TS et al v. Doe et al
Filing
84
OPINION & ORDER: (1) Defendants' 73 Motion for Leave to File an Additional Exhibit to Supplemental Motion for Summary Judgment is GRANTED, and the Clerk is DIRECTED to FILE the tendered exhibit. (2) Defendants' 27 and 67 Motions for Summary Judgment are GRANTED IN PART and DENIED IN PART, and the Plaintiffs' 34 and 72 Motions for Summary Judgment are GRANTED IN PART and DENIED IN PART as follows: (a) Plaintiffs' constitutional claims based on the 14th Amendment and deliberate indifference to the Plaintiffs' constitutional rights are DISMISSED as to all Defendants; (b) Plaintiffs' constitutional claims based on the 4th Amendment as to Defendants Gabbard, Harvey, Haws, Davis, Sewell, Drake and Voyles R EMAIN PENDING; (c) Plaintiffs' state law claims for false imprisonment, negligence and grossly negligent infliction of emotional distress against Defendants Gabbard and Harvey are DISMISSED; (d) Plaintiffs' state law claims based on invasio n of privacy and assault against Defendants Gabbard and Harvey REMAIN PENDING; (e) Plaintiffs' claim for Declaratory Judgment is DISMISSED; and (f) Plaintiffs' claim for Injunctive Relief is PASSED. Signed by Judge Karl S. Forester on June 14, 2012.(AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 10-217-KSF
T.S., et al.
v.
PLAINTIFFS
OPINION & ORDER
MITCHELL GABBARD, et al.
DEFENDANTS
**********
This matter is before the Court upon the parties’ cross motions for summary judgment [DE
##27, 34, 67, and 72]. These motions are now ripe for review. While the Court previously ruled on
these motions in its Opinion & Order of May 9, 2012 [DE #74], that Opinion & Order has been
vacated subsequent to the filing of the Defendants’ motion for reconsideration [DE #75] and the
Plaintiffs’ motion to alter or amend [DE #76]. The parties’ arguments contained in all the motions
have been reviewed and considered in conjunction with this Opinion & Order.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiffs, T.S. and T.S., as Next Friends to J.S. and K.S., (“Plaintiffs”), brought this
federal civil rights and state tort claims action against two individual guards at the Breathitt Regional
Juvenile Detention Center (“BRJDC”), Mitchell Gabbard and Rebecca Harvey, and against Jay
Ronald Haws, Commissioner, Kentucky Department of Juvenile Justice (“DJJ”), and Hasan Davis,
Deputy Commissioner of Operations, DJJ. [DE #3]. The four defendants were named individually
and in their official capacity.
Plaintiffs’ original complaint alleged that on June 2, 2009, they attended a middle school
graduation party at a private home, where certain juveniles consumed alcoholic beverages. City of
Hazard law enforcement officers gave breathalyzer tests at the home, after which Plaintiffs were
arrested and taken to a local hospital for blood alcohol tests [DE #1-1]. They were subsequently
charged with underage drinking. A Perry County District Judge ordered that Plaintiffs be detained
at BRJDC. BRJDC is a secure juvenile detention facility that houses both adjudicated juvenile
offenders, as well as juveniles detained on alleged public or status offenses that have not been
adjudicated through the Kentucky juvenile court system.
Upon arrival at BRJDC, Plaintiffs underwent the intake-processing as required by DJJ and
BRJDC policies. The intake procedure as described by the policies entails an orientation of the
juvenile detainee into the facility, completion of a personal history questionnaire, a pat-down frisk,
and being photographed/fingerprinted. Additionally, the BRJDC intake procedure calls for a “Body
ID/Showering Process,” which is the crux of the Plaintiffs’ claims in this action. See BRJDC Policy
JD 23.2 [DE #27-4].
The Body ID process requires the juvenile being admitted into the facility to remove all
clothing in the presence of a BRJDC employee. The process is conducted in a private observation
room with an adjoining shower. The BRJDC employee visually observes the juvenile’s nude body
for signs of abuse, illness/infection, physical injury, deformities, scars, tattoos, or other such
markings, and these observations are documented in a “Body ID Form.” Any physical problems or
abnormalities are referred to the medical staff for review. Following the Body ID process, the
juvenile is treated with lice shampoo and required to shower [DE #27-4].
2
The Body ID process for J.S., a fifteen year old male, was conducted by Defendant Gabbard.
and the process involving K.S., a fourteen year old female, was conducted by Defendant Harvey.
The Body ID Forms set out the results of the Defendants’ visual inspections. [DE #34-2 and 34-3].
