Doe v. Corrections Corporation of America et al

Filing 167

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 10/27/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JANE DOE # 1, et al.
v.
CORRECTIONS CORPORATION
OF AMERICA, et al.

)
)
) NO. 3-15-0068
) JUDGE CAMPBELL
)
)

MEMORANDUM
Pending before the Court are Defendants’ Motion for Summary Judgment (Docket No. 105),
Plaintiffs’1 Motion for Partial Summary Judgment (Docket No. 109), and Plaintiffs’ Motion to Strike
(Docket No. 133). For the reasons stated herein, Defendants’ Motion for Summary Judgment (Docket
No. 105) is GRANTED in part and DENIED in part, Plaintiffs’ Motion for Partial Summary
Judgment (Docket No. 109) is DENIED, and Plaintiffs’ Motion to Strike (Docket No. 133) is
DENIED.
INTRODUCTION
Plaintiffs are female individuals who have visited and continue to visit inmates in the South
Central Correctional Facility (“SCCF”) in Clifton, Tennessee. Plaintiffs claim that Defendants have
required Plaintiffs to undergo humiliating and degrading searches when they have visited SCCF, by
forcing Plaintiffs to change their feminine hygiene products in the presence of SCCF staff in small
prison bathrooms. Plaintiffs contend that Defendants subjected them to these invasive searches
without reasonable suspicion, in violation of Plaintiffs’ constitutional rights and resulting in various
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The Plaintiffs who have moved for partial summary judgment are Jane Doe # 1
and Jane Doe # 2 only. Jane Doe # 3 is proceeding pro se. Docket No. 93. Because the minor
Plaintiffs cannot represent themselves, cannot be represented by Jane Doe # 3, and have not
obtained counsel by the deadline set by the Court, the claims of Minor Plaintiffs #1- #3 are
DISMISSED.

state law claims. Characterizing these searches as “strip searches,” Plaintiffs allege that Defendants
required Plaintiffs to expose their unclothed genitalia to correction officials to verify that Plaintiffs
were menstruating.
Defendants are Corrections Corporation of America (“CCA”), an entity charged by the State
of Tennessee with the authority to maintain SCCF, and individual officers of SCCF, sued in both
their individual and their official capacities.
Defendants claim that SCCF does not conduct “strip searches.” Defendants argue that in light
of the prisons’ serious concerns about the introduction of contraband to the facilities, SCCF allows
inmate visitation privileges only within specified guidelines, including visitors not being allowed to
bring in their own feminine hygiene products. Defendants contend that Tennessee Department of
Correction (“TDOT”) and SCCF policies allow correctional staff to require female visitors to replace
their feminine hygiene products in the presence of institutional staff if there exists individualized
reasonable suspicion to believe that contraband is being brought in.
The parties dispute whether Defendants had individualized reasonable suspicion to believe
that Plaintiffs might be bringing in contraband. Defendants assert that they had reasonable suspicion,
in light of the Plaintiffs’ histories, prior behaviors, appearances, and tips given to the officers, to
require Plaintiffs to replace their sanitary pads in the presence of two female officers. Plaintiffs insist
that they were “strip-searched” without reasonable suspicion, without a single specific, objective fact
tying them to any wrongdoing or suspicion.
The parties also dispute exactly what happened when Plaintiffs were required to take the
challenged actions. Plaintiffs allege that they were required to expose their unclothed genitalia to
corrections officers to “verify” that they were menstruating. Defendants maintain that Plaintiffs were

