ROSEMARY M. COLLYER, District Judge.
It is alleged that the United States Marshal for the Superior Court of the District
In other litigation, the United States Marshals Service formally conceded that the practice at the Superior Court cellblock in 2000 and 2001 was to subject all female arrestees to a blanket drop, squat and cough search while male arrestees underwent the same search only upon individualized suspicion. Former Marshal Dillard disputes the accuracy of this concession. The search practices at the Superior Court during the class period are very much contested. However, in light of the government's past formal admissions and record evidence in Clifton v. U.S., No. 02-0578 (D.D.C. filed Mar. 26, 2002) and Helton v. U.S., No. 01-0385 (D.D.C. filed Feb. 20, 2001), which similarly involved strip searches at the D.C. Superior Court cellblock, and the record before this Court, it is evident that during the class period female arrestees were subjected to a blanket practice of strip searches while many, if not most, male arrestees were not. Nonetheless, it is now clear that former Marshal Dillard is entitled to qualified immunity from the Fourth Amendment claims. The Fifth Amendment claims similarly fail as Plaintiffs proffer no evidence that former Marshal Dillard purposefully discriminated by intending a gender disparity in search procedures.
Plaintiffs complain of strip searches ("strip, visual body cavity and/or squat searches") to which they were subjected at the District of Columbia Superior Court cellblock while waiting for presentment before a judge or other judicial officer. Second Am. Compl. [Dkt. # 117] ¶ 1. Similar strip searches were complained of in Clifton v. U.S. and Helton v. U.S., both of which settled with entry of a court order and injunction. Defendant Todd Dillard was the United States Marshal for the Superior Court of the District of Columbia from approximately October 1990 to 2004, and, accordingly, the Superior Court Marshal for the periods covered by both Clifton and Helton and the entirety of the Fourth and Fifth Amendment class period, which runs from December 1999 to April 2003.
As described by the United States Marshals Service (the "Service"), in 2001 all prisoners brought to the Superior Court cellblock first passed through a magnetometer and then underwent an "in-custody search," whereby they removed the contents of their pockets, had their outer clothing inspected, removed their shoes, and were thoroughly patted down. See Pls.' Mem. in Supp. of Mot. for Partial Summ. J. [Dkt. # 233], [Attach. 82] Marshal Service Interrog. Resp. in Clifton v.
However, as the Service described the strip search practice that existed in 2001, it was markedly different for female detainees:
Id. (describing practice that existed on June 29, 2001); see also Pls.' Mem., [Attach. 73] Marshal Service Interrog. Resp. in Helton v. U.S. ¶ 8 (describing identical practice being in existence on February 21, 2000); Second Am. Compl. ¶¶ 133-35 (detailing the complained of drop, squat and cough searches). Thus, when sued in separate suits in 2001 and 2002, the Service formally admitted through sworn interrogatory responses that the Superior Court Marshal had a blanket practice of drop, squat and cough searches of all female prisoners, but not of male prisoners without individualized suspicion.
This case did not proceed immediately because, on April 25, 2003, the parties agreed to a temporary standstill to pursue settlement discussions and the Service vowed,
See Consent Mot. to Hold Mots. in Abeyance Pending Settlement Discussions [Dkt. # 24] at 2. Despite Clifton and Helton, Marshal Dillard insists that he had a blanket policy at the Superior Court throughout
This lawsuit was initially brought against the District of Columbia, the United States Marshals Service, former Superior Court Marshal Todd Dillard in his individual capacity, and various John Doe deputy Marshals. The parties spent the time between April 2003 and April 2006 attempting to settle. When those efforts failed, Plaintiffs filed a First Amended Complaint on April 28, 2006. See First Am. Compl. [Dkt. # 58]. On November 14, 2006, the Court denied defense motions to dismiss and found that Marshal Dillard was not entitled to qualified immunity on the Fourth and Fifth Amendment constitutional claims. See Order Denying Defs.' Mots. to Dismiss [Dkt. # 81] at 3.
