D.H. et al v. DOE I et al

Filing 95

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' claims against Jane Doe I and Jane Doe II are hereby DISMISSED. IT IS FURTHER ORDERED that St. Louis Board of Police Commissioners Bettye Battle-Turner, Richard Gray, Erwin O. Switzer, Thomas Irwin, and Francis Slays motion for summary judgment 81 is GRANTED. IT IS FURTHER ORDERD that Plaintiffs motion for oral argument 93 is DENIED as moot. Signed by District Judge Rodney W. Sippel on 9/9/16. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
D.H., C.L. and J.P.,

Plaintiffs,
v.
JANE DOE I, et al.,
Defendants.

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Case No. 4:14 CV 1882 RWS

MEMORANDUM AND ORDER
Plaintiffs were arrested after participating in a protest in St. Louis Missouri.
Plaintiffs allege that their Fourth Amendment rights were violated when they were
strip searched by two police officers at a police station. At the time this lawsuit
was filed Plaintiffs were not able to identify the two police officers (the Doe
defendants) who allegedly performed the searches. After extensive discovery in
this case Plaintiffs are still not able to identify the Doe defendants who allegedly
performed the searches. Plaintiffs’ complaint asserts claims against the members
of the St. Louis Board of Police Commissioners alleging that the searches were
performed as a pattern, practice, policy, or custom of the Police Board. The Police
Board defendants have moved for summary judgment. Because Plaintiffs have not
been able to identify the officers who allegedly performed the searches, these Doe

