                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 04 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PIERRE FOUCHÉ,                                   No. 12-56108

               Plaintiff - Appellant,            D.C. No. 5:10-cv-00087-MMM-
                                                 PJW
  v.

SCOTT A. HOLENCIK,                               MEMORANDUM *

               Defendant - Appellee.



                    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

          *
             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).
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.




                                           2                                    12-56108
      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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