Brown, Sharon v. Polk County, Wisconsin et al
Filing
39
OPINION AND ORDER granting 11 Motion for Summary Judgment. Signed by District Judge William M. Conley on 8/16/19. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SHARON LYNN BROWN,
Plaintiff,
v.
OPINION AND ORDER
18-cv-391-wmc
POLK COUNTY, WISCONSIN,
CO STEVEN HILLESHIEM, CO JANET LEE,
CHIEF DEPUTY WES REVELS, and
POLK COUNTY CORRECTIONAL OFFICERS
JOHN DOE 1-10,
Defendants.
While incarcerated at the Polk County Jail, plaintiff Sharon Lynn Brown (neé
Smith) was subjected to a body cavity search following reports by other inmates that she
had concealed methamphetamine in her person. 1 The cavity search found no foreign
objects or materials. Brown is suing the officers allegedly involved in the search, as well as
the County, alleging that they violated her Fourth Amendment rights by conducting a body
cavity search without probable cause and a warrant. 2
Presently before the court is
defendants’ motion for summary judgment. (Dkt. #11.) For the reasons set forth below,
this motion will be granted.
Although plaintiff went by Smith during the relevant time period, she will be referred to as Brown
for purposes of this opinion.
1
Plaintiff also raised a failure-to-train claim under the Fourth Amendment, however, she has waived
that claim by failing to respond to defendants’ arguments at summary judgment.
2
UNDISPUTED FACTS 3
A. Background
A citizen of Minnesota, Brown was incarcerated at the Polk County Jail at all times
relevant to this lawsuit. Polk County is located in northwestern Wisconsin. Defendant
Janet Lee is a correctional officer at the County Jail. Defendant Steve Hilleshiem also
served as a correctional officer at the Jail from January 2003 until mid-July 2018.
Defendant Wes Revels was the Jail’s chief deputy from June 2016 through March 2018;
he also served as the Jail Administrator starting in early 2017.
B. Policy Governing Cavity Searches
During the relevant time, Polk County had a policy requiring all body cavity
searches be performed by a physician, a Wisconsin-licensed registered nurse, or physician’s
assistant. Correctional officers could request a cavity search based on “reasonable grounds
to believe that the [detained] person is concealing weapons, contraband, or evidence in a
body cavity, or otherwise believes that the safety and security of the jail would benefit from
a body cavity search.” (Search Policy (dkt. #12-1) 6.) When reasonable grounds exist, a
correctional officer was to make the request for a body cavity search by contacting the shift
supervisor, who would then “make the proper arrangements for such a search.” (Id.)
Additionally, the Jail administrator’s prior approval was required. (Id.)
Viewing the evidence and reasonable inferences in a light most favorable to plaintiff as the nonmoving party, the following facts are undisputed for purposes of summary judgment, except where
noted below.
3
2
C. Brown’s Incarceration
Brown was held in custody at the Polk County Jail from May 3-5, 2017. She arrived
at the Jail shortly after midnight on May 3, following her arrest for retail theft. On May 3
and 4, Brown was housed in the K Pod with inmates Jacqueline Duke and Amy Nelson.
According to Nelson, she had never seen or met Brown before then. (Nelson Decl. (dkt.
#15) ¶ 8.)
On May 4, 2017, Duke approached defendant Hilleshiem during medication pass
and reported that Brown was concealing “a large amount” of meth in her body cavity.
Duke did not say that she had seen the contraband. On the hand, Officer Hilleshiem had
no reason to believe -- or even suspect -- that Duke was lying. At the time, Hilleshiem did
not know (1) Duke or her background, (2) why Brown was incarcerated, or (3) if Duke
had a relationship with Brown. He also did not inquire into these matters. (Hilleshiem
Dep. (dkt. #14) 18:2-13; see also id. 31:25-32:4 (testifying the reason Brown was
incarcerated would not have changed his analysis).) Nevertheless, based on his training
and experience, he believed Duke. Hilleshiem then spoke with non-defendants, Jail Nurse
Donna Johnson, Sheriff Pete Johnson, and Sergeant Matt Thayer about Brown. Hilleshiem
did not speak to Inmate Nelson.