Plaintiffs filed a Second Amended Complaint on May 24, 2007. See Second Am. Compl. Plaintiffs abandoned their claims against the various John Doe Deputy Marshals in the Second Amended Complaint but added claims against Marshal Dillard in his official capacity. See id. In 2008, the Court certified separate Fourth and Fifth Amendment classes and dismissed the Service as a defendant, finding that Plaintiffs lacked standing to seek equitable relief from it. See Mem. Op. & Order [Dkts. # # 158, 159]. The Court also denied Plaintiffs' request to certify an alternative Fourth Amendment class which would have included both male and female arrestees. See id. In 2008, the Court dismissed the District of Columbia, finding that it could not be liable to Plaintiffs under 42 U.S.C. §§ 1983 and 1988 because Marshal Dillard was a federal official acting under the color of federal law. See Mem. Op. & Order [Dkts. # # 202, 203]. In 2010, the Court denied Plaintiffs' motion for leave to file a Third Amended Complaint. See Order [Dkt. # 226].
On April 5, 2010, following extensive discovery, Plaintiffs moved for partial summary judgment, see Pls.' Mot. [Dkt. # 233], and Marshal Dillard cross-moved for judgment on the pleadings, or in the alternative, for summary judgment. See Def.'s Mot. for Summ. J. [Dkt. # 232].
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law." Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (noting that when a movant has satisfied his burden under Rule 56, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts").
The Fourth Amendment Class consists of:
Arrestees were typically searched a few times before being brought to the Superior Court — usually by the arresting officer/s at the scene of arrest, again at the MPD district station, and then again before being placed on a van to be transported by MPD to the Superior Court cellblock. These searches were generally pat-downs. Arrestees were brought to the Superior Court cellblock where they would be held until their presentment to a judicial officer. Also temporarily in custody at the Superior Court cellblock awaiting a court hearing would have been convicted prisoners and pre-trial criminal defendants transported from Lorton Correctional Center (which closed in 2001), the D.C. Jail, or the Correctional Treatment Facility (collectively the "jail cases"). Female arrestees and female jail cases were held in separate cells and were not co-mingled. Plaintiffs' Fourth and Fifth Amendment classes are made up exclusively of female arrestees, not female jail cases.
Arrestees in the Superior Court cellblock were searched primarily by Detention Enforcement Officers ("DEOs") and, to a slightly lesser extent, Deputy Marshals ("deputies"). Supervisors would intermittently assist in the searches if necessary. Arrestees brought into the cellblock would typically pass through a magnetometer and undergo a thorough pat-down search before (or after) being placed in the search room designated for their gender. Although pat-downs or lesser-degree searches could occur in the hallways or more public areas of the cellblock, female arrestees were subjected to drop, squat and cough searches only in the female search room. There is no allegation that a male was ever present during any of the female drop, squat and cough searches.
The Superior Court cellblock was for temporary custody only; if arrestees were not released by a judicial officer directly from the courtroom after presentment, they would be transferred to the D.C. Jail, where further body searches would occur. Jail cases stayed in the cellblock only as needed for their court hearings and were transferred back from whence they came by day's end. No arrestee or jail case remained in the Superior Court cellblock overnight. While the exact statistics over the entirety of the class period were not maintained and are contested by Marshal Dillard, it appears that a significant portion, if not the majority, of female arrestees were typically released from custody immediately from the courtroom in which they were arraigned, without having to return to the cellblock.
During the entirety of the class period, the standard under which body searches were to be conducted was officially governed by U.S. Marshals Service Policy Directive 99-25. Policy Directive 99-25 was issued Service-wide to "All U.S. Marshals Employees," with a cover memo dated July 15, 1999. See Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 232], [Attach. 2]
Marshal Dillard asserts that the Superior Court search policy in place throughout the class period was that every prisoner, both male and female, arrestee and jail case, was to be subjected to a blanket strip search. See Dillard Dep. at 92-93, 96-98. The record reveals that during the class period the day-to-day practice at the cellblock mirrored Marshal Dillard's asserted policy only as to female arrestees, who were, in fact, all subjected to drop, squat and cough searches.