The Plaintiffs alleged that the Body ID process violates their civil and Constitutional rights
by subjecting them to arbitrary action, unreasonable search, deprivation of liberty, and deliberate
indifference to their civil rights. They also alleged that the Defendants are liable to them under state
law for damages caused by false imprisonment, invasion of privacy, assault, negligence, and
recklessness - including damages for emotional distress caused thereby. Finally, the Plaintiffs
alleged, upon information and belief, that “Defendants Haws and Davis have repeatedly failed to
adequately train their employees and/or properly investigate and discipline their employees....” [DE
#1-2, at ¶ 22]. Based on the foregoing allegations, the Plaintiffs’ Complaint asserted violations of
United States Constitutional Amendments IV and XIV as well as claims based on negligence,
invasion of privacy, assault, false imprisonment and arbitrary action under Sections 2 and 3 of the
Kentucky Constitution, grossly negligent infliction of emotional distress, intentional infliction of
emotional distress, and deliberate indifference to their constitutional rights.
By Opinion and Order of August 27, 2010, Defendants Haws and Davis were dismissed as
defendants to this action [DE #12]. Then, by Opinion and Order of October 6, 2010, the Court
granted the Defendants’ motion to dismiss the official capacity claims, the claims for money
damages for violations of the Kentucky Constitution, and the claim of intentional infliction of
emotional distress [DE #18]. Thus, the Plaintiffs’ remaining claims include federal Constitutional
claims pursuant to 42 U.S.C. § 1983 and state common, statutory and constitutional law violations
pursuant to this Court’s supplemental jurisdiction.
3
Both the Plaintiffs and the Defendants have filed motions for summary judgment. The
Plaintiffs contend that there is no genuine issue of material fact as to the constitutional nature of the
body searches performed on the Plaintiffs by the Defendants [DE #34]. On the other hand, the
Defendants contend that they are entitled to qualified immunity on the Plaintiffs’ claims because
their actions, in executing the BRJDC Body ID process, did not violate clearly established statutory
or constitutional rights of which a reasonable officer would be aware. Secondly, the Defendants
claim that there is no genuine issue of fact with respect to the Plaintiffs’ state law tort claims.
Upon review of the parties’ motions, the Court entered its Order of December 8, 2011
informing the parties that based on preliminary research, the Court believed the policy at issue is
unconstitutional and the individual defendants are not entitled to qualified immunity. The Court
allowed the Plaintiffs additional time to file an Amended Complaint to name additional defendants
[DE #46]. On December 19, 2011, Plaintiffs filed their Second Amended Complaint. In addition
to the claims and defendants contained in the First Amended Complaint, the Second Amended
Complaint asserts claims against J. Ronald Haws, Commissioner of Kentucky DJJ, A. Hasan Davis,
Deputy Commissioner of Operations of Kentucky DJJ, Gary Sewell, Regional Facility Director of
BRJDC, Gary Drake, Superintendent for BRJDC, and Jeff Voyles, Assistant Superintendent of
BRJDC. Plaintiffs’ claims against Voyles, Drake, Sewell, Davis and Haws are premised upon their
promulgation and/or implementation of the alleged unconstitutional policy, and include official
capacity claims for declaratory relief. Additional limited discovery was allowed, and the parties have
supplemented their motions for summary judgment [DE ##67, 72].
4
II.
SUMMARY JUDGMENT STANDARD
Rule 56(a) entitles a moving party to summary judgment if that party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Rule 56(c)(1) further instructs that “[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion” by citing to the record or “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” In deciding a motion for summary judgment, the court
must view the evidence and draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The “moving party bears the burden of showing the absence of any genuine issues of material
fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). The moving party may
meet this burden by demonstrating the absence of evidence concerning an essential element of the
nonmovant’s claim on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has satisfied its burden, the nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co., 475 U.S. at 586, it must produce specific facts showing that a genuine issue remains.
Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). If, after reviewing the record in its
entirety, a rational fact finder could not find for the nonmoving party, summary judgment should be
granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998).
Moreover, the trial court is not required to “search the entire record to establish that it is
bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80
(6th Cir. 1989). Rather, “the nonmoving party has an affirmative duty to direct the court’s attention
5
to those specific portions of the record upon which it seeks to rely to create a genuine issue of
material fact.” In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
III.
ANALYSIS
A.
DEFENDANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL
EXHIBIT [DE #73]
Subsequent to the filing of their motion for summary judgment, the Defendants filed a motion
for leave to file a supplemental exhibit. Specifically, the Defendants seek leave to supplement the
record with the affidavit of the Defendant, J. Ronald Haws, who is the former Commissioner of the
Department of Juvenile Justice. Counsel notes that because Defendant Haws is no longer employed
by DJJ, counsel did not receive the affidavit in time for earlier submission. While the affidavit has
been tendered after the close of discovery, the Court notes that Haws is a defendant to this action and
the Plaintiffs were allowed time to conduct discovery relative to their claims against Haws.
Accordingly, the Defendants’ motion will be granted.
B.