After talking to Hilleshiem, Nurse Johnson spoke with Nelson, Brown and a third
inmate.
By May 2017, Nurse Johnson had worked at the Polk County Jail for
approximately 20 years, during which time she had daily contact with inmates. She had
3
also been a Certified Correctional Health Professional since at least 1997. 4 Over the course
of her time working at the Jail, Nurse Johnson often received written or verbal reports
about inmates concealing contraband, hording medication, or acting inappropriately from
other inmates. Rarely would these reports result in a formal investigation because through
speaking with the inmates involved it often became clear that one inmate was trying to get
another in trouble. She drew these conclusions based on her training and experience, her
perceived credibility of those involved and the content of the report, such as the detail of
the information provided.
As opposed to the frequent, unfounded reports Nurse Johnson received when one
inmate was trying to get another in trouble, Nelson’s report was very detailed. Nelson
informed Johnson that after arriving at K Pod, Brown told Nelson and some of the other
inmates that she was concealing between a quarter gram and an eight ball of meth inside
her body cavity and asked if they had something else she could conceal the drugs in because
she was concerned that: (1) she might absorb the drugs; (2) they were not sealed properly;
or (3) they would be found. (Nelson Decl. (dkt. #15) ¶¶ 9-10, 15.) Brown disputes that
she told Nelson any of that. (See Brown Dep. (dkt. #17) 101:14-102:8 (testifying that she
did not recall speaking with Nelson or Duke but that she “had a couple girls telling [her]
like the rules or, you know, the things you can and can’t do while you’re there”).) However,
she does not otherwise dispute what Johnson or Hilleshiem may have heard from Duke or
Nelson. (See Defs.’ Reply to Pl.’s Resp. to Defs.’ PFOF (dkt. #26) ¶¶ 24, 33, 38-42.)
The correctional health professional certification focuses on medical and legal standards applicable
to healthcare professionals who work with inmates.
4
4
Because Nurse Johnson found the information provided by Nelson was not typical
of an unfounded allegation -- due both to the level of detail and the credibility of the
inmates providing the information -- she did not believe that the inmates who provided
the information had an ulterior motive. Instead, Nurse Johnson concluded that the report
warranted further investigation, including a cavity search. Hilleshiem also concluded a
cavity search was reasonable, although he also testified that he would order a body cavity
search any time he got a report that an inmate had contraband in their body cavity.
(Hilleshiem Dep. (dkt. #17) 19:3-11, 23:2-9.)
Nurse Johnson and other staff members at the Jail then discussed the situation,
including the information obtained, their opinions and recommendations, as well as
concerns about safety and security, both Brown’s and the other inmates’. Hilleshiem
specifically was concerned about Brown’s safety, as well as the safety of the other inmates. 5
At the end of that discussion, jail staff collectively concluded that Brown should be sent
for a cavity search.
Hilleshiem then contacted Wes Revels, the jail administrator, for approval,
informing him that Brown reportedly told another inmate that she was concealing drugs
in a body cavity and two other inmates reported that fact to jail staff. CO Hilleshiem also
told Revels that in his view this information met the policy requirements for a cavity search.
Purportedly taking Hilleshiem’s word for it, Revels agreed and authorized the search. In
Hilleshiem testified that regardless of whether Duke was lying, he “ha[d] a policy to follow,” such
that if Brown “really ha[d] contraband inside of her and she die[d] or one of the other girls in there
die[d] from it,” then he “ha[d]n’t done [his] job”; on “the flip side[,] . . . if [he] d[id his] job based
on what [he had] been told, it [wa]s not for [him] to decide if [the report was] true” -- his “job
[was] to follow up on it based on the best of [his] ability.” (Hilleshiem Dep. (dkt. #14) 29:4-23.)
