Williams v. City of Cleveland

Filing 128

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion for Summary Judgment and Permanent Injunction (ECF No. 110 ) is granted in part and denied in part. Defendant's Motion for Summary Judgment (ECF N o. 118 ) is granted in part and denied in part. The parties shall settle on the form of the permanent injunction forthwith. In the absence of agreement on form, Plaintiff shall present a form of injunction to the Court, in not later than 14 days from the date of this Order. Judge Benita Y. Pearson on 9/28/2016. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TYNISA WILLIAMS, etc.,
Plaintiff,
v.
THE CITY OF CLEVELAND,
Defendant.

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CASE NO. 1:09CV2991

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF Nos. 110 and 118]

Plaintiff Tynisa Williams (“Plaintiff”) brought this putative class action under 42 U.S.C.
§ 1983 against Defendant City of Cleveland (the “City” or “Defendant”) alleging compulsory
physical delousing and group strip search claims. These claims are now before the Court upon
cross-motions for summary judgment (ECF Nos. 110 and 118). Plaintiff moves the Court for an
Order providing a permanent injunction enjoining the City from continuing to physically delouse
detainees at the City’s House of Correction, also known as the Workhouse (the “jail”), and from
continuing to strip search detainees in groups in the absence of appropriate privacy
partitions/curtains. ECF No. 110 at PageID #: 1542.1 The Court has been advised, having
reviewed the record, the parties’ briefs, and the applicable law. After an examination of the
record, the Court determines that oral argument is not needed. For the reasons set forth below,
the motions are granted in part and denied in part.

1

Inmates are incarcerated at the jail as pretrial detainees, civil commitments or
for misdemeanors with sentences that cannot be more than one year.

(1:09CV2991)
I. Background
A.
As a preliminary matter, the Court notes that the Order (ECF No. 97), entered on October
26, 2015, provides, in pertinent part:
Lead counsel of record are granted leave to confer with one another by telephone
in order to prepare written stipulations as to all uncontested facts to be presented
by the cross-motions for summary judgment. The stipulations shall be filed with
the Court on or before November 2, 2015.
ECF No. 97 at PageID #: 795. No stipulations were filed.
B.
This case involves booking procedures at the jail that Plaintiff contends are
unconstitutional. In July 2011, the Court granted Defendant’s motion to stay the case until
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S.Ct. 1510 (2012), was
resolved. See Memorandum of Opinion and Order (ECF No. 52). The Florence decision was
handed down by the United States Supreme Court in April 2012. Shortly after Florence was
decided, the Court lifted the stay and instructed Plaintiff to file an amended complaint that added
Shawn Bealer as an additional class representative. See Order (ECF No. 58). After filing an
answer to the amended complaint, the City moved for judgment on the pleadings. The Court
subsequently denied Plaintiffs’2 motion for leave to file a second amended complaint and entered

2

On December 15, 2015, the Court agreed with Defendant’s unopposed
suggestion that Plaintiff-Intervenor Shawn Bealer is not suitable to proceed as a class
representative in this case. See Order (ECF No. 120).
2

(1:09CV2991)
judgment on the pleadings in the City’s favor. Williams v. City of Cleveland, No. 1:09CV2991,
2013 WL 5519403 (N.D. Ohio Sept. 30, 2013) (Pearson, J.) (ECF No. 79). Plaintiffs appealed.
In November 2014, the Sixth Circuit reversed and remanded the case for further
proceedings. Williams v. City of Cleveland, 771 F.3d 945 (6th Cir. 2014). The Court of Appeals
stated that this Court, “which opined that delousing naked inmates in a group ‘is justified,’
jumped the gun.” Id. at 955. The Sixth Circuit “ held that a complaint “plausibly allege[s] a
violation of the Fourth Amendment” “when it alleges that defendant’s jail, instead of using less
invasive procedures, compelled pretrial detainees who were being processed into the facility to
undress in the presence of other detainees and to have their naked genitals sprayed with
delousing solution from a pressurized metal canister.” Id. at 947. It stated this Court was
mistaken in concluding that the particular manner in which Plaintiffs alleged they were seized
and searched differed in only insignificant ways from the practices that were upheld in Florence.
Id. at 949. Pretrial detainees enjoy the Fourth Amendment’s guarantee of “reasonable
expectations of privacy.” Id. at 950 (citing Stoudemire v. Michigan Dept. of Corrections, 705
F.3d 560, 572 (6th Cir. 2013). “Given the significant incursion into plaintiffs’ privacy rights
caused by the jail’s preferred method of searching and delousing them, the jail’s need to perform
the searches in this particular manner must be unusually dire before it can outbalance the affront
to plaintiffs’ privacy.” Id. at 954 (citing Florence, 132 S.Ct. at 1516).
After considering the parties’ Status Report and Stipulation (ECF No. 89), the Court
scheduled (1) a date for Plaintiffs to serve and file a Second Amended Class Action Complaint,
(2) a cutoff date to amend pleadings and add parties, (3) a cutoff date for the parties to serve