Plaintiffs first allege that the blanket drop, squat and cough searches were unreasonable for women arrested for non-drug and non-violent offenses and, therefore, violative of the Fourth Amendment.
On November 14, 2006, in denying the various defendants' motions to dismiss, this Court agreed with Plaintiffs that, if the facts proved to be as alleged, a violation of the Fourth and Fifth Amendments would be shown and Marshal Dillard was not entitled to qualified immunity.
Order Denying Defs.' Mots. to Dismiss [Dkt. # 81] at 2-3.
In 2006, when the Court decided that Plaintiffs had adequately alleged unreasonable searches under the Fourth Amendment, ten of twelve U.S. Courts of Appeals
Since this Court's ruling in 2006, two circuits have re-visited their prior interpretations of Bell v. Wolfish. Marshal Dillard holds up Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (en banc) and Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir.2010) (en banc). In Powell, the Eleventh Circuit reversed course and determined that the Fourth Amendment, under its revised interpretation of Bell, does not preclude a policy or practice "of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion." Powell, 541 F.3d at 1300. Likewise, the Ninth Circuit reversed its earlier interpretation of Bell and held that a policy "requiring strip searches of all arrestees classified for custodial housing in the general population was facially reasonable under the Fourth Amendment, notwithstanding the lack of individualized suspicion as to the individuals searched." Bull, 595 F.3d at 982. After the parties filed briefs in this matter, the Third Circuit weighed in for the first time and similarly found the blanket strip search of arrestees prior to introduction into a general jail population did not violate the Fourth Amendment. See Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d. Cir.2010).
Marshal Dillard argues that these new decisions illustrate that the challenged search practice at the Superior Court perfectly accorded with Bell v. Wolfish and did not violate the Fourth Amendment, and/or that he reasonably could not have known that such searches violated the Constitution. For reasons described below, the Court bypasses the question of
Qualified immunity is "a defense that shields officials from suit if their conduct `d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Ortiz v. Jordan, ___ U.S. ___, 131 S.Ct. 884, 888, 178 L.Ed.2d 703 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "In developing the doctrine of qualified immunity, the Supreme Court has sought to strike a balance `between the interests in vindication of citizens' constitutional rights and in public officials' effective performance of their duties.'" Int'l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C.Cir.2004) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). A federal official can be liable individually but "that official must have violated a constitutional right, and that right must have been `clearly established' — `the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.'" Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034).
Traditionally, looking at the facts alleged in a light most favorable to the plaintiff, a court would first decide whether "the facts alleged show the officer's conduct violated a constitutional right," and, only if so, "whether that right was clearly established" at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Supreme Court has since instructed that a court can employ its discretion to decide in which sequence to address these two inquiries. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Because the D.C. Circuit has very recently made "plain that a constitutional right" as alleged by Plaintiffs "is not clearly established," id., it is prudent for this Court to proceed directly to qualified immunity.
On March 25, 2011, the District of Columbia Circuit issued a decision directly on point. See Bame v. Dillard, 637 F.3d 380 (D.C.Cir.2011 as amended Mar. 31, 2011). The Bame plaintiffs, all males, had filed a class action against Marshal Dillard for strip searches, including drop, squat and cough searches, conducted in 2002 following mass arrests of peaceful protesters. Plaintiffs argued they were unconstitutionally searched and that Marshal Dillard was not entitled to qualified immunity as the unanimity in the circuits in 2002 made clear that the Fourth Amendment "prohibited strip searching a person arrested for a non-violent, non-drug-related misdemeanor absent a particularized reason to suspect the arrestee was concealing contraband or weapons about his person." Id. at 382. Under the principle of constitutional avoidance, the D.C. Circuit proceeded directly to the question of whether the constitutional right invoked by the plaintiffs was clearly established at the time of the searches. The Circuit noted: "`There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.' This is such a case." Id. at 384 (quoting Pearson, 129 S.Ct. at 818).