5
5
particular, Revels’ understood that Brown was concealing contraband in her vagina, instead
of her anus, but did not know the basis for that conclusion. He, himself, did not speak to
the inmates who had reported Brown, nor did he speak to Nurse Johnson; he also did not
ask Hilleshiem to investigate any further. 6 Revels did, however, pull Brown’s jail file or
otherwise inquire why she was jailed.
Following medication pass on May 4, 2017, staff members then returned and asked
Brown to exit K Pod, at which point she was escorted to another room and told to wait.
After being escorted to yet another room, Jail staff asked Brown if she “had anything” on
her. After she answered in the negative, Brown then asked to use the restroom, at which
point she was escorted to the bathroom by a female staff member. Consistent with jail
protocol, requiring monitoring of an inmate suspected of having contraband when an
inmate wanted to use the bathroom, that staff member monitored Brown while she did so.
After using the bathroom, Brown was then handcuffed, leg shackled, and escorted
to the back of a squad car by Polk County Deputy Anthony Lehman, where Brown was
informed that she was being transported to St. Croix Hospital for a cavity search. Hearing
this, Brown did not respond or ask why, nor was she ever told another inmate had reported
that she had contraband. While in the squad car, Brown not only had handcuffs and leg
shackles, but possibly a “belly” belt. Defendant Lee was not working nor even present at
the Jail when Brown was taken for the cavity search.
While Revels testified that he would consider the credibility of the inmates in making the
accusation as a factor in determining the reasonableness of a cavity search, in this instance, he
acknowledged not investigating the complaining inmates’ credibility, knowing nothing about their
credibility, and not asking Hilleshiem if he knew the complaining inmates, their credibility or
possible ulterior motives.
6
6
At St. Croix Hospital, Brown and Deputy Lehman waited for about an hour before
a nurse brought them into a private room, at which point Lehman removed the handcuffs.
The nurse then asked Brown some questions, before providing her with a gown. While
Brown changed, Deputy Lehman left the room, returning once Brown was in the gown. At
that point, the nurse handed Brown the television remote and advised them that the
hospital was very busy, so they would have to wait for the actual search. Following a
further wait, the nurse and a doctor returned to the room, at which point Deputy Lehman
left again.
The medical professionals then explained that the doctor would perform the cavity
search, and the doctor specifically explained that he would perform an ultrasound of her
abdomen, a vaginal exam, and then an anal exam. The doctor performed: the ultrasound
using an external probe; the vaginal exam with a speculum, which was similar to a routine
pelvic examination or pap smear; and finally, the anal exam with a speculum. During the
anal exam, there was a technical problem with the light, requiring the medical professionals
to find another. While they searched, the speculum remained in her anus. Still, the entire
cavity search took less than five minutes, and ultimately the doctor did not locate any
foreign objects.
Immediately after the doctor concluded the anal exam, Brown began crying.
Lehman then transported Brown back to the Jail. Upon return to the Jail, Brown, who was
still crying, asked to stay in a holding cell until the next morning, when she was to be
transferred to Barron County, not wanting to cry in front of the other inmates. She cried
herself to sleep that night in the holding cell.
7
Following this event, Brown has been anxious, depressed, and afraid of going
outside, being pulled over or going to jail. She also does not like to be alone with men.
(Brown Dep. (dkt. #17) 53:18-54:6.)
OPINION
Summary judgment is appropriate if the moving party shows that: (1) “there is no
genuine dispute as to any material fact”; and (2) the party “is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The court’s role at summary judgment is not to
“weigh evidence, make credibility determinations, or decide which inferences to draw from
the facts”; rather, its role is “to determine whether there is a genuine issue of triable fact.”
Kirkwood v. DeLong, 683 F. Supp. 2d 823, 826 (N.D. Ind. 2010) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Washington v. Haupert, 481 F.3d 543, 550 (7th Cir.
2007); Payne v. Pauly, 337 F.3d 767, 770 (7th Cir. 2003)).
