Figueroa-Flores v. Acevedo-Vila et al

Filing 87

OPINION AND ORDER. GRANTED 79 MOTION deem facts admitted on Partial Summary Judgment, Grant Judgment as a Matter of Law, Set Trial on Damages; GRANTED 70 MOTION for Summary Judgment Partial Summary Judgment on Liability with Respect to defendant Marta Rivera-Reyes; DENIED 80 MOTION for Setting of a Status Conference filed by Carmen Figueroa-Flores. A hearing on damages will be set shortly. Signed by Judge Salvador E Casellas on 3/31/2009.(LB)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

C A R M E N FIGUEROA-FLORES

* * P la in tif f * * v. * * H O N . ANIBAL ACEVEDO-VILA, * e t al. * * D e f e n d a n ts * **********************************

Civil No. 06-1939 (SEC)

O P I N I O N AND ORDER P e n d in g before the Court is Carmen Figueroa-Flores's ("Figueroa" or "Plaintiff") M o tio n for Partial Summary Judgment (Docket # 70). Defendant Marta Rivera-Reyes (" R iv e ra -R e ye s " ) has not filed an opposition. For the reasons set forth below, Figueroa's M o tio n for Partial Summary Judgment is GRANTED. F a c tu a l Background F ig u e ro a , a sixty year old social worker, filed suit against herein Rivera-Reyes, and s e v e ra l defendants,1 under Section 1983 of the Civil Rights Act of 1964, 42 U.S.C. § 1983, th e Fourth, Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, Sections 1 & 8 of Article II of the Commonwealth's Constitution, and Article 1802 of the Puerto Rico C iv il Code, P.R. Laws Ann. tit. 31, § 5141, seeking indemnization for Defendants' violations o f her constitutional rights as a result of an illegal strip and cavity search. According to the c o m p la in t, on September 22, 2005, Plaintiff was arrested pursuant to a warrant for civil c o n te m p t. She claims that this warrant was sought by Co-defendant Maribel Sánchez-Muñoz (" S á n c h e z -M u ñ o z " ), a Family Law Special Prosecutor, and illegally issued by Co-defendant

Pursuant to this Court's prior Opinion & Order, Plaintiff's claims against Ivelisse SalazarNapoleoni, Federico Hernández-Denton, and Anibal Acevedo-Vilá, and the official capacity claims against Co-defendants Marta Rivera-Reyes and Maribel Sánchez-Muñoz were dismissed with prejudice. Docket # 25.

1

2 Civil No. 06-1939 (SEC) ________________________________________________________________________ Iv e lis s e Salazar-Napoleoni ("Salazar-Napoleoni"), a Superior Court judge. According to F ig u e ro a , prior to the issuance and execution of the warrant, she was not given an o p p o rtu n ity to contest the propriety of the contempt determination; she was not advised that a civil contempt hearing would be held on September 21, 2005, nor was she served with an o rd e r to show cause why the warrant for contempt should not be issued. Upon Figueroa's arrest in the marshals' office at the Caguas Court, Sánchez-Muñoz in s tru c te d Rivera-Reyes, a deputy marshal at the Caguas court, to place Figueroa in a holding c e ll . Once Figueroa was in the holding cell, Rivera-Reyes ordered her to fully undress. R iv e ra -R e ye s then went on to conduct a strip search and visual cavity inspection of Figueroa. Because the holding cell where the search took place was visible from the marshals' office, s e v e ra l male marshals who were at the office were able to observe the search as it was c o n d u c te d . Figueroa was not suspect of smuggling contraband or drug-dealing, nor were th e re any indications that she was a threat to herself or any other person. During the search, F ig u e ro a was nervous, and as a result thereof, she lost control of her bodily functions. She w a s later taken to the afternoon court session, handcuffed, and still soiled from the search a n d attendant consequences. There she obtained legal counsel, who successfully argued that th e civil contempt order and arrest warrant be vacated. Figueroa argues that, as a result of th e s e events, she suffered emotional distress and mental anguish. On May 23, 2008, Figueroa filed a motion for partial summary judgment as to RiveraR e ye s ' personal liability. Docket # 70. On several occasions, Defendants requested leave to f ile an opposition, but did not file the same. Dockets ## 71, 76 & 78. Thus, Figueroa's m o tio n is unopposed. S tandard of Review R . FED. CIV. P. 56 T h e Court may grant a motion for summary judgment when "the pleadings, d e p o s itio n s , answers to interrogatories, and admissions on file, together with the affidavits,