CONSTITUTIONAL CLAIMS
The Court turns next to the Plaintiffs’ constitutional claims pursuant to 42 U.S.C. § 1983.
The Plaintiffs assert claims against the Defendants for violation of their rights under the Fourth and
Fourteenth Amendments to the U.S. Constitution. “Under § 1983, an individual may bring a private
right of action against anyone who, under color of state law, deprives a person of rights, privileges,
or immunities secured by the Constitution or conferred by federal statutes.” Bletz v. Gribble, 641
F.3d 743, 749 (6th Cir. 2011). The Defendants contend that they are entitled to summary judgment
on the Plaintiffs’ § 1983 claims on the basis of qualified immunity.
6
A government official performing discretionary functions is entitled to qualified immunity
in his individual capacity, and is, therefore, shielded from liability for civil damages, if his conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Barber v. City of Salem,
Ohio, 953 F.2d 232, 236 (6th Cir. 1992). “Qualified immunity balances two important interests – the
need to hold public officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815 (2009). Such immunity is “‘an
expression of policy designed to aid in the effective functioning of government.’” Scheuer v.
Rhodes, 416 U.S. 232, 242 (1974)(quoting Barr v. Matteo, 360 U.S. 564, 572-73 (1959)). The
protection provided by qualified immunity covers mere mistakes in judgment and applies “regardless
of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact.’” Pearson, 129 S.Ct. at 815 (quoting Groh v. Ramirez, 540 U.S.
551, 567 (2004)(Kennedy, J., dissenting)).
The Plaintiffs contend that Defendants Gabbard and Harvey are not entitled to qualified
immunity because they were performing ministerial functions, as opposed to discretionary acts, when
conducting the Body ID process. While it is true that Harlow v. Fitzgerald, 457 U.S. 800 (1982)
provides for qualified immunity for “government officials performing discretionary functions,”
courts have broadly construed this requirement to mean simply that the government official was
performing official duties.
For example, in Roberts v. Caise, 2005 WL 2454634 (October 3, 2005), the Court reviewed
the ministerial/discretionary distinction in the qualified immunity analysis and determined that it
7
should not apply to negate the defense for a defendant merely following policy. In reaching this
decision, the Court relied in part on Varrone v. Bilotti, 123 F.3d 75 (2nd Cir. 1997). In that case, a
prisoner complained about strip searches. The Second Circuit first determined that the supervisors
who ordered the searches were immune, then turned to the officers who actually conducted them and
held that “even if these two subordinate officers performed solely a ministerial function in
conducting the strip search, they still have qualified immunity for carrying out the order, not facially
invalid, issued by a superior officer who is protected by qualified immunity . . . It would be
anomalous to provide qualified immunity to the higher ranking officers who ordered the strip search,
but to deny it to the subordinates who carried out the order.” Id. at 82.
Moreover, the Plaintiffs are not alleging that Defendants Gabbard and Harvey violated any
ministerial duty; in fact, they acted in accordance with existing policy. Rather, their claim is that the
Body ID process violated the Fourth Amendment regardless of whether the practice was authorized
by internal DJJ policy or not. This is consistent with the Supreme Court’s limitation of the
ministerial duty exception to the qualified immunity doctrine in Davis v. Scherer, 468 U.S. 183
(1984), to those cases where the Defendant violated a ministerial duty.
The same rationale applies here. Defendants Gabbard and Harvey were merely carrying out
orders and following policy promulgated and/or implemented by their supervisors. As noted by the
district court in Roberts, the Sixth Circuit, while never explicitly overruling the
ministerial/discretionary distinction, has addressed many qualified immunity cases without any
discussion of whether the defendant’s actions were ministerial or discretionary. See Sanderfer v.
Nichols, 62 F.3d 151 (6th Cir. 1995)(holding that a clinical health specialist who had failed to check
the medical records before prescribing medicine was entitled to qualified immunity). Additionally,
8
other circuits have explicitly dispensed with the ministerial/discretionary distinction in the qualified
immunity context. See Varrone, 123 F.3d at 82-83; Gagne v. City of Galveston, 805 F.2d 558, 55960 (5th Cir. 1986); Jordan v. Doe, 38 F.3d 1559, 1565-66(11th Cir. 1994). Based on this analysis,
Defendants Harvey and Gabbard are eligible for the qualified immunity defense.
The allegations against the remaining Defendants are based solely on their alleged
involvement in promulgating and/or implementing the Body ID process. While the Defendants have
stated that they did not draft the Body ID policy at issue, they were in policy-making positions and
were responsible for the implementation of all DJJ policies, including the Body ID process. See
Declarations of Defendants Davis, Sewell, Drake, and Voyles, DE #67-2 through 67-5, and
Declaration of Haws, DE #73. Under Kentucky law, rule making is a discretionary function in the
performance of which a public official is entitled to immunity. Yanero v. Davis, 65 S.W.3d 510, 531
(Ky. 2001). Thus, based on the allegations against them, Defendants Haws, Davis, Voyles, Drake
and Sewell may also be eligible for the qualified immunity defense.