As an initial matter, plaintiff sued CO Janet Lee. She appears to have had no
involvement in the underlying events and is entitled to summary judgment without further
discussion. Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010) (“[I]ndividual liability
under § 1983 requires personal involvement in the alleged constitutional deprivation.”). 7
The evidence as to CO Hilleshiem is only slightly stronger, since there is no dispute that
Duke had told him that Brown admitted hiding a large quantity of meth in her body cavity,
and Nurse Johnson told Hilleshiem that Nelson said roughly the same, which she believed,
Plaintiff has failed to amend the complaint to identify the John Doe defendants and permitting
her to do so now would be unduly prejudicial. Accordingly, they are also entitled to summary
judgment.
7
8
and that he accurately relayed that information to Administrator Revels.
That ends
Hilleshiem’s role here, having duly turned the matter over to Chief Deputy Revels. Even
if a jury could infer that Hilleshiem knew that Revels would ultimately approve the request
for a body cavity search to proceed at the hospital, there is no basis for a reasonable jury
to find that he knew something was in any way amiss. Regardless, since none of this
approaches misconduct, much less an illegal search under the Fourth Amendment, no
evidence supports a claim against Hilleshiem either. 8 (See Defs.’ Reply to Pl.’s Resp. to
Defs.’ PFOF (dkt. #26) ¶ 62.)
As to the remaining defendants, Chief Deputy Revels and Polk County contend that
they are entitled to summary judgment because all that was needed was “reasonable
suspicion” to conduct the challenged search -- not probable cause or a warrant -- and the
search was conducted in a reasonable manner. (Defs.’ Summ. J. Br. (dkt. #20) 12-17.)
Plaintiff disagrees, arguing that defendants needed both probable cause and a warrant to
proceed with a cavity search, and since they had neither, the cavity search was
unreasonably conducted. (Pl.’s Opp’n (dkt. #22) 10-20.) Brown also disputes defendants’
argument as to their reasons for reasonable suspicion. (Id. at 20-28.)
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
One way he could be liable would be under a “cat’s paw” type theory, which would postulate that
Revels was an unbiased decisionmaker, but improperly influenced by Hilleshiem, resulting in him
unwittingly acting as a biased non-decisionmaker’s “cat’s paw.” See Schandelmeier-Bartels v. Chi. Park
Dist., 634 F.3d 372, 378-79 (7th Cir. 2011). However, there is no allegation that Hilleshiem was
either biased, nor that he misled Revels in any way.
8
9
be violated . . . .” U.S. Const. Amend. IV. 9 This includes “the right to be free from
unreasonable searches of one’s unclothed body.” Stanley v. Henson, 337 F.3d 961, 963 (7th
Cir. 2003) (internal citation omitted). 10 While the Fourth Amendment generally requires
the issuance of a warrant based on probable cause before a search may proceed, “the
Supreme Court has recognized several exceptions to the warrant requirement.”
Id.
(citations omitted). Among those exceptions are warrantless body cavity searches of an
individual in custody provided reasonable suspicion of the presence of a weapon or
contraband. See United States v. Freeman, 691 F.3d 893, 901-02 (7th Cir. 2012) (finding
reasonable suspicion sufficient to conduct strip search of defendant that found cocaine
between his buttocks before he was booked into jail based on (1) his arrest for attempted
cocaine distribution, (2) a drug dog’s alerting to the presence of drugs at the scene of the
traffic stop where no drugs were found, (3) his attempted sale of cocaine before the stop,
(4) knowledge that he had a tendency to conceal drugs between his buttocks and (5) his
uncomfortable fidgeting at the police station); Campbell v. Miller, 499 F.3d 711, 717 (7th
Cir. 2007) (agreeing with jury that police had reasonable suspicion for cavity search of
marijuana-possessing arrestee); Mary Beth G. v. City of Chi., 723 F.2d 1263, 1273 (7th Cir.