Civil No. 06-1939 (SEC)

3

if any, show 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." FED.R.CIV.P. 56(c); see also Anderson v. Liberty L o b b y, Inc., 477 U.S. 242, 248 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F .3 d 67, 77 (1st Cir. 2005). In reaching such a determination, the Court may not weigh the e v id e n c e . Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1 st Cir. 1994). A t this stage, the court examines the record in the "light most favorable to the nonmovant," a n d indulges all "reasonable inferences in that party's favor." Maldonado-Denis v. CastilloR o d ríg u e z , 23 F.3d 576, 581 (1 st Cir. 1994). O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at le a s t one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 4 6 , 48 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably b e resolved in favor of either party and, therefore, requires the finder of fact to make `a c h o ic e between the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 4 2 4 F.3d 112, 116 (1st Cir. 2005)(citing Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v . Ficken, 546 F.3d 45, 51 (1 st Cir. 2008). In order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. M c D o n o u g h , 407 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds T o b a c c o Co., 896 F.2d 5, 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic s u rm ise " suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 9 5 7 , 960 (1st Cir. 1997). Once the party moving for summary judgment has established an a b s e n c e of material facts in dispute, and that he or she is entitled to judgment as a matter of la w , the "party opposing summary judgment must present definite, competent evidence to re b u t the motion." Méndez-Laboy v. Abbot Lab., 424 F.3d 35, 37 (1 st Cir. 2005) (citing M a ld o n a d o -D e n is v. Castillo Rodríguez, 23 F.3d 576, 581 (1 st Cir. 1994). "The non-movant

Civil No. 06-1939 (SEC)

4

m u s t `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy is su e . . . . Failure to do so allows the summary judgment engine to operate at full throttle." Id .; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991) (warning that "the d e c is io n to sit idly by and allow the summary judgment proponent to configure the record is lik e ly to prove fraught with consequence."); Medina-Muñoz, 896 F.2d at 8 (citing Mack v. G re a t Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)) (holding that "[t]he evidence illu s tra tin g the factual controversy cannot be conjectural or problematic; it must have s u b s ta n c e in the sense that it limns differing versions of the truth which a factfinder must r e s o lv e ." ) . Applicable Law and Analysis In the present motion, Figueroa requests summary judgment exclusively as to RiveraR e ye s ' liability. According to Figueroa, Rivera-Reyes admitted all the facts pertaining to the ille g a l cavity search, in her deposition testimony, and answers to interrogatories. She further a rg u e s that, since there are no issues of material facts as to the cavity search itself, this Court s h o u ld enter judgment as a matter of law. In support of her argument, Figueroa cites ample c a s e law accrediting the illegality of blanket search policies not based on individualized s u s p ic io n , and specifically, in cases of arrestees held for minor offenses, unrelated to drugs, v io le n c e , or contraband. B e c a u s e the instant motion is for summary judgment, the parties must comply with th e requirements of Local Rule 56, and file a statement of facts, set forth in numbered p a ra g ra p h s , and supported by record citations. See Local Rule 56(b). Plaintiff complied with th is rule, and submitted a Statement of Uncontested Facts (Docket # 129)(hereinafter " P la in tif f 's SUF"), numbered, and supported by record citations. After reviewing Plaintiff's S U F , together with the accompanying evidentiary documentation, this Court finds that the f a c ts proposed by Plaintiff are properly supported by admissible evidence. In turn, when confronted with a motion for summary judgment, the opposing party

Civil No. 06-1939 (SEC) m u s t: [ s ]u b m it with its opposition a separate, short, and concise statement of material f a c ts . The opposition shall admit, deny or qualify the facts by reference to each n u m b e re d paragraph of the moving party's statement of material facts and u n le s s a fact is admitted, shall support each denial or qualification by a record c ita tio n as required by this rule.