In evaluating whether a defendant is entitled to qualified immunity, “the court makes two
inquiries: (1) ‘[t]aken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right[,]’ and (2) was the right ‘clearly
established’ to the extent that a reasonable person in the officer’s position would know that the
conduct complained of was unlawful.” Bletz, 641 F.3d at 750 (quoting Saucier v. Katz, 533 U.S. 194,
201 (2001), overruled on other grounds by Pearson, 555 U.S. 223)(alterations in Bletz).1 The
1
In Pearson, the United States Supreme Court relaxed Saucier’s requirement that the
court must address these questions in order. Pearson, 129 S.Ct. at 818 (“On reconsidering the
procedure required in Saucier, we conclude that, while the sequence set forth there is often
appropriate, it should no longer be mandatory.”).
9
operative question “is whether it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Saucier, 533 U.S. at 201.2 Importantly, the Supreme Court has
recently held that “[e]xisting precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083 (2011).
Furthermore, in the absence of controlling authority, qualified immunity applies unless there
is a “robust consensus of persuasive authority” which would lead a reasonable official to conclude
their conduct violated clearly established law. Id. at 2084. According to the Supreme Court,
“[q]ualified immunity gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions.” Id. at 2085. When properly applied, it protects “all but the
plainly incompetent or those who knowingly violate the law.” Id.
It is the Plaintiffs who bear the burden of establishing that the Defendants are not entitled to
qualified immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005). To do so, they
must establish that the use of unclothed visual examinations upon intake into a secure juvenile
detention facility violated clearly established law on June 3, 2009. The Plaintiffs contend that the
Defendants’ conduct violated their constitutional rights as established by both the Fourth and
Fourteenth Amendments.
2
In a pre-Saucier en banc decision, the Sixth Circuit added a third prong to this inquiry
and held that, if the constitutional right at issue was clearly established, the court should then
“determine whether the plaintiff has alleged sufficient facts, and supported the allegations by
sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable
in light of the clearly established constitutional rights.” Williams v. Mehra, 186 F.3d 685, 691
(6th Cir. 1999). While some panels of the Sixth Circuit have continued to apply this three step
analysis of qualified immunity claims even after Saucier, others have acknowledged Saucier as
binding and declined to do so. See Dunnigan v. Noble, 390 F.3d 486, 491 at n.6 (6th Cir.
2004)(discussing the split amongst the various Sixth Circuit panels and declining to apply the
third step of the analysis required by Williams).
10
However, the Plaintiffs’ deliberate indifference substantive due process claim premised on
the Fourteenth Amendment fails to state independent grounds for relief. The Supreme Court has
held that “all claims that law enforcement officers have used excessive force - deadly or not - in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due
process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989)(emphasis in original). As the
Plaintiffs have not presented any authority to proceed pursuant to the Fourteenth Amendment, the
Court will dismiss this claim and consider the Plaintiffs’ claims exclusively under the Fourth
Amendment.
The analysis of pretrial detainee unlawful search claims begins with the balancing test
adopted by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). In Wolfish, the Supreme
Court assumed, without deciding, that both convicted prisoners and pretrial detainees retain some
Fourth Amendment rights upon commitment to a correctional facility. However, the Supreme Court
approved a policy of conducting strip searches of pretrial detainees following every contact visit by
a detainee with a person from outside the institution. In reaching this decision, the Supreme Court
held that “reasonableness” requires “a balancing of the need for the particular search against the
invasion of personal rights that the search entails,” and instructs courts to consider four factors in
assessing reasonableness: “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. According to
the Supreme Court, these searches were reasonable based on the obvious risk that such a visit may
be used to introduce contraband into a penal institution.
11
The Sixth Circuit has stated that “Bell v. Wolfish, however, does not validate a blanket policy
of strip searching pretrial detainees.” Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989). In Masters,
the Sixth Circuit held that a detention facility policy which allowed for the strip search of detainees
arrested for minor traffic offenses violated clearly established law. In distinguishing the facts of the
case before it from others approving strip searches, the Court stated as follows:
[I]t is objectively reasonable to conduct a strip search of one charged with a crime of
violence before that person comes into contact with other inmates. There is an
obvious threat to institutional security. However, normally no such threat exists
when the detainee is charged with a traffic violation or other nonviolent minor
offense.
Then, relying on decisions from other circuits, the Sixth Circuit held that “a strip search of a person
arrested for a traffic violation or other minor offense not normally associated with violence and
concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or
concealing a weapon or other contraband, is unreasonable.” Id. at 1255.
