WARREN v. KING et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 4/27/16. 4/29/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LENORA KING, ET AL.,
April 27, 2016
Before the Court are Defendants’ Motion for Summary Judgment
(Doc. No. 45), Plaintiff’s Motion in Opposition thereto (Doc. No.
53), Plaintiff’s Cross Motion for Partial Summary Judgment (Doc.
No. 52), and Defendant’s Response in Opposition thereto (Doc. No.
54). For the reasons given below, the Defendants’ Motion is DENIED
in part and GRANTED in part. The Plaintiff’s Motion is DENIED. An
Plaintiff Thomas Warren was, at the time of the events in
question, a resident at Coleman Hall, “a facility that provides
residential reentry treatment services and houses Technical Parole
Violators.” Doc. No. 45 at 3 of 21. Mr. Warren maintains that he
had the status of “parolee” during the relevant events. Compl. at
¶ 3. During the time Mr. Warren resided at Coleman Hall, Defendant
Lenora King was a unit manager there and Defendant Fred Shapiro was
the director. Compl. at ¶¶ 4-5.
Mr. Warren alleges that on October 3, 2013, at approximately
1:35 PM, Ms. King entered Mr. Warren’s dorm bathroom. Compl. at ¶¶
8-9. At the time, Mr. Warren was in a closed stall “removing his
bowels.” Compl. at ¶ 9. Two other residents of the dorm were
washing up in the bathroom at the same time. Compl. at ¶ 9. Ms.
King directed Mr. Warren to leave the bathroom. Compl. at ¶ 10.
When Mr. Warren informed Ms. King that he was removing his bowels,
Ms. King told Mr. Warren that if he did not come out of the
bathroom he would not be re-paroled on October 7, 2013. Compl. at
cleaning himself. Compl. at ¶ 12.
Ms. King pat searched Mr. Warren. Compl. at ¶ 13. She then
radioed for staff backup and ordered two male staff members to
strip search Mr. Warren. Compl. at ¶ 14. Mr. Warren alleges this
took place in front of Ms. King and two other residents of Coleman
Hall. Compl. at ¶ 15.
After the strip search, Ms. King took Mr. Warren into the
hallway, where she told him he was in trouble with Mr. Shapiro and
that if he did not tell her what was going on in the bathroom, Mr.
Warren would not be re-paroled on October 7, 2013. Compl. at ¶¶ 1719. Ms. King then had Mr. Warren taken to a detention room where
Mr. Shapiro asked Mr. Warren to tell them what he knew. Compl. at
¶¶ 20, 22. When Mr. Warren stated that he did not know anything,
Mr. Shapiro instructed Ms. King to terminate Mr. Warren from the
Coleman Hall facility. Compl. at ¶ 23. Mr. Warren was told that
this was because he refused to “snitch.” Id. When Mr. Warren asked
if he would receive a hearing, as he understood to be standard
procedure, “Defendant Shapiro told plaintiff Warren that life is
not fair.” Compl. at ¶ 24. A parole agent placed Mr. Warren in
contraband. Compl. at ¶ 26.
On October 7, 2013, Mr. Warren sent a grievance letter to Mr.
Shapiro. Compl. at ¶ 35; Doc. No. 53, Ex. L, at 75 of 101. He did
not receive a response. Compl. at ¶ 35. On October 29, 2013, Mr.
Warren’s parole was revoked by the Pennsylvania Board of Probation
and Parole. Compl. at ¶ 30; Doc. No. 1, Ex. A, at 34 of 71. On
November 1, 2013, Mr. Warren filed an Administrative Appeal to the
Pennsylvania Board of Probation and Parole. Compl. at ¶ 36. He did
not receive a response. Id.
On October 31, 2014, Plaintiff filed a pro se civil action
against Ms. King and Mr. Shapiro under 42 U.S.C. § 1983.1 He
alleges violations of his Fourth, Eighth, and Fourteenth Amendment
punitive relief. Compl. at ¶ 43-46. Defendants moved for Summary
Judgment on January 21, 2016; Plaintiff filed his response and
Cross-Motion on March 21, 2016; Defendants filed their response in
opposition on April 8, 2016.
II. STANDARD OF REVIEW
A third Defendant has not been served at the time of this Memorandum
Summary judgment is appropriate “if the movant shows 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).
“A fact is material when its resolution ‘might affect the outcome
of the suit under the governing law,’ and a dispute about a
material fact is genuine ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Justofin v.
Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004)
(1986)). In making this determination, “the inferences to be drawn
from the underlying facts ... must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(alteration in original) (internal quotation and citation omitted).
We hold a pro se plaintiff bringing a civil rights suit to a less
stringent standard than a trained lawyer, and will liberally
construe the plaintiff’s allegations. Nieves v. Dragovich, No.
CIV.A. 96-6525, 1997 WL 698490, at *1 (E.D. Pa. Nov. 3, 1997).
A. Failure to Exhaust Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”) provides
conditions under section 1983 of this title, or any other Federal
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). The Defendants
argue that Mr. Warren’s claims must be dismissed for failure to
exhaust administrative remedies. The burden is on the Defendants to
show that Mr. Warren “failed to meet the requirements of the
grievance process” in place. Brown v. Lewis, 865 F.Supp.2d 642,
646-47 (E.D. Pa. 2011) (internal citation omitted).
The Defendants claim that Mr. Warren failed to follow the
Coleman Hall grievance procedure outlined in the Resident Handbook.
He did not follow it at the time of the events in question and upon
his return to Coleman Hall in March 2014, they argue, he had
another opportunity to file a grievance and he failed to do so.
Additionally, while Mr. Warren claims he wrote a letter explaining
his grievances to Mr. Shapiro, the Defendants argue there is no
evidence the letter was mailed, or that it was received by Mr.
The grievance procedure of Coleman Hall requires residents to
complete a grievance form, which is “available on the housing
unit,” and place it in a grievance box. Doc. No. 45-2, Ex. B, at 16
of 30. After his removal from Coleman Hall, Mr. Warren lacked
access to both the form and the box. The procedure indicates it is
for “[r]esidents experiencing problems with the program” and that
filing a grievance “will not interfere with a resident’s status or
progress in the program.” Id. Thus the procedure appears to be for
current residents, not individuals who had been terminated from the
program. As Mr. Warren’s grievance involved his termination from
the program and not conditions within the program, it is not clear
that these procedures apply to him. Additionally, as the Defendants
themselves indicate, this grievance procedure was not available to
Mr. Warren because he no longer resided at Coleman Hall and was
terminated before he had an opportunity to file a grievance. “A
grievance procedure is not available even if one exists on paper if
the defendant prison officials somehow prevent a prisoner from
using it.” Alden v. Smith, No. 3:CV-05-1735, 2007 WL 776868 (M.D.
Pa. Mar. 12, 2007) (citing Mitchell v. Horn, 318 F.3d 523, 529 (3d
Cir. 2003)); See also Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.
2002) (“Section 1997e(a) only requires that prisoners exhaust such
administrative remedies ‘as are available’ ... .”). Accordingly, we
find that the Defendants did not meet their burden to show that
there is no genuine dispute as to whether Mr. Coleman exhausted his
available administrative remedies.
B. No Physical Injury
The PLRA provides the following limitation on recovery: “No
federal civil action may be brought by a prisoner confined in a
emotional injury suffered while in custody without a prior showing
of physical injury or the commission of a sexual act ... .” 42
U.S.C. § 1997e(e). The Defendants allege that Mr. Warren can claim
no damages because he has not indicated that he suffered any
physical injuries as a result of this alleged incident. Mr. Warren
does not contest that he claims no physical injury, but instead
claims he is entitled to recover certain damages nonetheless.
It is well settled that “Section 1997e(e)’s requirement that
a prisoner demonstrate physical injury before he can recover for
mental or emotional injury applies only to claims for compensatory
damages.” Mitchell, 318 F.3d at 533. Claims seeking nominal or
punitive damages, or seeking injunctive or declaratory relief, for
violations of constitutional rights may proceed without claim of
injunctive relief, and both punitive and compensatory damages.
Compl. at ¶¶ 43-46. Accordingly, we grant summary judgment to the
Defendants on the issue of Mr. Warren’s compensatory damages, but
deny their claim that he has alleged no damages, as he remains
entitled to claim declaratory and injunctive relief, as well as
punitive damages, without claiming physical injury.
