cavity searches in violation of his rights under the Fourth, Fifth, and Fourteenth Amendments.

According to the complaint, in 2018 Mehmood was transferred three times from the Krome immigrant detention center to Palmetto Hospital for medical evaluation due to an ongoing hunger strike. Each time, hospital staff, with the assistance or acquiescence of officers employed by an ICE contractor, removed his pants and underwear, lifted his penis and genitals and touched the areas around them "in a sexual manner," and then either touched his anus or inserted a finger into his rectum. The contract officers were directed by ICE officer Guerra "to follow the hospital policy" and assist the hospital staff, including using force if Mehmood resisted. A nurse told Mehmood that it was hospital policy to conduct this type of search for contraband of all "criminal detainees" from Krome because he could "bring drugs wrapped in plastic in your gay ass."

These invasive searches took place in the presence of other patients and hospital staff, and Mehmood endured laughter and demeaning comments by other patients, the nurses, and the contract officers. One time, four patients surrounded Mehmood and took videos with their cell phones while laughing and smiling. Another time, a nurse asked Mehmood if he was gay after inserting a finger into his rectum, causing him pain. When Mehmood said he was, the nurse responded, "I figured out." Additionally, one of the nurses taunted him that "Muslims hate America" and told him "why not just sign the deportation and leave America."

Mehmood reported the incidents to officials at Krome, including Guerra, but they refused to intervene. He was later told by a Pakistani nurse at the hospital that, while it was the policy of the hospital to strip search detainees from Krome, the correct policy was to take one piece of clothing at a time so that the person was not left naked, and that hospital staff were not permitted to remove a patient’s underwear without reasonable suspicion of hidden drugs.

As a result of these experiences, Mehmood alleged, he suffered extreme humiliation and lost his appetite and couldn’t sleep for two weeks. He maintains that it was against ICE policy to allow strip searches of immigrant detainees.

Because Mehmood sought to proceed in forma pauperis ("IFP"), a magistrate judge screened his complaint and recommended that it failed to state a plausible claim to relief under 28 U.S.C. § 1915(e)(2)(B)(ii). Citing case law governing the evaluation of jail regulations, including Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc ), the magistrate judge concluded that Mehmood failed to establish a Fourth Amendment violation related to the strip and body-cavity searches because there were "no factual allegations in the complaint which show that the search was conducted unreasonably or in an abusive manner." Specifically, the magistrate judge

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stated, "the hospital policy requiring detainees to have strip and bodily cavity searches upon arrival at the hospital from Krome SPC is rationally connected to an interest in security and efficiency of...

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