5

L o c a l Rule 56(c). If the opposing party fails to do so, "summary judgment should, if a p p ro p ria te , be entered." FED. R. CIV. P. 56(e)(2). These rules "are meant to ease the district c o u rt's operose task and to prevent parties from unfairly shifting the burdens of litigation to th e court." Cabán-Hernández v. Phillip Morris USA, Inc., 486 F.3d 1, 8(1 st Cir. 2007). When th e parties ignore the Local Rule, they do so at their peril. See Ruiz-Rivera v. Riley, 209 F. 3 d 24, 28 (1st Cir. 2000). In the instant case, Defendants failed to file an opposition. As a result, and per FED. R . CIV. P. 56(e)(2), Plaintiff's motion is deemed unopposed. Thus, the Court will deem as a d m itte d those facts which are supported by the record, and which Defendants failed to deny o r qualify. This solution is consistent with Local Rule 56, and First Circuit precedent. See P h ilip Morris, 486 F.3d at 8. After reviewing the record, this Court finds that the following p e rtin e n t facts, are uncontested. F ig u e ro a is a 61 year old licensed social worker in Puerto Rico. Plaintiff's SUF ¶ 1. A s a professional social worker, Figueroa has worked on several cases before the courts of P u e rto Rico, and has testified in that capacity. Id. at 2. She has no criminal record, does not o w n a firearm, and had never been arrested prior to the events which led to this lawsuit. Id. a t 3. Figueroa is also the paternal grandmother of the minor child, L.E.V., and has had c u s to d y of the child L.E.V. since he was 6 years old, shortly before her own son's death in 1 9 9 4 . Id. at 4 & 8.. On May 1999, Figueroa filed suit in the Puerto Rico Court of First In s ta n c e , Humacao Section, (Figueroa-Flores v. González-Pérez, HCU 1999-0030) against L .E .V .'s biological mother, requesting custody and tutorship of L.E.V. Id. at 8. In response to said lawsuit, L.E.V.'s biological mother, Brenda I. González Pérez ("Gonzalez"), accepted

Civil No. 06-1939 (SEC)

6

th e allegations in the complaint, and agreed to the relief requested. Id. at 9. On November 2 0 0 0 , after the case was transferred to the Caguas Section, Figueroa was granted legal c u s to d y of L.E.V., and González was awarded open visitation. Id. at 10. However, over the next several years, the litigation continued, and became in c re a sin g ly bitter. Id. at 11. Disputes arose regarding the maternal visits, about the p o s s ib ility of visits by the maternal grandfather, and about the psychological evaluations and tre a tm e n ts of the minor child. Id. On December 2004, Gonzalez filed a motion requesting a f i n d i n g of contempt against Figueroa, alleging that she had unduly influenced the boy to re je c t his visits with his biological mother. Id. at 12. On January 2005, Figueroa's attorney in the above-referenced suit, Víctor Ortiz Lebrón ("Ortíz"), filed an urgent motion filed on h e r behalf, alleging that the minor was being unduly coerced by a court psychologist, who w a s urging him to continue visits with his mother. Id. at 13. In the interim, Sánchez-Muñoz, th e Family Court Prosecutor, was assigned to the case. Id. at 14. On March 2005,