Thus, based on Masters, the Body ID policy would be unconstitutional in any adult detention
center. In this case, the strip searches were performed on juveniles. Strip searches of children raise
unique concerns, since youth “is a time and condition of life when a person may be most susceptible
to influence and psychological damage.” Eddings v. Oklahoma, 455 U.S. 104, 115 (1982).
The only Sixth Circuit case addressing the issue of strip searches in the juvenile detention
context is Reynolds v. City of Anchorage, 379 F.3d 358 (6th Cir. 2004). In Reynolds, a visual nude
search was conducted by a police officer of a juvenile offender who had been placed in the
Bellewood Home, a private group home facility. The search was requested because of staff concerns
that the juvenile was acting strangely and drug use was suspected. The police arrived to investigate
and searched the juvenile’s room where possible drug paraphernalia was discovered. When
12
questioned, the juvenile then insinuated that she might have drugs hidden in her undergarments. A
female officer was called and performed a visual strip search. Id. at 360.
Applying Wolfish’s balancing analysis, the Sixth Circuit held that the warrantless strip search
did not violate the Fourth Amendment. In reaching this result, the Sixth Circuit considered cases
involving adult jail detainees as well as cases involving searches of students by school authorities.
The court found that “[t]he situation of the juvenile delinquent inmates of the Bellewood Home lay
somewhere between that of prison inmates and students in school.” Id. at 364. Noting that they
were “not as closely confined or strictly controlled and supervised as prison inmates or detainees,”
their expectation of privacy was somewhat greater than those of prisoners. However, as compared
to students, the juveniles in Reynolds had a lesser expectation of privacy. The Sixth Circuit noted
that the Bellewood Home had the duty and responsibility to insure the health, safety, and well being
of the juvenile and other inmates and had a strong interest in eliminating and preventing drug use
on its premises. Moreover, the juvenile had admitted to previous drug use, had been acting
strangely, and had insinuated that she had drugs on her person. The court concluded that “[a]lthough
the strip search was a highly invasive procedure, it was no more invasive than necessary to
accomplish its purpose of insuring that Reynolds and the other girls were not concealing drugs on
their persons. It was conducted in a way to minimize its intrusive effect.” Id. at 365.
Other circuits have explicitly allowed strip searches upon admission to a secure juvenile
detention facility under certain circumstances. For instance, in Justice v. City of Peachtree City, 961
F.2d 188, 193 (11th Cir. 1992), the Eleventh Circuit held that “law enforcement officers may
conduct a strip search of a juvenile in custody, even for a minor offense, based upon reasonable
suspicion to believe that the juvenile is concealing weapons or contraband.” Similarly, in Smook v.
13
Minnehaha County, 457 F.3d 806, 811-12 (8th Cir. 2006), the Eighth Circuit held that a juvenile
detention center policy of requiring partial removal of clothing searches of juvenile detainees
regardless of the seriousness of the charged offense or the existence of suspicion was reasonable
under the Fourth Amendment, and that the defendants were entitled to qualified immunity.
Similarly, the Second Circuit in N.G. v. Connecticut, 382 F.3d 225 (2nd Cir. 2004), held a strip
search performed upon a juvenile’s initial admission into a detention center was reasonable under
the Fourth Amendment. In these cases, the purpose of the strip searches was to discover contraband.
This case, however, is distinguishable from Reynolds, Justice, Smook, and N.G. Here, the
defendants admit that the purpose of the search was “not to discover contraband.” Rather, “the
purpose of the procedure is to document any obvious signs of injury, illness, infection or abuse.”
[DE #41-2, ¶4]. Yet neither Defendant is medically qualified to identify infection or disease. The
Plaintiffs were subjected to the strip search without regard to the need to articulate any reasonable
suspicion that they may have any underlying medical condition or injury. As the Plaintiffs suggest,
a partially clothed search could yield the same results. Simply put, the reasons for performing the
intake strip search at BRJDC simply do not justify the serious invasion of personal privacy suffered
by the juvenile Plaintiffs.
While it is true that DJJ policy does allow for strip searches at Kentucky DJJ facilities, that
policy was not implicated in this case. DJJ Policy 714 provides that strip searches may be conducted
at a Kentucky DJJ facility, including BRJDC, only upon reasonable suspicion and with prior
approval of the Superintendent or Assistant Superintendent [DE # 34-2]. The BRJSC policy
providing for the Body ID process circumvents the reasonable suspicion and prior approval
requirements required by DJJ.
14
Applying Wolfish’s balancing test, the Court concludes that the strip searches at issue here
were unreasonable under the circumstances, particularly in light of the fact that juveniles were
involved. Moreover, the purpose of the search - to identify illness or injury - could have easily been
accomplished by less intrusive means. Accordingly, the strip searches of the Plaintiffs were in
violation of their constitutional rights.