C. Due Process Violation
The Fourteenth Amendment prohibits states from depriving “any
person of life, liberty, or property without due process of law ...
property and liberty interests.” Fantone v. Lantini, 780 F.3d 184,
185 (3d Cir. 2015). However, “a prisoner does not have a liberty
interest in remaining in a preferred facility within a state’s
prison system.” Asquith v. Dep’t of Corr., 186 F.3d 407, 410 (3d
Cir. 1999). The protections of the Fourteenth Amendment also apply
to parolees in that the power of the state to detain and recommit
parolees is subject to its constraints. See U.S. ex rel. Burgess v.
determine the relevant interests and the process necessary to
protect those interests, we must first determine whether Mr. Warren
was a prisoner or a parolee at the time in question.
Under Pennsylvania law, a technical parole violator (“TPV”) is
a parolee “who violates the terms and conditions of his parole”
other than by being convicted of a new crime. 61 Pa.C.S.A. §
6138(c). Unless certain conditions are met, a TPV is to be detained
and recommitted “in a community corrections center or community
corrections facility.” Id. Coleman Hall is such a facility and Mr.
Warren was committed there as a TPV. Defendants point to the fact
that Mr. Warren was detained and recommitted as a TPV as conclusive
that he was a “convicted inmate,” and not a parolee. Doc. No. 45 at
11 of 21. Mr. Warren points to the language in the statute
referring to a “parolee” even after a violation has occurred, as
well as to the “Record of Interview” from the Pennsylvania Board of
Probation and Parole, which refers to Mr. Warren as a “parolee”
during the time of detention at Coleman Hall, as evidence to the
contrary. See Doc. No. 53, Ex. A, at 26 of 101.
As Mr. Warren notes, the statute refers to a TPV as a parolee.
Although the statute indicates that a TPV is to be detained and
recommitted, crucially, it does not state that detention and
Additionally, Chapter 50 of Title 61 of the Pennsylvania Statutes
indicates that “a parolee under the jurisdiction of the board” who
is detained or recommitted may be housed in a community corrections
center or community corrections facility. 61 Pa.C.S.A. § 5003.
Contrary to the Defendants’ assertion, that an individual is
detained is also not conclusive on the issue of whether that
determining whether to grant a reincarcerated individual credit for
time served in a treatment program, the Pennsylvania Supreme Court
has looked to the conditions of confinement to determine whether or
not an individual can be considered to be “at liberty on parole.”
Cox. v. Com., Bd. of Probation and Parole, 493 A.2d 680, 618-20
(Pa. 1985). This is a fact-specific inquiry. Id. at 619. In Medina,
the Pennsylvania Supreme Court let stand the Board of Probation and
Parole’s determination that Mr. Medina’s 79-day stay at a Community
Corrections Facility (“CCF”) was time spent at liberty on parole.
Medina v. Pa. Bd. of Probation and Parole, 120 A.3d 1116, 1125 (Pa.
2015). The Board noted that although the CCF housed pre-released
inmates as well as parolees, the treatment of the parolees differed
from the pre-release inmates. Id. at 1117-18. In particular, the
parolees were never charged with escape if they left the premises
and failed to return, although they were still considered to be
absconders. Id. at 1118.
In Medina, the plaintiff was paroled from prison to the CCF.
Mr. Warren was detained at Coleman Hall (which is also a CCF) after
he violated the terms of his parole and he apparently did not come
to Coleman Hall directly from prison. The issue here is not whether
Mr. Warren’s time at Coleman Hall constituted incarceration for
purposes of receiving credit for time served, but the time served
cases are useful in that they tell us it is possible to be detained
at a CCF and not be considered an inmate. As in those cases, we
look to the facts in the record to ascertain Mr. Warren’s legal
Mr. Warren was housed in the Serenity Unit at Coleman Hall,
Secure/CBLS.” Doc. No. 45-7, Ex. G. There is scant evidence in the
record, however, on how much freedom Mr. Warren had. Coleman Hall
appears to house TPVs with permission to leave the premises and
TPVs without such permission. See Doc. No. 45-2, Ex. B., at 29 of
30 (noting that some TPVs have authorized absences). Defendants
note that Mr. Warren absconded on two occasions. Doc. No. 53, Ex.
D, at 43 of 101. We do not know if this was reported, if it was
easy for him to abscond (for example, because he was at liberty to
leave and failed to return), or if Defendants were erroneously
referring to events that took place at a different time. See Doc.
No. 45-7, Ex. G (indicating Mr. Warren absconded from Coleman Hall
on May 31, 2014 and June 2, 2014). All of these uncertainties leave
open the possibility that he had the kinds of freedoms typical of
a parolee, and not an inmate.