S á n c h e z -M u ñ o z , in agreement with the court psychologist, requested that maternal visits be re s u m e d . Id. On April 26, 2005, Sánchez-Muñoz filed a motion requesting that Figueroa be f o u n d in contempt, alleging that she had failed to take the minor child to court-ordered th e ra p ie s . Id. at 15. T w o weeks later, on May 11, 2005, Ortíz moved to withdraw from Figueroa's case. Id . at 16. In his motion to the court, Ortiz requested that Figueroa be granted thirty (30) days to announce her new legal counsel. Id. at 17. On May 20, 2005, the court granted Figueroa u n til June 9, 2005 to announce her new counsel. Id. She was notified of this order through O rtíz , however, she was not given sufficient time to secure new counsel prior to the hearing, w h ic h was scheduled for mid-June of that year. Id. Between May and August 2005, Figueroa u n s u c c e s s f u lly attempted to secure an attorney to represent her in the case. Id. at 18. Finally, in August of 2005, she was able to schedule an appointment with attorney Ana López Prieto (" L ó p e z " ). Id. However, López had to cancel the initial appointment, and informed Figueroa

Civil No. 06-1939 (SEC) th a t she could not meet with her until August 30, 2005. Id.

7

The Caguas court set a hearing on the request for a contempt for mid-August. Id. at 1 9 . However, neither party showed up for the hearing, and the court rescheduled it for S e p te m b e r 1, 2005. Id. While Figueroa was attempting to secure legal counsel in order to c o n tin u e with her case, she proceeded with the case pro se, and submitted several motions to the court. Id. at 20. In one of those motions, she stated that the Family Court Prosecutor, S á n c h e z -M u ñ o z was acting as "another attorney for the defendant, instead of defending the m i n o r child," and was making false representations to the court. Id. On August 23, 2005, F ig u e ro a also filed a motion pro se before the court, stating that she was in the process of h irin g López, and that said attorney would not be able to meet with her for an appointment u n til August 30, 2005. Id. at 21. In the motion, Figueroa requested that the September 1, 2 0 0 5 hearing be postponed, and requested an additional thirty (30) days to secure legal re p re se n ta tio n . Id. After filing said motion, she believed that the hearing date would be p o s tp o n e d , and that the court would set a new hearing date after she secured legal counsel. H o w e v e r, the court did not issue an order regarding this matter, and instead, the hearing was h e ld on September 1, 2005, without Figueroa's presence, and without her knowledge. Id. a 2 3 -2 5 . Subsequently, Figueroa learned that the Judge presiding over the custody and tutorship c a s e issued an Order dated September 21, 2005, requiring her "Arrest and Imprisonment" on c iv il contempt, until such time as she could "evidence to the court her agreement to comply w ith the orders" of the court. Id. at 26. At that time, Figueroa was also unaware that a h e a rin g was set for the following day, September 22, 2005. Id. at 27. However, on the m o rn in g of September 22, 2005, Figueroa found a document, which had been left on the g ro u n d in front of the door at her daughter's house. Id. at 28. The document, dated September 2 1 , 2005, and issued by the Caguas court, instructed plaintiff to "appear on September 22, 2 0 0 5 , at 8:30 AM, at the Office of the Marshal, Citations Unit, which is located on the sixth

Civil No. 06-1939 (SEC)

