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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Defendants.
00 Civ. 1325 (CM)(MDF)
226 F. Supp. 2d 489
October 4, 2002, Decided
MEMORANDUM DECISION AND ORDER DISPOSING OF CROSS-MOTIONS FOR SUMMARY JUDGEMENT
McMahon, J.:
Plaintiff
Jamie Murcia was involved in an automobile accident in the City of Newburgh.
When Newburgh Police Officer John Perez arrived at the scene of the accident,
he arrested plaintiff because a Federal arrest warrant for a person with the
same name was outstanding. Plaintiff was unable to convince either Newburgh
police officers or their counterparts at the Orange County jail that he was not
the man named in the arrest warrant. According to plaintiff, as a result, he
was subjected to four separate strip searches - one in Newburgh and three at
the Orange County Correctional Facility ("OCCF") - before he was turned over to the Federal authorities, who
recognized the error and released
plaintiff.
Plaintiff
brought this action in June of 2000 for violation of his civil rights, pursuant
to 42 U.S.C. § 1983, and for negligence. In November, 2001, Plaintiff sought
leave of the Court to amend his complaint to include Defendant H. Frank Bigger,
the Sheriff of Orange County. The Court granted this request. Plaintiff served
an Amended Complaint in January, 2002.
[*491] Plaintiff now
moves for partial summary judgment against defendants County of Orange and
Sheriff Frank Bigger ("defendants," for the purpose of this motion)
n1 pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds
that the OCCF violated plaintiff's constitutional rights by strip searching him
pursuant to an unconstitutional policy of strip searching all detainees upon
arrival at the facility. Plaintiff also moves to strike certain affirmative
defenses raised by defendants pursuant to Rule 12(f). Defendants oppose
plaintiff's motion for summary judgment and cross-move for summary judgment on
the claims alleging that the OCCF maintained an unconstitutional policy of
strip searching all inmates upon arrival at the facility. n2
FACTS
Plaintiff
was involved in a traffic accident in the City of Newburgh, New York. (Rule
56.1 Statement at P 15, 16.) A New York State DMV check of plaintiff's driver's
license revealed that there was an outstanding warrant for his arrest from the
State of Florida, for a federal charge of Bond Jumping. (Id. at P 17; Perez
Dep. at 42, Exh. H to Gersowitz Aff;
Cert. of Lt. DiMarco.) Plaintiff was arrested and booked by City of
Newburgh Police Officers. (Rule 56.1 Statement at P 17.) On February 19, 1999,
after arraignment before a Newburgh City Court Judge, plaintiff was remanded to
the custody of the OCCF. (Id. at P 19.)
Corrections
Officers at the OCCF conducted a visual body search (or "hygiene
check" as Sergeant Zappolo referred to it) of plaintiff upon his
admission. (Id. at P 26.) Sergeant Zappolo stated that the hygiene check was
the routine procedure at the OCCF. (Zappolo Dep. at 11-12, Exh. I to Gersowitz
Aff.) According to Sergeant Zappolo, hygiene checks of inmates include "a
check of their personal artifacts, their clothing, jewelry, and a check of
their body." (Id. at 13.) "Body searches" consists of:
The lifting of their arms, checking under their arms. Opening their
mouth, lifting up their tongue. Turning their head from side to side, looking
in the inside of their ears. Bending their ears forward, looking behind their
ears. Running their fingers through their hair. Lifting up their genitals.
Turning around. Picking up both feet, to check the bottoms of their feet.
Bending over and a visual check of the
rectum.
(Id. at 13-14.) Sergeant Zappolo testified that this procedure was
performed on every new inmate at the OCCF: "if they come into the
facility, they're searched." (Id. at 14.)
The second strip search of
Mr. Murcia occurred after he was placed in the bullpen with other inmates.
According to defendants, while plaintiff was in the booking/receiving [*492]
"bullpen" along with other inmates awaiting his assignment to
a housing unit, Jail personnel smelled cigarette smoke coming from the bullpen
area. (Zappolo Aff. at P5.) Because cigarettes are contraband in the OCCF,
Officers asked the inmates who had been smoking the cigarette. (Id. at P6.)
None of the inmates admitted to having any cigarettes, hence the Officers
removed them from the bullpen and conducted body searches on all of them in
order to find the contraband. (Id. at PP 7-8.)
On February 22, the U.S. Marshals came to pick up plaintiff.
Plaintiff was strip searched again on this day. (Rule 56.1 Statement at P 30.)
Defendants claim that the U.S. Marshals conducted this third strip search of
plaintiff. Plaintiff was released from the custody of the U.S. Marshals later
that day after they discovered that he
was not the Jamie Murcia who was wanted for Bond Jumping.
STANDARDS FOR SUMMARY JUDGMENT
Under Federal Rule of
Civil Procedure 56(c), the court will grant summary judgment if the evidence
offered shows that there is no genuine issue as to any material fact and that
the movants are entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Furthermore, where a plaintiff cannot
establish an essential element of his claim, "there can be 'no genuine
issue as to any material fact,' since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other
facts immaterial." Id. at 322-33. On a motion for summary judgment, the
court views the record in the light most favorable to the non-movants and
resolves all ambiguities and draws all reasonable inferences against the
movants. See United States v.
Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962);
Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir.
1987).
DISCUSSION
I. The First Strip Search of Mr. Murcia Upon Arrival at the
OCCF
A. At all relevant times, the OCCF had a policy of strip
searching all new arrivals at the jail.
Plaintiff
claims that the OCCF had an unconstitutional policy of strip searching every inmate
who arrived at the facility. Plaintiff seeks summary judgment on his § 1983
claim relating to the first strip search he was subjected to at the OCCF.
Defendants respond that
plaintiff offers no evidence to support his claim that the OCCF had a policy of
strip searching all arriving inmates, noting that plaintiff did not depose
Sheriff Bigger. Defendants acknowledge, however, that plaintiff has submitted
the testimony of Sergeant Michael Zappolo in support of his claim that the OCCF
had a blanket strip search policy in force at the time that plaintiff was
admitted to the facility. Sergeant Zappolo stated that it was the Sheriff's
Department's policy to conduct visual body cavity searches of each and every
person who entered the OCCF: "if they come into the facility, they're
searched." (Zappolo Dep. at 14, Exh. I to Gersowitz Aff.) Defendants offer
no contradictory evidence.
It is hard
to read Defendants' arguments with a straight face, given their history in front of this Court on this
issue. See Dodge v. County of
Orange, 208 F.R.D. 79 (S.D.N.Y. 2002); Lee v. Perez, 175 F. Supp. 2d 673, 681
(S.D.N.Y. 2001). However, limiting myself to the record before me, I conclude
that no reasonable trier of fact could reach the conclusion sought by defendants
because no evidence supports it. The only evidence in the record [*493]
on the subject is Sergeant Zappolo's testimony that every inmate who
arrived at the OCCF was subjected to the same "hygiene check" (read -
strip search) that Mr. Murcia endured. Defendants offer no evidence whatever
that raises a genuine issue of fact on the point.
I therefore conclude that
defendants maintained a blanket strip search policy for arriving inmates as a
matter of undisputed fact.
B. Despite the existence of this policy, defendants are entitled
to summary judgment dismissing plaintiff's claim under 42 U.S.C. § 1983.
Despite the
existence of this policy, Sheriff Bigger asserts that he is not liable to
plaintiff. He first asserts that the search of Murcia was not constitutional,
even if the policy was not, because Murcia was
arrested for a felony. Second, he argues that he is entitled to
qualified immunity because the constitutionality of strip searching
newly-arrested felons without making a particularized assessment of the risk
they pose was not sufficiently settled law to permit the imposition of
liability.
(1) A policy of strip
searching all new felony arrivals would be unconstitutional
Bigger's first argument is that there was no constitutional
violation, because to the extent OCCF's on-arrival strip search policy reached
accused felons, it was constitutional. I disagree.
The Second
Circuit has held that blanket policies subjecting all newly-arrested
misdemeanor detainees in a local correctional facility to visual body cavity
searches are unconstitutional. Shain v.
Ellison, 273 F.3d 56, 64-65 (2d Cir. 2001); Wachtler v. County of Herkimer, 35
F.3d 77, 82 (2d Cir. 1994); Walsh v.
Franco, 849 F.2d 66 (2d Cir. 1988); Weber v. Dell, 804 F.2d 796, 802 (2d Cir.
1986). In order for a visual body cavity search to be found reasonable under
the circumstances, there must be some "'particularized suspicion,' arising
either from the nature of the charge or specific circumstances relating to the
arrestee and/or the arrest." Weber, 804 F.2d at 802 (citing United States
v. Montoya De Hernandez, 473 U.S. 531, 540, 87 L. Ed. 2d 381, 105 S. Ct. 3304
(1985)). Sergeant Zappolo's testimony establishes that the OCCF officials made
no particularized assessment of the need to strip search new arrivals. From
this, plaintiffs argue that OCCF's strip search policy pertaining to new
arrivals in unconstitutional.
Defendants first argue that this line of cases is no longer good
law, because Supreme Court "impliedly" overruled Weber in Turner v.
Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). In Turner, the
Supreme Court articulated the standard for reviewing the constitutionality of
prison regulations as whether "[the regulation] is reasonably related to
legitimate penological interests." 482 U.S. at 89.
As this Court has noted several times before, the Second Circuit
ruled long ago that Weber was not inconsistent with Turner because the former
involved local jails and the latter dealt with prisons. See Dodge v. County of Orange, 209 F.R.D. 65,
75 (2002). Indeed, the dissent in Shain
argued, as defendants do here, that Turner impliedly overruled Weber. But the
majority rejected that argument, and refused to extend Turner to apply to local
correctional facilities. Shain, 273
F.3d at 65. While I understand that Orange County presses this point again and
again to preserve its rights, I am in no position to make any ruling that runs
counter to the clear holding of the majority in Shain, and I decline to do
so.
