HOWARD F. SACHS, District Judge.
Presently pending before the court is the motion of attorney, Dion F. Sankar, to withdraw as counsel of plaintiffs. (doc. 115).
At approximately 11:00 p.m. on July 27, 2012, plaintiff, accompanied by her husband Gokhan, her sister Katherine Roewert, and a friend Daniel Webb, went to Angel's Rock Bar in the Power & Light District "P&L" in Kansas City, Missouri. (Second Amended Complaint: ¶¶ 26-29). At approximately 1:00 a.m. the following morning, plaintiff and her party departed Angel's Rock Bar and entered the Shark Bar. (Id: ¶ 30). Plaintiff and her party ordered and paid for drinks which arrived about 1:45 a.m., and shortly thereafter they were told they must dispose their drinks and exit the premises. (Id: ¶¶ 32-33). An argument ensued between plaintiff's party and staff at the Shark Bar and as plaintiff exited the bar she knocked over a garbage can. (Id: ¶ 34).
P&L security officer Samantha Meyers arrived and restrained plaintiff, using handcuffs, and escorted her to a holding area. (Id: ¶¶ 35-37). Plaintiff estimates that she arrived at the holding area at approximately 2:00 a.m. and was handcuffed to a wall. (Id: ¶¶ 39-40). Plaintiff states that she requested a glass of water and to use the restroom, but was refused; and she soiled her clothing. (Id: ¶¶ 45-46).
At approximately 3:00 a.m., the restraints were removed and plaintiff was advised that she was barred from the P&L facility for one year. (Id: ¶ 47). As she was leaving, plaintiff knocked over a plastic cup containing water onto the floor and was again restrained by Meyers who turned plaintiff over to defendant Kansas City Missouri Police Officer Tom Stonfer. (Id: ¶¶ 48-52). Meyers advised Stonfer that plaintiff threw a cup of ice water at her. (Id: ¶ 53). Stonfer advised plaintiff that she was being arrested for assault and plaintiff was transported to the jail located at 1125 Locust Street, Kansas City Missouri. (Id: ¶¶ 54-56).
Upon arrival at the jail, Jacqueline Baker, a detention facility officer, took plaintiff down a hallway which had a glass window into an adjacent room. (Id: ¶¶ 67, 69). Plaintiff states that the hallway was also being traversed by two male police officers and a male custodian, and that while in their presence, her head and body were pushed against the wall near the window while she was stripped and forced to change clothes. (Id: ¶¶ 69-73). Plaintiff states that neither Baker nor Natalie Cofield-Booker, a detention facility officer, gave any verbal commands designed to search her person, and neither searched or attempted to visually observe her body for the presence of scars or tattoos. (Id: ¶¶ 74-77). Plaintiff was clothed in jail-issued pants, top and slippers, and placed in a "bullpen" cell area. (Id: ¶ 85).
At approximately 7:00 a.m. on July 28, 2012, plaintiff was released after her husband paid the $500.00 bond. (Id: ¶ 89). She was charged with a municipal violation; but, all charges related to the violation were subsequently dismissed. (Id: ¶¶ 90-91).
Plaintiff commenced this action asserting claims against various defendants
Summary judgment is only appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.
Defendants seek summary judgment on the basis of qualified immunity as to plaintiff's claim of a § 1983 violation due to an illegal strip search. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Peters, 979 F.Supp.2d, at 926;
In evaluating a claim of qualified immunity a two-step inquiry is required: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct.
The official is entitled to qualified immunity unless the answer to both of these questions is yes. Id. However, if the allegations and undisputed facts do not amount to a constitutional violation, there is no necessity for further inquiries concerning qualified immunity.
Section 1983 only provides a remedy for violations of rights expressly secured by federal statutes or the Constitution.
Plaintiff alleges in Count IV that the Board, Baker, and Cofield-Booker violated her Fourth Amendment right to be free from unreasonable searches and seizures when they detained and searched her at the jail. (Second Amended Complaint: ¶ 119). Plaintiff asserts a constitutional right of privacy against unreasonable searches of her body and/or intrusion of her personal privacy. (Id: ¶ 120). And, she alleges that the defendant officers, Baker and Cofield-Booker, did not have probable cause, reasonable suspicion or any particularized suspicion that she had committed a felony offense or possessed a weapon or drugs. (Id: ¶ 121).