3

(1:09CV2991)
supplemental initial disclosures, (4) a discovery cutoff date, and (5) dates for the filing of crossmotions for summary judgment. See Order (ECF No. 92). The parties agree that the issue of
municipal liability in the case at bar can be resolved by a decision on cross-motions for summary
judgment. See Affirmation in Support (ECF No. 111) at PageID #: 1549-50, ¶ 7. See also ECF
No. 89 at PageID #: 740, ¶ 4; ECF No. 92 at PageID #: 769, ¶ 5.
Plaintiff is the purported representative for the class of all persons incarcerated at the jail
between December 26, 20073 and April 14, 2010.4 According to the Second Amended Class
Action Complaint (ECF No. 90), the City has a policy of strip searching and delousing each
person who enters the custody of the jail, regardless of whether jail officials have a reasonable
suspicion that the detainee has lice. Detainees must remove their clothing in the presence of a
corrections officer, who then sprays delousing solution5 from a pressurized metal canister on the
detainee’s naked body, including on the detainee’s exposed genitals. City officials nicknamed
this procedure the “hose method.” Memorandum in Support (ECF No. 118) at PageID #: 1939;
Email Message, dated June 15, 2010, from Kathy Raleigh (ECF No. 111-14).
Plaintiff was arrested in October 2009 on a non-felony charge of driving with a suspended
license. Her license had been suspended because she failed to pay a traffic ticket. Deposition of

3

This is the date alleged in the Second Amended Class Action Complaint (ECF
No. 90), which is two years before the filing of the original complaint. ECF No. 90 at
PageID #: 747, ¶ 7.
4

The City stopped delousing detainees utilizing the “hose method” on this date.
See Email Message, dated April 14, 2010, from Commissioner Jacqueline Lewis (ECF
No. 111-15).
5

A brand of pediculicide called Liceall was used.
4

(1:09CV2991)
Tynisa Williams (ECF No. 109) at PageID #: 1471. After Plaintiff made arrangements with
authorities to pay her traffic ticket and fines, she was processed into the jail on October 28, 2009.
There, she was instructed to undress and briefly shower in the presence of not only a corrections
officer but also two other female detainees. ECF No. 109 at PageID #: 1486,1492.6 All three
detainees could see each other by virtue of being in the Clothing Room with no privacy
partitions/curtains of any kind. ECF No. 109 at PageID #: 1492-93.7 The compulsory physical
delousing occurred in the shower area that is adjacent to the Clothing Room. Deposition of Lt.
Joseph Stottner (ECF No. 107) at PageID #: 1326-27. This shower area has three shower stalls,
and the delousing occurred in front of those shower stalls in the middle of the room near a drain.
ECF No. 107 at PageID #: 1269-72.8 In the presence of the other detainees, who were standing
side-by-side, Plaintiff was subjected to a visual body cavity search, during which she was
instructed to squat down.9 A corrections officer misted her with delousing solution from an

6

ECF Nos. 111-35, 111-38, and 111-41 are photographs of the Shower Room.
ECF No. 111-35 shows the separate stalls with complete privacy partitions.
7

Defendant argues that while it would be possible to install a partition in the
Clothing Room, that partition poses a security risk and limits the view of the corrections
officers. ECF No. 118 at PageID #: 1949-50.
8

ECF No. 111-42 is a diagram of the Shower Room, including measurements,
prepared by Plaintiff’s counsel.
9

According to Defendant, “[t]he Sixth Circuit’s opinion in this matter, though
informative, was not based on the facts that have been developed in this record.” ECF
No. 118 at PageID #: 1959. Plaintiff alleges that she was instructed to spread her
buttocks. ECF No. 90 at PageID #: 754, ¶ 36. According to Defendant, Plaintiff does not
state in her deposition that she was asked to spread her buttocks. ECF No. 118 at PageID
#: 1941.
5