Furthermore, even adoption of a deferential posture to the
decisions of jail administrators,
[*494] as required by Turner,
does not dispense with the Fourth Amendment requirement that all searches, even
searches of inmates, be reasonable. "Prison walls do not form a barrier
separating prison inmates from the protections of the Constitution."
Turner v. Safley, 482 U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). It
is difficult to fathom what legitimate penological interest is served by strip
searching an arriving detainee when there is no individualized reasonable
suspicion to believe that he is secreting contraband on his person.
Defendants'
next line of argument is different.
They point out that the Second Circuit cases deal specifically with
misdemeanor arrestees. Mr. Murcia, however, was arrested for a felony.
Defendants argue that it is constitutionally permissible to strip search anyone
brought into the facility on a felony charge.
The Second
Circuit has never spoken to this issue. However, pronouncements by the United
States Supreme Court in analogous contexts do not support OCCF's position that
reasonable suspicion to strip search accused felons upon arrival at the
facility always exists.
In the context of Fourth
Amendment searches and seizures, the Supreme Court has stated that the
distinction between felonies and misdemeanors "is minor and often
arbitrary." Tennessee v. Garner, 471 U.S. 1, 14, 85 L. Ed. 2d 1, 105 S.
Ct. 1694 (1985). As explained by the Supreme Court, "many crimes
classified as misdemeanors, or nonexistent, at common law are now
felonies," and "numerous
misdemeanors involve conduct more dangerous than many felonies." Id. The
Court found "the assumption that a 'felon' is more dangerous than a
misdemeanant untenable." Id.
Coupling
these words with the Second Circuit's strong statements about
constitutional protections for strip
searches of accused misdemeanants, I conclude that the law in this Circuit does
not countenance a policy mandating strip searches of all felony arrestees
simply because they stand accused of felonies. The "individualized
reasonable suspicion" rule should apply to accused felons as well as
misdemeanants upon arrival at a local correctional facility. Of course, I do
not expect the Court of Appeals to state that strip searches of newly-arrived
felons should be the exception rather than the rule, as it did in Shain. See
Shain, 273 F.3d at 63; Dodge, 209 F.R.D. at 72. Felonies being what they are, I
imagine that some combination of the circumstances of the arrest, nature of the
crime charged, and the particular characteristics of the arrestee will render
strip searches of many more accused felons legitimate. But not all. For
example, forgery and securities fraud are felonies under New York law. N.Y.
Penal Law § 170.15 (McKinney 1998) (forgery); N.Y. Gen. Bus. Law § 352-c(5)
(McKinney 2002) (securities fraud). It is hard to imagine why being accused of
these crimes would automatically provide reasonable suspicion to believe
that a detainee was concealing
contraband. n3
This conclusion comports with a post-Turner ruling in one other
circuit. In [*495] Kennedy v. Los
Angeles Police Dep't., 901 F.2d 702 (9th Cir. 1990), the Ninth Circuit held
that a blanket policy requiring visual body cavity searches of all felony
detainees was unconstitutional. 901
F.2d at 714. See also Fuller v. M.G. Jewelry, 950 F.2d 1437,
1445-46 (9th Cir. 1991) (reiterating the unconstitutionality of blanket policy
requiring body cavity searches of all felony detainees). The Kennedy Court
found that "a felony arrest [did] not alter the level of cause required to
justify a visual body cavity search" because the distinction between
felony and misdemeanor detainees failed to address the likelihood that an
arrestee would be concealing drugs, weapons, or contraband. Kennedy, 901 F.2d
at 714, 716. The Ninth Circuit noted that officers should consider the nature
of the crime charged, not whether the crime is a felony or a misdemeanor.
Officers should evaluate whether the crime charged involves violence, drugs, or
some other feature from which an officer could reasonably suspect that an
arrestee was hiding weapons or contraband in a body cavity. Kennedy, 901 F.2d
at 714. n4
Defendants
offer no evidence that would justify a policy for searching all felony
detainees. They do not argue that the OCCF is frequently confronted with
contraband smuggled into the facility. There is no testimony that unsuspecting
arrestees have typically secreted contraband or weapons in their bodies in the
past, let alone that felony arrestees are responsible for a greater amount of
contraband than misdemeanor arrestess. Defendants' argument that the strip
search of Mr. Murcia was constitutional as a matter of law, solely and simply
because he was arrested for a felony, is unpersuasive. See Kennedy, supra., 901
F.2d at 713 (9th Cir. 1990) ("A glaring omission from the [defendant's]
justification is any documentation (or even assertion) that felony arrestees
have attempted to smuggle contraband into the jail in greater frequency than
misdemeanor arrestees.")
Because I
disagree with defendants that a felony charge automatically provides reasonable
suspicion to conduct a strip search, I also disagree with defendants' argument
that plaintiff lacks standing to sue because he was accused of a felony.
See Shain, 273 F.3d at 66-67
(rejecting defendants' argument that
plaintiff did not have standing to sue because the officers had reasonable
suspicion to conduct a strip search of the plaintiff).