Plaintiff claims that the removal of her clothing by the detention officers constituted a strip search within the meaning of both Missouri statute, § 544.193.1(2) RSMo, and federal law. According to plaintiff, when she removed her clothes at their command, or when her clothes were forcibly removed by the officers, the intent was to visually inspect her breasts and buttocks. Defendants argue that once plaintiff urinated on herself it was determined that the urine seeped through her blue jeans to the bottom of her shirt, and that as plaintiff removed the shirt over her head, it was likely that her bra became contaminated with the urine. (Supporting Suggestions to Summary Judgment: pg. 13). Defendants contend that the jail has a legitimate penological interest in maintaining a sanitary facility and that Detention Policy 150 required that under such circumstances the clothing be removed for sanitary purposes. (Id: pgs. 13-14). Defendants further contend that the clothing exchange lasted three minutes and took place in the female hallway which had only one entrance and which was blocked by the female detention officers to prevent access by any male staff or detainees. (Id: pg. 14).
Viewing plaintiff's allegations in the light most favorable to her, a question arises as to whether plaintiff was subjected to a strip search, or, as contended by defendants, a clothing exchange. In
Judge Bennett looked to the Supreme Court for guidance in defining the standard for a "strip search" of an arrestee or pretrial detainee.
Upon finding that reasonable suspicion is not always required when a detainee is strip searched, Judge Bennett looked at a recent case from the Second Circuit to determine whether the plaintiff had indeed been subjected to a strip search.
Judge Bennett also found that describing the incident in which the plaintiff was stripped as a "strip search" or even as a "search" was at best, misleading, and at worst, an invitation for jurors to decide the case on an improper, emotional basis.
There is no evidence, or reasonable inference, that changing plaintiff's clothing occurred in order to discover contraband. The video provided by plaintiff does not show that she was subjected to either a visual or manual body cavity search or that she was compelled to manipulate her body in any way or forced to assume any particular position. It is undisputed that no one fondled plaintiff's breast, buttocks, genitalia, or any other body parts at any time. (Defendants' Supporting Suggestions: ¶¶ 52-53). In sum, plaintiff has failed to generate any genuine issues of material fact that her clothes were removed for the purpose of inspecting her naked body or genitalia for concealed contraband, rather than for the purpose of changing her into a paper suit issued by the jail.
The
Plaintiff claims that the strip search was unreasonable because there was no justification for initiating the strip search, there was no legitimate penological concern and that the scope and manner in which it was conducted was unreasonable. It has been held that in addressing this type of constitutional claim, courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing that the policies are an unnecessary or unjustified response to problems of institutional security.
Defendants argue that as a penal institution there is a legitimate penalogical reason for them to maintain sanitary conditions for the health and safety of both the detainees and staff. It has been held that the task of determining whether a policy is reasonably related to legitimate security interests is peculiarly within the province and professional expertise of corrections officials.
Defendants contend that Officers Baker and Cofield-Booker were justified in conducting a clothing exchange and refer to Detention Policy 150 which states that a jail-issued paper suit will be issued to an arrestee when, among other things, the arrestee's clothing is extremely soiled with body excretions. (USMF: ¶ 19, see also, Supporting Suggestions: Exh. E-1). Plaintiff takes issue with the use of the wording "extremely soiled," and claims that jail officers removed soiled clothing regardless of the amount of the stain. Plaintiff appears to argue that the amount of urine is in dispute and that this inconsistency fails to justify a mandated removal of clothing. Notwithstanding plaintiff's present claim that the amount of urine was small and the stain was confined to the crotch area only, she initially stated that while in the P&L Detention Center, she "soiled her clothing." (Second Amended Complaint: ¶ 46). Her treating psychologist, Dr. Doyle, subsequently testified that his understanding, based on his conversation with plaintiff, was that her underclothing was drenched and/or wet. (Plaintiff's Opposition: Exh. 3, pg. 52). Plaintiff also continues to argue that she was subjected to an intrusive strip search for which there was no justifiable institutional "security" event. Contrary to plaintiff's contentions, there is a legitimate penological interest in maintaining both security and sanitary conditions for the safety of both detainees as well as staff.