The D.C. Circuit concluded that Marshal Dillard was entitled to qualified immunity in Bame because "the law in 2002 did not clearly establish that strip searching all male arrestees prior to placement in holding cells at the Superior Court violated the Fourth Amendment." Id. at 386. "The governing precedent was then, as it is now, Bell v. Wolfish, and nothing in Bell requires individualized, reasonable suspicion before strip searching a person entering a
The facts alleged by Plaintiffs are not sufficiently distinguishable from Bame to allow a different result. The Bame plaintiffs contested blanket strip searches of non-violent, non-drug related misdemeanor arrestees absent any individualized suspicion at the D.C. Superior Court cellblock, see id. at 383-85, as do Plaintiffs here.
Plaintiffs' additional arguments fare no better. It is arguable that Powell, Bull, and Florence are distinguishable from cases involving Superior Court arrestees, because the prisoners before those circuits were about to be entered into, or co-mingled with, a general jail or detention facility population and most Plaintiffs here were only held temporarily at the D.C. Superior Court and then either released from the courtroom the same day or transferred to the D.C. Jail, a true "detention" facility in Plaintiffs' rubric. This very argument was rejected in Bame. The D.C. Circuit found the "Court's rationale in Bell applies equally to any detention facility that is `fraught with serious security dangers,' as was the cellblock at the Superior Court, where often hundreds of arrestees were processed in a single day." Id. at 387 (quoting Bell, 441 U.S. at 559, 99 S.Ct. 1861). "Contrary to the plaintiffs' contention, nothing whatsoever in Bell suggests its holding is limited to overnight detention facilities .... [n] or ... did the Court in Bell anywhere mention, let alone rely upon, such intermingling as a reason for upholding the strip searches." Id. "In any event, arrestees held at the Superior Court were in fact commingled with other arrestees in holding cells; no one suggests each arrestee was put in a separate cell." Id. at 387.
The D.C. Circuit has spoken unequivocally. Even assuming all facts alleged by the Fourth Amendment class as true, the claims addressed in Bame and
The Fifth Amendment Class consists of:
See Order Certifying Class at 1. Plaintiffs argue that by no later than January 1999, "defendant Dillard had a policy and practice in place of requiring all female prisoners but not male prisoners to be subjected to blanket drop, squat, and cough searches." Pls.' Reply [Dkt. # 251] at 10. This gender-based practice is alleged to have violated Plaintiffs' rights to equal protection.
In contrast, ample evidence exists that, at least in practice, many DEOs and deputies did not subject male arrestees to a blanket drop, squat and cough search unless there were reasonable, individualized suspicion that the male arrestee was harboring contraband or presented other risk. See, e.g., Pls.' Mem., [Attach. 57] Mark Shealey Dep. (May 8, 2007) at 157, 166-67 (testifying as to practice between January 1999 to summer of 2002 as the a.m. cellblock supervisor); id., [Attach. 41] Edward Eversman Dep. (Sept. 14, 2009) at 52-54, 72, 77-79, 82 (testifying that between February 1997 to June 2000, he never witnessed a blanket practice of strip searching male arrestees nor was he ever instructed by any superior to conduct such
Just to confuse things, the record also contains vague and contradictory testimony that the standard under which a male arrestee might have been subjected to a drop, squat and cough search, i.e., blanket protocol or individualized suspicion, changed once or more during the class period. See Pls.' Mem., [Attach. 54] Gregory Petchel Dep. (Jan. 6, 2009) at 62-73 (testifying that, as supervisory deputy from 1996 to 2004, the initial practice was to strip search male arrestees only upon individualized suspicion; around 2001, the practice changed to strip searches of all male arrestees; that practice was stopped again, resumed again, and finally ended when the Office of General Counsel told the Marshal to cease around 2003); id., [Attach. 59] Jonathan Stover Dep. (Oct. 21, 2008) at 53-62 (testifying that he was not instructed to subject male arrestees to a blanket practice of drop, squat and cough searches until around 2000, but the practice did not last long before it stopped again);
Without a fact-finder to make credibility determinations, it can only be said that there appear to have been great differences in search practices of male arrestees at the Superior Court cellblock under Marshal Dillard, an observation that stands in stark contrast to the uniformity with which female DEOs and deputies testified that all female arrestees were subjected to drop, squat and cough searches. Even if some DEOs or deputies conducted strip searches on male arrestees on occasion, it cannot be said that the record supports Marshal Dillard's testimony of a blanket practice at the Superior Court cellblock of drop, squat and cough strip searches of male arrestees.