We note that a detained individual residing in “a strictly
monitored halfway house” with limited freedoms has been considered
under institutional confinement by the Third Circuit. See Asquith,
186 F.3d at 411. In Asquith, the court noted that the “implicit
promise” that comes with parole, that the limited freedoms will not
be arbitrarily revoked, was absent. Id. In contrast, here, there
were procedures in place to protect Mr. Warren’s limited freedom.
See Doc. No. 45-2, Ex. B, at 19-20 of 30.
We also look to the actions of the Pennsylvania Board of
Probation and Parole (“Parole Board”) to determine whether Mr.
Warren was still considered a parolee when they recommitted him to
prison. The Parole Board “is vested with exclusive jurisdiction to
grant, revoke, or reinstate parole.” Robinson v. Largent, 311
F.Supp. 1032, 1033 (E.D. Pa. 1970). On October 29, 2013, the Parole
Board recommitted Mr. Warren as a TPV to “a state correctional
institution/contracted county jail” to serve six months. Doc. No.
1 at 34 of 71. It is not clear whether this decision formally
revoked Mr. Warren’s parole, or whether it merely affirmed a
previous determination and transferred him from one detention
facility to another. There is no indication in the record before
us, however, that the Parole Board formally revoked Mr. Warren’s
status prior to October 29, 2013.
For the foregoing reasons, we find that there exists a genuine
dispute as to whether Mr. Warren was a prisoner or parolee at the
time in question.
Nevertheless, the Defendants will meet their burden on the due
process claim if they can show that there is no genuine dispute as
to whether Mr. Warren was accorded the process due to a parolee by
the Defendants. The Supreme Court has held that “the full panoply
of rights due a defendant in [a criminal] proceeding does not apply
to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480
(1972). A parolee is entitled, however, to a preliminary hearing to
determine whether probable cause or reasonable ground exists to
revoke his parole, and to a revocation hearing, in which the
parolee will be granted an opportunity to be heard in person,
present evidence, and confront and cross-examine adverse witnesses,
among other guarantees. Id. at 484-89. The revocation hearing must
be held within a reasonable amount of time after the parolee is
taken into custody. Auman v. Com., Pa. Bd. Of Probation and Parole,
394 A.2d 686, 688 (Pa. 1978).
According to the Coleman Hall Resident Handbook, a person
accused of violating a “major prohibited act” or a “major rule or
procedural infractions” will be scheduled for a hearing. Doc. No.
45-2, Ex. B, at 19 of 30. It appears this procedure is followed, at
least in some cases, as evidenced by the affidavits from other
residents of Coleman Hall. Doc. No. 53, Ex. G, at 57-58 of 101. The
Defendants indicate that Mr. Warren was scheduled for a hearing for
the alleged violations that took place on October 3, but that he
was removed from custody by the Parole Board before the hearing
could occur. Doc. No. 45 at 8 of 21. Indeed, he was removed from
Coleman Hall within hours of the alleged incident. The Defendants
informed the Parole Board of the incident immediately, and prior to
any hearing taking place. The report submitted apparently to Mr.
Warren’s parole supervisor indicates that Mr. Warren was removed
from Coleman Hall at 4:12 PM on October 3, as an “unsuccessful
discharge, program failure.” Doc. No. 53, Ex. J, at 69 of 101. It
states that Mr. Warren “had multiple infarctions [sic] and failed
allegation apparently refers to the incidents that occurred a few
The Letter of Termination indicates that the decision to
discharge Mr. Warren from Coleman Hall was made, at least in part,
by Defendant King, as she is one of two signatories. Doc. No. 45-3,
Ex. C, at 2 of 4. The letter indicates that two infractions from
termination. Because Mr. Warren was scheduled to be released from
Coleman Hall on October 7 and the paperwork for that release was
already signed,3 it appears that had the events of October 3 not
occurred, he would not have been terminated from the program. See
Doc. No. 45 at 10 of 21. Mr. Warren also alleges facts in his
Complaint that indicate Mr. Shapiro played a role in the decision
to terminate him from the program without a hearing. Compl. at ¶¶
Mr. Warren states that these earlier infractions were for sleeping
while group was in progress and obscene language. Doc. No. 45-4, Ex. D, at 9
Coleman Hall only releases residents on Mondays and Tuesdays. Mr.
Warren was approved to be released already by October 3 and was waiting for
the following Monday to effectuate his release.