defendants must be dismissed from the case. Because the Doe defendants will be
dismissed from the case and because Plaintiffs have failed to produce any evidence
that the alleged strip searches were part of a custom, policy, or practice of the
Police Board, I will grant the Police Board defendants summary judgment.
Background
Plaintiffs are three female protesters who are proceeding in this matter by
the initials D.H., C.L., and J.P. Plaintiffs participated in a several day protest at
Kiener Plaza in St. Louis, Missouri in an event which came to be called “Occupy
St. Louis.” Plaintiffs were among twenty-seven protesters who were arrested on
November 12, 2011 at Kiener Plaza for violating a park curfew. The only police
officers involved in the arrests were members of the St. Louis Police Department.
If someone is arrested on the street they are subject to a pat down search but not to
a full custodial search. When arrestees are taken to the police station for booking
they are subject to a custodial search. During a custodial search female arrestees
are asked to extend their bra and shake it.
Plaintiffs were taken by police officers to the Central Patrol Station in the 4th
District where they were booked, processed, and placed into holding cells. The
female officers assigned to Central Patrol are all authorized to perform strip
searches if the watch commander approves a strip search. Plaintiffs allege that
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they were taken one at a time from their holding cell to a separate room where they
were “stripped searched.” Each of the searches was conducted by only one female
police officer.
Plaintiff D.H. stated in her deposition that the female officer who performed
her search was Caucasian, tall, masculine, stocky, “butch,” kind of heavyset, with
reddish hair color. The officer asked D.H. to lift her bra and shirt over her head
and at the same time take down her pants and squat. D.H. complied with the
request and was taken back to the holding cell.
Plaintiff C.L. stated in her deposition that the female officer who performed
her search was African American, shorter that 5’6” tall, twenty pounds overweight,
with short hair. The officer asked C.L. to lift her bra, turn it inside out, and shake
it. C.L. complied. The officer then asked C.L. to turn around, unbutton her pants,
lower them to her knees and squat. C.L. complied.
Plaintiff J.P. stated in her deposition that the female officer who performed
her search was white, between 5”6” and 5’8” tall, had brown hair in a ponytail, and
was a “butchy,” “stronger looking lady.” The officer asked J.P. to pull her bra and
shirt out and shake it. J.P. did not expose her breasts to the officer. J.P. was also
asked to pull her pants down and squat. J.P. complied.
Plaintiffs filed this lawsuit asserting state law claims against the Jane Doe I
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and Jane Doe II police officer defendants1 for violating § 544.193 R.S.Mo. (this
statute prohibits strip searches without cause). Plaintiffs also asserted claims
against the two Doe defendants under the Fourth Amendment of the United States
Constitution for violating their right to be free of unreasonable searches. In
addition, Plaintiffs asserted claims against the Police Board members alleging that
the strip searches were conducted in accordance with the Police Board’s “pattern,
practice, policy, or custom of performing body cavity searches and strip searches
of female individuals who are arrested during arrests of peaceful protestors.” The
Police Board members have moved for summary judgment.
Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998)(citing
Fed. R. Civ. P. 56(c)). The party seeking summary judgment bears the initial
responsibility of informing the court of the basis of its motion and identifying those
portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of
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Plaintiffs chose to limit their claims against the individual police officers to two Doe defendants
who conducted the searches. It appears that Plaintiffs believe that the officer who allegedly
search D.H. and P.P. were the same officer.
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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a
motion is made and supported by the movant, the nonmoving party may not rest on
his pleadings but must produce sufficient evidence to support the existence of the
essential elements of his case on which he bears the burden of proof. Id. at 324. In
resisting a properly supported motion for summary judgment, the plaintiff has an
affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Discussion
The Doe Defendants
As a threshold matter Plaintiffs’ claims against the two police officer Doe
defendants must be addressed. In their depositions Plaintiffs were able to describe
the appearance of these officers. Discovery in this matter was conducted over a
fifteen month period. Defendants produced photographs of all the female police
officers assigned to Central Patrol. Defendants also produced multiple officers for
depositions. Plaintiffs have not been able to identify the two officers who are
alleged to have conducted the searches at issue. Despite several extensions of the
discovery deadline in this matter, Plaintiffs never filed a motion to compel or
otherwise sought relief from the Court in an attempt to identify these officers.
In general, fictitious parties may not be named as defendants in a civil
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action. Phelps v. United States, 15 F.3d 735, 738 - 739 (8th Cir. 1994). However,
an action may initially proceed against a party whose name is unknown if the
complaint makes sufficiently specific allegations to permit the identity of the party
to be ascertained after reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257
(8th Cir. 1985). The dismissal of a fictitious party becomes proper “only when it
appears that the true identity of the defendant cannot be learned through discovery
or the court's intervention.” Id.
Discovery has long been closed in this matter and a trial is set in the near
future. We are now at the summary judgment stage of this proceeding and
Plaintiffs have failed to identify the Doe defendants. Because Plaintiffs may not
maintain claims against fictitious defendants at trial, the claims against defendants
Jane Doe I and Jane Doe II will be dismissed.
Monell Liability
A public entity cannot be held vicariously liable under U.S.C. § 1983 for the
actions of its employees based on a theory of respondeat superior. Monell v. New
York City Dept. of Social Services, 436 U.S. 658, 691 (1978). To establish
municipal liability, a plaintiff must establish that one of the municipality's officers
violated her federal rights and then establish a causal link between a municipal
policy and the alleged violation. Veatch v. Bartels Lutheran Home, 627 F.3d 1254,
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1257 (8th Cir. 2010). “Such a showing requires either the existence of a
municipal policy that violates federal law on its face or evidence that the
municipality has acted with ‘deliberate indifference’ to an individual's federal
rights.” Id.
Plaintiffs’ claims against the Police Board members assert that the Doe
officers conducted the strip searches following a pattern, practice, policy, or
custom of the Police Board of performing body cavity searches and strip searches
of peaceful female protesters who are arrested. However, without a constitutional
violation by the individual officers, there can be no municipal liability under
Monell. Sanders v. City of Minneapolis, Minnesota, 474 F.3d 523, 527 (8th Cir.
2007). Because Plaintiffs have been unable to identify the Doe defendants, they
cannot proceed to trial to establish their claims against the Doe defendants.
Because Plaintiffs are unable to prove that these officers violated Plaintiffs’
constitutional rights, the Police Board cannot be liable under Monell for the actions
of these unknown officers.
In addition, Plaintiffs have failed to produce evidence that the strip searches
were conducted pursuant to a pattern, practice, policy, or custom. The existence of
a custom or policy must be established by more than a single set of circumstances
that applied to the plaintiff’s case. Munz v. Parr, 758 F.2d 1254, 1259 (8th Cir.
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1985). In the present case the alleged strip searches at issue were conducted during
the same circumstances on the same occasion. Plaintiffs have not produced any
evidence that strip searches have been conducted on peaceful protesters by St.
Louis police officers on any other date.
Moreover, Plaintiffs took the depositions of numerous police officers
regarding strip searches. That discovery failed to provide evidence that strip
searches were performed as part of a pattern practice, policy, or custom. To the
contrary, the officers’ testimony indicated that strip searches were rarely conducted
and that most officers deposed had never conducted a strip search. The officers
testified that there was a protocol to be followed if a strip search was requested
starting with getting approval from a watch commander. None of the officers
deposed testified that they saw or heard about female protesters being strip
searched on the occasion Plaintiffs were arrested.
In their opposition to summary judgment, Plaintiffs raise a question of
whether St. Louis police officers were adequately trained regarding strip searches.
However, Plaintiff complaint does not assert a failure to train claim. Even if a
failure to train claim had been asserted, it would be subject to the same infirmity
that Plaintiffs custom and practice claims have in this case, the failure of Plaintiffs
to identify the Doe defendants. It is left to conjecture what training these unknown
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defendants received.
Illegal strip searches by law enforcement officers are rightly the target of
lawsuits to stop such practices. Plaintiffs’ claims in this lawsuit are distressing and
if proved true may subject the individual officers to liability for violating the
Plaintiffs’ rights. However, based on the record before the Court, the claims
against the Doe defendants must be dismissed and the claims against the Police
Board members fail as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ claims against Jane Doe I and
Jane Doe II are hereby DISMISSED.
IT IS FURTHER ORDERED that St. Louis Board of Police
Commissioners Bettye Battle-Turner, Richard Gray, Erwin O. Switzer, Thomas
Irwin, and Francis Slay’s motion for summary judgment [81] is GRANTED.
IT IS FURTHER ORDERD that Plaintiffs’ motion for oral argument [93]
is DENIED as moot.

______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 9th day of September, 2016.
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