ROBERT C. CHAMBERS, District Judge.
Pending before the Court is a Motion to Dismiss by Defendants The West Virginia Regional Jail and Correctional Facility Authority (WVRJA) and Terry L. Miller. [Doc. No. 16]. Upon consideration of the arguments by the parties, the Court
On October 9, 2009, Plaintiff Michael Cantley, individually and on behalf of a Class of others similarly situated, filed his First Amended Complaint. In his First Amended Class Action Complaint, Plaintiff asserts he was arrested on or about September 28, 2008, on non-felony charges of violating a domestic violence protection order. Plaintiff states he was at his former
After several hours of custody, Plaintiff was required to undergo a visual cavity strip search (vcs)
Plaintiff argues the strip search and delousing policy as applied to pretrial detainees charged with misdemeanors or other minor crimes is unconstitutional under the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983. As a result of the policy, Plaintiff claims to have suffered psychological pain, humiliation, suffering, and mental anguish. Plaintiff brings this action on behalf of himself and others similarly situated seeking declaratory and injunctive relief, compensatory damages, and attorneys' fees and costs. On the other hand, Defendants contend that the strip search policy and the delousing procedures are necessary for safety and health reasons. Thus, Defendants argue the policies do not violate the Fourth Amendment.
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the United States Supreme Court disavowed the "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), which was long used to evaluate complaints subject to 12(b)(6) motions. 550 U.S. at 563, 127 S.Ct. 1955. In its place, courts must now look for "plausibility" in the complaint. This standard requires a plaintiff to set forth the "grounds" for an "entitle[ment] to relief" that is more than mere "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955. (internal quotation marks and citations omitted). Accepting the factual allegations in the complaint as true (even when doubtful), the allegations "must be enough to raise a right to relief above the speculative level. . . ." Id. (citations omitted). If the allegations in the complaint, assuming their truth, do "not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 558, 127 S.Ct. 1955 (internal quotation marks and citations omitted).
In Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court explained the requirements of Rule 8 and the "plausibility standard" in more detail. In Iqbal, the Supreme Court reiterated that Rule 8 does not demand "detailed factual allegations[.]" 129 S.Ct. at 1949 (internal quotation marks and citations omitted). However, a mere "unadorned, the-defendant-unlawfully-harmed-me accusation" is insufficient. Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Facial plausibility exists when a claim contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The Supreme Court continued by explaining that, although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court's own judicial experience and common sense. Id. at 1950. If the court finds from its analysis that "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. (quoting, in part, Fed.R.Civ.P. 8(a)(2)). The Supreme Court further articulated that "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.
The issue facing the Court in this case is whether the alleged blanket strip search and delousing policy is constitutional. The parties agree that this issue is controlled by the United States Supreme
In determining when the constitutional line is crossed, "[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Id. at 538, 99 S.Ct. 1861 (citation omitted). If there is no expressed punitive intent, the decision generally will rest on "`whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purposes assigned [to it].'" Id. (citations omitted). If a condition or restriction is reasonably related to a legitimate governmental goal, "it does not, without more, amount to `punishment.'" Id. at 539, 99 S.Ct. 1861 (footnote omitted). On the other hand, if a condition is arbitrary or purposeless or otherwise not reasonably related to a governmental objective, a court "may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees." Id. (citation and footnote omitted).
When deciding whether a particular policy is constitutional, courts also must be mindful of the government's interest in maintaining security and order at the facility and in making sure that "no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial" Id. at 540, 99 S.Ct. 1861 (footnote omitted). In other words, effective management of a facility "is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment." Id. (footnote omitted).