Although there is abundant evidence that similarly situated male and female arrestees were searched differently at the D.C. Superior Court cellblock during the class period, the inquiry does not end there. "[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S.Ct. at 1948. "Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose." Id. (citations omitted).
Id. at 1948-49. Thus, the "complaint must at least allege that the defendant federal official was personally involved in the illegal conduct." Simpkins, 108 F.3d at 369.
It is on this point that Plaintiffs' claims cannot succeed. There is no allegation or evidence that Marshal Dillard personally conducted any of the challenged strip searches. Further, notwithstanding the plethora of evidence that male and female arrestees were searched according to differing
No evidence exists that Marshal Dillard implemented a policy which directed a blanket practice of strip searching female arrestees but subjected male arrestees to strip searches only on individualized suspicion. Plaintiffs allege that testimony about meetings between Marshal Dillard and his supervisors to discuss implementing a customized Superior Court search policy could reasonably create an impression with a jury that Marshal Dillard specifically instituted a gendered policy; Plaintiffs also cite the Clifton and Helton interrogatory responses as support that such a policy — and not merely an irregular practice — existed.
The meetings in question are brought to light by Michael Mitchell, who worked at the Superior Court from 1998 to 2003 in various capacities, but who admittedly was confused as to the dates of these meetings.
Plaintiffs pounce on the lack of certainty of such dates, and the evidence that men and women arrestees were treated differently, to argue that a jury could find that Marshal Dillard implemented a policy in 1999 or 2000 that prohibited blanket strip searches of male arrestees while requiring it of all female arrestees. However, at no point did Mr. Mitchell testify that the new Superior Court policy would call for male and female arrestees to be treated differently or that Marshal Dillard ordered, or ever mentioned, such a difference in treatment. No matter how confused the testimony about dates, there is no testimony that Marshal Dillard contemplated a policy
Similarly, while the sworn answers to interrogatories in Clifton and Helton, signed by supervisory Deputy Mark Shealey, indicate a clear differentiation in treatment of male and female arrestees, there is no evidence tying Marshal Dillard to this difference, much less that he ordered it. In fact, Marshal Dillard testified that he neither read nor wrote the interrogatory responses. Dillard Dep. at 119, 144. Further, Mr. Shealey, in the sworn answers, identified Policy Directive 99-25 as the governing policy in 2000 and 2001, thus refuting Plaintiffs' argument that some unaccounted for, discriminatory policy had been put in place. While still agreeing with the factual premise of the interrogatory responses that only female arrestees were subject to a blanket practice of drop, squat and cough searches, Mr. Shealey testified at deposition in this case that he did not know why the practice was to strip search female arrestees, but not male arrestees, and that he just assumed it was because females could hide contraband in their vaginas. Shealey Dep. at 158-162. Further, he testified that no one had ever directed him to treat the genders differently. Id. at 160, 163-68. Neither of these bits of evidence carries Plaintiffs' burden to show that Marshal Dillard purposefully discriminated against women arrestees through a Superior Court policy.
There is no colorable evidence in the record that Marshal Dillard knew of the practice of searching the sexes differently, let alone that such a practice was directed by him. Plaintiffs argue it is incredible to believe Marshal Dillard did not know of the disparate search practices given the prolific nature of these practices — which may have existed for years — and that Marshal Dillard had supervisors who were supposed to be reporting to him on failures of Superior Court personnel to follow his policies. The argument fails to carry the point. Marshal Dillard's mere knowledge of, or acquiescence in, his subordinates' potentially discriminatory practices would not constitute purposeful discrimination on his part. See Iqbal, 129 S.Ct. at 1949 (rejecting argument that superiors may be liable for their "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees").