Officer Baker testified that she observed plaintiff walk to the booking counter wearing a green shirt which was pulled down covering all of her buttocks. (Defendants' Supporting Suggestions: Exh. E, ¶ 10). Officer Baker also testified that after Officer Cofield-Baker advised her that plaintiff had urinated on herself, she observed that plaintiff's blue jeans were wet around the bottom of her buttocks, in addition to the bottom of the blouse covering her buttocks. (Id: ¶¶ 7, 11). Officer Baker concluded that the bottom of plaintiff's shirt became wet with urine when she was seated on her shirt, and that plaintiff's bra would also need to be removed due to likely contamination when plaintiff's blouse touched the bra as she removed it. (Id: ¶¶ 12-14). Officer Baker averred that under Policy 150, bodily excretions on clothing were unsanitary to both the detainees and employees, requiring discretion of the officers as to removal of the clothing. (, ¶¶ 15-17). After viewing the video, Officer Cofield-Booker averred that although she did not have an independent recollection of plaintiff, her practice was to use a red hazmat bag as displayed in the video only for hazardous materials such as clothes with urine. (Id: Exh. F, ¶¶ 6, 15, 19-20). Viewing the record on a whole, there is no genuine dispute that defendants have a legitimate penological interest in maintaining sanitary conditions at the jail for the safety of staff and detainees.
Next, plaintiff contends that the scope of the clothing exchange was unreasonable because the proffered reason of changing urine-stained clothes was a pretense and did not require exposure of her breasts and buttocks. In support of this contention, plaintiff relies on cases inapposite to the circumstances here. For example, in
Even when viewed in a light favorable to plaintiff, the undisputed facts reveal that while in the Power & Light holding area plaintiff urinated on herself and her pants became a little wet. (Defendants' SUMF: ¶¶ 10, 12). It is also uncontroverted that defendant Officers Baker and Cofield-Booker were trained that when an officer can see or feel that a detainee's clothing is wet with even a small amount of blood, urine, or other bodily excretions, the clothes are considered extremely soiled and must be removed for sanitary reasons. (Id: 20). In an affidavit, defendant Officer Baker testified that Officer Cofield-Booker advised her that plaintiff had urinated on herself, and Officer Baker states that prior to the removal of plaintiff's clothes, she saw and felt that plaintiff's jeans were wet around the bottom of her buttocks and that the bottom of her shirt which was pulled down over her buttocks were also wet. (Id: 22-25; see also Supporting Suggestions, Exh. E, ¶¶11-12). Plaintiff controverts this testimony with Officer Baker's deposition testimony in which she testified that she "saw" the pants were wet as opposed to "saw" and "felt" as averred to in the affidavit. (Opposing Suggestions: ¶ 23). This however, is insufficient to raise a triable issue of material fact that the sanitary policy requiring clothing exchanges was unreasonable. Viewing the evidence here in a light favorable to plaintiff, the sanitary policy is reasonably related to a legitimate security interest.
Here, the undisputed facts reveal that while in the Power & Light holding area plaintiff urinated on herself and her pants became a little wet. (Defendants' SUMF: ¶¶ 10, 12). It is also uncontroverted that defendant Officers Baker and Cofield-Booker were trained that when an officer can see or feel that a detainee's clothing is wet with even a small amount of blood, urine, or other bodily excretions the clothes are considered extremely soiled and must be removed for sanitary reasons. (Id: 20).
Plaintiff also complains that the clothing exchange was unreasonable because her clothes were removed in a place that was open to males who "might come down the same hallway," and her clothes were removed in a forceful manner. As noted above, the video shows plaintiff being escorted by Officers Baker and Cofield-Booker to the end of a hallway, and as plaintiff removed her blouse and bra, Officer Baker shielded her with the jail-issued shirt. Officer Baker testified that, as trained, she and Officer Cofield-Booker looked at places with a video camera to conduct the clothing exchange.
According to plaintiff, Officer Healey was only inches from her as she was exposed. Video #7 shows a male officer leave the doorway to a room, presumably Cell 206 where officers were interviewing a rape suspect) to walk near the location where the clothing exchange was occurring. Officer Healy testified and video #7 indicates that he left his post at the doorway of Cell 206 at least twice and stood at the opposite end of the hallway where the clothing exchange took place. (Id: Exh. I, 8(a)). He testified that he did not remove or assist in the removal of plaintiff's clothes, and that he stood at the end of the hallway in the event assistance was needed to detain plaintiff. (Id: ¶ 8(c), 11). Officer Healy's decision to stand-by in view of plaintiff's unruliness was reasonable.
