MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ..........................................................980
A. Factual Background ................................................980
B. Procedural Background .............................................981
II. LEGAL ANALYSIS ........................................................983
A. Reconsideration Of Summary Judgment In Rattray's Favor ............983
1. Arguments of the parties ......................................983
2. Reconsideration standards .....................................984
3. Analysis ......................................................986
a. The basis for summary judgment in Rattray's case ..............986b. The decision in Florence ......................................988c. The effect of Florence on the controlling legal rule ..........992B. Consideration Of Summary Judgment In The County's Favor ...........9951. Arguments of the parties ......................................9952. Summary judgment standards ....................................9973. "No reasonable suspicion" claims ..............................9974. "Manner" claims ..............................................1000a. Rattray's "manner" claim .................................1001b. Mathes's "manner" claim ...................................1002c. Lambert's "manner" claim ..................................10035. Summary ......................................................1004C. Reconsolidation Of Trials ........................................1004D. Certification For Interlocutory Appeal ...........................10051. Certification pursuant to Rule 54(b) .........................10052. Certification pursuant to 28 U.S.C. § 1292(b) ...........1007III. CONCLUSION ...........................................................1008
In these consolidated cases, the plaintiffs assert that their Fourth Amendment rights were violated when they were strip searched without reasonable suspicion that they were carrying contraband, upon being booked into the county jail. These cases are back before me on the defendant county's motions for reconsideration of a prior order granting summary judgment in one plaintiff's favor on her claim and seeking summary judgment in the county's favor on all of the plaintiffs' claims in light of the Supreme Court's decision in Florence v. Board of Chosen Freeholders of the County of Burlington, ___ U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). In Florence, the Supreme Court held that every detainee, even one held on a non-indictable offense, who will be admitted to the jail's "general population" may be required to undergo a close visual inspection while undressed without reasonable suspicion that the detainee is hiding contraband. The county argues that, by reasonable extension, Florence bars the claims of the plaintiffs, because the undisputed facts show that they were likely to have substantial contact with other detainees during their temporary detention, even if they were not admitted to "general population" per se. The plaintiffs argue that Florence is inapplicable, because none of the plaintiffs were admitted to "general population" in the jail, so that circuit precedent requiring reasonable suspicion to strip search detainees still prevails in their circumstances.
As is my usual practice, I set forth here only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendant's motions for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.
In the early morning hours of August 19, 2006, Maureen Rattray, the original plaintiff in this action, was arrested on a serious misdemeanor charge of operating while intoxicated — first offense, in violation of IOWA CODE § 321J.2. She was taken to the Woodbury County Jail, where she was strip searched in accordance with a then-existing jail policy that required all persons booked on charges of a serious misdemeanor or greater to be strip searched. The strip search was not based on any
Plaintiffs Lisa Lambert and Lori Mathes, the plaintiffs in additional actions consolidated with Rattray's, were also arrested on serious misdemeanor charges. Lambert was arrested on March 17, 2007, on a charge listed on her booking sheet as serious domestic assault. Mathes was arrested on May 7, 2007, on a charge of possession of marijuana. Like Rattray, both were taken to the Woodbury County Jail for booking and both were strip searched pursuant to the then-existing jail policy. Neither strip search was based on any reasonable suspicion analysis of whether either might be carrying contraband. The parties dispute whether Lambert and Mathes were subjected only to visual body inspections, or to visual cavity searches, and other circumstances of the strip searches. During the search of Lambert, officers discovered a small knife. Lambert and Mathes were taken to temporary holding cells after the searches.
The County contends, and the plaintiffs dispute, that detainees may potentially be housed with other detainees upon their initial admission to the jail; that it is not uncommon for detainees to be "doubled up" in a holding cell, depending on the number of arrests that have occurred during the period of detention; and that the need to house detainees with other detainees can change rapidly, because of the limited number of holding cells at the jail. Like Rattray, Mathes never shared a holding cell with another detainee, and neither Lambert nor Mathes was ever admitted to the "general population" at the jail, because neither was held for more than twenty-four hours. However, in their briefing, the County contends, and Lambert admits, that she shared a holding cell with other detainees (at least two, and possibly "several") during the night. The parties agree that, like Rattray, Mathes was handcuffed with other detainees (in Mathes's case, eight other detainees) when she was transported to court for her initial appearance. The parties have not indicated in their respective statements of fact whether Lambert was handcuffed with other detainees for transportation to court for her initial appearance. Like Rattray, Lambert and Mathes were both released shortly after their arraignments — in Lambert's case, the day after her arrest, and in Mathes's case, the same day as her arrest.
The procedural history for this case is long and convoluted. Some of it has been addressed in prior published rulings. See Rattray v. Woodbury Cnty., Iowa, 253 F.R.D. 444 (N.D.Iowa 2008) (denying class certification after consolidation of separate actions by plaintiffs Rattray, Mathes, and Lambert, and assertion of class claims),
In the midst of preparations for Rattray's damages trial, the parties agreed to dismissal of the claims against the individual defendants, so that Rattray's claims proceeded to trial only against the County. A jury awarded Rattray substantial damages on her claim on January 20, 2011, see Verdict Form (docket no. 132); Amended Verdict Form (docket no. 133), but, owing to seriously problematic circumstances surrounding the jury's damages awards, I granted the County's Motion For New Trial (docket no. 144) by Order (docket no. 147), filed March 7, 2011, 788 F.Supp.2d 839 (N.D.Iowa 2011).
This case was then stayed during the pendency, before the Supreme Court, of Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3d Cir.2010), petition for cert. filed, 2011 WL 220710 (Jan. 19, 2011), cert. granted, ___ U.S. ___, 131 S.Ct. 1816, 179 L.Ed.2d 772 (2011), aff'd, ___ U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). I entered an Order (docket no. 164) on May 2, 2012, lifting the stay and directing the parties to file a proposed Scheduling Order establishing deadlines and trial readiness dates for a retrial on Rattray's damages claim and a trial on Lambert's and Mathes's liability and damages claims that would provide for the prompt and efficient disposition in each case. By Order (docket no. 173), dated July 3, 2012, Rattray's damages claim was set for retrial on March 11, 2013, and by Order (Case No. C 08-4008, docket no. 17, and Case No. C 08-4032-MWB, docket no. 14), dated July 3, 2012, Lambert's and Mathes's liability and damages claims were set for trial on April 22, 2013.
On September 28, 2012, the new deadline for dispositive motions, the County filed its Motion To Reconsider Ruling On Rattray's Motion For Partial Summary Judgment And [Its] Motion For Partial Summary Judgment (docket no. 176) and also filed its Motion For Summary Judgment Regarding Mathes And Lambert (docket no. 177). In those Motions, the County argues that the Supreme Court's decision in Florence not only requires that I reconsider my order granting summary judgment on liability in favor of Rattray, but that I now grant summary judgment in the County's favor on all three plaintiffs' claims that a strip search of detainees without reasonable suspicion violates the Fourth and Fourteenth Amendment. Rattray filed her Resistance (docket no. 181) to the County's Motion, as to her, on October 31, 2012, and Lambert and Mathes filed their Resistance (docket no. 182) to the County's Motion, as to them, on November 1, 2012. The County filed Replies (docket nos. 183 and 184) in further support of its Motions on November 7, 2012.
Although the central issue in both of the County's Motions is the impact of Florence, that issue is raised in somewhat different procedural contexts as to Rattray, on the one hand, and as to Lambert and Mathes, on the other. Specifically, the County seeks reconsideration of my prior summary judgment ruling in Rattray's favor on her "no reasonable suspicion" strip-search claim, but there is no summary judgment ruling in favor of Lambert and Mathes to set aside. The County also seeks summary judgment or partial summary judgment in its favor on all three plaintiffs' strip-search claims. In a footnote in its brief supporting its motion as to Rattray, the County acknowledges that a factual question exists regarding the "manner" in which Rattray's strip search was conducted, not simply that a strip search was done with "no reasonable suspicion." Consequently, the County explains that it is only seeking partial summary judgment on Rattray's claims. There is no such limitation on the County's Motion For Summary Judgment on Lambert's and Mathes's claims. Nevertheless, I read Lambert's and Mathes's Resistance to suggest that they believe that they also have both "no reasonable suspicion" and "manner" strip-search claims. There is, thus, considerable overlap of the issues as to whether or not the County is entitled to summary judgment in its favor on any of the plaintiffs' claims. Therefore, I will first consider, separately, whether the Florence decision requires me to reconsider and withdraw my grant of summary judgment in favor of Rattray on her "no reasonable suspicion" strip-search claim. I will then consider whether the County is entitled to summary judgment in its favor on one or more of plaintiffs' strip-search claims.