Marshal Dillard's recollection was hazy but he testified to observing male arrestees being strip searched on those occasions that he inspected male search rooms. Dillard Dep. at 76. Plaintiffs contend that Marshal Dillard must have observed and implicitly approved a different search policy for male arrestees than for women since he says he observed strip searches in the male search room but other deposition testimony indicates a lack of a blanket policy on strip searching male arrestees. According to Plaintiffs, this varying testimony "creates an inference that defendant Dillard knew about the search practices and approved them." Pls.' Opp'n [Dkt. # 243] at 15. However, both deputies and
To be sure, Marshal Dillard proclaimed that it was his job as a supervisor to ensure his policies were being followed, that his supervisors should have known if there were any deviation from these policies, and that any such deviation would have been discussed at weekly supervisors' meetings. See Dillard Dep. at 68, 73. Marshal Dillard insists that he would have "relieved [a supervisory deputy] immediately, if not sooner," id. at 197, if he had heard that he told a cellblock DEO or deputy not to subject male prisoners to a blanket drop, squat and cough search. These protestations notwithstanding, Plaintiffs have no evidence that Marshal Dillard actually knew that his alleged search policy was not being evenly enforced, let alone any evidence that Marshal Dillard intended or directed such disparity as a way to purposefully discriminate against women arrestees.
Plaintiffs argue that all the contested evidence makes it totally incredible that Marshal Dillard did not at least know of the disparities in search practices, and that credibility is an issue for a jury to decide. See Jones v. Bernanke, 557 F.3d 670, 681 (D.C.Cir.2009). Marshal Dillard defends on the basis that "no one has testified that Marshal Dillard instructed them to search males and females differently, and no one who admits [to strip searching women but not men] ... claims to have even informed
Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Marshal Dillard is entitled to summary judgment on Plaintiffs' Fifth Amendment claims.
For the reasons stated above, Plaintiffs Donna Curtis, Dianne Johnson, and Carolyn Montgomery will be dismissed without prejudice. Summary judgment will be denied to Plaintiffs on their Fourth Amendment claims and granted to Marshal Dillard on the Fourth and Fifth Amendment claims. Marshal Dillard's Motion for Order to Decertify Class, see [Dkt. # 258], will be denied as moot. Accordingly, this case will be dismissed. A memorializing Order accompanies this Memorandum Opinion.
In addition, Marshal Dillard moves to dismiss Plaintiff Rabbiyah Muhammad for failure to prosecute because of her failure to submit timely sworn interrogatory responses, or as a sanction for the same. It is alleged that Ms. Muhammad submitted unsigned interrogatory responses and at her deposition denied that she had ever seen the unsworn responses attributed to her. Def.'s Mem. at 42. Her sworn responses were not received until after her deposition. Marshal Dillard argues prejudice because he "was unable to fully address the inconsistencies between the interrogatory responses and Ms. Muhammad's testimony during her deposition, and thus was deprived of the opportunity to impeach Ms. Muhammad with contradictory sworn testimony." Def.'s Reply [Dkt. # 250] at 44. Based on counsels' arguments, it appears that any untimeliness on Ms. Muhammad's part was mere inadvertence, and not sufficiently delayed or negligent as to warrant dismissal for failure to prosecute. Adjudication of claims on the merits is preferable and "`dismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success' or would obviously prove futile." Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1075 (D.C.Cir.1986) (quoting Trakas v. Quality Brands, Inc., 759 F.2d 185, 186-87 (D.C.Cir.1985)). Marshal Dillard has not been prejudiced "so severely" as to warrant the drastic sanction of dismissing Ms. Muhammad. See Shea, 795 F.2d at 1074. The motion to dismiss Rabbiyah Muhammad will be denied.