(2) Bigger Is Entitled to Qualified Immunity Because the Law On
this Point Was Unsettled at the Time of the Search
Concluding
that a constitutional violation has been established is only the first step in
a two-step inquiry. Saucier v. Katz,
533 U.S. 194, 200, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001). Sheriff Bigger
asserts that he is entitled to qualified immunity for Murcia's federal claims
arising from the first strip search because reasonable officers in his position
would not have known that a policy of strip searching all newly-arrested felons
was unconstitutional. Although the matter is not free from doubt on the unusual
facts of this case, I conclude that he is correct.
[*496] A government official making a policy
decision is entitled to qualified immunity if the law was not clearly
established at the time the determination was made. Poe v. Leonard, 282 F.3d 123 (2d Cir. 2000). If the law is unclear,
"an official could not reasonably be expected to anticipate subsequent
legal developments, nor could he fairly
be said to 'know' that the law forbade conduct not previously identified as
unlawful." Harlow, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727
(1982); see also Koch v. Town of
Brattleboro, Vermont, 287 F.3d 162, 165-66 (2d Cir. 1998). Furthermore, a
supervisor or policy-maker in Bigger's position is only entitled to qualified immunity unless both
the law violated by the underling and the supervisory liability doctrine under
which plaintiff seeks to hold the supervisor liable were clearly established at
the time of the violation. Poe, 282
F.3d at 135, and cases cited. Plaintiff cannot hold Bigger liable merely by
showing that Zappolo committed a constitutional violation by strip searching
him without reasonable suspicion. Rather, the focus of the inquiry must be on
the behavior of the officer in question, which in this case is Sheriff Bigger.
"Just as [Bigger's] liability depends in part upon his action and choices,
his eligibility for immunity must depend upon those same choices." Poe,
282 F.3d at 135.
To the
extent that Bigger's sweeping policy of searching all new arrivals at OCCF
swept newly arrested misdemeanor
defendants into its ambit, it was clearly unconstitutional - if not when made,
then at least by the time the last of the Weber-Walsh-Wachtler trilogy was
decided in 1994. Shain, 273 F.3d at 59,
66. Maintenance of the policy after that date, insofar as it applied to misdemeanants,
could not be shielded by qualified immunity. See, e.g., Murcia v. County of
Orange, 185 F. Supp. 2d 290 at 291; see also Lee v. Perez, 175 F. Supp. 2d 673 (S.D.N.Y. 2001).
But insofar as the policy
applied to accused felons, the law was not clear. If Bigger had promulgated a
policy that mandated strip searching all new arrivals at OCCF who had been
arrested for felonies, he would be entitled to qualified immunity, on the
ground that the law relating to his officers' conduct was and is unsettled.
"Even if the interest asserted by the plaintiff was clearly of a type
generally protected by federal law, the defendant is entitled to [qualified]
immunity as a matter of law if it was not clear at the time of the acts at
issue that an exception did not permit those acts." Robison v. Via, 821
F.2d 913, 920 (2d Cir. 1987).
Of course, Bigger did not promulgate such a policy. His policy,
which Zappolo and other corrections officers followed to the letter, was to
strip search every new arrival at OCCF. Zappolo had no idea whether plaintiff
had been arrested for a felony or a misdemeanor. He searched Murcia because he
searched everyone, no questions asked. n5
So Bigger's
policy sweeps within its ambit searches that would be both constitutional (or
at least arguably constitutional) and clearly unconstitutional if they had been
conducted after individualized evaluation. The question before me - which
appears to be of first impression - is whether Bigger can claim the benefits of
qualified immunity to the extent the policy implicates searches of arriving
felony arrestees - searches, in other words, that were [*497]
not the subject of settled constitutional pronouncement.
I conclude
that Bigger is entitled to qualified immunity in this situation.
In essence, plaintiff argues that Bigger cannot acquire
qualified immunity by accident. Murcia happened to be an arrested felon, yes,
but he correctly points out that his status played no part in the decision to
strip search him. In other words, Murcia urges that Bigger cannot enjoy
qualified immunity just because his officers might have had reasonable
suspicion to conduct a strip search, when it is clear that in fact they did not
have reasonable suspicion. They were not performing a discretionary act while
under a reasonable misapprehension about the law; they were adhering to a
non-discretionary policy of searching everyone.
Murcia's argument is both clever and troubling. n6 Ultimately,
however, it begs the question, which is whether a reasonable person in Bigger's
position would have known, by virtue of clearly established law, that a search
of Murcia would violate his constitutional rights - not whether Sheriff Bigger
should have acted differently in order to protect the clearly established
constitutional rights of others. While I conclude that Murcia's Fourth
Amendment rights were indeed violated by the automatic on-arrival strip search,
those rights were not clearly established at the time the search was conducted.
The clearly established rights of others are, it seems to me, beside the point.