(1:09CV2991)
exterminator can all over her naked body, including into her anus. ECF No. 109 at PageID #:
1496-99. Given the layout of the shower area, Detainees could see one another. ECF No. 107 at
PageID #: 1269-72. There was no indication that Plaintiff was harboring lice. Deposition
Jacqueline Lewis (ECF No. 105) at PageID #: 1215-1216; ECF No. 107 at PageID #: 1299-1300.
Plaintiff was released from the jail the same day. ECF No. 109 at PageID #: 1507-10.
Based on these allegations, Plaintiff asserts four claims requesting damages as well as
declaratory and injunctive relief under § 1983. The First Cause of Action is for unreasonable
search and seizure under the Fourth Amendment related to strip searches and the “compulsory
delousing of individuals arrested for misdemeanors or violations absent some particularized
suspicion that the individual in question has either contraband or weapons.” ECF 90 at PageID
#: 757, ¶ 51. The Second Cause of Action is brought pursuant to the Fourth and Fourteenth
Amendments (in part) for the alleged imposition of unnecessary medical treatment in reference to
the compulsory delousing procedure.10 The Third and Fourth Causes of Action seek declaratory

10

The Sixth Circuit footnoted that “Plaintiffs appear to have abandoned any
argument with respect to the second cause of action noted in their proposed second
amended complaint.” Williams, 771 F.3d at 956 n. 1. Plaintiff declares in her Reply
Memorandum that her claim for involuntary medical treatment is withdrawn. ECF No.
121 at PageID #: 2038. The pre-filing written exchange required by the Court’s prior
Orders (ECF No. 92 at PageID #: 769, ¶ 5 and ECF No. 97 at PageID #: 793) should have
obviated the need for the Court’s attention to be drawn to an unopposed argument.
Because Plaintiff failed to meet her burden in opposing summary judgment on her
claim for the alleged imposition of unnecessary medical treatment in reference to the
compulsory delousing procedure, Plaintiff has abandoned this claim and waived any
argument concerning dismissal of such claim. Hicks v. Concorde Career Coll., 449
Fed.Appx. 484, 487 (6th Cir. 2011) (finding that “[t]he district court properly declined to
consider the merits of [plaintiff’s] claim because [plaintiff] failed to address it in . . . his
response to the summary judgment motion”); see also, e.g., Hadi v. State Farm Ins. Cos.,
(continued...)
6

(1:09CV2991)
judgment and a preliminary and permanent injunction based on the facts in the First and Second
Causes of Action.
II. Standard of Review
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the
burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
resolved by a jury.” Cox v. Ky. Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The

10

(...continued)
2:07-CV-0060, 2008 WL 4877766, at *13 (S.D. Ohio Nov. 12, 2008) (finding plaintiff’s
failure to respond with any evidence supporting his negligent infliction of emotional
distress claim “apparently concedes that summary judgment is proper on this count.”).
Therefore, Defendant’s Motion for Summary Judgment (ECF No. 118) with respect to
this claim is granted for the reasons articulated by Defendant. See ECF No. 118 at
PageID #: 1956-59.
7

(1:09CV2991)
non-moving party must, to defeat the motion, “show that there is doubt as to the material facts
and that the record, taken as a whole, does not lead to a judgment for the movant.” Guarino, 980
F.2d at 403. In reviewing a motion for summary judgment, the court must view the evidence in
the light most favorable to the non-moving party when deciding whether a genuine issue of
material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
The United States Supreme Court, in deciding Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986), stated that in order for a motion for summary judgment to be granted, there must be
no genuine issue of material fact. Id. at 248. The existence of some mere factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment. Scott v. Harris, 550 U.S. 372, 380 (2007). A fact is “material” only if its resolution
will affect the outcome of the lawsuit. In determining whether a factual issue is “genuine,” the
court must decide whether the evidence is such that reasonable jurors could find that the
non-moving party is entitled to a verdict. Id. Summary judgment “will not lie . . . if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id. To withstand
summary judgment, the non-movant must show sufficient evidence to create a genuine issue of
material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). The existence of a
mere scintilla of evidence in support of the non-moving party’s position ordinarily will not be
sufficient to defeat a motion for summary judgment. Id. This standard of review does not differ
when reviewing cross-motions for summary judgment versus a motion filed by only one party.
U.S. SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).