1983) (concluding that Chicago’s blanket policy requiring visual cavity inspection of
The protections of the Fourth Amendment were extended to the states under the Fourteenth
Amendment. See Zoretic v. Darge, 832 F.3d 639, 643 (7th Cir. 2016) (“The Fourth Amendment’s
protections against unreasonable searches and seizures is made applicable to state actors under the
Fourteenth Amendment.” (citing DKCLM, Ltd. v. Cnty. of Milwaukee, 794 F.3d 713, 714 (7th Cir.
2015))).
9
In Stanley, plaintiff challenged a clothing-exchange that involved her changing out of her street
clothes into a jail uniform while being watched by a same-sex officer, in which her breasts were
exposed because she had not worn a brassiere as an unreasonable strip search. The Seventh Circuit
found that this search was reasonable and did not violate the Fourth Amendment.
10
10
female misdemeanor arrestees was unreasonable and violated the Fourth Amendment
because “the ‘need for the particular search,’ a strip search, is hardly substantial enough, in
light of the evidence regarding the incidence of weapons and contraband found in the body
cavities of women minor offenders, to justify the severity of the governmental intrusion”
without “reasonable suspicion by the authorities that either of the twin dangers of
concealing weapons or contraband existed”); Doe v. Village of Downers Grove, No. 91 C 2722,
1992 WL 8720, at *2 (N.D. Ill. Jan. 15, 1992) (“The Seventh Circuit has articulated both
the ‘reasonable suspicion’ and ‘probable cause’ standards” for evaluating strip searches.)
(collecting cases).
Even so, searches of individuals in custody must be reasonable. Stanley, 337 F.3d
at 963 (citations omitted). Courts determining the constitutionality of a search balance
“the need for the particular search against the invasion of personal rights that the search
entails”; in doing so, considerations include “the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place in which
it is conducted.” Campbell, 499 F.3d at 716 (quoting Bell v. Wolfish, 441 U.S. 520, 559
(1979)). As the intrusiveness of the search increases “the closer governmental authorities
must come to demonstrating probable cause for believing that the search will uncover the
objects for which the search is being conducted.” Id. (quoting Mary Beth G, 723 F.2d at
1273).
For example, in Campbell, the Seventh Circuit ultimately concluded that the search
was conducted in an unreasonable manner because it was conducted in public and exposed
Campbell’s private parts. 499 F.3d at 718. While difficult to define, reasonable suspicion
11
itself “is a commonsense, nontechnical concept that deals with the factual and practical
considerations of ‘everyday life on which reasonable and prudent [people], not legal
technicians, act.’” United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006) (quoting
Ornelas v. United States, 517 U.S. 690, 695 (1996)). 11 While reasonable suspicion “is a less
demanding standard than probable cause and requires a showing considerably less than
preponderance of the evidence, the Fourth Amendment requires at least a minimal level of
objective justification.” Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Put
another way, “reasonable suspicion is less than probable cause but more than a hunch.”
Id. (citing United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003)). On the other hand,
“[p]robable cause exists when based on the known facts and circumstances, a reasonably
prudent person would believe that contraband or evidence of a crime will be found in the
place to be searched.” United States v. Edwards, 769 F.3d 509, 514 (7th Cir. 2014).
Regardless of which standard ultimately applies, the question is still one of reasonableness
through the aforementioned balancing of “the need for the particular search against the
invasion of personal rights that the search entails.” Campbell, 499 F.3d at 716 (quoting
Bell, 441 U.S. at 559). 12
In Lawshea, the Seventh Circuit considered whether police had reasonable suspicion to conduct
the Terry stop leading to defendant’s arrest, ultimately finding that defendant’s flight in a highcrime area a little before midnight provided enough for reasonable suspicion. 461 F.3d at 859.