The County argues that, while there was a split in the circuits prior to Florence as to the constitutionality of a strip search of detainees without reasonable suspicion, the Supreme Court determined in Florence that the Fourth Amendment does not require reasonable suspicion before a detainee is strip searched for non-indictable offenses. Thus, the County argues, no constitutional violation occurs simply because a strip search of a detainee was conducted absent reasonable suspicion. The County points out that I previously granted summary judgment on liability in Rattray's favor precisely on the ground that she was strip searched without reasonable suspicion, so that it is no longer appropriate to let that ruling stand. The County argues that this is so, even though the Supreme Court did not specifically address cases where a detainee might be detained in a holding area and not admitted into "general population" of a jail, because the Court's rationale concerning the risks of failing to discover contraband should apply to detention situations in which detainees have substantial contact with other detainees. The County also argues that Rattray cannot generate any genuine issue of material fact that the strip-search policy was an unnecessary or unjustified response to problems of jail security. The County argues that this is so, because detainees at the County Jail
Rattray argues that Florence simply does not apply here, so that there has been no intervening change in controlling law. Rattray reads the Supreme Court's decision to limit the issue before the Court to be whether detainees who will be admitted to the general population of a jail may be required to undergo a close visual inspection while undressed. She also reads the concurring opinions to painstakingly limit the Court's holding to detainees admitted to "general population" and to avoid a rule barring a reasonable suspicion requirement in other circumstances. She contends that there is no dispute that at no time was she a detainee who would be admitted to the "general population," because detainees at the County Jail were not admitted to "general population" during their first twenty-four hours of detention, and she was never required to share a holding cell. Indeed, she asserts baldly that she did not have substantial contact with other detainees. She also argues that her strip search was more invasive than the visual body inspection at issue in Florence. Thus, she argues that the facts in her case fall squarely within the particularized series of cases to which the Supreme Court unequivocally said its holding in Florence did not extend. Therefore, she argues that there was no intervening change in controlling law and that my prior grant of summary judgment in her favor was not clearly or manifestly erroneous.
In reply, the County asserts that, contrary to Rattray's reading, the main issue in Florence was whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue, that is, strip searches without touching by jail officers, absent reasonable suspicion of a concealed weapon or other contraband. The County argues that, with that issue foremost, the Supreme Court concluded that the detection of contraband was so critical to jail security that the imposition of a complicated constitutional scheme prior to conducting a strip search of detainees would be unmanageable. The County argues that Rattray has failed to generate a genuine issue of material fact that the strip search was an exaggerated response to jail security issues. The County also argues that Rattray mistakenly focuses on the "general population" language in Florence, instead of on the "substantial contact" with other detainees rationale for that decision.
In Kirt v. Fashion Bug # 3252, Inc., 495 F.Supp.2d 957 (N.D.Iowa 2007), I addressed a district court's authority to reconsider an order granting summary judgment, as follows:
Kirt, 495 F.Supp.2d at 964-65. Rattray does not dispute my authority to reconsider the order granting summary judgment in her favor on her "no reasonable suspicion" strip-search claim, and I reiterate my conclusion in Kirt and other decisions that I have such authority.
In Kirt, I also considered the standards applicable to reconsideration of a summary judgment ruling pursuant to Rule 54(b), as follows:
Kirt, 495 F.Supp.2d at 965.
Looking for such guidance in Kirt, I noted that, "[u]nder Rule 59(e), a judgment may be amended to correct `clearly' or `manifestly' erroneous findings of fact or conclusions of law." Id. I now note that Rule 60(b)(5) also provides relief "from a final judgment," inter alia, if "applying it prospectively is no longer equitable." FED. R.CIV.P. 60(b)(5) (emphasis added). The Eighth Circuit Court of Appeals has explained that "[w]hen prospective relief is at issue, a change in decisional law provides sufficient justification for Rule 60(b)(5) relief," Prudential Ins. Co. of Am. v. National Park Med. Ctr., Inc., 413 F.3d 897, 903 (8th Cir.2005) (emphasis added), but that court has also explained that "`[a] change in the law following a judgment does not merit relief under Rule 60(b)(5),'" In re Racing Servs., Inc., 571 F.3d 729, 732 (8th Cir.2009) (emphasis added) (quoting 12 MOORE'S FEDERAL PRACTICE at § 60.46[2]); see also Kansas Public Employees Retirement Sys. v. Reimer & Koger Assocs., Inc., 194 F.3d 922, 925 (8th Cir.1999) (concluding that a change in the law that would have governed the dispute, had the dispute not already been decided, is not by itself an "extraordinary" or "exceptional" circumstance
I believe that the Rule 60(b)(5) "change in the law" standard for a final order granting prospective relief provides guidance for reconsideration pursuant to Rule 54(b) of an interlocutory order granting summary judgment, because continuing to rely on superseded law in a pending case, as in a case involving prospective relief, "is no longer equitable." Cf. FED.R.CIV.P. 60(b)(5). Although the Eighth Circuit Court of Appeals has not expressly done so, other Circuit Courts of Appeals have expressly recognized that reconsidering the grant or denial of summary judgment in light of an intervening change in controlling law is appropriate, pursuant to either Rule 59 or Rule 60. See, e.g., Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir.2012) (citing Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir.2010), and Rule 59); McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir.2003) (concluding that reconsideration of an order granting summary judgment pursuant to a 59(e) motion requires new evidence, a change in the law, or a clearly erroneous decision); Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 569 (11th Cir.1990) (noting that a district court may reconsider a denial of a motion for summary judgment pursuant to Rule 60(b) when there has been "an intervening change in controlling law") (citation omitted).
Therefore, I conclude that an intervening change in controlling law is sufficient to reconsider and set aside an interlocutory order granting summary judgment.
To determine whether or not Florence is a change in controlling law, I must first review the basis on which I granted summary judgment in favor of Rattray on her unlawful strip-search claim. In their summary judgment motions, the plaintiffs sought summary judgment on four issues:
Rattray, 754 F.Supp.2d at 1025-26. However, I denied the plaintiffs' request for summary judgment on the first and third questions, "as moot, as unnecessary to the
Next, as to the second question on which the plaintiffs sought summary judgment, I determined,
Rattray, 754 F.Supp.2d at 1028-29 (emphasis added). I then addressed those questions in turn.
As to the first of these dispositive questions, I found as follows:
Rattray, 754 F.Supp.2d at 1029. Therefore, I concluded that the plaintiffs were entitled to summary judgment on the first question, whether it was clearly established that a misdemeanor arrestee has a constitutional right under the Fourth Amendment not to be strip searched in the absence of reasonable suspicion.
I considered the second question separately as to Rattray, on the one hand, and Lambert and Mathes, on the other. See id. at 1029-32. I concluded "that the defendants ha[d] failed to generate any genuine issues of material fact that the strip search of plaintiff Rattray could have been justified, post hoc, by reasonable suspicion." Id. at 1029. More specifically, I concluded,
Rattray, 754 F.Supp.2d at 1030 (emphasis in the original). Moreover, I concluded that Rattray was not only entitled to summary judgment that the individual defendants did not have qualified immunity, but on her claim "that the defendants violated her Fourth Amendment right to be free from a strip search in the absence of reasonable suspicion." Id. at 1030. These conclusions meant that "the only remaining issue as to plaintiff Rattray's claims pertains to what, if any, damages she is entitled to receive for the violation of her constitutional rights." Id. at 1031.
In short, the only question of violation of Fourth Amendment rights that I addressed on summary judgment was whether a misdemeanor arrestee's Fourth Amendment rights are violated by a strip search not based on reasonable suspicion. I did not address any claim that an otherwise constitutionally permissible strip search — that is, one based on reasonable suspicion — could be conducted in a manner that would nevertheless violate a detainee's Fourth Amendment right to be free from unreasonable searches.
Next, I must determine whether Florence is an intervening change in the law — that is, whether it is an intervening controlling decision that actually changes the law in a way applicable to Rattray's case — such that I should reconsider my summary judgment ruling on Rattray's claim pursuant to Rule 54(b). See, supra, at 11. As indicated above, at the time of my ruling on Rattray's motion for summary judgment, controlling circuit precedent held that a strip search of an adult offender without individualized, reasonable suspicion that the arrestee was concealing weapons or contraband was unreasonable and violated the Fourth Amendment. See Rattray, 754 F.Supp.2d at 1029 (citing Jones, 770 F.2d at 741-42, and Smook, 457 F.3d at 813). It is clear to me that Florence overruled this circuit's complete prohibition on strip searches of adult arrestees without reasonable suspicion.