I reach this result with some misgivings. Only a few months ago,
in Hope v. Pelzer, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002), the United States
Supreme Court ruled that conduct could violate clearly established law even if
the allegedly unconstitutional conduct had not been the subject of a prior
court case. I do not think it a great leap from prior cases to conclude that
invasive searches of all new arrestees who arrive at local correctional facilities - whether arrested for a
misdemeanor or a felony - should be supported by reasonable particularized
suspicion. Fourth Amendment jurisprudence concerning the reasonableness of
strip searches has been rather consistent for many years.
However, the Supreme Court has also held that the right
allegedly violated must be defined at an appropriate level of specificity
before a court can conclude that it was clearly other cases before me were
arrested for misdemeanors, not felonies. Also, we have not yet gotten beyond
general constitutional questions and into the particulars of specific searches
in cases like Dodge v. County of Orange, 208 F.R.D. 79, supra, and Maneely v.
Town of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002). I have no doubt that when the
defendants in those actions assert that the circumstances of particular cases
gives rise to reasonable suspicion that those misdemeanor arrestees should be
strip searched, plaintiffs will counter that defendants ought not escape
liability because of what they might have done but did not do - make an
individualized assessment in each arrestee's case. Whether "what might
have been" proves a bar to liability or merely goes to damages is a fascinating question. Fortunately, I need
not consider it today. established. Wilson v. Layne, 526 U.S. 603, 615, 143 L.
Ed. 2d 818, 119 S. Ct. 1692 (1999),
citing Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107
S. Ct. 3034 (1987). In Shain, the Second Circuit at least suggested that there
could be a difference between strip searches of felony and misdemeanor
arrestees, although is did so only in passing and in the post-arraignment
context. Shain, 273 F.3d at 65
("Although a New York felony defendant's post-arraignment detention [*498]
may well be an indicator of an increased security risk...."). Under
the doctrine of qualified immunity, Bigger is entitled to the benefit of any
doubt about the state of the law.
Caldarola v. Calabrese, 298 F.3d 156 (2d Cir. 2002).
I am
especially troubled by the notion that Sheriff Bigger could be entitled to
qualified immunity on these facts, because the blanket policy pursuant to which
Murcia was unthinkingly strip searched should have been off the books years
ago. The doctrine of qualified immunity is supposed to protect public officials
from being sued for conduct that they could not have known was unlawful.
Maintenance of OCCF's blanket on-arrival strip search policy was unlawful and
no reasonable law enforcement officer could have thought otherwise. But I fail
to see why Murcia - who could not recover against Sheriff Bigger if OCCF had
timely altered its policy to eliminate automatic strip searches of arriving
misdemeanor defendants - should reap a windfall based on a knowing violation of
someone else's constitutional rights.
According to plaintiff, the County's Monell liability is
predicated on its deliberate indifference to the existence of a clearly
unconstitutional policy. In Shain, the Second Circuit stated that the
illegality of the Nassau County sheriff's policy provided the necessary basis
for attaching liability to the County.
Shain, 273 F.3d at 66; see also
Weber, 804 F.2d at 803. The converse ought to be true as well. Orange
County can hardly be liable for being deliberately indifferent to a policy that
had arguably constitutional elements - or, more properly, that had elements
whose unconstitutionality was not clearly established. The claim against the
County arising out of Murcia's on-arrival search is therefore dismissed.
The Orange County defendants' motion for summary judgment
dismissing the First Cause of Action is granted to the extent it addresses the
first of the three strip searches.
II. The Second Strip Search
of Plaintiff (After Contraband Was Suspected in the Bullpen)
In
Plaintiff's Memorandum of Law in Support of Summary Judgment, he states that
"the facts establish that plaintiff was strip searched as a result of
official policy without reasonable cause to conduct the searches." (Id. at
5., emphasis added) However, the circumstances of the second strip search are
markedly different from those of the first, and plaintiff cannot conflate
them.
The undisputed facts reveal
that the second strip search occurred because the unnamed corrections officers
who were guarding the bullpen area smelled cigarette smoke. Cigarettes are
contraband in the facility. No one in the bullpen would admit to having a
cigarette, so all the occupants of that area
were strip searched. Plaintiff alleges that this search, too was conducted pursuant
to an unconstitutional "policy" of strip searching inmates without
reasonable cause.
It is true,
as plaintiff notes, that, "prison walls do not form a barrier separating
prison inmates from the protections of the Constitution." Turner v. Safley,
482 U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). The Constitution
requires that searches be reasonable under the circumstances, even if performed
on individuals who are incarcerated.
Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 99 S. Ct. 1861
(1979). If plaintiff had sued the corrections officers who conducted the search
of his person, a jury might well have to determine whether they had reasonable
suspicion to strip search plaintiff. Controlling contraband is a legitimate
penological interest, and corrections officials generally have the right and
duty to control [*499] property and
possessions within the facility under their supervision. Gittens v. Couglin,
184 A.D.2d 812, 584 N.Y.S.2d 670 (3d Dep't 1992); see also Jenkins v. Senkowski,
221 A.D.2d 779, 634 N.Y.S.2d 224 (3d Dep't 1995); Jarrett v. Westchester County
Dep't of Health, 169 Misc. 2d 320, 646 N.Y.S.2d 223 (Sup. Ct. Westchester Co.