11
12
Here, Deputy Chief Revels’ decision to send plaintiff to a hospital to conduct a body
cavity search was permissible under the Fourth and Fourteenth Amendments if he had a
reasonable basis to suspect she had secreted methamphetamine within her person, since
that would put her and other people’s safety and security at risk with the Jail. As an initial
point, there can be no dispute that a body cavity search -- whether visual or manual -- is a
substantial impingement on anyone’s rights. See Mary Beth G., 723 F.3d at 1272
(reiterating that “strip searches involving the visual inspection of the anal and genital areas
as
‘demeaning,
dehumanizing,
undignified,
humiliating,
terrifying,
unpleasant,
embarrassing, repulsive, signifying degradation and submission’” (quoting Tinetti v. Wittke,
479 F. Supp. 486, 491 (E.D. Wis. 1979), aff’d per curiam and adopted by 620 F.2d 160 (7th
Cir. 1980)). On the other side of the balance is the evidence Deputy Chief Revels had
indicating that plaintiff was secreting dangerous contraband. In particular, there is no
dispute that two inmates separately reported an alleged conversation with plaintiff to
different jail staff members. While second-hand, both inmates also reported that plaintiff
was concealing a large amount of meth in her body cavity. At least Nelson provided a lot
of information, which Nurse Johnson apparently contrasted with the typical unfounded
reports she received almost weekly from inmates.
Plaintiff argues that there is a difference between visual and manual inspection of body cavities,
as recognized in People v. Hall, 886 N.E.2d 162 (N.Y. 2008), cert. denied 555 U.S. 938. (Pl.’s Opp’n
(dkt. #22) 15 n.3.) The only Seventh Circuit authority drawing this distinction the court can find
is Henry v. Hulett, No. 16-4234, 2019 WL 3229153, at *1 (7th Cir. July 16, 2019) (“[T]he Fourth
Amendment does not apply to visual inspections of convicted prisoners but does apply to
procedures that entail intrusions within prisoners’ bodies.” (internal citation omitted)). However,
Henry is inapposite because it considers the rights of prisoners not pretrial detainees and recognizes
that “strip searches often are reasonable and thus permissible” under the Fourth Amendment or
Due Process Clause. Id. at *2.
12
13
Unfortunately, the record is less clear how much of that information she relayed to
Hilleshiem or what exactly he relayed to defendant Revels.
At minimum, it appears
undisputed that Hilleshiem, Nurse Johnson and other Jail staff decided that Brown should
be sent for a cavity search. It is also apparently undisputed that Hilleshiem then contacted
Revels for approval of a cavity search, accurately reporting that two inmates relayed an
alleged conversation with Brown in which she admitted concealing drugs in a body cavity. 13
Additionally, Nelson informed Johnson that plaintiff had expressed concern about possibly
absorbing some of the drugs because they were inadequately sealed, which was presumably
also relayed to Revels. If so, that piece of information would have only added additional
exigency to protect plaintiff’s safety. 14
Moreover, there appears to be no dispute that the Jail staff discussed the situation
before going to seek approval from Revels, who concurred and ultimately concluded that
further investigation was warranted because of the information about plaintiff’s possession
of contraband. See Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1220 (N.D. Ill. 1990)
(“[S]trip search cases have universally demonstrated that one element must be present for
Nurse Johnson apparently also spoke with plaintiff following Hilleshiem’s conversation with
Duke, but neither side provides any detail about the substance of that conversation or how it
influenced Johnson’s decision-making process. (Johnson Dep. (dkt. #32) 19:10-20:8 (testifying
she remembered speaking with plaintiff about the reports from her cellmates, but that she did not
remember the specifics); but see id. 28:24-29:10 (testifying that when asked plaintiff denied having
contraband on her but that Johnson did not find the denial credible at the time, but could not
remember why).)
13
Even if not relayed to him, Revels had a reason to be concerned about this risk based on his own
experience as a jail administrator. While there may be an argument that the delay at the hospital
countered the exigency of the circumstances, that delay was out of defendants’ control. Regardless,
at the hospital had plaintiff been secreting improperly sealed meth and absorbed it, Revels certainly
knew that she would have garnered better medical attention, more quickly if her condition worsened
before, during or after any extraction.