The Court also identified several general principles guiding the constitutionality of restrictions. First, the Court said "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Id. at 545, 99 S.Ct. 1861 (citations omitted). Second, although inmates maintain some constitutional rights, it "does not mean that these rights are not subject to restrictions and limitations." Id. Third, institutional security, order, and discipline are all "essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pre-trial
Relying upon this analysis, the Court proceeded to discuss some of the specific issues before it. As relevant here, one of those issues involved vcs searches of all inmates at Bureau of Prison facilities, including MCC, after every contact visit with an outsider. Id. at 558, 99 S.Ct. 1861. Correctional officials testified such searches were necessary to prevent and deter the smuggling of weapons, drugs, and other contraband into the facilities. Id. Although the practice gave the Court pause, it nonetheless held that it did not violate the reasonableness requirement of the Fourth Amendment for either convicted prisoners or pretrial detainees. Id. Under the Fourth Amendment, reasonableness "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. at 559, 99 S.Ct. 1861 (citations omitted). In acknowledging the security issues arising in a detention facility, the Court noted the prevalence of smuggling items into facilities and stated that "inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record and in other cases." Id. (citations omitted). The Court further said the fact that there was only one documented instance of an MCC inmate attempting to smuggle in contraband on his person may demonstrate the deterrent effect of the policy. Id. Balancing the security interests against privacy interests, the Court concluded that a vcs search under the MCC rules can "be conducted on less than probable cause." Id. at 560, 99 S.Ct. 1861.
Two years after the Bell decision, the Fourth Circuit was confronted with the reasonableness of a visual strip search in Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). The plaintiff Lucy Logan was involved in an auto accident and was suspected of driving while intoxicated (DWI). 660 F.2d at 1009. Ms. Logan was taken to the Arlington County Detention Center, but refused to take a breathalyzer test. A magistrate judge issued warrants for DWI and refusal to take the test. Ms. Logan was booked on the charges, and the magistrate judge ordered her released on her own recognizance. Id. at 1010. However, to ensure Ms. Logan's sobriety, the magistrate judge directed that she could not leave the facility for four hours unless a responsible person picked her up. Id.
Prior to Ms. Logan being given the opportunity to call someone to pick her up, a female deputy sheriff inventoried her personal property, took her to a holding cell, and conducted a visual strip search pursuant to an established policy that all persons held at the Center be strip searched
In so holding, the Fourth Circuit relied upon Bell and found that the "strip search bore no . . . discernible relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, it could reasonably be thought justified." Id. at 1013. The Court noted that detainees, like Ms. Logan, were not intermingled with the general population, her offense was not one commonly associated with possession of weapons or contraband, there was no reason to believe she was harboring a weapon or contraband, and she was at the facility an hour and a half before she was subject to the strip search and she had not even been patted down. The Fourth Circuit held that "[a]n indiscriminate strip search policy routinely applied to detainees such as Logan along with all other detainees cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations." Id. (citation omitted).
Since Logan was decided in 1981 numerous other district court's and the vast majority of courts of appeals have found strip searches of pretrial detainees, who are arrested for misdemeanor offenses, unconstitutional in an absence of some particularized suspicion that a specific individual may have contraband. For instance, in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983), the Seventh Circuit cited both Bell and Logan in striking down a policy by the City of Chicago that required strip and vcs searches "of all women arrested and detained in the City lockups, regardless of the charges against the women and without regard to whether the arresting officers or detention aides had reason to believe that the women were concealing weapons or contraband on their persons." 723 F.2d at 1266.
The plaintiffs in Mary Beth G. were women arrested on misdemeanor offenses and were detained while awaiting bail money. Id. "The Seventh Circuit observed that the balancing test prescribed in . . . [Bell] does not validate strip searches in detention settings per se." Id. at 1272 (citations omitted). Although the Supreme Court upheld the strip search in Bell, the Seventh Circuit stated it did so on much different facts. Thus, the Court found it necessary to apply the balancing test announced in Bell to the facts before it.
In doing so, the Seventh Circuit remarked that there are few instances that invade an individual's privacy more than a vcs search. The City argued, however, that such searches were necessary to prevent misdemeanor offenders from bringing weapons and contraband into the lockup facilities. Despite these arguments, the Seventh Circuit found that only a few items over the years were ever discovered during a body cavity search of women arrested for minor offenses. Id. Thus, the Seventh Circuit found using Bell's balancing test that "the strip searches bore an insubstantial relationship to security needs" and cannot be considered reasonable under these facts. Id. at 1273 (citing Logan).