1996) (holding that there is no constitutional
right to smoke in prison). However, plaintiff had been strip searched
only a short time before, and no contraband (including cigarettes) had been
found on his person. Whether it was constitutionally appropriate to strip
search him again would depend on a number of factors as to which the record
before me is barren of evidence: how long after the first search the officers
smelled smoke; how many people were put into the bullpen after plaintiff was
whether those individuals had been strip searched before being put in the
bullpen; and so on.
But plaintiff has not sued the corrections officers who
conducted the second strip search on him. They are mentioned in the caption as
John Doe defendants, but they have are neither been identified nor served, so
they are not before the Court. The only persons Murcia has named and served
with process - and hence, the only Orange County defendants in this action -
are Sheriff Bigger and the County. Plaintiff does not contend that Sheriff
Bigger was personally involved in strip searching him; he charges Bigger with making
the policy pursuant to which he was searched. And he seeks to hold the County
liable for the acts of its policy-maker, under Monell.
So plaintiff was required, in support of his motion for summary
judgment, to establish the existence of some unconstitutional policy pursuant
to which the second strip search was carried out. If he cannot establish that
essential element of his claim, "there can be 'no genuine issue as to any
material fact,' since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts
immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-33, 91 L. Ed. 2d
265, 106 S. Ct. 2548 (1986).
Plaintiff has not offered any evidence that would permit a
reasonable trier of fact to conclude that the second strip search was conducted
pursuant to any policy at all. Plaintiff states, in conclusory fashion, that
OCCF maintained a policy of strip searching inmates without reasonable cause;
but the only policy for which he offers evidence (through Officer Zappolo, his
star witness) is the previously-discussed policy of searching every inmate upon
arrival. The second strip search of Murcia at OCCF was not carried out pursuant
to that policy; it was conducted after plaintiff had been in-processed.
Plaintiff offers no evidence of a
broader OCCF policy of strip searching inmates without individualized
reasonable suspicion after that initial search. Indeed, in his Reply
Memorandum, plaintiff notes that his star witness, Officer Zappolo,
"failed to indicate the terms of the policy, if any, that required cavity
searches in such circumstances. In fact, he does not even state that such searches were done as a matter of
policy." (Pl.'s Reply Br. at 8.)(emphasis added).
Of course, as Murcia points out, Defendants' June 13, 2002
memorandum of law, filed prior to the Reply Memorandum cited above, asserts
(without evidentiary support) that the second search was conducted pursuant to
facility policy. (See Memo of Law at 17.) So perhaps there is some policy at
OCCF that mandates strip searches of inmates who are present in areas where the
presence of contraband is detected. But on the present record I would only be
guessing that such a policy exists, and if it does, I know nothing about its
terms. Indeed, plaintiff does not purport
[*500] to know the policy's
terms; in a further reply memorandum of law prepared at the request of the
Court, plaintiff admits "...the terms of this policy remain unknown and
the policy itself has not been
identified specifically." Plaintiff's September 23, 2002 Memorandum at
n.3. Since I do not know what the policy is, I cannot possibly decide that it
is unconstitutional -especially as many strip searches of inmates are
constitutional. See Bell v. Wolfish,
441 U.S. 520, 546-48, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (jail's policy of
conducting visual, no contact body cavity strip searches of pre-trial detainees
following visits with outsiders does not violate the Fourth Amendment).
On this record, I cannot even make the first determination
required in a qualified immunity analysis: whether plaintiff's allegations
establish a constitutional violation. Saucier, 533 U.S. at 201. Plaintiff
sought summary judgment against a policy-maker; plaintiff carries the burden of
proving the existence of the policy; and plaintiff must demonstrate that the
policy is unconstitutional. By conflating the second (and third) strip searches
with the on-arrival search, plaintiff has failed to discharge his burden. I must,
therefore, deny plaintiff's motion for summary judgment of liability to the
extent of the second search.
The fact that
plaintiff's motion is denied does not mean that I can grant defendants'
cross motion, either on the merits or on the ground of qualified immunity. A
cross-movant bears the same obligation as the movant - to support its claim to
summary judgment with specific evidence. Aside from the unsupported remark of
counsel quoted above - and it should go without saying that counsel is not
competent to testify - there is nothing in the record that would permit me to
decide (1) whether there is a policy or (2) what the policy is. I simply cannot
perform the Saucier analysis on this record. n7 Thus, defendants' motion for
summary judgment as to the second search is also denied.
III. The Third Search: Prior
to his transfer to Federal Custody
Plaintiff claims that he was strip searched a third time before
he was transferred to the custody of the U.S. Marshals. The Defendants contend
that it was the U.S. Marshals who conducted this search, after plaintiff was
transferred to their custody. Because there is an issue of fact about who
conducted the third strip search, plaintiff has withdrawn his motion for
summary judgment regarding that search.