Despite the unconstitutionality of the strip search, the Defendants are nevertheless protected
from civil liability if their actions did not violate “clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow, 457 U.S .at 818. When determining
whether a right is “clearly established,” courts look first to decisions of the Supreme Court, then to
decisions of the Sixth Circuit, and finally to decisions of other circuits. Daugherty v. Campbell, 935
F.2d 780, 784 (6th Cir. 1991). In order for the law to be clearly established as of the date of the
incident, the law must “‘truly compel (not just suggest or allow or raise a question about), the
conclusion . . . that what defendant is doing violates federal law in the circumstances.’” Saylor v. Bd.
of Education, 118 F.3d 507, 515-16 (6th Cir. 1997)(quoting Lassiter v. Ala. A & M Univ., Bd. of
Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994)). An action’s unlawfulness can be apparent even in
novel factual circumstances “‘so long as the prior decisions gave reasonable warning that the conduct
then at issue violated constitutional rights.’” Hope v. Pelzer, 536 U.S. 730, 740 (2002)(citation
omitted).
The burden is on the Plaintiffs to establish that the use of unclothed visual examinations upon
intake into a secure juvenile detention facility violated clearly established law on June 3, 2009. The
Defendants continue to argue that the Supreme Court’s recent decision in Florence v. Chosen
Freeholders Of The County of Burlington, 536 U.S. ___, 132 S.Ct. 1510 (2012), is implicated in this
15
case. However, the Florence case did not involve a case of strip searching juveniles. Additionally,
Florence is irrelevant to the Court’s analysis of the Plaintiff’s individual capacity claims for money
damages, because the Court must consider the law at the time the Defendants conducted the strip
search, which occurred well before the Supreme Court’s decision in Florence. Thus, any reliance
on Florence is misplaced.
Additionally, this case is distinguishable from Reichle v. Howards, ___ S.Ct. ___, 2012 WL
1969351 (June 4, 2012), cited by the Defendants. In Reichle, the Supreme Court reversed the Tenth
Circuit’s denial of qualified immunity with respect to a claim for retaliatory arrest in violation of the
First Amendment. Specifically, the Supreme Court held that it had never recognized a claim for
retaliatory arrest under the First Amendment and further noted the lack of consensus among the
Courts of Appeals as to whether the First Amendment prohibited probable-cause based arrests in
retaliation for the exercise of free speech rights. Moreover, as the Court noted, the law in the Tenth
Circuit governing retaliatory arrests was far from clear. Id. at *8. The Sixth Circuit’s ruling in
Masters, handed down in 1989, was clear: “a strip search of a person arrested for a traffic violation
or other minor offense not normally associated with violence and concerning whom there is no
individualized reasonable suspicion that the arrestee is carrying or concealing other contraband, is
unreasonable.” Masters, at 1255. While Masters was decided in the context of an adult pretrial
detainee, other Supreme Court and Sixth Circuit case law is clear that juveniles are entitled to at least
as much privacy as adult inmates. For example, Reynolds upheld the strip search of the juvenile
only because the officials developed a reasonable suspicion that the juvenile was concealing
contraband. Reynolds, 379 F.3d at 365. Accordingly, the law was clearly established since at least
2004 in the Sixth Circuit that unclothed visual observation of a juvenile accused of a non-violent
16
offense violates the Fourth Amendment in the absence of individualized reasonable suspicion of
possession of contraband. Accordingly, the Defendants are not entitled to qualified immunity on the
Plaintiffs’ Fourth Amendment claims. Their motion for summary judgment on this claim will be
denied.
B.
STATE LAW CLAIMS
In addition to their § 1983 claims for violation of the federal constitution, the Plaintiffs also
assert state law claims against Defendants Gabbard and Harvey for negligence, invasion of privacy,
assault, false imprisonment, arbitrary action under Sections 2 and 3 of the Kentucky Constitution,
and grossly negligent infliction of emotional distress. This Court has already held that the Plaintiffs’
claims for money damages under the Kentucky Constitution fail pursuant to Clark v. Kentucky, 229
F.Supp.2d 718 (E.D.Ky 2002). [DE #18]. Additionally, the Court has previously dismissed the
Plaintiffs’ claims based on intentional infliction of emotional distress on the grounds that it is a “gap
filler” that must be dismissed when other claims for traditional torts are asserted [DE #18]. The
same reasoning applies to the Plaintiffs’ claim for grossly negligent infliction of emotional distress,
and therefore, this claim will be dismissed as well.
Defendants Gabbard and Harvey contend that they are entitled to qualified immunity on the
Plaintiffs’ remaining state law claims. The standard for qualified official immunity under Kentucky
state law is set forth in Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001), which states:
Qualified official immunity applies to the negligent performance by a public officer
or employee of (1) discretionary acts or functions, i.e., those involving the exercise
of discretion and judgment, or personal deliberation, decision, and judgment . . .; (2)
in good faith; and (3) within the scope of the employee’s authority.