8

f lo o r of the Caguas Court." The document also stated that she was to pick up an "important" n o tif ic a tio n . Id. As a result of the aforementioned, Plaintiff arrived at the courthouse at approximately 8 :3 0 AM. Id. at 29. Upon her arrival, she passed through the entrance to the building, which c o n ta in s metal detectors. Id. She then went to the sixth floor office, as instructed, after which s h e was told to go to another office. Id. At 30. There, she encountered another marshal who to ld her to go to Courtroom #610 (presided over by the Judge handling her custody case), to re c e iv e the alleged notification. Id. In Courtroom #610, Figueroa was told to sit down and w a it. Id. at 31. After waiting for a while, she asked the courtroom marshal for the document s h e was instructed to pick up. Id. Figueroa was told to sit down, wait, and be quiet. Id. While s h e was waiting, Figueroa saw that Judge Salazar-Napoleoni and Sánchez-Muñoz spoke a m o n g s t themselves. Id. at 32. She also observed that the Judge signed some papers. Id. After a considerable amount of time, Figueroa saw Rivera-Reyes, a marshal in the C a g u a s courthouse, enter the courtroom. Id. at 33. According to Rivera-Reyes, she went to th e courtroom after the marshal's office received a call, informing them that there was a f e m a le arrestee in the courtroom, who needed to be taken to the holding cell. Id. Judge S a la z a r-N a p o le o n i then ordered a recess, and emptied the courtroom of all other persons e x c e p t for Figueroa, who was instructed to enter the well of the courtroom. Id. at 34. Therein, F ig u e ro a was told that she was under arrest. Id. Rivera-Reyes then proceeded to take her to th e Court marshals' basement office. Id. at 35. She was placed in a holding cell, where she re m a in e d for several hours. Id. While at the holding cell, Figueroa was subjected to a strip search and a visual body s e a rc h . Id. at 36. Rivera-Reyes instructed her to disrobe. Id. She then performed a visual s e a rc h of Figueroa's body, and instructed her to assuming a squatting position ("ponerse en c u c lilla s " ). Id. Figueroa was told to cough so as to eject hidden materials from her body. Id. Rivera-Reyes describes the procedure to which Figueroa was subjected, as follows:

Civil No. 06-1939 (SEC)

9

I took the plaintiff to the far corner of the cell and there I told her that I was going to c o n d u c t the search..... I asked the plaintiff to remove her blouse. Plaintiff complied a n d gave me the blouse. I inspected it. Then I asked her to remove her bra. She c o m p lie d and gave it to me and I inspected it. I observed her torso for bruises and a s k e d her to turn around. I also observed her arms and underarms and the neck. Then I gave her back the bra and the blouse and she put them back on. After that I asked her to remove her pant or skirt (don't remember which one she was wearing). I verified th e clothing item. Then I asked her to remove her undergarment and I inspected it. I v e rif ie d her front and back lower body looking again for bruises, hematomas or la c e ra tio n s . I never touched the plaintiff. After the visual inspection I asked her to crouch down three times ("ponerse en c u c lilla s " ) and to cough. She complied. After that I told her to dress up. Id. at 37. According to Rivera-Reyes, Figueroa was submitted to the standard mandatory p ro c e d u re followed in cases in which there is an order for a person to be admitted to prison. Id . at 38. She states that she was trained in this procedure during her initial training at the " M a rs h a l's Academy." Id. Rivera -Reyes states that, in her eight years as a marshal, that she h a s done at least 20 or 25 searches of this nature. Id. at 36 & 38. S h e describes that the standard procedure is as follows: Well, the procedure is that the person is going be disrobed. I don't touch the b o d y at any time. I have on plastic gloves. I touch the person's belongings. I... te ll the person, if she has on a skirt, has on a blouse, or has on pants and a b lo u s e , I say: "Take of the upper part first, please...I say: "Please, take off your b lo u s e , take of your brassiere." I receive the blouse, I check out the borders of th e waist, of the neck, of the sleeves.... I take the brassiere, and I also examine it. I observe the person's body from the front. If her breasts are droopy, I say " p le a s e , lift up your breasts," because there could be ulcers or marks beneath th e breasts. I say "turn around." I verify the back area, the arms. I say, "lift yo u r arms to verify the underarms." When I see that all is OK, I say "please, p u t on your clothes." When she has finished putting on her clothes, I say to her " p le a s e , we are now going to have you remove your clothes below the waist." If it is a skirt, if it is pants, she takes them off. I verify the waist and the seems o n the sides, the seems on the cuff. She takes off her undergarments. ... I o b s e rv e her. I say, "turn around."...As part of the procedure which I learned.... yo u have to say to the person "Put yourself in a squatting position and cough. Id. at 39. W h e n asked why the person has to cough three times, while squatting ("en cuclillas"), R iv e ra -R e ye s explained that this is done "for the purpose of expelling anything if the person h a s hidden things in their intimate parts." Id. at 40. Furthermore, when asked about the