First, arrests and detention are usually "unplanned events," with little opportunity to smuggle contraband. Id. (citations and internal quotation omitted). In addition, it is likely that any contraband would be uncovered "during a valid search incident to arrest or a less intrusive custodial search." Id. (citations omitted). Moreover, when an individual is arrested on an offense that is not commonly associated with weapons, drugs, or other contraband, "the risk that an arrestee has secreted contraband in such a way that it could only be detected by a strip search shrinks further." Id. (citations omitted). Citing Logan and Mary Beth G., the district court found that "[s]trip searching arrestees who are unlikely to possess, much less conceal, contraband does not serve the institutional security needs of a custodial facility." Id. at 454. Second, the district court noted that, as arrests are typically unplanned, there is little deterrent effect as the Supreme Court found in Bell. Id. at 455; see Bell, 441 U.S. at 559, 99 S.Ct. 1861. Thus, the district court stated that "[t]hese considerations significantly weaken the effectiveness of a blanket arrestee strip search policy and, therefore, a custodial facility's justification for enforcing it." Id. Balancing these considerations with the invasion of privacy involved in a strip search, and the need for security in custodial facilities, the district court agreed with the majority of courts which have determined that blanket strip search policies permitting "indiscriminate searches of arrestees simply do not satisfy the basic Fourth Amendment requirement of reasonableness because they subject too many people to highly invasive, humiliating searches that do not actually promote the institutional security interests of the custodial facility." Id. at 455 & 463. Accordingly, the district court determined that the plaintiffs pled a viable claim under the Fourth Amendment. Id. at 463.
In making its decision, the district court discussed the fact that, at the time, the Eleventh Circuit was the only circuit court of appeals which had determined it was constitutionally permissible to have a policy "of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband[.]" Powell v. Barrett, 541 F.3d 1298, 1300 (11th Cir.2008). In so holding, the Eleventh Circuit stated that "the security needs the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time." Id. at 1302. In addition, the court noted the strip searches in Bell actually were more intrusive than the ones challenged in
After briefing was complete in this case, a sharply divided Ninth Circuit in Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir.2010), overruled its prior holdings and joined the Eleventh Circuit in finding that a policy requiring strip searches of all arrestees placed in the general jail population did not violate the Fourth Amendment. 595 F.3d at 982. According to jail administrators, the policy in Bull was instituted because there was a serious problem of smuggling into the jail system. Id. at 966. Jail administrators also "concluded that, based on their experience, `the greatest opportunity for the introduction of drugs and weapons into the jail occurs at the point when an arrestee is received into the jail for booking and, thereafter, housing.'" Id. at 967.
Previously, in Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984) (per curiam),
Next, the Ninth Circuit found a record of smuggling was not necessary under Bell because of the deterrent effect a strip search policy may have. Id. at 979. Lastly, the Ninth Circuit rejected its previous finding that arrests are normally unplanned events and, therefore, it is less likely that an arrestee has contraband than an inmate after a contact visit. Id. In this respect, the majority agreed with Eleventh Circuit's reasoning in Powell which stated the fallacy in the "unplanned event" position is that many individuals know when officers are coming to arrest them on warrants, others voluntarily surrender to police, and some get themselves deliberately arrested. In addition, even those arrested pursuant to a vehicle stop may have time to hide contraband before an officer reaches the vehicle. Id. at 980 (quoting Powell, 541 F.3d at 1313). Accordingly, the majority found no meaningful distinction between the policy in Bull and the one in Bell and, therefore, upheld the policy.