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required to change their feminine products to be sure there was no contraband, not to verify that they
were menstruating. Defendants also contend that Plaintiffs were accompanied by two correctional
officers into a restroom, where they were asked to change their feminine products while the officers
turned their backs so as not to observe the Plaintiffs. The parties dispute the behavior of both
Plaintiffs and the correctional officers before and during this time in the restroom.
MOTION TO STRIKE
Plaintiffs ask the Court to strike the Declaration of Charles Fisher, Defendants’ expert witness
in this case, for three reasons. First, Plaintiffs claim that the Declaration is an untimely-disclosed,
new expert opinion. Defendants argue that the Declaration is simply a summary of Mr. Fisher’s
opinions previously produced to Plaintiffs, not a Rule 26 expert report or supplemental report. The
Court has read Mr. Fisher’s two reports and Declaration and agrees with Defendants. Any changing
in the wording of Mr. Fisher’s Declaration from the two reports is minimal and does not constitute
“new” information. Moreover, any differences go to the weight to be given his testimony, not its
admissibility.2
Secondly, Plaintiffs contend that Mr. Fisher’s Declaration contradicts his previous deposition
testimony. Again, any discrepancies in the Declaration and the deposition testimony are not sufficient
to strike the Declaration and go to the weight to be given his testimony, not its admissibility. In
addition, some of the examples Plaintiffs give are not necessarily contradictions.
Finally, Plaintiffs argue that Mr. Fisher’s Declaration attempts to create a “sham” issue of
fact. For the same reasons as indicated above, the Court can read Mr. Fisher’s Declaration in light

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In a footnote, Plaintiffs allege that Mr. Fisher is not qualified as an expert under
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Plaintiffs’ Motion to Strike is not a
Daubert motion, and the Court will not address this argument.
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of any alleged discrepancies, conclusory statements or legal conclusions and determine the weight
it deserves.
For these reasons, Plaintiffs’ Motion to Strike (Docket No. 133) is DENIED.
SUMMARY JUDGMENT

Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence has been
presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of
evidence in support of the nonmoving party’s position will be insufficient to survive summary
judgment; rather, there must be evidence on which the jury could reasonably find for the nonmoving
party. Rodgers, 344 F.3d at 595.

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Plaintiffs make much of the argument that Defendants have failed to construe the facts in the
light most favorable to the Plaintiffs. With cross-motions for summary judgment, however, the Court
must consider the Defendants’ Motion in the light of the facts most favorable to the Plaintiffs and
the Plaintiffs’ Motion in the light of the facts most favorable to the Defendants.

JANE DOE #3
Plaintiff Jane Doe # 3 has failed to respond to Defendants’ Motion for Summary Judgment
or Defendants’ Statement of Undisputed Facts. Failure to file a timely response to a motion indicates
there is no opposition to the motion. Local Rule 7.01(b). Failure to respond to a moving party’s
statement of material facts within the time periods provided indicates that the asserted facts are not
disputed for purposes of summary judgment. Local Rule 56.01(g).
The Court has reviewed the Defendants’ Motion for Summary Judgment and supporting
documents as to Plaintiff Jane Doe #3, pursuant to Stough v. Mayville Community Schools, 138 F.3d
612, 614 (6th Cir. 1998), and finds that Defendants have carried their burden to show that there are
no disputed issues of fact as to Jane Doe #3 and that Defendants are entitled to judgment as a matter
of law. Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiff Jane Doe #3 is
GRANTED, and Plaintiff Jane Doe #3's claims against Defendants are DISMISSED. Accordingly,
Defendants Roach and Jones, who are sued only with regard to Plaintiff Jane Doe # 3, are
DISMISSED from this action.
CONSTITUTIONAL CLAIMS
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, which provides a private right of
action against anyone acting under color of state law who subjects any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of rights or privileges secured by
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the Constitution and laws of the United States. Rehbueg v. Paulk, 132 S.Ct. 1497, 1501 (2012). The
person suing under this statute must demonstrate the denial of a constitutional right caused by a
defendant acting under color of state law.3 Epperson v. City of Humboldt, __ F.Supp.2d __, 2016
WL 1736287 at * 3 (W.D. Tenn. April 29, 2016); Carl v. Muskegon County, 763 F.3d 592, 595 (6th
Cir. 2014).
Thus, to establish the liability of the individual officers in their individual capacities under
Section 1983, Plaintiffs must show the denial of a constitutional right caused by those officers acting
under color of state law. To establish the liability of Defendant CCA and the individual officers in
their official capacities under Section 1983, Plaintiffs must establish that their harm was caused by
a constitutional violation and that a policy or custom of Defendants was the “moving force” behind
the deprivation of the Plaintiffs’ rights. Miller v. Sanilac County, 606 F.3d 240, 255 (6th Cir. 2010);
Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009). Defendant CCA is liable for harms resulting from
a constitutional violation only when the injury resulted from an implementation of Defendant CCA’s
official policies or established customs. Id.4 Plaintiffs must also demonstrate a direct causal link
between the policy and the alleged constitutional violation in order to show that Defendants’
deliberate conduct can be deemed the “moving force” behind the violation. Id.