In my view, Rattray — and to a lesser degree, the County — has failed to differentiate the extent to which the Florence decision changed the law from the extent to which it changed relevant factual considerations to determine whether an unconstitutional strip search occurred in a specific instance. To put it another way, Rattray, in particular, has mistaken the fact-specific holding in Florence for a statement of the rule established in Florence. I will attempt to demonstrate the difference between changing the law and changing relevant factual considerations in my explanation of the Florence decision.
In Florence, the Court specifically explained the meaning of "strip search" as it was used in the opinion:
Florence, 132 S.Ct. at 1515 (emphasis added) (subsequently describing the kind of search procedures addressed in the opinion as "visual search procedures"); Id. at 1520 (noting that the petitioner acknowledged "that corrections officials must be allowed to conduct an effective search during the intake process and that this will require at least some detainees to lift their genitals or cough in a squatting position"). The separate opinions of the justices in the majority all appear to adhere to this definition of the kind of "strip search" at issue. See Id. at 1522-23 (Kennedy, J., writing for a plurality) (distinguishing the "types of searches at issue here" from more "invasive" searches); id. at 1524 (Alito, J., concurring) (describing the strip searches to which the Court's ruling applied as involving "visual inspection" of nude detainees, during which "the arrestees may be required to manipulate their bodies"). Thus, it is clear that, whatever the scope of the rule in Florence may be, it does not address the reasonableness of a strip search of detainees that involves "any touching of unclothed areas by the inspecting officer."
The plaintiffs here are correct that, in Florence, the Court "proceed[ed] on the understanding that the officers searched detainees prior to their admission to the general population." 132 S.Ct. at 1515; see also id. at 1513 (noting that, "in broad terms, the controversy concerns whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed"); id. at 1515 (noting, "The Federal Courts of Appeals have come to differing conclusions as to whether the Fourth Amendment requires correctional officials to exempt some detainees who will be admitted to a jail's general population from the searches at issue [visual body inspections while undressed]"). However, whether detainees to be admitted to the general population could be strip searched without reasonable suspicion was not how the Court ultimately framed either the split in the circuits that it was called upon to resolve or the specific question before it.
Rather, the Court ultimately framed the split in the circuits as follows:
Florence, 132 S.Ct. at 1518 (emphasis added). Thus, the Court identified the split without reference to whether or not the arrestees were to be admitted to "general population," but only with reference to the severity of their offenses. Among the decisions identified by the Third Circuit Court of Appeals in the decision below as holding that correctional officials may not conduct a strip search of detainees held on minor offenses absent reasonable suspicion was the decision of the Eighth Circuit Court of Appeals in Jones, 770 F.2d at 741-42, on which I had relied in granting summary judgment in favor of Rattray. See Florence, 621 F.3d at 304 n.4.
Not only did the Court identify the split in the circuits without reference to whether or not the arrestees were to be admitted to general population, but the Court explained that "[t]he current case is set against this precedent and governed by the principles announced in Turner [v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987),] and Bell [v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)]." Florence, 132 S.Ct. at 1518. The Court had previously explained that Turner, Bell, and other precedents, including Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984), "establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities." Id. at 1517. Consequently, the Court explained,
Florence, 132 S.Ct. at 1518 (emphasis added). Again, whether or not the detainees would be admitted to general population did not figure in the Court's framing of the question. Rather, the question framed by the Court was whether strip searches of some detainees, identified as those suspected of committing minor offenses who were taken to jail, required reasonable suspicion. Indeed, Chief Justice Roberts pointed out in his concurring opinion that "before this Court Florence challenged suspicionless strip searches `no matter what the circumstances.'" Id. at 1523 (Roberts, C.J., concurring) (citing Pet. for Cert. i.).
Having framed the question in this way, the Court then determined the appropriate standard to answer it, in light of Turner, Bell, and Block:
Florence, 132 S.Ct. at 1518. The Court concluded that "[p]etitioner has not met this standard, and the record provides full justifications for the procedures used." Id.
More specifically, the Court found that "[c]orrectional officials have a significant interest in conducting a thorough search as a standard part of the intake process," in order to detect lice or contagious infections, wounds or other injuries, gang affiliation, and contraband, including drugs and weapons, but also including unauthorized items that might become objects of trade
Florence, 132 S.Ct. at 1520.
Next, the Court rejected the petitioner's argument that "there is little benefit to conducting these more invasive steps [such as a strip search] on a new detainee who has not been arrested for a serious crime or for any offense involving a weapon or drugs," and that such detainees "should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband." Id. Notable by its absence is any reference in this argument for an exemption to any detainees who would not be admitted to "general population." The Court concluded that it was reasonable for jail officials to conclude that such an exemption would be "unworkable," that "the seriousness of the offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption." Id.; see also id. at 1520-22 (explaining why this is so). After detailed consideration, the Court concluded, "The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves." Id. at 1522.
Ultimately, the Court concluded that, assuming all facts in favor of the petitioner, the search procedures at issue "struck a reasonable balance between inmate privacy and the needs of the institutions" and that "[t]he Fourth and Fourteenth Amendments do not require adoption of the framework of rules petitioner proposes." Id. at 1523.
In their dispute about the impact of the Florence decision, the parties here have focused a great deal of attention on the various opinions offered by justices making up the majority. In Florence, Justice Kennedy wrote for a 5-4 majority of the Court; Justice Scalia joined in Justice Kennedy's opinion in its entirety; Justice Thomas joined in all but Part IV of Justice Kennedy's opinion; Chief Justice Roberts and Justice Alito each wrote separate concurring opinions, but joined in Justice Kennedy's opinion in its entirety; and Justice Breyer wrote a dissent joined in by Justices Ginsburg, Sotomayor, and Kagan.
In Part IV, Justice Kennedy, writing for a plurality, opined, "This case does not require the Court to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees," and that "[t]he accommodations provided in these situations may diminish the need to conduct some aspects of the searches at issue." Id. at 1522-23 (Kennedy, J., for a plurality). Justice Kennedy also asserted,
Chief Justice Roberts joined in the majority opinion, but stated that "it is important to me that the Court does not foreclose the possibility of an exception to the rule it announces." Id. (Roberts, C.J., concurring). He explained, "The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we not embarrass the future." Id. (internal quotation marks and citation omitted). Justice Alito concurred, "but emphasize[d] the limits of [the Court's] holding." Id. at 1524 (Alito, J., concurring). In his view, the Court held only "that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers." Id. (emphasis in the original). As Justice Kennedy indicated, Justice Alito asserted that the Court was not holding that "it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population." Id. (emphasis in the original); see also id. at 1525 ("The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee's detention has been reviewed by a judicial officer.").
Considering the separate opinions in Florence by Justice Kennedy and the concurring justices, it is clear that the Court did not hold that a strip search of a detainee never requires reasonable suspicion. See id. at 1524 (Alito, J., concurring) ("It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population." (emphasis in the original)); id. at 1525 ("The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee's detention has been reviewed by a judicial officer."). Nevertheless, it is also clear that the Court overruled those decisions holding that a strip search of an adult detainee always requires reasonable suspicion, such as the Eighth Circuit decision in Jones on which I relied in my ruling on Rattray's summary judgment motion. This is so, because the Court framed the question as "whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband," and answered that question yes, thereby establishing a general rule that reasonable suspicion is not required to strip search detainees, but acknowledging the possibility of exceptions. Id. at 1518 (Kennedy, J., for the majority) (emphasis added). Indeed, Justice Kennedy acknowledged the possibility of "exceptions," but explained that he did not believe that the circumstances permitted the Court to consider the "narrow exception" suggested by Justice Alito. Id. at 1522-23. Similarly, Chief Justice Roberts referred to both the "general applicability of the rule" and
This is the rule and the change in the law wrought by the Florence decision: Reasonable suspicion is not required to strip search detainees, subject to possible, but as-yet not fully defined, exceptions.
Rattray asserts, to the contrary, that the only circumstance in which Florence holds
Justice Alito, whose vote was necessary to establish a majority of the Court, did "emphasize the limits of [the Court's] holding," which, in his view, was only "that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers," but that the Court's holding did not address, for example, what was required to strip search "arrestee[s] whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population." Id. at 1524 (emphasis in the original). This holding addressed the only factual circumstance then before the Court. Similarly, both of the other opinions by justices in the majority recognized that there might be factual circumstances in which a strip search without reasonable suspicion would not be reasonable. See id. at 1522-23 (Kennedy, J., Part IV, writing for a plurality) (identifying circumstances that might require reasonable suspicion as instances where "a detainee will be held without assignment to the general jail population and without substantial contact with other detainees"); id. at 1523 (Roberts, C.J., concurring) (noting that it was important to him that the Court did not foreclose "exceptions" involving circumstances different from Florence's, which were that Florence "was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population").