In a sharply worded dissent, the minority stated there was absolutely no evidence in the record of any arrestee hiding contraband with the intent to smuggle it into jail. Moreover, there was not anyone in the proposed class who was found to possess contraband when strip searched. Id. at 990. Likewise, there is not even anecdotal support for the notion that some detainees get arrested for the purpose of smuggling contraband into jail. Id. at 998-99. The dissent stated that all but the
Defendant contends that this Court should adopt the Eleventh Circuit's decision in Powell
Although the parties spend a great deal of time discussing cases from other jurisdictions and those discussions are helpful in framing and understanding the issues, in the end, this Court must be consistent with the Fourth Circuit's application of Bell. In quoting Bell, the Fourth Circuit in Logan held:
660 F.2d at 1013 (quoting Bell, 441 U.S. at 559, 99 S.Ct. 1861). The Fourth Circuit then concluded that the Sheriff's policy of strip searching "all persons held at the Detention Center for weapons or contraband regardless of their offense" "was conclusively shown to be unconstitutional under the standards laid out in Bell [.]" 660 F.2d at 1010 & 1013.
Defendants argue, however, that the facts of Logan distinguish it from this case in that, unlike Plaintiff in this case, Ms. Logan was never intermingled with the general population. Defendant argues intermingling with the general population increases the security risk and justifies the policy. However, Plaintiff asserts the proposed class includes all individuals who were strip searched prior to being arraigned and, presumably, many of those individuals were released before being intermingled.
Assuming, as this Court must for purposes of this motion to dismiss, the truth of Plaintiff's allegation that the policy applies broadly to all pretrial detainees regardless of whether they are intermingled, the policy strikes directly in the face of the policy struck down in Logan. If true, the blanket nature of the policy clearly would be unconstitutional. Nevertheless, Defendant argues that Plaintiff's claim cannot survive because reasonable suspicion existed to strip search him in this case. Defendants make a number of factual allegations against Plaintiff which they assert warranted the search. In his First Amended Class Action Complaint, Plaintiff alleges his "arrest was void of any reasonable suspicion that he harbored any weapons or contraband." First Amended Class Action Complaint, at ¶ 38, in part.
The next issue the Court must address is whether Defendants' delousing policy is unconstitutional. The Court recognizes there are few cases which discuss delousing policies and the parties cite none within this circuit. In support of their motion, Defendants rely upon Russell v. Richards, 384 F.3d 444 (7th Cir.2004). In Russell, the Seventh Circuit was asked to consider
The jail administrators justified their policy on the grounds that they were trying to prevent lice infestations, which, if they occur, are difficult and time consuming to ameliorate. Id. However, the manner in which they attempted to prevent infestations through the policy had some serious flaws. In addition to the fact that there was no effort made to ensure incoming inmates actually used the delousing solution, the instructions for Liceall were not followed. For instance, inmates were never told they had to leave it on their hair for ten minutes and were not given a second application. In addition, inmates were not told to put Liceall on other parts of their bodies where lice may be present. Id. The instructions also cautioned that individuals allergic to ragweed could have a reaction, but inmates were never given this warning. Id. at 446-47.
In discussing the policy, the Seventh Circuit assumed without deciding that the application of Liceall constitute a medical treatment, which implicates an "inmate's constitutionally-protected interest in refusing unwanted medical treatment." Id. at 447 (citations and footnote omitted). The Seventh Circuit then proceeded to discuss the policy under the test announced in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), to determine its reasonableness. The reasonableness test under Turner includes: (1) whether there is "a `valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it[;]" (2) "whether there are alternative means of exercising the right that remain open to prison inmates[;]" (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally[;]" and (4) "the absence of ready alternatives is evidence of the reasonableness of a prison regulation." 482 U.S. at 89-90, 107 S.Ct. 2254 (citations omitted).
Analyzing factors (1), (3), and (4),
Plaintiff argues that Russell is distinguishable from this case because it was brought under the Fourteenth Amendment and the inmates were given the product to apply themselves and there was no monitoring by prison personnel. To the contrary, Plaintiff points out he has filed a Fourth Amendment challenge to the policy and it involves prison officials spraying the product on naked detainees. In support of his position that this policy is unconstitutional, Plaintiff cites Doan v. Watson, 168 F.Supp.2d 932 (S.D.In.2001).