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A private corporation, such as CCA, that performs the traditional state function of
operating a prison acts under color of state law for purposes of Section 1983. Street v.
Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). That private corporation,
however, cannot be held liable under a theory of respondeat superior. Monell v. Dept. of Social
Services of City of New York, 436 U.S. 658, 691-92 (1978).
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There are at least four avenues a plaintiff may take to prove the existence of a such
an illegal policy or custom: (1) a municipality’s legislative enactments or official agency policies;
(2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training
or supervision; and (4) a custom of tolerance or acquiescence of federal rights violations. Spears,
589 F.3d at 256.
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“Official policy” often refers to formal rules or understandings - often but not always
committed to writing - that are intended to, and do, establish fixed plans of action to be followed
under similar circumstances consistently and over time. Spears, 589 F.3d at 256. Defendant CCA
can be shown to have a “custom” causing constitutional violations, even if that custom was not
formally sanctioned, provided that Plaintiffs offer proof of policymaking officials’ knowledge and
acquiescence to the established practice. Id.
A systematic failure to train officers adequately is a custom or policy which can lead to
liability. Miller, 606 F.3d at 255. The inadequacy of training only serves as a basis for Section 1983
liability where the failure to train amounts to deliberate indifference to the rights of person with
whom the officers come into contact. Id. To establish deliberate indifference, Plaintiffs must show
prior instances of unconstitutional conduct demonstrating that Defendant CCA 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.
Tennessee Department of Correction (“TDOT”) policy states, among other things, that “strip
and visual body cavity searches of visitors require the prior approval of the Warden/designee based
upon a finding of reasonable suspicion.” TDOT Policy 506.06. TDOT policy also provides that
“Visitors may be required to replace their feminine hygiene products in the presence of institutional
staff only if there exists individualized reasonable suspicion to prove that contraband is being
brought in.” Id.
Plaintiffs have stated that they are not challenging the TDOT policies but the wrongful
implementation of the TDOT policies at SCCF. Defendants argue that SCCF policy does not allow
strip searches, but it does allow staff to request visitors who are wearing feminine hygiene products
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to change their product in the presence of institutional staff when staff possess reasonable suspicion
that the visitor is attempting to introduce contraband into the prison.
Here, there are genuine issues of material fact5 as to whether Defendants violated Plaintiffs’
constitutional rights. In addition, there are genuine issues of material fact about whether Defendants’
alleged violations were taken pursuant to a policy or custom.
As noted above, the parties strongly disagree about whether, given what they knew and what
they saw, Defendants had reasonable suspicion to believe that Plaintiffs could be attempting to
introduce contraband into the prison.6 The parties disagree as to what the officers knew (before the
incidents at issue) about Plaintiffs or the inmates whom they were visiting. The parties also strongly
disagree about what exactly happened when Plaintiffs were asked to change their feminine hygiene
products, including whether it was a “strip search” or visual body cavity inspection. The Court
cannot find that Defendant’s conduct constituted a “strip search”7 or not if the facts are disputed as
to what happened. The parties dispute whether the officers turned their backs or watched as Plaintiffs
made this change and whether Defendants visually observed or inspected Plaintiffs’ genitalia. Even

5

The myriad times the parties accuse each other of misconstruing, misstating,
misrepresenting and distorting the facts is simply one indication that there are genuine issues of
fact presented in this case. Another is the numbers of alleged statements of undisputed facts
which are, in fact, clearly disputed.
6