Civil No. 06-1939 (SEC)

10

re a s o n for this search, Rivera-Reyes stated that her "greatest responsibility" is "security," e x p la in in g that: "...the person who is going to be with us in a cell, or is going to be before th e judge, or is going to be with us, we have to be completely sure and convinced that that p e rs o n does not represent a risk, either for her, for me, for her cell-mates, for the judge, or f o r the co-workers who come from Vega Alta (prison) to get her, or even for ... my in s titu tio n ." Id. at 41. Rivera-Reyes also stated that "the person has to be apt to be received b y the co-workers from Vega Alta ...and [sic] we have to be completely sure that the person d o e s not have on her body a cellular phone, or a shank, or a knife, or anything with which s h e could cause damage to herself or others." Id. at 42. Rivera-Reyes also states that the strip s e a rc h conducted in the holding cell is not the only search to which the individual is s u b je c te d . Id. at 43. According to Rivera-Reyes, when a person is eventually sent to a penal in s titu tio n , this standard strip and visual body search procedure is done three times. Id. The f irs t search is done by a court marshal, such as Rivera-Reyes; the second is done when the c o rre c tio n s officers arrive at the holding area, and the third is done once the prisoner arrives a t the prison facility. Id. Rivera-Reyes states that, during her training at the Marshal's Academy, she was not ta u g h t about civil rights, and has no idea what "civil rights" are. Id. at 44. Furthermore, she h a s never heard the term "body cavity search," although she believes that the "standard p ro c e d u re " does not qualify as a body cavity search -- despite the obligation that the person " c o u g h " to remove items from their bodily orifices -- because she does not specifically touch t h e person, or look into these cavities. Id. Rivera-Reyes admits that when she conducted F ig u e ro a 's cavity search, she had no information which indicated that Figueroa had any prior a rre s ts . Id. at 45. She also lacked information as to whether Figueroa was a violent person, u s e d illegal drugs, or possessed contraband. Id. Rivera-Reyes knew that all persons -- other th a n certain court personnel and attorneys -- have to go through a metal detector when they e n te r the Caguas courthouse. Id. at 46. Furthermore, she knew that Figueroa's arrest had been

Civil No. 06-1939 (SEC)

11

is su e d by a family court judge. Id. at 47. Rivera-Reyes did not make any effort to ascertain th e reasons for the arrest, because she applies the same procedure on searches to all persons, in d e p e n d e n tly of the reasons for which they are being arrested. Id. She stated that "at the time o f the search, [she does] not verify where the arrest is from, because ... [she] was taught that ... the same procedure applies to all persons." Id. Rivera-Reyes admits that, in many cases involving family matters, persons who are in itia lly arrested, are released before actually being turned over to a penal institution, since f a m ily members come forward, and the judges lift the order requiring internment in a c o rre c tio n a l facility. Id. at 48. She further admits that she does not know about any case in w h ic h a person arrested on orders of a family court judge was interned in a penal institution, o r a case in which she or her co-workers have found a knife, weapon, shank, or other such c o n tra b a n d . Id. at 49. During the time that Figueroa was in the Marshal's basement office, most of which w a s spent in the holding cell, she had no physical contact with any other person. Id. at 50. H e r only contact was with one other prisoner, also arrested in connection with a family m a tte r . Id. No one was allowed to visit her in the cell. Id. After spending several hours in th e holding cell, Figueroa was returned twice to the courtroom during the afternoon session. Id . at 51. She was taken, by Rivera-Reyes, to the courtroom where her former d a u g h te r-in -la w , and Sánchez-Muñoz were present. Id. Eventually, López appeared, and a rg u e d on her behalf, after which the court vacated the contempt citation, and Figueroa was a llo w e d to return home. Id. at 52. Plaintiff was never incarcerated in a penal institution on th e contempt charge. Id. As of September 10, 2007, Figueroa adopted L.E.V. Id. at 5. P la in tif f avers that, based on the foregoing facts, this Court should enter summary ju d g m e n t in her favor. In determining whether to grant Plaintiff's request, this Court must f irs t examine the current case law regarding strip and cavity searches. In recent years, ample case law has developed dealing with "the routine practice in