In Doan, individuals arrested on misdemeanor offenses were strip searched, sprayed with a delousing solution, and then told to shower. 168 F.Supp.2d at 933. The district court found "the delousing procedure included the essential elements of the strip search" and, therefore, the Fourth Amendment and Bell's reasonableness test applied. Id. at 936. Finding the strip searches in Doan "closely resemble the searches at issue in Mary Beth G., the district court found the defendants failed to demonstrate[] any factual basis to relate the blanket strip search policy to legitimate security interests." Id. at 936. Without any further discussion about the reasonableness under Bell of the delousing policy, the district court found it violated the Fourth Amendment right against unreasonable searches. Id. at 937.
As the current action challenges the delousing policy on Fourth Amendment grounds, the Court finds that the reasonableness test in Bell is more relevant than the test announced in Turner. However, there is no record in this case upon which this Court can apply Bell's test. Based upon Plaintiff's allegations, the delousing policy was a blanket policy which applied to pretrial detainees prior to arraignment with some of those detainees presumably being released without ever being housed with the general population. At first glance, a court may sweep this challenge up with the strip search challenge and declare it unreasonable. However, such result does not take into account that Defendants should be given the opportunity to present evidence and arguments justifying the delousing policy on its own merits.
Defendants further assert that Plaintiff's claims against them are barred under the Eleventh Amendment and Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). In Will, the Supreme Court stated "that neither a State nor its officials acting in their official capacities are `persons' under § 1983." 491 U.S. at 71, 109 S.Ct. 2304. It is well established that the WVRJA is an agency of the State of West Virginia and is not a "person" within the meaning of § 1983 for purposes of an action seeking money damages. See Roach v. Burke, 825 F.Supp. 116, 118 (N.D.W.Va. 1993) (holding that the WVRJA is not a person amenable to suit under § 1983); see also Lavender v. West Virginia Reg'l Jail Auth. and Corr. Facility Auth., No. 3:06-1032, 2008 WL 313957 (S.D.W.Va. 2008) (same). "An individual defendant employed . . . [by the WVRJA] and sued in his official capacity is also immune from suit in federal court under the Eleventh Amendment." Edwards v. West Virginia, No. 2:00-0775, 2002 WL 34364404 (S.D.W.Va.2002). Thus, a claim for money damages against these Defendants acting in their official capacity is barred by the Eleventh Amendment. See Gillette v. West Virginia, No. Civ. A. 2:01-1309, 2003 WL 23522062 (S.D.W.Va. June 6, 2003) (holding the WVRJA "is an agency of the State . . . . [and][a] . . . suit for money damages is barred by the Eleventh Amendment").
However, as pointed out by Plaintiff, he has not filed any claims for monetary relief under § 1983 against Defendants in their official capacities. Rather, his claims against both Defendants in their official capacities are for declaratory judgment and injunctive relief. The Supreme Court in Will very clearly held that "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'" Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (citation omitted); see also Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (stating "[t]o ensure the enforcement of federal law, however, the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law"). Accordingly, the Court
Defendant Miller also moves to dismiss the claim against him in his individual capacity on the basis of qualified immunity. Defendant Miller asserts that it is clear the allegations against him are made for actions he took in furtherance of his official duties and not because he, in his individual capacity, deprived Plaintiff of any rights. However, the Eleventh Amendment does not bar suits under § 1983 for money damages against defendants sued in their individual capacities merely because "the alleged wrongdoing was conducted while in performance of their official capacity." Roach, 825 F.Supp. at 118; Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (rejecting the petitioner's argument that "[u]nder Will, . . . state officials may not be held liable in their personal capacity for actions they take in their official capacity"). The doctrine of qualified immunity, however, does protect public officials performing discretionary functions from civil liability if they can show that their conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); (quoting
The threshold question a court must answer when qualified immunity is raised is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