8

(1:09CV2991)
III. Analysis
Under Florence, there is no longer any question that individualized suspicion is
unnecessary to conduct blanket strip searches and to delouse prisoners at intake. 132 S.Ct. at
1518. The method of the strip search and the delousing are, however, still subject to
constitutional evaluation. In answering the question of whether a blanket policy of strip
searching incoming inmates was constitutionally sound, Florence answered by holding that the
“undoubted security imperatives involved in jail supervision override the assertion that some
detainees must be exempt from the more invasive search procedures at issue absent reasonable
suspicion of a concealed weapon or other contraband.” Id.
A.

Physical Delousing Claim

Plaintiff “not only complain[s] about the use of delousing on all detainees, but also about
the manner in which the delousing occurs.” ECF No. 90 at PageID #: 745. In particular, Plaintiff
alleges that the City violated detainees’ constitutional rights by spraying delousing solution all
over their naked bodies, “specifically aim[ing]” it at the face and genitals, instead of using less
invasive delousing methods, such as permitting detainees to apply the delousing solution to
themselves. ECF No. 90 at PageID #: 749, ¶ 12. Several other penological facilities permit the
self-application of delousing solution in the manner that Plaintiff requests. See e.g., Florence,
132 S.Ct. at 1514; Russell v. Richards, 384 F.3d 444, 446 (7th Cir. 2004). Plaintiff also alleges
that her strip search and delousing were unreasonable because it was conducted in the presence
of two female detainees. ECF No. 90 at PageID #: 758, ¶ 54. Thus, Plaintiff alleges not only
that the jail lacked justification for the search and seizure in the first place, but also that the

9

(1:09CV2991)
particular manner in which the jail conducted its compulsory delousing regime was unreasonable,
“given more dignified alternatives.” ECF No. 90 at PageID #: 753, ¶ 30. In Florence, the
Supreme Court stated that “[t]he danger of introducing lice or contagious infections . . . is well
documented .” 132 S.Ct. at 1518 (citations omitted). In the case at bar, the Sixth Circuit
declared “the pertinent question is not whether the jail has a general need to prevent the
introduction of lice into its facility (obviously, it does) but whether the jail’s selection of the
particular procedures to which it subjected plaintiffs is reasonably related to that legitimate end.”
Williams, 771 F.3d at 954 (citing Stoudemire, 705 F.3d at 573).
According to the Sixth Circuit,
[b]ecause the focus must be on the jail’s interest in carrying out the search and
seizure in the particular manner that it chose, see Florence, 132 S.Ct. at 1516, the
analysis in this case must balance the detainees’ privacy rights against the jail’s
specific interest in spraying them with delousing agent from a pressurized canister
while they crouched naked in the presence of other detainees instead of using less
invasive procedures to achieve the same end.
Id. at 952. Defendant recounts the “hose method” as not involving physical touching by
corrections officers themselves. ECF No. 118 at PageID #: 1940. The Sixth Circuit found “the
distinction is unconvincing.” Id. Contrary to paragraphs 12 and 25 of the Second Amended
Class Action Complaint (ECF No. 90),11 Plaintiff testified in deposition that the delousing was a

11

12. . . . The City employs the “hose treatment,” where
detainees are forcibly sprayed with delousing solution from
the hose [of] an exterminator can. The effluent from the
“hose treatment” is specifically aimed at the face and
genitals of detainees. . . .
25. Furthermore, the City’s method of delousing detainees,
(continued...)
10

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light spray, like a body mist that only lasted a few seconds. ECF No. 109 at PageID #: 1519,
1492. Defendant compares the procedure to the application of bug spray, perfume or a spray tan.
ECF No. 118 at PageID #: 1940.
Plaintiff also alleges that the delousing solution penetrated her anus. ECF No. 90 at
PageID #: 755, ¶ 36. Defendant argues that while there is little doubt that the delousing liquid
ran down Plaintiff’s buttocks and likely over her anus, it is very hard to believe that the solution
managed to actually penetrate her body because she testified as follows:
Q
A
Q
A
Q
A
Q
A

You said that the delousing solution was like a body mist. Was it a light
mist like that?
Yes.
So it didn’t hit you with any kind of force?
No.
Okay. Did you feel it hitting you?
Yes.
Did you feel it just because it was a liquid and cold?
Liquid and it was cold.