17
Qualified official immunity cannot apply in this case because the actions performed by Defendants
Gabbard and Harvey were ministerial, not discretionary. According to the Kentucky Supreme Court,
“[d]iscretionary acts are, generally speaking, ‘those involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment’ . . . On the other hand, ministerial acts
or functions - for which there are no immunity - are those that require ‘only obedience to the orders
of others. . . .’” Haney v. Monsky, 311 S.W.3d 235 (Ky. 2010)(citations omitted). In this case, the
Defendants were acting in accordance with BRJDC policy. Kentucky courts have been clear:
“promulgation of rules (creating a policy) is discretionary. However, enforcement of the rules, once
in place, is ministerial.” Williams v. Kentucky Department of Education, 113 S.W.3d 145, 150 (Ky.
2003). As a result, Defendants Gabbard and Harvey are not entitled to qualified immunity on these
state law claims.
Even if they are not entitled to qualified immunity, Defendants Gabbard and Harvey argue
that they cannot be liable for the alleged state law torts when their conduct was performed within
their lawful authority and/or in executing BRJDC policy. The Court first considers this defense as
it relates to the Plaintiffs’ false imprisonment claim. There is no dispute that the Plaintiffs were
ordered to be detained by the Perry District Court. These Defendants did not effect the Plaintiffs’
arrest nor their confinement. Thus, Defendants Gabbard and Harvey are entitled to summary
judgment on the Plaintiffs’ claim of false imprisonment.
Next, the Plaintiffs assert a claim for assault based on the strip searches. Defendants Gabbard
and Harvey argue that because they were acting in accordance with BRJDC policy, this legal
authority is a complete defense. However, the Court has found the policy to be unconstitutional.
They also argue that because Defendant Gabbard never touched or threatened the male Plaintiff and
18
because Defendant Harvey’s contact with the female Plaintiff was limited to applying shampoo to
her hair, there is no viable claim for assault. The Court disagrees. Under Kentucky law, the tort of
assault “requires the threat of unwanted touching of the victim.” Banks v. Fritsch, 39 S.W.3d 474,
480 (Ky. App. 2001). The Plaintiffs have come forward with sufficient evidence of the threat of
unwanted touching to proceed on this claim.
The Plaintiffs also assert a claim for negligence. They allege that the Defendants improperly
required the Plaintiffs to remove their clothing for a visual body examination upon admission to
BRJDC. This claim, however, is premised on an intentional tort, and does not state a claim for
negligence. Accordingly, this claim will be dismissed.
Finally, the Plaintiffs assert a claim for invasion of privacy. Again the Defendants contend
that because they were acting pursuant to a policy, their actions were not tortious. Here, because of
the Court’s holding that the Body ID process was unconstitutional, the Plaintiffs’ claim for invasion
of privacy is a viable claim due to the unreasonable intrusion caused by the strip search. As a result,
the Defendants’ defense fails and the Plaintiffs may proceed on this claim.
C.
DECLARATORY RELIEF
In addition to their claims for monetary damages, the Plaintiffs seek declaratory relief.
Specifically, they seek declaratory relief under the Federal Declaratory Judgment Act, 28 U.S.C. §
2201, declaring the conduct and policy at issue in this case is a violation of the United States
Constitution. The Declaratory Judgment Act provides the mechanism for seeking pre-enforcement
review of a statute. 28 U.S.C. § 2201. Declaratory judgments are typically sought before a
completed “injury-in-fact” has occurred and are limited to the resolution of an “actual controversy.”
National Rife Ass’n of America v. Magaw, 132 F.3d 272, 279. Here, the injury-in-fact, the strip
19
searches pursuant to the Body ID policy, have already occurred and the Body ID policy, as it existed
in June 2009, is no longer being implemented. See Affidavit of Hasan Davis [DE #67-2]. The
policy was suspended in December 2011, and DJJ is no longer conducting fully-unclothed body
identification inspection upon intake in detention centers.. Accordingly, the Plaintiffs’ claim under
28 U.S.C. § 2201 is moot and will be dismissed.
D.
INJUNCTIVE RELIEF
The Plaintiffs’ final claim against the Defendants is for injunctive relief pursuant to 42
U.S.C. § 1983. However, as explained above, DJJ is no longer utilizing an intake procedure which
entails fully-unclothed observation of juvenile detainees.
Under the new policy, the body
identification process is performed while the juvenile is dressed in boxer shorts and a tank top [DE
#67-2, Affidavit of Hasan Davis]. Additionally, there is no evidence that DJJ plans to reinstate the
Body ID procedure utilized in 2009 at any time in the future. Finally, this Court’s analysis of the
constitutionality of the strip searches was based on the law at the time the strip searches were
conducted. The Supreme Court’s recent decision in Florence and subsequent cases may dictate a
different result should the strip searches be conducted today.