However, unless plaintiff establishes at trial that the third
search was not only conducted by OCCF officers, but was carried out pursuant to
some unconstitutional policy promulgated by Sheriff Bigger - such as a policy
of strip searching all departing inmates, or all inmates who are being
transferred to other institutions - it appears to this Court that Sheriff
Bigger and the County will be entitled to a directed verdict, for the reasons discussed
above. I mention this so that no one will be under any misapprehension about
Murcia's burden at trial.
IV. Unidentified Claims
Arising Under State Law
The above rulings deal only with the Federal claims in this
action. However, in his complaint, plaintiff asserts that his First Cause of
Action arises under the [*501] Fourth Amendment to the United States
Constitution "and the Laws of the United States and the State of New
York." Plaintiff does not identify the laws of the State of New York on
which he relies.
Art. I, Sec. 12 of the New York State Constitution parallels the
Fourth Amendment in prohibiting unreasonable searches and seizures. A brief
search of New York case law does not suggest that its protections extend beyond
those of the Federal constitution in the area of strip searches of arrestees or
prisoner. n8 All the New York cases I have found (none of which deals with a
situation similar to plaintiff's) either follow n9 or assume without deciding
n10 that the State law applicable to strip searches of persons arrested for
crimes requires reasonable cause before a strip search can be conducted.
Earlier this year, the New York Court of Appeals, in People v. More, 97 N.Y.2d
209, 764 N.E.2d 967, 738 N.Y.S.2d 667 (2002), suppressed evidence collected
from the rectum of an individual who was searched incident to a lawful arrest
on a felony narcotics charge, because the police failed to obtain a warrant and
identified no exigent circumstances that dispensed with the warrant requirement. Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S.
Ct. 1826 (1966). The Court relied extensively on federal case law interpreting
the Fourth Amendment and gave no indication that the State Constitution gave
rise to greater protection against custodial strip searches than did the
Federal Constitution.
However, the instant case is in an odd posture. The only named
Orange County defendants are the Sheriff and the County. Sheriff Bigger did not
conduct the search; he made the policy. There being no doctrine of qualified
immunity under state law, Sheriff Bigger cannot be absolved of responsibility
for the first strip search (which was conducted pursuant to his policy) on that
ground. Micalizzi v. Ciamarra, 206 F. Supp. 2d 564, 581 (S.D.N.Y. 2002).
Similarly, there is respondeat superior liability for municipalities under
State law, so if Sheriff Bigger is liable for a violation of State law, the
County is also liable. Hacker v. City
of New York, 26 A.D.2d 400, 275 N.Y.S.2d 146 (N.Y. App. Div. 1966), aff'd 20
N.Y.2d 722, 283 N.Y.S.2d 46 (N.Y. 1967) cert. denied 390 U.S. 1036 (1968).
Unfortunately, no one - not plaintiff, not defendants - has briefed any State
law issues, despite their mutual request that I grant them summary
judgment.
I asked the parties to address questions of state law in
supplemental briefs. Plaintiff responded with the following footnote:
Plaintiff withdraws these
claims from consideration in this motion given that the New York State
Constitution's proscription regarding unreasonable searches and seizures is
generally interpreted in concert with the Fourth Amendment requirements and
prohibitions. It remains however, that enlargements of the Fourth Amendment's
protections [*502] have been enacted under the New York
Constitution where a compelling state interest has been shown. As such,
Plaintiff does not wish to voluntarily withdraw these claims so as to retain an
opportunity to perfect an appeal and an accompanying request for certification
of the question (i.e., New York State's own protections against cavity searches
by government officials) to the Court of Appeals.
I assume that plaintiff
refers to the New York Court of Appeals, not the United States Court of Appeals
for the Second Circuit.
Plaintiff correctly (if obliquely) identifies the forum in which
issues of New York constitutional law ought to be litigated - the courts of the
State of New York. Of course, plaintiff has the ability to raise those issues
in Federal court, but he has not only declined my invitation to address these
issues on their merits but expressed a clear interest in having the issue
decided in the proper forum. I am happy
to oblige him. I decline to exercise supplemental jurisdiction over plaintiff's
First Cause of Action to the extent it purports to arise under the Constitution
and law of the State of New York, on the ground that these claims, by
plaintiff's own admission, raise a novel issue of State law as to which the New
York's courts should speak in the first instance. 28 U.S.C. § 1367(c)(1).
V. The Motion to Strike
Defendants' Affirmative Defenses is Denied
Under Rule 12(f), "a court may order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent or
scandalous matter." Fed. R. Civ.
P. 12(f). This action should not be taken lightly. However, it may be
appropriate where the defense shown is totally insufficient as a matter of
law. Lipsky v. Commonwealth United
Corp., 551 F.2d 887, 893 (2d Cir. 1976) (citing Gleason v. Chain Serv. Rest.,
300 F. Supp. 1241 (S.D.N.Y. 1969)). Upon a showing that there exist no
questions of law or fact that would allow the defense to succeed and that
inclusion of the defense would be prejudicial, such defenses must be
stricken. Salcer v. Envicon Equities
Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S.