ECF No. 109 at PageID #: 1519.
The City admits that until April 14, 2010 it required physical delousing of all detainees
admitted to the custody of the jail as a matter of municipal policy. ECF No. 118 at PageID #:
1938; Deposition of Lt. Stella Clark (ECF No. 101) at PageID #: 1006-1007; ECF No. 105 at

11

(...continued)
the “hose treatment,” is both offensive and absurd. Forcibly
spraying the genitals of detainees, versus allowing
detainees to apply the delousing solution themselves, is the
hallmark of an abusive and unnecessary jail policy. . . .
11

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PageID #: 1215-16.12 At the time of this writing, there is no blanket procedure for delousing
inmates. Deposition of David Carroll (ECF No. 99) at PageID #: 968. A new less intrusive
policy regimen was employed following the cessation of delousing. Now, corrections officers
immediately send detainees, who are suspected of having lice, to the Workhouse medical unit for
assistance. Deposition Lt. Reginald Flowers (ECF No. 103) at PageID #: 1148-49; Divisional
Notice Regarding Intake Delousing (ECF No. 111-13). Plaintiff is only asking the Court to
require the City to follow its current policies, and not revert back to the older, offensive practices.
Memorandum in Support (ECF No. 112) at PageID #: 1698.13
Defendant asserts the delousing solution was applied to Plaintiff by a nozzled hose
affixed to a pressurized canister that resembled an exterminator’s can because it is the experience
of the officials at the jail that inmates only follow orders 50% of the time and spraying a
delousing agent will likely be more effective and will result in fewer altercations with inmates
than allowing the inmate to apply a delousing solution themselves. ECF No. 118 at PageID #:
1952. David Carroll testified:

12

This compulsory physical delousing regimen was also reflected in the City’s
written policies. See Workhouse Post Order (ECF No. 111-8) at PageID #: 1619
(corrections officer “[a]ssures that inmates shower and are sprayed with appropriate
antiseptic or are referred to the medical staff for delousing prior to putting on institutional
clothing.”); Workhouse Hygiene and Clothing Policy (ECF No. 111-12) at PageID #:
1635 (“Showering and delousing is required prior to being issued institutional clothing.”).
13

Jacqueline Lewis, a former supervisor of the jail, the City’s Rule 30(b)(6)
deponent, indicated that she believes the former physical delousing policy to be fine, and
would consider reinstituting it at the end of this litigation. ECF No. 105 at PageID #:
1215.
12

(1:09CV2991)
Q.
. . . Do you feel in your experience as the acting commissioner for
the department of corrections over the past four years that in general when you
give inmates instructions, they listen to you?
MS. DINEHART: Objection.
A.
Somewhat. It’s probably 50/50.
ECF No. 99 at PageID #: 938. Defendant’s justification for physically delousing detainees, as
opposed to allowing them to apply delousing solution to themselves is that corrections officers
could not “trust” inmates to perform the procedure properly. ECF No. 101 at PageID #: 1067;
ECF No. 105 at PageID #: 1202-1203. But, “[s]imply spraying the detainee with a hose as if she
was an object or an animal treats her as if she does not have the capacity to make [the] choice” to
self-apply the solution. Williams, 771 F.3d at 955.14 Moreover, the City’s argument regarding an
alleged lack of compliance by detainees as a justification for the delousing regimen is
contradicted by the testimony of other corrections officials, who admitted that their instructions
were nearly always followed by detainees in both the Shower Room and Clothing Room, even
when they were using the “hose method.” See, e.g., Deposition of Rufus Williams (ECF No.
108) at PageID #: 1416-18, 1446.
Plaintiff testified that she was not allowed to shower after the application of the delousing
solution. ECF No. 109 at PageID #: 1507. Nevertheless, the record does not reveal that the
delousing inspired a need to shower. Despite being released shortly after processing was
completed, Plaintiff did not shower for hours. She took her son trick-or-treating, put her son to

14

Defendant argues that in Williams, the Sixth Circuit exhibited “a bizarre
misunderstanding of the importance of sanitation within a jail facility and in fact the
entire purpose behind compulsory delousing, of the type deemed a valid penological
interest in Florence.” ECF No. 118 at PageID #: 1953.
13