However, these factual circumstances were recognized in the opinions of justices in the majority as possible exceptions to a general rule that reasonable suspicion ordinarily is not required before a strip search of an adult detainee. See id. at 1523 (Kennedy, J., Part IV, writing for a plurality) (concluding that the circumstances before the Court did not present the opportunity to consider a "narrow exception" in which reasonable suspicion would be required or a strip search would otherwise be unreasonable of the sort Justice Alito suggested); id. at 1523 (Roberts, C.J., concurring) (noting, "The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions ...."); id. at 1524 (Alito, J., concurring) (proposing an exception). Finally, the only part of Justice Kennedy's opinion that Justice Thomas — whose vote was also necessary to establish a majority — did not join was Part IV, which contemplated the possibility of exceptions, so that it appears that he saw no need for any exception to a general rule that reasonable suspicion is not required to strip search any detainee.
Thus, the rule stated in Florence was a general one that adult detainees may be strip searched without reasonable suspicion,
Rattray also asserts that Florence is "inapplicable" because there is purportedly no dispute that at no time was she a detainee who would be admitted to "general population" of the jail, that she was never required to share a holding cell, and that she did not have "substantial contact" with other detainees.
Because Florence overruled controlling circuit precedent on which I relied in my ruling granting summary judgment in Rattray's favor, on precisely the ground on which I relied on that controlling circuit precedent, it is undoubtedly an intervening change in the law that justifies reconsideration — and, indeed, withdrawal — of my grant of summary judgment in Rattray's favor, because it is no longer equitable for that ruling to stand. See, supra, at 11.
Because I will withdraw my interlocutory grant of summary judgment in Rattray's favor on her "no reasonable suspicion" strip-search claim, in light of Florence, I turn to consideration of whether the County is entitled to summary judgment in its favor on any of the plaintiffs' strip-search claims. It is here that the parties' specific factual disputes about the circumstances under which each plaintiff was strip searched and detained after her arrest, viewed in light of Florence, become relevant and potentially dispositive.
The County argues that, like the petitioner in Florence, the plaintiffs here cannot show that the County's strip search of misdemeanor detainees without reasonable suspicion was an unnecessary or unjustified response to problems of jail security. The County argues that the same
The plaintiffs argue that an extension of the rationale in Florence to the temporary detention situation, based on the potential that detainees will be housed with others, is simply not warranted. They argue that this proposed exception to reasonable suspicion searches would negate Fourth Amendment protection against unreasonable searches, because any detainees could be strip searched at any time during their detention, because it is always possible that a detainee will have some contact with another detainee. Rattray and Mathes point out that at no time during their detentions were they ever placed in a temporary holding cell with another detainee and that, apart from being escorted to court with other detainees, they never interacted with another detainee. Although Lambert admits that her affidavit discloses that she shared a temporary holding cell with another detainee on two separate occasions during her overnight detention, she argues that this fact is of no consequence, because, like the other two plaintiffs, she was never admitted to the jail's general population. The plaintiffs argue that the County's reading of Florence would create an all-encompassing rule of general applicability that reasonable suspicion is not required, but a plurality of the Court was not willing to take that step on the facts before them. The plaintiffs also contend that some of the evidence on which the County relies to show that detainees may be "doubled up" in detention cells, consisting of the County Jail's "booking logs," cannot be relied on here, because that evidence does not fit into the hearsay exception for records of a regularly conducted business activity in the absence of proper authentication, which they contend is lacking. Finally, the plaintiffs argue that, even if Florence could be read to apply beyond its specific limitation to cases involving detainees admitted to general population, the undisputed facts of this case still demand summary judgment in their favor, because they suffered indignities far beyond a mere visual body inspection.
As I have explained, in greater or lesser detail, on numerous occasions, including in the prior ruling on the plaintiffs' summary judgment motions, see Rattray v. Iowa, 754 F.Supp.2d at 1026, 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 a judgment as a matter of law." FED.R.CIV.P. 56(c); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) ("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en banc) (explaining how the facts are viewed and each party's burden on a motion for summary judgment). Summary judgment is particularly appropriate when only questions of law are involved. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir.2006).
The County has not sought summary judgment on Rattray's "manner" strip-search claim and assumes that Lambert and Mathes are not making or cannot make "manner" strip-search claims. As I mentioned above, I read Lambert's and Mathes's Resistance to suggest that they believe that they also have both "no reasonable suspicion" and "manner" strip-search claims. For the moment, I will confine my analysis to "no reasonable suspicion" claims.
As the County suggests, Florence now specifically requires me to use the following analysis of the plaintiffs' "no reasonable suspicion" strip-search claims involving no touching: I must give deference to the view of the officials in charge of the jail that a strip search was necessary for jail security, in the circumstances presented, unless there is "substantial evidence"
The plaintiffs have not framed their arguments concerning whether or not the County is entitled to summary judgment on their "no reasonable suspicion" strip-search claims in this way, but have, instead, focused on the fact that none of them were admitted to the jail's "general population" and on their attempts to demonstrate that there are genuine issues of material fact as to the extent of any contact that they had with other detainees. They contend that eliminating a reasonable suspicion requirement to strip search detainees would negate Fourth Amendment protection against unreasonable searches, because any detainee could be strip searched at any time during his or her detention based on possible contact with another detainee. Similarly, the plaintiffs argue that the County's reading of Florence would create an all-encompassing rule of general applicability that reasonable suspicion is not required, but they assert that a plurality of the Court was not willing to take that step on the facts before them.
The central fallacy of the plaintiffs' arguments against summary judgment on their "no reasonable suspicion" strip-search claims, in my view, is that their arguments adhere to the contention, which I rejected above, that Florence states only an exception — and a very narrow one at that — to the reasonable suspicion requirement. For the reasons explained above, however, I read Florence to create exactly the general rule that the plaintiffs dispute — that detainees may generally be strip searched without reasonable suspicion — but the Court also acknowledged the possibility of exceptions in not fully defined factual circumstances. Acknowledging the possibility of exceptions maintains Fourth Amendment protection against unreasonable searches. Thus, the question remains whether the plaintiffs have generated genuine issues of material fact, see FED.R.CIV.P. 56, that strip searching them at the time of their arrests, without reasonable suspicion, was an exaggerated response to the situation in the County Jail. Florence, 132 S.Ct. at 1518. I now believe that summary judgment in favor of the County is appropriate on all of the plaintiffs' "no reasonable suspicion" strip-search claims, in light of this standard from Florence.
As in Florence, jail officials in this case "have a significant interest in conducting a thorough search as a standard part of the intake process," in order to detect lice or contagious infections, wounds or other injuries, gang affiliation, and contraband, including drugs and weapons, but also including unauthorized items that might become objects of trade or that could be used as weapons or to make weapons. Id.
What makes this so here is the now undisputed (or undisputable), authenticated evidence from the County Jail's "booking logs" that even detainees initially held alone in separate temporary holding cells, away from the jail's "general population," (1) may nevertheless be "doubled up" in light of the limited number of temporary holding cells — which undisputedly occurred in Lambert's case — for example, because of the varying volume of arrests and the limited number of temporary holding cells, and (2) may be shackled with other detainees for transportation to court — which undisputedly occurred in Rattray's and Mathes's cases — even before the expiration of their twenty-four hour exclusion from "general population." These circumstances are reasonably likely to involve the "substantial" contact with other detainees that concerned the Court in Florence. See 132 S.Ct. at 1518-20.