1015 (1986); see also Byas v. New York City Dep't of Correction, 173 F.R.D.
385, 388 (S.D.N.Y. 1997) (citing Salcer, 744 F.2d at 939); SEC v. Toomey, 866
F. Supp. 719, 722 (S.D.N.Y. 1992).
Plaintiff moves to strike defendants' defenses of reasonable
suspicion, constitutional compliance, and good faith, all of which apply to the
First Cause of Action. n11 Since issues of reasonable suspicion, constitutional
compliance and qualified immunity are very much to be considered as we evaluate
plaintiff's right to recover for the second and third strip searches, I deny
plaintiff's motions to strike these affirmative defenses.
Finally, Murcia pleads a second cause of action, in negligence.
The parties have not briefed this issue, although it appears to the Court that
the claim may be legally insufficient. I have no basis to address it at this
time, although I will of course entertain a motion on the law made at the end
of plaintiff's case.
This constitutes the decision and order of the Court.
Dated: October 4, 2002
FOOTNOTES:
n1 The City of Newburgh contests that Mr.
Murcia was strip searched while in its custody. Because there is a clear issue
of fact on this question, neither the plaintiff nor the City of Newburgh (or
Officer Perez) has brought a summary judgment motion related to the strip
search at the Newburgh police station.
n2 In a letter dated July 12, 2002,
defendants asked that the Court consider their opposition to plaintiff's
summary judgment motion as a cross-motion for summary judgment because of
plaintiff's "strong reliance on cases from the Ninth Circuit in
furtherance of their motion for partial summary judgment against Orange County
and Sheriff Bigger." I granted defendants' request to convert their
opposition into a cross-motion for summary judgment with respect to plaintiff's
claims that he was strip searched upon arrival at the OCCF pursuant to an
unconstitutional strip search policy. I also interpreted this letter as a
motion for summary judgment based on Sheriff Bigger's qualified immunity from
claims based on this strip search.
n3 In this regard, the fact that Murcia was
arrested for bail jumping is unenlightening. Whether that particular felony
arrest gave rise to reasonable suspicion would depend, it seems to me, on the
nature of the underlying crime. In Murcia's case, the underlying charge was
drug related; while it appears that Officer Zappolo was unaware of that fact -
and while it played no part in the decision to strip search Murcia - I
recognize that a strip search of a bail jumping drug defendant might well be
constitutionally compliant. It is not necessary for me to reach this issue,
however, because I conclude that qualified immunity cloaks Bigger, and hence
the County, from liability.
n4 Kennedy is generally cited as having
been "impliedly overruled" by the United States Supreme Court in
Hunter v. Bryant, 502 U.S. 224, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991).
However, Kennedy was not overruled on the point at issue in this case, which is
the propriety of automatically strip searching persons arrested for felonies. Hunter
had the effect of overruling the other part of the Ninth Circuit's opinion in
Kennedy, which addressed the propriety of submitting qualified immunity
questions to a jury. The issue I am deciding in this opinion was not even
raised in Hunter.
n5 This is consistent with the state of the
record in Lee v. Perez, 175 F. Supp. 2d 673 (S.D.N.Y. 2001), in which another
Orange County Corrections Officer testified that he conducted strip searches of
all arriving inmates without checking paperwork to see what charges had been
lodged against them, because everyone who arrived at OCCF got strip searched.
n6 It has also been lurking in the
background in my prior OCCF and City of Newburgh strip search cases. The issue
was not squarely raised until now because the plaintiffs in all the
n7 Just so it is clear, I am not denying
Sheriff Bigger qualified immunity. The state of the record precludes me from
reaching the question, because the state of the record precludes me from
determining what Saucier identifies as the predicate issue - whether any
constitutional violation was committed.
n8 In a recent decision, the Appellate
Division, Fourth Department, asserted that the New York court of Appeals had
interpreted the State Constitution to "impose[] some limits on such searches
[incident to a lawful arrest] not found under the Fourth Amendment,
particularly in the area of minor traffic violations...." People v.
Taylor, 294 A.D.2d 825, 741 N.Y.S.2d 822 (4th Dep't 2002), citing People v.
Marsh, 20 N.Y.2d 98, 101, 281 N.Y.S.2d 789, 228 N.E.2d 783, --, (N.Y. 1967). I
find Marsh completely consonant with Second Circuit jurisprudence concerning
strip searches of misdemeanor arrestees.
n9 See, e.g., Young v. Coombe, 227 A.D.2d 799, 642 N.Y.S.2d 443 (3d Dep't
1996).
n10 People v. Martinez, 268 A.D.2d 266,
701 N.Y.S.2d 377 (1st Dep't 2000)("Assuming, without deciding, that
reasonable suspicion was required to conduct the search at issue,..."
citing Weber v. Dell, 804 F.2d 796 (2d Cir. 1986)
n11 Sheriff Bigger has withdrawn his
affirmative defense of lack of personal jurisdiction. (Def's. Mem. in Opp. to
Pl's Motion for Partial Summ. J. at 17.)
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