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bed, and showered as she normally did before bed. ECF No. 109 at PageID #: 1511. Plaintiff
testified to having a vaginal infection that she treated at the hospital a couple of days after
release. ECF No. 109 at PageID #: 1512. She has no proof the infection was related to the
delousing. ECF No. 109 at PageID #: 1499-1501. Plaintiff has not submitted any documentation
linking the delousing solution to her infection. She has suffered from these infections at other
times. ECF No. 109 at PageID #: 1512-13.
Defendant argues that the inmates were instructed to shower after the delousing agent was
applied. ECF No. 101 at PageID #: 1028; ECF No. 107 at PageID #: 1277. Defendant declares
that “[t]here are material issues of fact in this suit, but asserts that [its Cross-Motion for
Summary Judgment] can be determined based on Plaintiff’s telling of her experience at the
House of Corrections.” ECF No. 118 at PageID #: 1939.
Defendant cites a reported case from a district court in Pennsylvania in its discussion of
alternatives to the “hose method.” In Logory v. Cnty. of Susquehanna, 277 F.R.D. 135,
(M.D.Penn. 2011), the district court deferred to the discretion of jail administrators and found
that a delousing spray was not so different from a facility using a lice shampoo. Quoting the
Third Circuit opinion in Florence,15 Logory stated:
Florence held explicitly that “the strip search procedures . . . at [the Prisons] are
reasonable.” Id. at 311. As those procedures explicitly included a delousing, it is
curious as to how Plaintiff could maintain a class premised on an alleged Fourth
Amendment violation that involv[es] the very same procedures. Plaintiff attempts
to play up the differences between the two procedures, that Florence utilized a
self-applied shampoo followed by a supervised shower while the instant case
concerns a delousing spray followed by an unsupervised shower. It is true that

15

621 F.3d 296 (3rd Cir. 2010).
14

(1:09CV2991)
Fourth Amendment reasonableness is a fact-specific inquiry, “not capable of
precise definition or mechanical application.” Id. at 301 (citing Bell v. Wolfish,
441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). However, the Court
agrees with the Defendant that these are de minimis differences that do not
materially alter the Fourth Amendment analysis.
Id. at 142. As a result, in Logory, the court found that the plaintiff could not sustain a class
action for a Fourth Amendment violation. Id.
The Sixth Circuit has determined that permitting self-application of a delousing solution
like that which was used in Florence “could be readily implemented at the jail without
compromising the jail’s interest in preventing lice infestations.” Williams, 771 F.3d at 955.
Therefore, the jail’s employment of the “hose method,” to which Plaintiff was subjected, is not
reasonably related to the legitimate end of preventing the dissemination of lice in its facility.
This delousing procedure employed until April 14, 2010 does not pass constitutional muster.
The application of the delousing solution in this manner is not a rational response to the jail’s
legitimate interest in preserving health and well-being within the facility, given other less
humiliating and invasive alternative methods to eradicate lice, such as permitting detainees to
self-apply a delousing solution. The “hose method” may be reserved for instances where
individual detainees misapply or refuse to properly apply the provided solution. Id. at 954.
B.

Group Strip Search Claim16

16

The Second Amended Class Action Complaint (ECF No. 90) does not mention
group strip searches in the proposed class definition. See ECF No. 90 at PageID #: 747, ¶
7. Paragraph 54 of the Second Amended Class Action Complaint states, however, that
“Plaintiffs’ rights were [ ] violated because their strip searches and delousing occurred in
the presence of other detainees.” ECF No. 90 at PageID #: 758 (emphasis added).
Plaintiff will, however, seek to address group strip searches when she moves the Court
(continued...)
15