Reasonable suspicion depends on the totality of the circumstances, and whether
the defendants unreasonably searched the plaintiffs is a contested issue of fact, properly for the
jury. See, e.g., U.S. v. Campbell, 549 F.3d 364, 371 (6th Cir. 2008).
7

The facts in Safford Unified School Dist. No. 1 v. Redding, 129 S.Ct. 2633 (2009),
cited by Plaintiffs, are not the same as the facts in this case, and the level of intrusion into
personal privacy differ, according to which facts you believe.
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if a Defendant did not observe anything, under Plaintiffs’ facts, she could be liable for simply
participating in the alleged search.
There is also a genuine issue of material fact as to whether Defendants could have offered
Plaintiffs non-contact visits as alternatives at SCCF. The parties disagree about whether Plaintiffs
(or reasonable persons) were free to leave (or felt free to leave) the prison rather than change their
feminine hygiene products. The parties disagree about whether any other visitors (besides Plaintiffs)
were required to change their feminine hygiene products.8 The parties disagree as to whether a
visitor’s simply having or wearing her own feminine hygiene product was sufficient cause for
Defendants to ask that visitor to change her feminine hygiene product in the presence of institutional
staff. What was “reasonable” suspicion, what constitutes a “reasonable” search, and what a
“reasonable” visitor would feel, under the circumstances of this case, must be determined by the jury.
Accordingly, the Court cannot determine these questions of fact9 on a motion for summary
judgment. Even if the alleged misconduct was found to be unconstitutional, there are also genuine
issues of material fact as to whether Defendant CCA had a custom or policy of conducting
unconstitutional “searches” of females. As noted above, the parties disagree as to whether any other
visitor was asked to comply with this alleged “search,” so the Court cannot find that this “practice”

8

Despite Plaintiffs’ claim that “countless” or “all” women have been required to
change their feminine hygiene products in the presence of Defendants’ staff, Defendants contend
that Plaintiff cannot point to a single other specific occasion when a visitor was required to make
this change.
9

Plaintiffs contend that the “only permissible legal conclusion based on the
essential facts is that Plaintiffs were strip-searched without reasonable suspicion as a matter of
law.” The Court disagrees. Defendant disputes that Plaintiffs were strip-searched and disputes
that Defendant’s actions were taken without reasonable suspicion. The Court cannot determine
these issues when the facts of what actually happened are in dispute.
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was “widespread,” as Plaintiffs contend. The parties disagree about whether Defendant’s policies
require correctional officers to turn their backs or their heads away from a visitor changing her
feminine hygiene product. Plaintiffs dispute almost all of Defendants’ Statement of Undisputed Facts
concerning CCA’s policies and practices.
In addition, the parties disagree about what training the correctional officials at SCCF
actually received and whether that training was reasonable under the circumstances. Whether
Defendants’ supervision was reasonable and adequate also depends upon the findings of fact as to
what happened. Whether Defendants’ training and supervision (or lack thereof) amounted to
deliberate indifference also involves questions of fact. For these reasons, both Motions for Summary
Judgment as to Plaintiffs’ Fourth and Fourteenth Amendment constitutional claims (except as to
Plaintiffs Jane Doe #3 and the Minor Does ## 1-3) are denied.
STATE LAW CLAIMS
Plaintiffs allege that Defendants’ conduct amounted to false imprisonment, negligence and
invasion of privacy. Again, without knowing what Defendants’ conduct actually was and whether
it was reasonable under the circumstances, the Court cannot determine the facts surrounding these
claims or find, as a matter of law, that either party is entitled to summary judgment on these claims.
A reasonable jury could find that these state laws were violated - - - or not.
CONCLUSION
Plaintiffs’ Motion to Strike (Docket No. 133) is DENIED. For the above reasons,
Defendants’ Motion for Summary Judgment (Docket No. 105) is GRANTED as to Plaintiffs Jane
Doe #3 and the Minor Does ## 1-3 and DENIED as to Plaintiffs Jane Doe # 1 and Jane Doe # 2.
Plaintiffs’ Motion for Summary Judgment (Docket No. 109) is DENIED.
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This case remains set for trial on December 20, 2016.
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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