Civil No. 06-1939 (SEC)

12

m a n y jails of strip searching arrestees not yet convicted of any crime." Tardiff v. Knox C o u n ty, 365 F.3d 1, 2 (1st Cir. 2004). Those who are improperly searched have brought suit u n d e r the Fourth Amendment against the officials and government entities who conducted th e search. Id. Although the qualified immunity defense has defeated some of these claims, w h e n the official is sued in its individual capacity, said defense lacks merit. See Id. The First Circuit has repeatedly recognized that visual body cavity searches are a " `s e v e re if not gross interference with a person's privacy'", and "`impinge seriously upon' F o u rth Amendment values." Roberts v. Rhode Island, 239 F.3d 107, 110 (1st Cir. 2001) (c itin g Bell v. Wolfish, 441 U.S. 520, 559 (1979)); see also Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997). In determining whether a strip and visual body cavity search violates the f o u rth Amendment in a detention setting, this Circuit adopted the Supreme Court's holding in Bell v. Wolfish. Tardiff v. Knox County, 573 F. Supp. 2d 301, 304 (1 st Cir. 2008). Therein th e Supreme Court held that the "test of reasonableness under the Fourth Amendment is not c a p a b le of precise definition or mechanical application. In each case it requires a balancing o f the need for the particular search against the invasion of personal rights that the search e n ta ils . Courts must consider the scope of the particular intrusion, the manner in which it is c o n d u c te d , the justification for initiating it, and the place in which it is conducted." Id. (citing B e ll, 441 U.S. at 559). Therefore, after Bell, the First Circuit has consistently held that "strip a n d /o r visual body cavity searches are not routine, and must be carefully evaluated." Swain, 1 1 7 F.3d at 7. In Tardiff, the First Circuit held that reasonable strip searches in detention facilities a re constitutional insofar as these facilities are generally fraught with serious security d a n g e rs , like smuggling of money, drugs, weapons, and other contraband, and it is c o m m o n p la c e for inmates to attempt to transport these items into the facility by concealing t h e m in body cavities. Id.; Roberts, 239 F.3d at 112. In this context, the government's in te re s t in the institution's security is compelling enough to allow warrantless strip searches,

Civil No. 06-1939 (SEC)

13

e v e n absent reasonable suspicion of individual wrongdoing. Roberts, 239 F.3d at 111; Bell, 4 4 1 U.S. at 559. Pursuant to Bell, the First Circuit has also upheld as constitutional a prison's b la n k e t policy of strip searching inmates after contact visits, however, the court notes that s a id policy responds to the particular risk posed by contact visits, that is, smuggling of drugs, w e a p o n s , and contraband. Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57, 68 (1 st Cir. 2 0 0 3 ). Therefore, despite allowing generalized strip searches in said contexts, there are other in s ta n c e s in which the "lawfulness of a strip search depends on whether the circumstances re a s o n a b ly justify such an intrusive invasion of privacy." United States v. Cofield, 391 F.3d 3 3 4 , 336 (1st Cir. 2004). A c c o rd in g to this Circuit, distinct from strip searches in correctional facilities, in the c o n te x t of prisoners held in local jails for minor offenses, the officers "must have a `re a s o n a b le suspicion' that an arrestee is concealing contraband or weapons before they can c o n d u c t a strip and visual body cavity search of that arrestee....'" Tardiff, 573 F. Supp.2d at 3 0 4 ; see also Roberts, 239 F.3d at 109 (citing Bell, 441 U.S. at 545); Swain, 117 F.3d at 7. T h is extends to both felonies and misdemeanors, insofar as the appellate court has also noted th a t "felony categorization alone does not obviate the requirement of individualized r e a s o n a b le suspicion for a strip and visual body cavity search of an arrestee," since d is tin g u is h in g between felony and misdemeanor charges provides little information as to w h e th e r the arrestee is concealing weapons or contraband. Tardiff, 573 F.Sup.2d at 306. In S w a in , the strip search of an arrestee who was held in a local prison, and who had no contact w ith other prisoners, was held unconstitutional. 117 F.3d at 8. Moreover, in Wood v. H a n c o c k County, 354 F.3d 57, 62 (1st Cir. 2003), the First Circuit held that "an individual d e ta in e d on a misdemeanor charge may be strip searched as part of the booking process only if officers have reasonable suspicion As such, security concerns alone do not support an in d is c rim in a te strip search policy applied to those detained for minor offenses in local jails." Roberts, 239 F.3d at 113. That type of policy has been found unconstitutional under the