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“The same analysis applies to the jail’s decision to strip search and delouse plaintiffs in
full view of other detainees.” Williams, 771 F.3d at 955. “Whether the particular manner in
which the jail conducted the searches and seizures at issue here was ‘justified’ depends on the
facts, such as ‘whether any exigent circumstances compelled [the officers] to strip search
[plaintiffs] in view of other inmates.’” Id. (quoting Stoudemire, 705 F.3d at 573-74). As stated
by the Sixth Circuit in Salem v. Michigan Dept. of Corrections, 643 Fed.Appx. 526 (6th Cir.
2016):
Whether a prison search is constitutionally reasonable depends on “whether the
jail’s ‘need for the particular search’ outweighs ‘the invasion of personal rights
that the search entails.’” Williams, 771 F.3d at 950 (quoting Bell v. Wolfish, 441
U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Stoudemire, 705 F.3d at
572). In making this determination, we “consider the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating it,
and the place in which it is conducted,” id. (quoting Bell, 441 U.S. at 559, 99
S.Ct. 1861), while also examining “obvious, easy alternatives” that accommodate
the inmate’s privacy interests at little cost to valid penological objectives, id.
(quoting Turner v. Safley, 482 U.S. 78, 90-91, 107 S.Ct. 2254, 96 L.Ed.2d 64
(1987)).
. . . searches conducted in view of other inmates—who “do not share the searching
officers’ institutional need to view [another prisoner] unclothed”—are
exceedingly intrusive. Williams, 771 F.3d at 953. . . .
Id. at 530. “Applying this test, the [Sixth Circuit] has held that strip searches performed in view
of other inmates without a legitimate penological justification violate inmates’ clearly established

16

(...continued)
for class certification. ECF No. 121 at PageID #: 2034. See Robidoux v. Celani, 987
F.2d 931, 937 (2d Cir. 1993) (“A court is not bound by the class definition proposed in
the complaint.”).
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(1:09CV2991)
Fourth Amendment rights.” Salem, 643 Fed.Appx. at 530 (citing Williams, 771 F.3d at 952-56;
Stoudemire, 705 F.3d at 572-75).
On the other hand, “[p]rison administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain institutional security.” Bell, 441
U.S. at 547. “[W]here a particular search or seizure involves significant intrusion into a
detainee’s privacy interests, the existence of ‘obvious, easy alternatives . . . that fully
accommodate[ ] the prisoner’s rights at de minimis cost to valid penological interests’ suggests
that the institution’s need to proceed in its chosen manner does not outweigh the burdens it
imposes upon the detainee and is therefore unreasonable.” Williams, 771 F.3d at 950 (quoting
Turner, 482 U.S. at 90-91). Defendant argues it has good reasons for conducting the blanket
group strip searches in the jail in the particular manner in which it does, instead of strip searching
one detainee at a time. Administrative convenience is among the reasons. ECF No. 118 at
PageID #: 1949.
Plaintiff was required to submit to a strip search in the presence of two other female
detainees. ECF No. 109 at PageID #: 1486, 1492. She was required to remove her clothing,
including her underclothes and brassiere while under the visual observation of a female
corrections officer, for the specific purpose of detecting contraband. ECF No. 109 at PageID #:
1486, 1492; Deposition of Mary Bounds (ECF No. 98) at PageID #: 850, 852-53. The City
contends that Plaintiff and the two other inmates were standing side-by-side in the private

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Clothing Room17 during the search (ECF No. 109 at PageID #: 1494-96, 1497), but squatted
one-by-one while still in line so that the inmates were not able to see each other’s genitalia
without taking effort to move out of the position in which they were placed by the corrections
officer, effort that Plaintiff does not recall having been taken by another inmate during her search
(ECF No. 109 at PageID #: 1516). ECF No. 118 at PageID #: 1942.
The justification put forward by Defendant for requiring detainees to disrobe in each
other’s presence is that the jail was “busy,” and corrections officers need to strip search multiple
detainees for expediency. ECF No. 108 at PageID #: 1381, 1384. However, Lt. Clark admitted
that, while it may “slow things down just a little bit,” detainees could easily be strip searched
individually versus as part of a group. ECF No. 101 at PageID #: 1066-67. Evidence of the
regulation’s impropriety exists when “there are ready alternatives available to the regulations in
question that fully accommodate the prisoner’s rights at de minimis cost to valid penological
interests,” that go untapped. Spies v. Voinovich, 173 F.3d 398, 404 (6th Cir. 1999).
The State of Ohio recommends the use of modesty panels. The Ohio Corrections Officer
Basic Training Manual provides, in pertinent part:
2.