In light of the Defendants’ expressed intent to appeal the Court’s denial of qualified
immunity, it is not necessary for the Court to reach the issue of injunctive relief at this time.
Accordingly, the Defendants’ motion for summary judgment on the Plaintiffs’ claim for injunctive
relief will be passed.
IV.
CERTIFICATE OF IMMEDIATE APPEALABILITY
The Defendants have expressed their intention to seek an interlocutory appeal of the Court’s
denial of qualified immunity. Under 28 U.S.C. § 1291, the denial of qualified immunity constitutes
20
a “final decision” of a district court when, as here, it turns on pure issues of law. Mitchell v. Forsyth,
472 U.S. 511, 530 (1985); see also Rich v. City of Mayfield Heights, 955 F.2d 1092, 1094 (6th Cir.
1992)(holding denials “on the basis of qualified immunity are immediately appealable under the
collateral order doctrine).
Additionally, the Defendants have requested permission to seek
immediate appeal of the Court’s previous rulings based on the asserted defense of statute of
limitations, as well as their claims based on assault and invasion of privacy pursuant to Rule 54(b)
of the Federal Rules of Civil Procedure. The Plaintiffs oppose the Defendants’ motion.
Generally, a partial grant of summary judgment is not ordinarily appealable. However, under
Rule 54(b), a district court may render a partial summary judgment as final and appealable if it finds
“no just reason for delay.” Fed.R.Civ.P. 54(b). The Sixth Circuit, however, has held that in order
to avoid finding an abuse of discretion in the certification of an appeal pursuant to Rule 54(b), the
“district court should do more than just recite the Rule 54(b) formula of ‘no just reason for delay’”
Corrosioneering, Inc. v. Thyssen Environmental Sys., Inc., 807 F.2d 1279, 1282 (6th Cir. 1986).
Factors to be considered by the district court include:
(1) the relationship between the adjudicated and the unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court might
be obliged to consider the same issue a second time; (4) the presence or absence of
a claim or counterclaim which could result in set-off against the judgment sought to
be made final; (5) miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of competing claims, expense,
and the like. Depending on the factors of the particular case, all or some of the above
factors may bear on the propriety of the trial court’s discretion in certifying a
judgment as final under Rule 54(b).
Id. at 1283 (quoting Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3rd Cir.
1975).
21
In support of their request, the Plaintiffs contend that an immediate appeal of the denied
dismissal based on the statute of limitations and denied relief on the merits of their state law claims
for assault and invasion of privacy is necessary as a matter of judicial efficiency and resolution of
all appellate matters at once. The Court disagrees. Should the Defendants take an interlocutory
appeal of this Court’s denial of qualified immunity, then this matter will be stayed pending a ruling
from the Sixth Circuit. If the Sixth Circuit affirms this Court’s decision, then this matter will
proceed to trial against the Defendants. If the Plaintiffs prevail at trial, then the Defendants would
have an opportunity to appeal all of the Court’s previous rulings at that time. On the other hand, if
the Sixth Circuit concludes that this Court erred in denying qualified immunity to the Defendants,
no further proceedings will be held and these issues will be moot. Accordingly, the Defendants’
request for a certificate of immediate appealability is denied.
V.
CONCLUSION
The Court, being fully and sufficiently advised, hereby ORDERS as follows:
(1)
the Defendants’ motion for leave to file an additional exhibit to supplemental motion
for summary judgment [DE #73] is GRANTED, and the Clerk is DIRECTED to
FILE the tendered exhibit; and
(2)
the Defendants’ motions for summary judgment [DE ##27and 67] are GRANTED
IN PART and DENIED IN PART, and the Plaintiffs’ motions for summary
judgment [DE ##34 and 72] are GRANTED IN PART and DENIED IN PART as
follows:
(a)
the Plaintiffs’ constitutional claims based on the Fourteenth Amendment and
deliberate indifference to the Plaintiffs’ constitutional rights are
DISMISSED as to all Defendants;
(b)
the Plaintiffs’ constitutional claims based on the Fourth Amendment as to
Defendants Gabbard, Harvey, Haws, Davis, Sewell, Drake, and Voyles
REMAIN PENDING;
22
(c)
the Plaintiffs’ state law claims for false imprisonment, negligence, and
grossly negligent infliction of emotional distress against Defendants Gabbard
and Harvey are DISMISSED;
(d)
the Plaintiffs’ state law claims based on invasion of privacy and assault
against Defendants Gabbard and Harvey REMAIN PENDING;
(e)
the Plaintiffs’ claim for Declaratory Judgment is DISMISSED; and
(f)
the Plaintiffs’ claim for Injunctive Relief is PASSED.
This June 14, 2012.
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?