Although the plaintiffs complain that the County is relying only on "potential" contact with other detainees, it is also reasonable to conclude that it is "unworkable," cf. id. at 1520-22, to use a "wait and see" approach to see if detainees actually have contact with others before strip searching them. Such a "wait and see" approach would require jail officials to strip search detainees only when detainees actually had to be "doubled up" or only when detainees actually had to be shackled with others for transportation to court. Thus, such a "wait and see" procedure would impose the extra burden of conducting strip searches of detainees "doubled up" at precisely the time when the influx of arrestees would already be complicating jail intake procedures, and the strip search of detainees before shackling them together would complicate procedures at precisely the time when several detainees would have to be managed for transportation to court. It also would not prevent detainees from secreting contraband in temporary holding cells during the time that they were alone in those cells. Finally, such a "wait and see" procedure would offer considerably less safety to jail officers, who might have numerous contacts with a detainee who has never been strip searched and, consequently, might be hiding a weapon or something that could be used as a weapon, or who could expose them to infectious disease, and it might require them to intervene in an altercation between detainees not recognized as members of rival gangs. See id. at 1520 ("There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population." (emphasis added)); id. at 1524 (Alito, J., concurring) (recognizing that the threats to health and safety arising from failure to permit visual body inspections without reasonable suspicion related to both "detainees and staff"). Where there is a realistic potential that detainees will have substantial contact with other detainees, even if they are not put into the jail's
The plaintiffs have failed to generate a genuine issue of material fact that strip-searching them without reasonable suspicion was an exaggerated response to the situation. See id. at 1518. Instead, they are trying to pound the square peg of their circumstances into the uncertainly defined, but nevertheless roundish — or perhaps oval or elliptical — hole of the Florence exception. They have generated no evidence that the jail officials reasonably could have kept all detainees separately detained and separately transported at all times during their detention and first trip to court; the record evidence is to the contrary. Compare id. at 1524 (Alito, J., concurring) (noting that it might not be reasonable to conduct a strip search without reasonable suspicion if a detainee, whose detention has not been reviewed by a judicial officer, can be held in available facilities apart from the general population). Thus, they have failed to generate genuine issues of material fact that their cases fall within the as-yet not fully defined exception, based on factual circumstances, to the general rule of Florence that reasonable suspicion is not required to strip search detainees.
The strip search of the plaintiffs without reasonable suspicion, to the extent that such a search did not involve touching by an inspecting officer, "struck a reasonable balance between inmate privacy and the needs of the institutions" and, consequently, did not, as a matter of law, violate the Fourth Amendment. Id. at 1523. The County is entitled to summary judgment on each plaintiff's "no reasonable suspicion" strip-search claim.
The parties' arguments go beyond the question of whether the County is entitled to summary judgment in its favor on the plaintiffs' "no reasonable suspicion" strip-search claims to whether the County is also entitled to summary judgment on any "manner" strip-search claims. More specifically, the County argues that Rattray's description of the "manner" of her search is exaggerated and that nowhere do Lambert or Mathes allege that they were touched or abused during the strip-search procedure or that they have a cognizable physical or mental injury from the strip-search procedure. The plaintiffs argue that they each suffered indignities beyond a mere visual body inspection.
Only Rattray's original separate Complaint could, perhaps, be construed to plead that she was strip searched in a "manner" that was unreasonable, in violation of the Fourth and Fourteenth Amendments. See Complaint (docket no. 2),
In the Amended And Consolidated Class Action Complaint, Rattray did allege a factual basis for a "manner" claim, even if she did not plead that theory. Specifically, she alleged that she asked a female jailer to shut an open door to the room where she was strip searched, because she did not want the men outside of the door to see her naked, but the female jailer refused to do so, see Amended And Consolidated Class Action Complaint ¶¶ 25-25; that she was mocked by jailers because she was upset when she removed her clothes, see id. at ¶¶ 27-28; that she was subjected to touching by inspecting officers during an attempt to locate a string to a tampon that she claimed to be wearing, see id. at ¶¶ 29-34; that she was led to her cell without being allowed to put on a jail suit, so that she was "paraded" naked to her cell past men, see id. at ¶¶ 35-38; and that she was then subjected to a physically invasive search while naked in her holding cell, see id. at ¶¶ 39-40. Moreover, the County acquiesced in Rattray's assertion of a "manner" strip search claim during her first trial on damages, in which she asserted that improper touching and other improper conduct went to the amount of her damages, and again in its Motion For Partial Summary Judgment, by limiting that Motion to her "no reasonable suspicion" claim.
Rattray has now pointed to evidence, raising factual and credibility questions, from which reasonable jurors could find that she was physically and perhaps forcibly undressed and physically forced to undergo the visual body inspection, as well as physical touching by the inspecting officer; that, while undressed, she was visible to male officers and arrestees in the booking area through a partially open door; that she was subjected to humiliating and mocking comments by a jailer; that, while still undressed, she was walked through the booking lobby to a temporary holding cell in view of male officers and arrestees; and that, in her holding cell, she was again subjected to a search involving physical touching and perhaps an unreasonably invasive and abusive search. Certainly, Florence does not stand for the proposition that a strip search, even one not requiring
Thus, Rattray has pointed to record evidence generating genuine issues of material fact from which a rational juror could find that she was injured by the unreasonable "manner" of her strip search. Torgerson, 643 F.3d at 1042-43 (stating the opposing party's burden on a motion for summary judgment). To the extent that the County's Motion as to Rattray can be read to seek summary judgment on her "manner" claim, that part of the Motion is denied.
Similarly, Mathes alleged a sufficient factual basis for a "manner" claim in the Amended And Consolidated Complaint, even if she did not plead that theory. She alleged that she "noticed that the door of the room [where she was strip searched] was ajar and that several men outside of the room sitting in the booking lobby could see inside of the room, either through the window in the door or because of the door being ajar." See id. at ¶ 74. Thus, the Amended And Consolidated Class Action Complaint alleges both that the room in which Mathes was strip searched had a window and a door that was ajar and that there were men in the adjacent room who could see into the room where she was strip searched because of the window and the door that was ajar, so that her "manner" claim is properly before me.
The question of whether Mathes has generated genuine issues of material fact on a "manner" claim is much closer than it was for Rattray. Merely alleging that she was "traumatized" by the search, see Amended And Consolidated Class Action Complaint, ¶ 80, is not enough to raise a Fourth Amendment claim, if the search was otherwise reasonable. See Florence, 132 S.Ct. at 1524 (Alito, J., concurring) ("Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail."). However, in Lambert's And Mathes's Statement Of Additional Material Facts In Resistance To Defendant's Motion For Summary Judgment Regarding
The County is not entitled to summary judgment on Mathes's "manner" strip-search claim.
Lambert alleged in the Amended And Consolidated Class Action Complaint only that the room in which she was strip searched "had small glass windows." See Amended and Consolidated Class Action Complaint at ¶ 57. She then alleged further facts in her affidavit in support of her resistance to summary judgment, specifically, that "[t]he door to the room in which I was searched had windows in it such that people outside of the room in the booking area could see into the room." See Lambert's And Mathes's Appendix at 3, ¶ 4. In her affidavit, however, she fails to allege that there were actually "people outside of the room in the booking area could see into the room" where she was strip searched from the adjacent room.
The County is entitled to summary judgment on Lambert's "manner" strip-search claim.
The County is entitled to summary judgment in its favor on Rattray's "no reasonable suspicion" strip-search claim, but is not entitled to summary judgment on Rattray's "manner" strip-search claim, alleging that, even if reasonable suspicion was not required, she was strip searched in a manner or in circumstances that made such a search unreasonable. The County is entitled to summary judgment in its favor on Lambert's and Mathes's "no reasonable suspicion" strip-search claims and on Lambert's "manner" strip-search claim in their entirety. However, the County is not entitled to summary judgment on Mathes's "manner" strip-search claim.
In my summary judgment ruling, I concluded that it was appropriate to sever Rattray's trial on damages, the only part of her claims not resolved by that ruling, from the trial on liability and damages on Lambert's and Mathes's claims, pursuant to Rule 42(a) and (b) of the Federal Rules of Civil Procedure, "`[f]or convenience, to avoid prejudice, or to expedite and economize....'" See Rattray, 754 F.Supp.2d at 1032 (quoting the rule). Such severance no longer seems appropriate, where both Rattray and Mathes must now try to establish liability and damages on their "manner" strip search claims, and trial of their claims is likely to involve overlapping witnesses and other evidence, so that consolidation is actually more likely than severance to result in considerable economies for the parties and the court. See FED. R.CIV.P. 42(a) & (b).
Therefore, the trial on the remaining claims of plaintiffs Rattray and Mathes will be reconsolidated on March 11, 2013,
No party has suggested that, whatever my disposition of the County's Motions, I should certify any part of my disposition for interlocutory appeal. Nevertheless, I believe that it is appropriate to consider doing so. As the Eighth Circuit Court of Appeals has explained,
Mathers v. Wright, 636 F.3d 396, 398 (8th Cir.2011). I will set out, in turn, the standards for certification pursuant to Rule 54(b) and § 1292(b).
Rule 54(b) of the Federal Rules of Civil Procedure provides as follows:
FED.R.CIV.P. 54(b). Here, this ruling disposes of all of Lambert's claims, but only some of Rattray's and Mathes's claims, so that it "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties," and, in the absence of a certification for interlocutory appeal, this ruling "does not end the action as to any of the claims or parties." Id.