The Defendants argue that they did not send Mr. Warren away;
instead, the decision to take Mr. Warren away and, subsequently, to
revoke his parole, was made entirely by the Parole Board. However,
the notification given to the Parole Board, rather than having
“nothing to do with the Parole Board extracting the Plaintiff hours
after the event,” as the Defendants claim, in fact prompted his
physical removal several hours later. See Doc. No. 45 at 8 of 21.
Tort defendants, including those sued under section 1983, are
“responsible for the natural consequences of [their] actions.”
Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (internal quotation
and citation omitted). Further, the Defendants’ assertion that Mr.
Warren was scheduled for a hearing has no bearing on whether he
received his due process. He was entitled to a hearing on the facts
underlying his parole revocation, and that requirement is not
satisfied by scheduling a hearing that never occurs.
While it appears that Ms. King’s account of the events on
October 3 led to Mr. Warren being removed from Coleman Hall, it is
not clear what role Ms. King’s account of what happened on October
3 played in the actual termination of Mr. Warren’s parole. On
October 29, 2013, the Parole Board recommitted Mr. Warren as a TPV
Defendants argue that Mr. Warren is attempting to allege a Monell
claim. We do not read the complaint that way, keeping in mind the more lenient
standard to be applied to a pro se prisoner. We find Mr. Warren has alleged
facts from which a reasonable jury could connect the alleged violations to the
behavior of Ms. King and Mr. Shapiro.
to “a state correctional institution/contracted county jail to
serve 6 months, pursuant to Act 122 of 2012.” Doc. No. 1, Ex. A, at
34 of 71.5 The Notice of Board Decision indicates that Mr. Warren
had multiple technical violations: Violation of Condition #5A, Use
of Drugs; Violation of Condition #7, Failure to Successfully
Complete the Gaudenzia Diagnostic and Rehab Community Corrections
Facility Program, and that he admitted to these violations. Id. It
also stated the following reasons for recommitting him to prison:
“not amenable to parole supervision, pattern of parole failure in
your criminal history, failure to comply with sanctions, violations
established.” Id. It is not clear whether the drug use violation
grounding his parole revocation was based on the events of October
3, events that occurred prior to that day while Mr. Warren resided
at Coleman Hall, or were the same parole violations that led to him
being detained to Coleman Hall in the first place. Regardless, it
seems his termination from Coleman Hall influenced the Parole
Board’s decision to revoke his parole.
opportunity to dispute Ms. King’s account of what happened on
October 3. He claims he never received a hearing before the Parole
Board. The Defendants claim that he did. This is a genuine dispute
of a material fact. Even if he did receive a hearing, it is
possible that Mr. Warren admitted that he was terminated from the
Act 122 of 2012 updated the statute concerning violation of terms of
parole, and is codified under 61 Pa.C.S.A. § 6138.
program at Coleman Hall without having an opportunity to refute the
charges that resulted in that termination, and that the fact of his
termination on its own, without regard to the reasons behind it,
influenced the decision to recommit him. In other words, that his
parole was revoked because he was terminated from Coleman Hall, and
that he was terminated from Coleman Hall for alleged violations he
never was able to refute or question. We believe this would
constitute a due process violation.
We find there is a genuine dispute of material facts on the
due process claim which precludes summary judgment to be entered on
judgment on the due process issue. Because there is a genuine
dispute as to whether he was a parolee and whether he received a
hearing to refute the claims against him, we deny his motion as
D. Eighth Amendment Violation6
inflictions of pain, which “are those that are totally without
penological justification.” Hope v. Pelzer, 536 U.S. 730, 737
Mr. Warren alleges that his encounter with Ms. King constitutes both
an Eighth Amendment and a Fourth Amendment violation. The Defendants argue
generally that “none of these claims constitute a constitutional violation
under the law” and cite only Zullinger to support their claim. Doc. No. 45 at
14-17 of 21. Because in our analysis of the Eighth Amendment claim we find the
facts of Zullinger to be substantially dissimilar, and the Defendants have
failed to specifically address the Fourth Amendment law implicated, we deny
their motion for summary judgment on Mr. Warren’s Fourth Amendment claim.