The expectations of privacy of an individual taken into police custody necessarily are of a diminished scope.
Finally, plaintiff claims that her clothes were removed in an unreasonably forceful manner resulting in her re-living a prior rape. (Plaintiff's opposition: Response to Defendants' SUMF: ¶ 52). Several years after the rape, plaintiff suffered anxiety regarding intimacy and sought treatment from Dr. Doyle.
Plaintiff claims that this conduct made her feel "raped." (Plaintiff's Suggestions in Opposition: Exh. 1, pg. 102). In August 2012, after her arrest, plaintiff returned for treatment with Dr. Doyle with feelings of anxiety and discomfort. (Id: pgs. 29-31). Dr. Doyle's opinion based on plaintiff's description of the intrusion was that she felt helpless and a lack of control; specifically due to having a full bladder and unable to use the restroom upon request, culminating in urinating on herself. (Id: pg. 32-33). Dr. Doyle opined that the removal of plaintiff's clothing constituted an assault on her. (Id: pg. 56).
In cases where an arrestee or pre-trial detainee claims excessive force, the Supreme Court has required the application of an objective reasonableness standard when evaluating claims that government agents used excessive force in violation of the Fourth Amendment.
Defendants argue that plaintiff does not allege and the video does not indicate the presence of bruising or any other physical injury. Defendants argue that the degree of the injury —here, contended to be de minimus- is relevant as it tends to show the amount and type of force used. That, however, does not end the inquiry as to the reasonableness of alleged force because evidence of only de minimus injury does not necessarily foreclose a claim of excessive force under the Fourth Amendment.
As noted above, after determining that plaintiff urinated on herself, Officers Baker and Cofield-Booker determined that plaintiff's pants and underwear should be removed and exchanged for a jail uniform. The officers have testified that in order to maintain sanitary conditions at the facility Policy 150 required this practice be followed. The officers also testified that when a detainee refuses to comply with an order, they are trained to turn the detainee's head away from them to avoid being spit upon or bitten. In the case at bar, when plaintiff refused to remove her pants and underwear, the officers handcuffed plaintiff's wrists behind her back and Officer Cofield-Booker held plaintiff's head against the wall while Officer Baker conducted the exchange of clothing.
Plaintiff states that she refused to remove her pants and underwear because there were other people (specifically, males) in the area. Plaintiff initially stated that her "head and body were forcibly pushed and/or slammed against a wall" (Second Amended Complaint: ¶ 70), and that her "body and head were forcibly pushed into and pressed against the wall." (Id: ¶ 73). Although in later deposition testimony and the instant pleadings plaintiff argues that her head was "slammed" into the wall, the video provided does not support this rendition. The video shows plaintiff shaking her head in a manner as though saying "no" and the officers then engage in physical contact with plaintiff while handcuffs are engaged and her head is held against the wall.
While there is no evidence of and plaintiff does not allege any physical injury, plaintiff quite possibly suffered a humiliating and demeaning experience during and after her arrest — maybe even sufficiently traumatizing to bring back memories of the prior rape. However, with respect to a claim of excessive force, it has been held that not every push or shove, even if it may seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.
Here, no reasonable juror could find that the relatively slight invasiveness of the substantially justified intrusion in this case — which involved no inspection of plaintiff's naked body or genitalia and no probing of her body cavities — was conducted in an objectively unreasonable manner, even though it involved the forcible removal of plaintiff's pants and underwear. In balancing the need for this intrusion-substantially based on sanitary conditions-against the invasion of plaintiff's personal rights, I find that plaintiff has failed to generate genuine issues of material fact that she was subjected to an unconstitutional strip search under § 1983.
I conclude that plaintiff has failed to allege facts sufficient to establish a constitutional violation. In so deciding, there is no necessity for further inquiry concerning qualified immunity.
In the absence of unreasonableness, summary judgment is also granted as to plaintiff's claim in Count VIII for invasion of privacy under Missouri common law. The Restatement of Torts (Second) § 652A (1977) declares that the right of privacy is invaded when there is, among other things, unreasonable intrusion upon the seclusion of another.
Because there is no evidence that Officers Baker and Cofield-Booker used more force than was reasonably necessary in removing plaintiff's clothing, summary judgment is granted.