Based on several lawsuits on these kinds of cases, there are some general
rules
* * *
c.
Search area should provide privacy from outside observation
1.
Modesty panels are inexpensive and effective
2.
Use of these panels demonstrates good faith of a
department to conduct searches in a constitutional manner

17

ECF Nos. 111-26, 111-28, and 111-29 are photographs of the Clothing Room.
ECF No. 111-33 is a diagram of the Clothing Room, including measurements, prepared
by Plaintiff’s counsel.
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(1:09CV2991)
ECF No. 111-18 at PageID #: 1646. The City does not explain how the installation of modesty
panels in the Clothing Room at the jail could not be accomplished should there be a legitimate
need for strip searching multiple detainees.
Upon examining the evidence, the Court finds that, under the particular circumstances at
the City’s House of Correction, the corrections officers implementing the group strip searches did
not strike a reasonable balance between Plaintiff’s privacy interests and the need to provide
safety and security at the jail. Therefore, the Court finds the visual strip search at the jail violated
Plaintiff’s constitutional rights. Defendant can perform searches one at a time or in multiples
with appropriate privacy partitions to allow detainees to remove their clothing without being
viewed by other detainees, while still being observed by a corrections officer.18
C.

Injunction

Four factors must be considered when deciding whether to grant an injunction: (1)
whether the movant has a strong likelihood of success on the merits; (2) whether there is a threat
of irreparable harm to the movant; (3) whether others will suffer substantial harm as a result of
the injunction, should it issue; and (4) whether the public interest will be served by the
injunction. See Rock & Roll Hall of Fame and Museum, Inc. v. Gentile Prods., 134 F. 3d 749,
753 (6th Cir. 1998). In the prison litigation context, the Prison Litigation Reform Act (“PLRA”)
requires that the injunctive relief requested must be narrowly drawn, and be the least intrusive
means to correct the violation. Hadix v. Caruso, 420 Fed.Appx. 480, 481-82 (6th Cir. 2011)

18

During his deposition, Former Jail Manager Joseph Stottner, agreed to this
scheme when shown a photograph (ECF No. 111-32 ) of Plaintiff’s counsel’s rendering
of where a privacy partition could be installed. ECF No. 107 at PageID #: 1334-37.
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(1:09CV2991)
(citing 18 U.S.C. § 3626(a)(1)(A)). “[A] defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the legality of the practice.” Deja Vu
of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., Tennessee, 274 F.3d 377, 387
(6th Cir. 2001) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)).
This is especially so where the defendant has expressed the possibility of reenacting the
challenged policy. Id.
Plaintiff requests that the Court grant her request for a permanent injunction. In the
alternative, should the Court believe that there are disputed issues of fact precluding Plaintiff’s
entitlement to summary judgment, she requests that the Court grant her a preliminary injunction
so that Defendant’s “abhorrent” policies can be held in abeyance until this matter is tried before
the Court. ECF No. 112 at PageID #: 1698. In view of the above, the Court finds Plaintiff has
demonstrated all of the factors that a court must consider when deciding whether to issue an
injunction. Plaintiff is, therefore, entitled to a permanent injunction enjoining the City from (1)
reinstituting the “hose method” and (2) conducting group strip searches in the Clothing Room
without the installation of appropriate privacy partitions to obstruct the view by other inmates of
another unclothed inmate.
IV. Conclusion
Viewing the probative evidence and all reasonable inferences drawn therefrom,
Plaintiff’s Motion for Summary Judgment and Permanent Injunction (ECF No. 110) is
granted in part and denied in part; and

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Defendant’s Motion for Summary Judgment (ECF No. 118) is granted in part and denied
in part.
The issue of municipal liability in the case at bar is hereby resolved by the within
decision. The cross-motions for summary judgment are denied in part due to the fact that they
were filed prior to the Court’s determination that Plaintiff-Intervenor Shawn Bealer is not
suitable to proceed as a class representative in this case.
Defendant’s Motion for Summary Judgment (ECF No. 118) is granted with respect to the
alleged imposition of unnecessary medical treatment in reference to the compulsory delousing
procedure as set forth in the Second Cause of Action.
The claim and factual assertions in the Second Amended Class Action Complaint that a
Workhouse inmate sprayed Shawn Bealer with delousing solution and directed him to shower is
dismissed. See ECF No. 90 at PageID #: 756, ¶ 47.
The parties shall settle on the form of the permanent injunction forthwith. In the absence
of agreement on form, Plaintiff shall present a form of injunction to the Court, in not later than
fourteen (14) days from the date of this Order.

IT IS SO ORDERED.

September 28, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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