(2002) (internal quotation and citation omitted).7 This involves a
subjective component, which looks to whether the official acted
with a culpable state of mind, and an objective component, which
looks to the severity of the harm. Hudson v. McMillian, 503 U.S. 1,
21 (1992). The objective component ”is contextual and responsive to
contemporary standards of decency.” Id. at 8 (internal quotation
and citation omitted). Mr. Warren claims that his strip search in
front of Ms. King and two other parolees, his being forced out of
the restroom stall before being able to clean himself, and his pat
search by Ms. King violated his Eighth Amendment rights.
circumstances, prisoner nudity can constitute cruel and unusual
punishment under the Eighth Amendment. See Solan v. Ranck, No.
1:CV-06-0049, 2007 WL 4111424, at *7-8 (M.D. Pa. Nov. 16, 2007)
(citing cases from various circuit courts). The “basic right of
privacy” is implicated when a prisoner is forced to be unclothed.
Id. at *9. The court in Solan found that deliberately displaying a
prisoner’s naked body, to both males and females, satisfied both
the objective and subjective components of the Eighth Amendment
when done to humiliate the prisoner. Id. Although the Third Circuit
has not ruled on this issue, we agree with these circuit courts and
Although the parties dispute whether Mr. Warren was imprisoned while
at Coleman Hall, both parties cite cases involving punishments that take place
in prisons and we analyze this claim under the same framework as the prison
penological justification can be a viable Eighth Amendment claim.
Id. at *9.
Defendants point to Zullinger to support their argument that
Zullinger v. York County CCC Halfway House, No. 1-10-cv-1450, 2013
WL 2434585 (M.D. Pa. June 3, 2013). In Zullinger, the plaintiff
alleged that female staff members monitored as he urinated for a
drug test. Id. at *7. The court noted that he remained fully
clothed while he urinated and that the testing was “a necessary and
reasonable component to support the safety of the staff and those
incarcerated.” Id. The court found neither the objective nor the
subjective components of an Eighth Amendment claim were met.
The issue here is not urination, but rather complete nudity.
Both sexes have an interest in “[s]hielding one’s unclothed figure
from the view of strangers.” Michenfelder v. Sumner, 860 F.2d 328,
333 (9th Cir. 1988). Mr. Warren alleges he was strip searched by
two male staff, and that Ms. King stayed in the room, as did two
other residents of Coleman Hall. In Calhoun, the Seventh Circuit
found that a strip search of a male inmate in front of female
guards could constitute an Eighth Amendment violation when done
with no penological justification. Calhoun v. DeTella, 319 F.3d
936, 940 (7th Cir. 2003). While the Defendants here claim that
there was probable cause to search Mr. Warren, that he was believed
to have drugs on his person in the bathroom, there does not appear
to be a reason for the strip search to have occurred in the
presence of Ms. King and the two residents. This would serve no
penological purpose and would increase the embarrassment of Mr.
The Coleman Hall Administrative Policy and Procedure Manual
does not clearly indicate Coleman Hall’s policy on the presence of
female staff when males are unclothed. Of the pages submitted by
Mr. Warren, the first indicates it is 1 of 3 and the second is 9 of
33, so they appear to be from different sections. Doc. No. 53, Ex.
C, at 31-34 at 101. They are contradictory; for example, the first
page indicates that body cavity searches are never permitted
whereas the second page indicates that body cavity searches must be
done by staff of the same gender unless an exigent circumstance
exists. Id. In their answer to Mr. Warren’s interrogatories,
Defendants state that female staff are not permitted to pat search
male residents. Doc. No. 53, Ex. D, at 40-41 of 101. However, it
also appears that Coleman Hall policy may allow an exception for
require. Doc. No. 53, Ex. C, at 32 of 101. This leaves the official
policy of Coleman Hall unclear.
The Defendants offer no legal argument that a pat search by a
member of the opposite sex or forcing Mr. Warren to leave the
restroom stall without cleaning himself could not constitute an
contextual determination, we find they have not met their burden on
these issues. We also find that there is a genuine dispute as to
whether Mr. Warren was strip searched in front Ms. King and two
justification for it. These determinations could constitute an
Eighth Amendment claim. Therefore, we deny the Defendants’ motion
for summary judgment on the Eighth Amendment claim.8
For the foregoing reasons, the Defendants’ Motion for
Summary Judgment is granted in part and denied in part, and the
Plaintiff’s Cross Motion for Summary Judgment is denied. An Order
Defendants claim that because Ms. King did not perform the strip
search, she cannot be held accountable for it taking place in her presence.
Mr. Warren alleges that Ms. King “ordered” his strip search to take place in
front of her and the other residents. See Doc. No. 53 at 5 of 101. Therefore,
this claim is properly brought against her.
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