Civil No. 06-1939 (SEC) F o u rth Amendment. Id.

14

Considering the above mentioned uncontested facts, this Court finds that RiveraR e ye s is personally liable to Figueroa. First Circuit case law unequivocally holds that visual b o d y cavity searches are not routine, since they entail an intrusive invasion of a person's p riv a c y. As a result, a generalized practice or blanket policy of conducting cavity searches o f every arrestee is only allowed when institutional security reasons justify such an intrusion, p a rtic u la rly when there is a known history of money, drugs, weapons, and other items being s m u g g le d in by arrestees and visitors. In the present case, none of the before mentioned e le m e n ts were present. There is clear and convincing evidence that Rivera-Reyes submitted F ig u e ro a to a full body cavity search despite knowing that her arrest was for civil contempt, th a t she was not accused of any violent crime or drug possession, that she had no previous c rim in a l history, that she remained by herself at all times in the holding cell, that she was not s u s p e c te d of smuggling contraband, that she had passed through the Court's entrance metal d e te c to rs , and that contempt charges in family court cases are usually dropped, prior to the p e rs o n being taken to prison. She further admits that she did not make any effort to ascertain th e reasons for the arrest despite the aforementioned circumstances. Therefore, despite the f a c t that Figueroa did not present a security risk to Rivera-Reyes, the court, or the c o rre c tio n a l institution, she was forced to submit herself to a cavity search due exclusively to the fact that she was arrested. As such, Rivera-Reyes, as an experienced marshal, should have known that her c o n d u c t was unreasonable and illegal. Albeit "law enforcement official's reasonable, a lth o u g h mistaken, conclusion regarding the presence of `exigent circumstances' supporting a warrantless search does not subject that official to personal liability," that is not the case a t hand. Cookish v. Powell, 945 F.2d 441, 449 (1st Cir. 1991) (citing Anderson v. Creighton, 4 8 3 U.S. 635, 641 1987). As previously stated, there were no exigent circumstances, s p e c if ic a lly a security threat, which warranted Rivera-Reyes actions. In fact, Rivera-Reyes

15 Civil No. 06-1939(SEC) ________________________________________________________________________ a d m its that the sole reason for a cavity search is to ensure the courts, the correctional in s titu tio n , and its officers' security, and she had no reason to believe that Figueroa was a rm e d , dangerous, used drugs, or was smuggling contraband. Based on the foregoing, this C o u rt concludes that Rivera-Reyes' illegal conduct is blatant, insofar as there was no c o m p e llin g reason for the cavity search, as she had no individualized reasonable suspicion th a t Figueroa was hiding weapons, drugs, or other contraband. As a result, Rivera-Reyes is p e rs o n a lly liable for Plaintiff's damages. Conclusion F o r the reasons stated above, Plaintiff's motion for partial summary judgment is G R A N T E D . A hearing on damages will be scheduled shortly. S O ORDERED. In San Juan, Puerto Rico, this 31st day of March, 2009.

S /S a lv a d o r E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge