Harlan v. Bolton et al

Filing 4

MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr on 4/17/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
JUSTIN RASHAD HARLAN,

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Plaintiff,
v.
NATHAN BOLTON, et al.,
Defendants.

No. 1:17-cv-00028
JUDGE CRENSHAW

MEMORANDUM
Justin Rashad Harlan, a resident of Mt. Pleasant, Tennessee, brings this pro se, in forma
pauperis action against Nathan Bolton; Mt. Pleasant Police Department; City of Mt. Pleasant,
Tennessee; Leigh Anne Pickup; Stephen Barr; Amit Choksi; Bradley Rodgers; and Maury
Regional Medical Center, alleging violations of his civil rights. (Doc. No. 1). Harlan seeks
damages as well as attorney fees. (Id. at p. 3).
I.

Required Screening of the Complaint
The Plaintiff is proceeding as a pauper in this action; therefore, the Court must conduct an

initial review of the complaint under 28 U.S.C. ' 1915(e)(2) and dismiss it or any portion of it that
is frivolous or malicious, fails to state a claim for which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.

In assessing whether the complaint in

this case states a claim on which relief may be granted, the Court applies the standards under Rule
12(b)(6) of the Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that Athe dismissal standard articulated
in Iqbal and Twombly governs dismissals for failure to state a claim under ' 1915(e)(2)(B)(ii)]
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because the relevant statutory language tracks the language in Rule 12(b)(6)@).
AAccepting all well-pleaded allegations in the complaint as true, the Court >consider[s] the
factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to
relief.=@
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration
in original). A[P]leadings that . . . are no more than conclusions[] are not entitled to the assumption
of truth. While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.@ Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3
(ARule 8(a)(2) still requires a >showing,= rather than a blanket assertion, of entitlement to relief.
Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only >fair notice= of the nature of the claim, but also >grounds= on
which the claim rests.@).
APro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.@ Williams, 631 F.3d at 383 (internal
quotation marks and citation omitted). Pro se litigants, however, are not exempt from the
requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989); see also Brown v. Matauszak, 415 F. App=x 608, 613 (6th Cir. 2011) (A[A] court cannot
create a claim which [a plaintiff] has not spelled out in his pleading@) (internal quotation marks
and citation omitted); Payne v. Sec=y of Treas., 73 F. App=x 836, 837 (6th Cir. 2003) (affirming
sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, A[n]either this
court nor the district court is required to create Payne=s claim for her@); cf. Pliler v. Ford, 542 U.S.
225, 231 (2004) (ADistrict judges have no obligation to act as counsel or paralegal to pro se
litigants.@); Young Bok Song v. Gipson, 423 F. App=x 506, 510 (6th Cir. 2011) (A[W]e decline to
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affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants.
Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters
of disputes into advocates for a particular party. While courts are properly charged with protecting
the rights of all who come before it, that responsibility does not encompass advising litigants as to
what legal theories they should pursue.@).
II.

Alleged Facts
According to the complaint, on March 25, 2016, the Plaintiff was arrested for simple

possession of marijuana after a traffic stop and transported first to the Mt. Pleasant Police
Department and then to the Maury County Jail. Other than marijuana in his sock, which the
Plaintiff disclosed, the Plaintiff denied having any further drugs in his possession.

Officer

Bolton accompanied the Plaintiff to the jail and, at the request of Officer Bolton, Corrections
Officer Thomas performed a strip search of the Plaintiff Ato look for any further narcotics or
contraband.@ (Doc. No. 1 at p. 4). According to the police report, Thomas Aobserved a white
substance wrapped in plastic in the area of just in Harlan=s rectal area also witnessing Justin Harlan
pushing the object into his anal cavity.@ (Id.)

The Plaintiff was placed in an observation cell

and his bathroom usage was monitored for the duration of his time at the jail. (Id.)
At 6:52 am on the following day, a warrant was issued to search the Plaintiff for illegal
narcotics.

The Plaintiff was taken to the Maury Regional Hospital, and a visual inspection

followed by a digital (finger) inspection of the Plaintiff=s anus was performed by Physician=s
Assistant Leigh Anne Pickup. (Id.) A>[R]ound balls= were felt by Leigh Anne Pickup, PA@ and
she ordered electronic imaging of the Plaintiff=s abdomen. (Id.) No irregularities were seen via
the electronic imaging. However, Bolton then gave consent for the Plaintiff to undergo an
endoscopy. Dr. Bradley Rogers administered anesthesia to the Plaintiff, who then underwent an
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endoscopy by Dr. Amit Choski. (Id. at p. 5).

The complaint alleges that no one obtained

information from the Plaintiff, who cannot read and operates on a substantially lower level than a
normal 26-year-old, regarding his current medications prior to the administration of anesthesia.
(Id.)
During the endoscopy, Dr. Choski found internal hemorrhoids and did not find any foreign
After the procedure, the Plaintiff=s Acoloration was completely off as if he could

objects. (Id.)

not breathe.@ (Id.)

The Plaintiff was discharged from the hospital and returned to the Maury

County Jail but, on the following day after his release from jail, he returned to the emergency room
with a skin reaction from the anesthesia the day before. (Id.) The Plaintiff subsequently was
charged for the hospital procedures, which he believes were unnecessary and unconstitutionally
forced upon him. (Id.)
III.

Analysis
A.

Mt. Pleasant Police Department

First, the complaint names the Mt. Pleasant Police Department as a defendant to this action.
However, police departments and sheriff=s departments are not proper parties to a ' 1983 suit; they
are not bodies politic and, as such, not Apersons@ within the meaning of ' 1983. See, e.g., Smith
v. Tenn. Dep=t of Corr., No. 3:09-cv-0485, 2009 WL 1505308, at *3 (M.D. Tenn. May. 27, 2009).
Therefore, the Mt. Pleasant Police Department is not a suable entity under ' 1983.

See Mathes

v. Metro. Gov't of Nashville & Davidson Cnty., No. 3:10BcvB0496, 2010 WL 3341889, at *2
(M.D. Tenn. Aug. 25, 2010) (A[F]ederal district courts in Tennessee have frequently and uniformly
held that police departments and sheriff's departments are not proper parties to a ' 1983
suit.@)(collecting cases)). The Plaintiff=s claims against the Mt. Pleasant Police Department must
be dismissed.
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B.

City of Mt. Pleasant

The Plaintiff also has sued the City of Mt. Pleasant, Tennessee. However, while the City
of Mt. Pleasant is a suable entity, it is responsible under ' 1983 only for its Aown illegal acts. [It
is] not vicariously liable under ' 1983 for [its] employees' actions.@ Connick v. Thompson, 563
U.S. 51, 131 S. Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (internal citations and quotation marks
omitted). Under ' 1983, a municipality can only be held liable if the plaintiff demonstrates that the
alleged federal violation was a direct result of the city's official policy or custom. Burgess v.
Fisher, 735 F.3d 462, 478 (6th Cir.2013) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 693,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); Regets v. City of Plymouth, 568 Fed. Appx. 380, 2014
WL 2596562, at *12 (6th Cir. 2014) (quoting Slusher v. Carson, 540 F.3d 449, 456-57 (6th Cir.
2008)). A plaintiff can make a showing of an illegal policy or custom by demonstrating one of the
following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official
with final decision making authority ratified illegal actions; (3) the existence of a policy of
inadequate training or supervision; or (4) the existence of a custom or tolerance or acquiescence
of federal rights violations. Burgess, 735 F.3d at 478.
The inadequacy of police training only serves as a basis for ' 1983 liability where the
failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact. Slusher, 540 F.3d at 457.

To establish deliberate indifference, the plaintiff

may show prior instances of unconstitutional conduct demonstrating that the governmental entity
has ignored a history of abuse and was clearly on notice that the training in this particular area was
deficient and likely to cause injury. Id.; see also Gregory v. City of Louisville, 444 F.3d 725, 75253 (6th Cir. 2006). In the alternative, where the constitutional violation was not alleged to be part
of a pattern of past misconduct, a supervisory official or a municipality may be held liable only
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where there is essentially a complete failure to train the police force or training that is so reckless
or grossly negligent that future police misconduct is almost inevitable or would properly be
characterized as substantially certain to result. Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874
(6th Cir.1982).
Here, the Court finds that the allegations of the complaint are sufficient to state a claim for
municipal liability against the City of Mt. Pleasant under ' 1983 for purposes of the required PLRA
screening. The complaint alleges that Defendant Bolton, who has since been terminated from the
Mt. Pleasant Police Department for his actions towards the Plaintiff, previously had been
employed, terminated, and re-hired by the Mt. Pleasant Police Department. (Doc. No. 1 at p. 5).
In other words, the complaint alleges that the City of Mt. Pleasant was on notice of problems with
Bolton but chose to rehire him and, after his rehiring, he violated the Plaintiff=s Fourth Amendment
rights. It is unclear whether the Plaintiff ultimately can prevail on this claim; however, the Court
finds that the claim warrants further factual development, particularly considering the invasiveness
of the procedures the Plaintiff was forced to undergo by Defendant Bolton.
C.

Remaining Defendants

The Plaintiff=s claims against all remaining Defendants stem from the digital (finger) exam,
imaging, and endoscopy the Plaintiff was forced to undergo at the Maury County Hospital in an
effort to find drugs inside his rectum.

The Supreme Court has given correctional officers latitude

Ato devise reasonable search policies to detect and deter the possession of contraband in their
facilities.@ Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 328-29,
132 S. Ct. 1510, 1517, 182 L.Ed.2d 566 (2012); see also Stoudemire v. Mich. Dep't of Corr., 705
F.3d 560, 573B74 (6th Cir. 2013) (applying the principles of Florence to an individual search, not
just review of prison regulations).

However, Aregulation[s] impinging on an inmate's
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constitutional rights@ must be Areasonably related to legitimate penological interests.@ Florence,
566 U.S. at 328 (internal quotation marks omitted) (emphasis added).

Correctional officers'

discretion to conduct penological searches has limits. Courts must Atake cognizance of the valid
constitutional claims of prison inmates,@ Stoudemire, 705 F.3d at 571B74 (quoting Turner v.
Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 96 L.Ed.2d 64 (1987)), and balance Athe need for the
particular search against the invasion of personal rights that the search entails.@ Bell v. Wolfish,
441 U.S. 520, 559, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979). That balancing requires consideration
of Athe 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.
The Supreme Court has described a person's interest in his own bodily integrity as the
Amost personal and deep-rooted expectations of privacy@Cthe very interests the Fourth
Amendment protects. Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 84 L.Ed.2d 662 (1985).
Of course, preventing contraband from entering a detention facility is a legitimate penological
goal. See Florence, 132 S.Ct. at 1518B20.

Those ends do not justify all means, however.

The

Supreme Court has found that, even when officers conducting an investigative search have
reasonable suspicion or probable cause, they may not use all means to uncover evidence. In Rochin
v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L.Ed. 183 (1952), the police officers watched a
suspected drug dealer swallow two morphine capsules. 342 U.S. at 166, 72 S.Ct. 205.

Even

though the officers knew the capsules were in Rochin's stomach and had a reasonable suspicion to
believe they were morphine capsules, the officers could not request that a doctor insert a tube into
the man's stomach and induce him to vomit. Id. at 172, 72 S.Ct. 205. Similarly, in Winston v. Lee,
470 U.S. 753, 105 S. Ct. 1611, 84 L.Ed.2d 662 (1985), the officers had probable cause to believe
that the bullet tying an armed-robbery suspect to the crime was lodged in the suspect's left
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collarbone, see 470 U.S. at 756, 105 S.Ct. 1611, as well as court approval to conduct a surgery to
remove the bullet, id. at 757, 105 S.Ct. 1611, yet the Supreme Court still held that forced surgery
was far too intrusive to justify the officers' search for evidence. Id. at 767, 105 S. Ct. 1611.
Those same principles apply when the interests involved are penological. A[A] correctional
institution will have little need to conduct the search or seizure in a particular manner if there are
>obvious, easy alternatives that fully accommodate the prisoner's rights at de minimis cost= to the
institution's valid penological interest underlying the search in the first place.@ Williams v. City of
Cleveland, 771 F.3d 945, 954 (6th Cir. 2014)(quoting Turner, 482 U.S. at 90B91, 107 S. Ct. 2254)
(internal alterations omitted).
Here, the complaint alleges that Bolton and the other officers already had employed less
intrusive ways to prevent the Plaintiff from secretly bringing contraband into the facility such as
monitoring the Plaintiff for signs of intoxication and waiting for him to have a bowel movement
and an x-ray of the Plaintiff=s rectum in order to learn whether there was something lodged in it.
Yet, when these procedures did not yield results the officers sought, and even after a digital exam
of the Plaintiff=s rectum, the officers forced the Plaintiff to undergo an endoscopy with anesthesia.
As to the Defendant physicians and hospital, the Court finds that the complaint states a
colorable claim as to whether these Defendants were acting as state agents.
use private parties to conduct illegal searches.

An officer cannot

See, e.g., Skinner v. Ry. Labor Execs.= Ass=n, 489

U.S. 602, 614, 109 S. Ct. 1402, 103 L.Ed.2d 639 (1989)(AAlthough the Fourth Amendment does
not apply to a search and seizure, even an arbitrary one, effected by a private party on his own
initiative, the Amendment protects against such intrusions if the private party acted as an
instrument or agent of the Government.@); Booker v. LaPagalia, 617 Fed. Appx. 520, 532 (July 10,
2015)(ABut that a doctor performed this humiliating search [for prisoner contraband allegedly
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hidden in his rectum] in a hospital does not make this search reasonable.@); see also George v.
Edholm, 752 F.3d 1206,1220 (9th Cir. 2014)(holding that, on March 13, 2004, it was clearly
established that the Fourth Amendment protects people from medical procedures induced by
law-enforcement officers); Ellis v. City of San Diego, 176 F.3d 1183, 1191B92 (9th Cir.1999)
(denying qualified immunity to nurses and doctors who administered tranquilizers, took blood
tests, and inserted a catheter into the plaintiff's penis).
The Court therefore finds that the complaint states actionable Fourth Amendment claims
pursuant to ' 1983 as to the remaining Defendants.

The complaint calls into question whether

the Plaintiff=s digital (finger) rectal search, the digital imaging of the Plaintiff, and the endoscopy
performed on the Plaintiff under anesthesia were reasonable and necessary actions to prevent
contraband from entering the Maury County Jail under the facts of this case.
IV.

Conclusion
In conclusion, the Court finds that the complaint fails to state a claim upon which relief

can be granted as to the Mt. Pleasant Police Department. That claim will be dismissed with
prejudice.

28 U.S.C. ' 1915(e)(2).

However, as to the Plaintiff=s claims against the City of Mt. Pleasant and all other remaining
Defendants, the Court finds that the complaint states actionable Fourth Amendment claims
pursuant to ' 1983 as to the remaining Defendants regarding whether the Plaintiff=s rectal search,
the digital imaging of the Plaintiff, and the endoscopy performed on the Plaintiff under anesthesia
were reasonable and necessary actions to prevent contraband from entering the Maury County Jail
under the facts of this case.

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An appropriate order will enter.

_______________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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