In Count II, plaintiff asserts claims under § 1983 for malicious prosecution, false arrest, and wrongful imprisonment against Police Officer Thomas L. Stonfer and the Board. Assuming false imprisonment is cognizable under § 1983, to state such a claim, a plaintiff must demonstrate the elements of a common law claim, and show that his Fourth Amendment right to be free from unreasonable search and seizure has been violated.
Plaintiff claims that Officer Stonfer did not see the alleged criminal conduct and it was not reported to him; thus, he did not have probable cause to arrest her. (Plaintiff's Opposition: pgs. 63-64). According to plaintiff, the fabricated charges violated her Fourth Amendment rights and subjected her to a malicious prosecution. (Id). Yet, at his deposition Officer Stonfer testified that he arrested plaintiff pursuant to City of Kansas City Ordinance, Sec. 50-168 for the crime of offensive contact
As to plaintiff's malicious prosecution claim, it is well established in this circuit that an action for malicious prosecution by itself is not punishable under § 1983 because it does not allege a constitutional injury.
In finding the existence of probable cause to arrest plaintiff, summary judgment is also granted as to the claims raised under state law for malicious prosecution and false arrest.
To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show: (1) that the defendant conspired with others to deprive him of constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff.
In Count V, plaintiff alleges that the detention officers have been inadequately trained as to the difference between a strip search and clothing exchange, and they conduct strip searches when they think they are only conducting a clothing exchange. A failure to train claim may only serve as the basis for § 1983 liability when the failure to train can be said to constitute deliberate indifference to the rights of others.
Plaintiff also complains that the prevalent custom in the detention center is to strip female detainees in an open hallway and cites to testimony by Timothy Trainor (Supervisor, Detention Unit) that since 2009, at least two hundred women have been searched in an open hallway. However, as previously noted, plaintiff has not generated a triable issue of material fact that she was subjected to an unconstitutional strip search. In the absence of a constitutional violation, plaintiff fails to establish a claim for custom liability because she cannot demonstrate that a custom was the moving force behind a constitutional violation.
Consequently, summary judgment will be granted on this claim.
To state a claim under this theory, a plaintiff must allege that (1) the defendant's conduct was extreme and outrageous, (2) the defendant acted in an intentional or reckless manner, (3) the defendant's conduct resulted in severe emotional distress, and (4) the conduct was intended solely to cause extreme emotional distress to the victim.
Here, plaintiff contends that the forcible removal of her pants and underwear in the hallway at the detention center severely traumatized her and her treating psychologist confirmed that the prior feelings of anxiety were re-awakened. However, even when viewing the record in a light most favorable to plaintiff, there is no genuine issue of material fact that the conduct of Officers Baker and Cofield-Booker went beyond all possible bounds of decency. Moreover, there is nothing in the record to suggest that Officers Baker and Cofield-Booker knew of the prior rape and intended to cause plaintiff extreme emotional distress. Thus, summary judgment will be granted on this claim.
In Count IX, plaintiff also contends that she was subjected to an illegal strip search as defined by Missouri law in § 544.193.1(2) RSMo. A strip search has been defined by this statute as:
Once again, however, plaintiff's contention that the officers visually inspected her breasts and buttocks is not supported by the evidence. The video provided by plaintiff shows that as plaintiff removed her blouse and bra, Officer Baker held up the jail-issued blouse to shield her. (Opposing Suggestions: Exh. 4, Video #8). Even as plaintiff's pants and underwear were removed by Officer Baker — after plaintiff refused to remove these garments — the video shows that the once removed, plaintiff was immediately clothed with the jail-issued pants. (Id). There is no evidence that plaintiff was subjected to a search or inspection during this event.
Forcibly removing plaintiff's clothes does not make the incident a strip search under state statute.
Accordingly, it is hereby
ORDERED that the motion of attorney Dion F. Sankar for leave to withdraw as counsel for plaintiff (ECF doc. 115) is DENIED as moot. It is further ORDERED that defendants' motion for summary judgment (ECF doc. 131) is GRANTED. It is further
ORDERED that defendants' motion for an extension of time to file their reply brief (ECF doc. 137) is DENIED as moot.
No person shall, by an intentional, overt act, attempt to unlawfully inflict a bodily injury or attempt to cause an unlawful, offensive contact upon the person of another.
(Defendants' Supporting Suggestions: Exh. D).