In this case, there are two alleged actions which the Court will address separately for qualified immunity purposes. The first action is the actual strip search. As discussed above, taking Plaintiff's allegations as true, the Court has no difficulty finding the strip search policy violates a constitutional right and such right was clearly established under Logan. As governmental officials are held to have "presumptive knowledge of and respect for `basic, unquestioned constitutional rights,'" and may be liable for constitutional violations when they "`knew or reasonably should have known'" their actions violated those rights,
The second action is the delousing policy. As mentioned above, there are very few cases which discuss delousing policies and there do not appear to be any cases on point within the Fourth Circuit. Thus, even if the Court were to presume at this point in the litigation that the delousing policy violates a constitutional right, the Court finds it highly unlikely that a reasonable person would have notice of that violation. Nevertheless, as the Court has denied Defendants' Motion to Dismiss with respect to the delousing policy, the Court also
Defendants further argue Plaintiff's action must be dismissed because he failed to exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA). Section 1997e(a) of the PLRA provides:
42 U.S.C. § 1997e(a). However, Plaintiff was no longer an inmate at the time he filed this action. Therefore, the PLRA is not applicable. See Cofield v. Bowser, 247 Fed.Appx. 413, 414 (4th Cir.2007) (unpublished) (stating because the plaintiff "was not a prisoner when he filed his complaint, the PLRA exhaustion requirement is not applicable to his § 1983 action. A former inmate who has been released is no longer `incarcerated or detained' for the purposes of § 1997e(h) and therefore does not qualify as a `prisoner' subject to the PLRA"); Shembo v. Bailey, No. 3:07cv543-RJC, 2009 WL 129974, *2 (W.D.N.C. Jan.20, 2009) (same). Accordingly, the Court
Accordingly, for the foregoing reasons, the Court
In Hudson, the Supreme Court addressed the constitutionality under the Fourth Amendment of searching prisoners' cells. The Court held that "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." 468 U.S. at 526, 104 S.Ct. 3194. In Turner, inmates had challenged under the First and Fourteenth Amendment certain prison regulations related to inmate marriages and inmate-to-inmate correspondence. 482 U.S. at 81, 107 S.Ct. 2254. In that case, the Court announced a four-part test to consider in determining the reasonableness of a prison restriction, which includes: (1) whether there is "a `valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it[;]" (2) "whether there are alternative means of exercising the right that remain open to prison inmates[;]" (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally[;]" and (4) "the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Id. at 89-90 (citations omitted).
In rejecting both of these standards in Allison, the district court noted that neither Hudson nor Turner overruled Bell's holding or analysis. 611 F.Supp.2d at 445 & 448. In fact, a decision rendered by the Supreme Court on the same day as Hudson affirmed Bell's Fourth Amendment assumption with regard to searching the cells of pretrial detainees. Id. at 445 (citing Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)). In addition, the district court found that the majority of courts which have considered the impact of Hudson upon Bell have limited Hudson to cell searches and have not extended Hudson's ruling to the constitutionality of custodial strip searches. Id. (citations omitted). Likewise, the district court found that "Turner cited Bell with approval and did not at any point suggest that Bell's approach to Fourth Amendment claims should no longer be controlling law." Id. at 448. Moreover, Bell specifically applied in a Fourth Amendment context of a strip search, while Turner challenged other polices under the First and Fourteenth Amendment, which are irrelevant here. Although the district court noted that both the Second and Ninth Circuit mention Turner's analysis in custodial strip search cases, the district court was not persuaded by their use. Id. at 447-48 (citing Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988); Iqbal v. Hasty, 490 F.3d 143 (2d Cir.2007); and Shain v. Ellison, 273 F.3d 56 (2d Cir.2001)).
In this case, Defendants mention Turner in their Memorandum of Law in Support of their Motion to Dismiss, however, they assert that "it is not necessary for this Court to evaluate these factors as to the WVRJA strip search policy" because Bell controls. Memorandum of Law, at 14; see also Defendants' Reply in Support of its Motion to Dismiss, at 15 (stating "Bell established the framework by which this court must evaluate the WVRJA policy and Bell remains the only precedent that this court should consider"). Plaintiff also argues that the Hudson and Turner standards are inapplicable. Upon review, this Court agrees with the parties that Bell controls this situation.