As the Eighth Circuit Court of Appeals recently reiterated, "`Rule 54(b) creates a well-established exception to th[e] rule [that federal appellate courts generally consider only orders that dispose of all claims as final and appealable under 28 U.S.C. § 1291] by allowing a district court to enter a final judgment on some but not all of the claims in a lawsuit.'" Williams v. County of Dakota, Neb., 687 F.3d 1064, 1067 (8th Cir.2012) (quoting Clark v. Baka, 593 F.3d 712, 714 (8th Cir.2010) (per curiam), with citations and quotation marks omitted). In Williams, the court reiterated the two-step analysis and standards that the district court must use when deciding whether to grant Rule 54(b) certification:
Williams, 687 F.3d at 1067-68. Using this two-step analysis and standards, it appears to me that certification of this ruling for interlocutory appeal might be appropriate in this case.
First, this ruling is "a final judgment" in the sense that "it is an ultimate disposition of an individual claim." Id. at 1067 (internal quotation marks and citations omitted) (explaining how to determine, in the first step, whether the court is dealing with a final judgment). Specifically, it is an ultimate disposition of all of plaintiff Lambert's claims, and Rattray's and Mathes's "no reasonable suspicion" strip-search claims. The record on these claims has now been fully developed on motions for summary judgment by both sides, and I have made what I believe is a dispositive determination of the impact of Florence on the parties' claims.
Second, considering the equities and interests at issue, it appears likely that there is no just reason for delay. Id. (second step of the analysis). There appears to be some danger of hardship or injustice as to plaintiff Lambert through delay of an appeal, as I have granted summary judgment against her on all of her claims in their entirety. Id. Similarly, there appears to be some danger of hardship or injustice as to the other plaintiffs, if I have improvidently granted summary judgment on portions of their claims, based on a misinterpretation of the import of the Supreme Court's recent decision in Florence, upon which the Eighth Circuit Court of Appeals has not yet had the opportunity to pass.
More specifically, it is possible that the appellate court could reject my interpretation of Florence as stating a general rule that a strip search of a detainee not involving touching by inspecting officers does not require reasonable suspicion, subject to as-yet not fully determined exceptions, and my further determination that these cases do not fit any such exception. The appellate court might, instead, embrace the plaintiffs' reading of Florence as stating only a narrow exception to the general rule that a strip search of a detainee requires reasonable suspicion and that this case does not fit such an exception, but falls within the general rule in which reasonable suspicion is required. If my interpretation were rejected by the appellate court, then proceeding to trial now on the "manner" claims would be a waste of judicial
Therefore, I will entertain a motion for entry of judgment pursuant to Rule 54(b) against Lambert on all of her claims and against Rattray and Mathes on their "no reasonable suspicion" claims, and a request to certify those claims for immediate interlocutory appeal, on the ground that there is no just reason for delay of an immediate appeal on those claims.
In the alternative or in addition to a request to certify this ruling for interlocutory appeal pursuant to Rule 54(b), I would consider whether any part of this ruling should be certified for immediate interlocutory appeal pursuant to § 1292(b). As the Eighth Circuit Court of Appeals has explained,
Mathers, 636 F.3d at 398. The district court's certification is not enough to pursue an interlocutory appeal, however; rather, a party seeking interlocutory appeal must make application within ten days after entry of the order. Estate of Storm v. Northwest Iowa Hosp. Corp., 548 F.3d 686 (8th Cir.2008) (citing § 1292(b)). As the appellate court has also explained, "If a district court grants certification under § 1292(b), the court of appeals may then decide whether to exercise its discretion to permit an immediate appeal." Langford v. Norris, 614 F.3d 445, 454 n. 6 (8th Cir. 2010).
Certification for interlocutory appeal pursuant to § 1292(b) is "exceptional" and should be made "sparingly and with discrimination," and the burden to show that such certification is appropriate is "heavy." Union Cnty., Iowa v. Piper Jaffray & Co., Inc., 525 F.3d 643, 645-46 (8th Cir.2008) (internal quotation marks and citations omitted).
Union Cnty., 525 F.3d at 646.
Again, it appears that the circumstances of this case would fit the requirements for certification for interlocutory appeal pursuant to § 1292(b). I believe that this ruling involves a controlling question of law, id. (first criterion), specifically, whether Florence states a general rule that reasonable suspicion is not required to strip search detainees, subject to as-yet not fully defined exceptions, or only a very narrow exception to the requirement of reasonable suspicion in the case of detainees who will be admitted to "general population." While I have rejected the plaintiffs' interpretation, I must acknowledge that their reading of Florence is sufficiently plausible to provide substantial ground for a difference of opinion. Id. (second criterion); see also United States v. Morris, 494 Fed.Appx. 574, 581 (6th Cir.2012) (opining that "[Florence] held that the reasonable suspicion requirement did not apply because of the `single fact' that a defendant would be incarcerated with others, [but] does not otherwise alter the holding that clearly established law precludes a strip search without reasonable suspicion of persons arrested of a minor offense, `who are [not] to be held in jail [or other detention facilities] while their cases are being processed.'"). Finally, at least in the absence of arguments from the parties, it appears likely that certification would materially advance the ultimate termination of the litigation, id. (third criterion), because a circuit court ruling on the scope of Florence would likely finally determine the viability of the plaintiffs' "no reasonable suspicion" claims, permitting all claims to be tried in a single, consolidated, more efficient, and more economical proceeding.
Therefore, in the alternative or in addition to a request to certify this ruling for interlocutory appeal pursuant to Rule 54(b), I will entertain any motion for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of the controlling question of law whether Florence states a general rule that reasonable suspicion is not required to strip search detainees, subject to as-yet not fully defined exceptions, or only a very narrow exception to the requirement of reasonable suspicion in the case of detainees who will be admitted to "general population."
Upon the foregoing,
1. The County's September 28, 2012, Motion To Reconsider Ruling On Rattray's Motion For Partial Summary Judgment And [Its] Motion For Partial Summary Judgment (docket no. 176) is
2. The County's September 28, 2012, Motion For Summary Judgment Regarding Mathes And Lambert (docket no. 177) is
3. Trial on Rattray's and Mathes's remaining claims shall be
4. The separate trial on Lambert's and Mathes's claims, set for April 22, 2013, is
5. I will entertain any
TABLE OF CONTENTS
I. INTRODUCTION ...............................................................1010
A. Background .............................................................1010
B. Arguments Of The Parties ...............................................1010
II. ANALYSIS ..................................................................1011
A. Reconsideration Pursuant To Rule 52(b) ................................1011
B. Reconsideration Pursuant To Rule 59(e) ................................1012
1. Applicable standards ..............................................1012
2. Newly discovered evidence .........................................1012
3. Manifest error ....................................................1013
a. Application of an erroneous standard to the "manner" claim ....1013
b. Erroneous finding of inconsistent statements ...................1015
III. CONCLUSION ................................................................1016
This case is before me on plaintiff Lambert's January 2, 2013, Rule 52(b) And/Or 59(e) Motion (Motion) (docket no. 187). In her Motion, Lambert seeks reconsideration of my December 10, 2012, Memorandum Opinion And Order Regarding Defendant's Motions For Reconsideration And For Summary Judgment (Ruling) (docket no. 186), published at Rattray v. Woodbury Cnty., Iowa, 908 F.Supp.2d 976, 2012 WL 6114994 (N.D.Iowa Dec. 10, 2012), to the extent that the Ruling granted summary judgment in favor of the defendant County on Lambert's "manner" strip-search claim. The County filed a Resistance (docket no. 188) to Lambert's Motion on January 14, 2013, and Lambert filed a Reply (docket no. 189) in further support of her Motion on January 15, 2013. I find that oral arguments on the Motion are not necessary, in light of the parties' briefing, nor has my crowded schedule permitted the timely scheduling of oral arguments. Therefore, I will consider Lambert's Motion on the written submissions.
In her Motion, proper, Lambert asserts that "[t]he court reached its conclusion on the basis of a finding that Lambert's deposition testimony and her affidavit were inconsistent with respect to facts pertinent to the manner of her strip search," Motion (docket no. 187) at ¶ 3 (emphasis added), but that there is, in fact, no inconsistency between her deposition testimony and her affidavit. She also asserts that the "manner" of her strip search, in a room with windows in the doors permitting her to be observed during the strip search by persons not conducting the search, who might pass by, violated her Fourth Amendment rights. Id. at ¶¶ 4-5.
In her supporting Brief, however, Lambert states that "[t]he trial court relied on two findings of fact to conclude that [her] `manner' claim could not survive summary judgment." Lambert's Brief (docket no. 187-1) at 2 (emphasis added). Lambert identifies the first finding to be that she failed to allege "`that there were actually "people outside the room in the booking area who could see into the room" where she was strip searched,'" but she expressly agrees that she could not legitimately claim otherwise. Id. (quoting the Ruling at 43, Rattray, 908 F.Supp.2d at 1003-04, 2012 WL 6114994 at *24). She does take issue with the second finding on which I purportedly relied, that her affidavit "was inconsistent with her prior deposition testimony." Id.; see Ruling at 43 n. 7, Rattray, 908 F.Supp.2d at 1003-04 at n. 7, 2012 WL 6114994 at *24 n. 7 ("Lambert's affidavit is also faulty, because her statement in her affidavit `that people outside of the room in the booking area could see into the room' is contrary to her deposition testimony."). Lambert then argues that there was no inconsistency, essentially because, in her affidavit, she was referring to the windows in the door to the room where she was strip searched, but in her deposition, she was referring to the windows above the booking counter and truthfully testified that it was not clear to her that a sheriff's deputy standing behind the booking counter could look through the window above the booking counter and see into the room where she was strip searched. She contends, however, that anyone standing on the other side of the booking counter, in the room adjacent to the room in which she was strip searched, could peer into that room. She contends that a strip search conducted in a place where others
In its Resistance, the County contends that the basis for my grant of summary judgment on Lambert's claim was that Lambert had failed to generate genuine issues of material fact that she was subjected to a strip search conducted in an unreasonable "manner," where Lambert neither pleaded nor pointed to evidence from which a reasonable juror could find that she was injured by the "manner" of her search. The County notes that Lambert had never alleged that there was anyone outside of the room where she was strip searched who could see into that room. The County also contends that Lambert's affidavit is quite different from her deposition, where her deposition made clear that she did not know if anyone could see into the room where she was strip searched, but her affidavit avers that "[t]he door to the room in which [she] was searched had windows in it such that people outside of the room in the booking area could see into the room." The County also contends that I correctly noted that Lambert was attempting to create a "manner" claim, where she had previously failed to assert such a claim. Finally, the County asserts, as a factual matter, that it conducted the strip search in a manner that provided privacy, which is distinguishable from the cases on which Lambert now relies. The County argues that the mere presence of windows in the room where Lambert was strip searched does not make the "manner" of the search unconstitutional.
In reply, Lambert contends that the County has conceded that Lambert was referring to windows over the booking counter in her deposition, but was referring to windows in the door of the room where she was strip searched in her affidavit, but she cites no basis for this supposed concession. She also disputes the County's factual contention that it conducted the strip search in a manner that provided privacy, because she argues that exhibits from Rattray's first "damages" trial show that any person standing in the booking area who was tall enough to see over the shoulder of a female deputy standing with her back to the windows in the door to the strip-search room could observe the search.
Rule 52(b) of the Federal Rules of Civil Procedure, one asserted basis for Lambert's Motion, provides as follows:
FED.R.CIV.P. 52(b). On its face, this rule states no standards for granting the relief it authorizes. However, the Eighth Circuit Court of Appeals has explained that "[m]otions to amend a judgment [pursuant to Rule 52(b)] cannot be used to raise arguments which could have been raised prior to the issuance of judgment." Diocese of Winona v. Interstate Fire & Cas. Co., 89 F.3d 1386, 1397 (9th Cir.1996) (citing Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993), cert. denied, 510 U.S. 1093, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994)). Thus, where a party had ample opportunity to raise, argue, and present evidence on the issue on which it seeks reconsideration prior to disposition of the issue by the court, but did not do so, Rule 52(b) provides no relief. Id.
To the extent that Lambert seeks relief under this rule, her attempt to obtain such
Rule 59(e) of the Federal Rules of Civil Procedure provides, as follows:
FED.R.CIV.P. 59(e). On its face, this rule also states no standards for the relief that it authorizes. However, the Eighth Circuit Court of Appeals has explained that "Rule 59(e) authorizes a district court to alter or amend a judgment based on newly discovered evidence," Briscoe v. County of St. Louis, Mo., 690 F.3d 1004, 1015 (8th Cir.2012), and also serves "`the limited function of correcting manifest errors of law or fact.'" United States ex rel. Raynor v. National Rural Utils. Co-op. Fin. Corp., 690 F.3d 951, 958 (8th Cir.2012) (Raynor) (quoting United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006)); Wells Fargo Bank, N.A. v. WMR e-PIN, L.L.C., 653 F.3d 702, 714 (8th Cir.2011).
Relief pursuant to Rule 59(e) is subject to the district court's broad discretion. Id. The Eighth Circuit Court of Appeals has explained that, in the context of a Rule 59(e) motion, "`An abuse of discretion occurs where the district court fails to consider an important factor, gives significant weight to an irrelevant or improper factor, or commits a clear error of judgment in weighing those factors.'" Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 863 (8th Cir.2011) (quoting Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir.2010), with internal quotation marks omitted). However, like a Rule 52(b) motion, a Rule 59(e) motion cannot serve as a vehicle for new legal theories or arguments "which could have been offered or raised prior to the entry of judgment." United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 934 (8th Cir.2006).
I conclude that Lambert cannot meet the applicable standards for relief pursuant to Rule 59(e), either.
First, to the extent that Lambert appears to rely on "newly discovered evidence" for Rule 59(e) relief — that is, exhibits from Rattray's first "damages" trial that purportedly demonstrate that someone in the booking area could see into the room where she was strip searched through the windows in the door, if that person was tall enough to see over the shoulders of a deputy standing in front of the door — she is not entitled to relief on that contention. See Briscoe, 690 F.3d at 1015 (recognizing that Rule 59(e) provides relief based on "newly discovered evidence"). As the Eighth Circuit Court of Appeals has recognized,
Callanan v. Runyun, 75 F.3d 1293, 1297 (8th Cir.1996) (alterations and internal quotation marks omitted); accord Briscoe, 690 F.3d at 1015-16 (quoting Callanan, 75 F.3d at 1297); Williams v. Hobbs, 658 F.3d 842, 854 (8th Cir.2011). Here, however, the exhibits from Rattray's first "damages" trial on which Lambert relies were not discovered only after my Ruling, but were part of the record well before that Ruling; Lambert did not exercise due diligence in discovering the evidence before the end of the period during which I considered the County's Motion For Partial Summary Judgment, because that evidence should have been known to counsel since Rattray's first "damages" trial; and the evidence would have made no difference in my Ruling, because it does not address the fatal flaw in Lambert's resistance to summary judgment against her on her "manner" strip-search claim, which was her failure to allege that there was actually anyone in the adjacent room who could have seen into the room where she was strip searched. Id.
To the extent that Lambert contends that she is entitled to relief on the basis of "manifest" legal or factual error, see Raynor, 690 F.3d at 958 (recognizing that Rule 59(e) permits relief based on "manifest errors of law or fact"), this contention also fails. Her assertion of "manifest" error fails, as to both her argument that I applied an erroneous legal standard to her "manner" claim and her argument that I erroneously concluded that her affidavit was inconsistent with her prior deposition testimony.
Contrary to Lambert's characterizations, the only ground on which I relied to grant summary judgment against her on her "manner" strip-search claim was the following:
Ruling at 43-45 (footnote omitted); Rattray, 908 F.Supp.2d at 1003-04, 2012 WL 6114994 at *24 (footnote omitted). Lambert now expressly agrees that she "cannot legitimately claim `that there were actually "people outside the room in the booking area who could see into the room" where she was strip searched.'" Lambert's Brief at 2. I pointed out other failings — such as Lambert's previous failures to assert a "manner" claim and the inconsistency between her affidavit and her deposition — only in a footnote. See Ruling at 43 n. 7, Rattray, 908 F.Supp.2d at 1003-04 n. 7, 2012 WL 6114994 at *24 n. 7. Thus, it is clear that, even if there is no inconsistency between Lambert's affidavit and her deposition testimony, as Lambert now contends, that fact would not change the outcome of the Ruling, so that Lambert is fixating on a factor that ultimately was not relevant to the disposition of her "manner" claim. Matthew, 639 F.3d at 863 (relief pursuant to Rule 59(e) is appropriate, if,
Also, to the extent that Lambert contends that a Fourth Amendment violation occurred, even if people were not actually in the adjacent room who could see into the room where she was strip searched, because there was a possibility that there could have been such people, she failed to raise that argument before my Ruling. Thus, she is not entitled to Rule 59(e) on the basis of a belated argument that she could have raised before. See Metro. St. Louis Sewer Dist., 440 F.3d at 934 (explaining that a Rule 59(e) motion cannot serve as a vehicle for new legal theories or arguments "which could have been offered or raised prior to the entry of judgment").
Just as importantly, rejection of this argument, if it had been made, would not be "manifest" legal error. Raynor, 690 F.3d at 958. The recognition by the Supreme Court that "the place in which [the search] is conducted" is relevant to the constitutionality of "the particular intrusion," in both Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and Florence v. Board of Chosen Freeholders of the County of Burlington, ___ U.S. ___, 132 S.Ct. 1510, 1526, 182 L.Ed.2d 566 (2012) (Alito, J., concurring), simply does not mean that a strip search in a room with a door with windows in it adjacent to an empty room constitutes a Fourth Amendment violation. This is so, because, in such circumstances, there has been no "intrusion" on the privacy of the search by nonparticipants as a result of the "place in which [the search] was conducted." See Bell, 441 U.S. at 559, 99 S.Ct. 1861; Florence, ___ U.S. at ___, 132 S.Ct. at 1526 (Alito, J. concurring).
The decisions on which Lambert relies for the proposition that a constitutional violation occurs if there is merely a possibility that non-participants might observe the strip search actually hold that there was a constitutional violation, because the "place in which [the strip search] was conducted" in each of those cases afforded no privacy from prying eyes of non-participants actually present. See Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (holding that a triable "manner" claim against the municipality existed where "not only did plaintiff testify that an unknown individual peered through a window at her when she was disrobed during the strip search, but further, plaintiff presented evidence showing that the Forest Park police department customarily conducted strip searches in a room with a window facing a corridor through which numerous individuals might be passing at any given time" (emphasis added));
In short, I did not commit any "manifest" error of law in my Ruling granting summary judgment in favor of the County on Lambert's "manner" strip-search claim. Raynor, 690 F.3d at 958 (recognizing that Rule 59(e) relief may be based on a "manifest error of law or fact").
Finally, I find no "manifest" error, id., in my conclusions that Lambert's affidavit is inconsistent with her deposition testimony and that Lambert failed to explain that inconsistency — recognizing that these conclusions would have been an adequate, independent reason to grant summary judgment in the County's favor on Lambert's "manner" strip-search claim, even if I did not rely on those conclusions in the first instance. Lykken v. Brady, 622 F.3d 925, 933 (8th Cir.2010) ("In Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983), this court held where a party creates an issue of fact by filing an affidavit contradicting earlier testimony in order to avoid summary judgment, the party raises a `sham issue of fact instead of a genuine one.'"). Lambert belatedly attempts to explain away the inconsistency by asserting that, in her affidavit, she was referring to windows located in the door to the room where she was strip searched, but in her deposition, she was referring to the windows above the booking counter and truthfully testified that it was not clear to her that a sheriff's deputy standing behind the booking counter could look through the window above the booking counter and see into the room where she was strip searched. This assertion is untenable in light of Lambert's actual averments and deposition testimony.
Specifically, in her deposition, Lambert testified, "There was people in the — behind the windows, the booking windows," but when she was asked, "You don't know if they could see [into the room where you were strip searched]?", she testified, "I don't know," and admitted that no one told her that they saw her. County's Appendix In Support Of Its Motion For Summary Judgment (docket no. 177-8), 27 (Lambert's Deposition at 35:15-20). The cited portion of her deposition testimony also includes the question, "Do you know if there was anyone outside on the other side of the door?" and Lambert's answer, "No." Id. (Lambert's Deposition at 35:15-17). Thus, Lambert's deposition testimony made clear that she did not know if anyone, either in the booking area or behind the booking counter windows, could see into the room where she was strip searched through the windows in the door to the room where she was strip searched. In her affidavit, in contrast, Lambert suddenly asserts knowledge that someone could see into the room where she was strip searched, by averring, "The door to
Even if I could read the deposition testimony to state only Lambert's lack of knowledge about the actual presence of people in the booking area, and Lambert's affidavit to aver only that, if there had been people actually in the booking area, they could have seen into the room where she was strip searched, such that the two statements are not technically inconsistent, the statement in the affidavit does not generate a genuine issue of material fact on Lambert's "manner" claim. For the reasons stated above, the mere possibility that non-participants could observe the strip search does not establish a constitutional violation if no non-participant, who could have observed the strip search, was actually present.
Lambert is not entitled to Rule 59(e) relief on the basis of this argument, either.
I find no basis under either Rule 52(b) or Rule 59(e) to alter or amend my findings or conclusions leading to my holding that the County is entitled to summary judgment on Lambert's "manner" strip-search claim.
THEREFORE, plaintiff Lambert's January 2, 2013, Rule 52(b) And/Or 59(e) Motion (docket no. 187) is
At least one other federal district court has read Florence, as I do, as overruling its circuit's precedent holding that reasonable suspicion is always required to strip search detainees on minor offenses. See, e.g., Wamble v. County of Jones, No. 2:09cv103KS-MTP, 2012 WL 2088820, *13 (S.D.Miss. June 8, 2012) (slip op.) (Starrett, J.) ("Importantly, the Court's decision in Florence overruled Fifth Circuit precedent requiring reasonable suspicion of contraband and/or weapons for strip-searches of minor-offense arrestees. See, e.g., Kelly v. Foti, 77 F.3d 819, 821 (5th Cir.1996) (`Jail officials may strip search a person arrested for a minor offense and detained pending the posting of bond only if they possess a reasonable suspicion that he is hiding weapons or contraband.'); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985) (`Because Lubbock County's strip search policy was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband,... we find such searches unreasonable and the policy to be in violation of the Fourth Amendment.').").
Another district court summarized Florence as follows:
Haas v. Burlington Cnty., Civil No. 08-1102 (NLH/JS), 2012 WL 5497941, *1 (D.N.J. Nov. 13, 2012) (slip op.) (Schneider, Magistrate Judge). That court found, on a motion to dismiss, "that the facts as alleged by plaintiffs plausibly place them within the orbit of an exception to a blanket strip search policy that the majority of the Supreme Court appears ready to accept." Id. at *4. Thus, this decision also reads Florence as appearing to establish a "blanket rule" subject to exceptions. See also Waddleton v. Jackson, C.A. No. C-10-267, 2012 WL 5289779, *7 (S.D.Tex. Oct. 3, 2012) (slip op.) ("[I]f Florence holds that a detainee can be subjected to a strip search and visual cavity inspection based on his entering the prison system and the mere threat of potential hidden contraband, it follows that a convicted prisoner can also be strip searched and subjected to a visual cavity inspection in an effort to detect and curtail contraband smuggling throughout the prison." (emphasis in the original)).
Lambert's affidavit is also faulty, because her statement in her affidavit "that people outside of the room in the booking area could see into the room" is contrary to her deposition testimony. In her deposition, she testified, "There was people in the — behind the windows, the booking windows," but when she was asked, "You don't know if they could see [into the room where you were strip searched]?", she testified, "I don't know," and admitted that no one told her that they saw her. County's Appendix In Support Of Its Motion For Summary Judgment (docket no. 177-8), 27 (Lambert's Deposition at 35:15-20). In her affidavit, in contrast, Lambert suddenly asserts knowledge that someone could see into the room where she was strip searched. The Eighth Circuit Court of Appeals has reiterated, "In Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983), this court held where a party creates an issue of fact by filing an affidavit contradicting earlier testimony in order to avoid summary judgment, the party raises a `sham issue of fact instead of a genuine one.'" Lykken v. Brady, 622 F.3d 925, 933 (8th Cir.2010). The court in Lykken noted some exceptions to the "sham issue of fact" rule. Id. (recognizing clarification of the prior testimony or explanation of the deponent's confusion as exceptions). I have recognized others. See, e.g., Knutson v. AG Processing, Inc., No. C01-3015-MWB, 2002 WL 31422858, *11 (N.D.Iowa Oct. 29, 2002) (recognizing as an exception to the Camfield rule an affidavit that supplements but does not contradict factual assertions in a prior deposition); Rowson v. Kawasaki Heavy Indus., Ltd., 866 F.Supp. 1221, 1229-31 (N.D.Iowa 1994) (holding that a belated affidavit could be considered where the affiant's memory was recently refreshed by photographs that he had not been shown during the deposition). However, none of these exceptions appears to be applicable here, and the affidavit is, instead, an "unexpected revision" to create a fact issue where none existed before, with no attempt to explain the difference. See Marathon Ashland Petroleum, L.L.C. v. International Bhd. of Teamsters, 300 F.3d 945, 951 (8th Cir.2002).