14
14
a strip search to be held reasonable: Police officers must have some level of particularized
justification to strip search an individual arrestee.”). Given the lack of any evidence that
defendant Revels had reason to doubt Hilleshiem’s report (or the Jail staff’s judgment), no
reasonable jury could find his reliance on Hilleshiem and Johnson’s investigation in finding
reasonable suspicion for the search was objectively unreasonable. Indeed, requiring Revels
to do his own independent investigation would be inefficient and illogical, as well as
irresponsible considering the possible danger posed to plaintiff and her cellmates by the
presence of meth. See United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000) (“When
law enforcement officers are in communication regarding a suspect, the knowledge of one
officer can be imputed to the other officers under the collective knowledge doctrine.”).
While plaintiff points to Hilleshiem’s deposition testimony that he would order a
body-cavity search any time he got a report that an inmate had contraband in their body
cavity (Hilleshiem Dep. (dkt. #17) 19:3-11, 23:2-9), that testimony is beside the point.
Plaintiff’s was only instance at the Polk County Jail that Hilleshiem observed a staff
member request a body cavity search. Regardless, the only evidence is that Hilleshiem
accurately passed on reports to the decisionmaker. Revels (relying on his team) concluded
that further investigation was necessary.
Also weighing in favor of reasonableness are the manner and location in which the
search was conducted.
See Isby v. Duckworth, 175 F.3d 1020, at *2 (7th Cir. 1999)
(unpublished table decision) (identifying considerations for the reasonableness of a cavity
search included: hygiene, privacy, training of those conducting the search, and whether the
search was performed in a professional manner). Here, the search was conducted at the
15
St. Croix Hospital by a trained medical doctor; the doctor performed the search in a private
room, without observation by jail staff or non-medical personnel; and the entire search
lasted no more than five minutes. This is consistent with the search conducted in Isby,
which the Seventh Circuit concluded was reasonable in light of the potential threat to
inmate safety from the possible presence of a gun and reasonably performed where
“conducted in a private room, by [a doctor],” despite its “intrusive” nature, the doctor
laughing before the search, and plaintiff being held down by guards during it. Id. at *2-*4
(affirming summary judgment).
In contrast, this case is markedly different from the
“odious and extremely intrusive” search like that found to violate the Fourth Amendment
in State v. Brown, No. A17-0870, 2019 WL 3808038 (Minn. Aug. 14, 2019). There, the
Minnesota Supreme Court concluded the search was not reasonably justified” because
defendant “was alert and capable of consent,” but did not, resulting in him being “strapped
down to a hospital table” and “sedated without his consent,” while the doctor inserted
“uncomfortable” instruments into his rectum, “expos[ing] and invad[ing] a part of the
body that our society considered especially private,” while “nonmedical personnel
remained in the room and observed.” Id. at *9. 15
Plaintiff argues that it was still unreasonable for the search to include her anal
cavity. (Pl.’s Opp’n (dkt. #22) 10.) Defendants respond that they lacked control over the
scope of the search. (Defs.’ Reply (dkt. #27) 5-7.) The court finds both arguments
unpersuasive. While there is no evidence that defendants instructed the doctor which
The Minnesota Supreme Court applied the balancing test from Winston v. Lee, 470 U.S. 753
(1985).
15
16
cavities to search (see Nurse Johnson Dep. (dkt. #32) 39:11-40:1 (testifying that the Jail
staff did not discuss the scope of the cavity search as it “would be up to the doctors”)),
deferring to the medical judgment of the doctor is illogical, since Jail staff determines
whether a search is necessary and has the information to make the decision as to its scope.
However, the court finds plaintiff’s argument unpersuasive as well. Regardless of
Revels’ more recent recollection (Revels Dep. (dkt. #19) 31:5-14 (identifying concern that
plaintiff was concealing drugs in her vagina)), the contemporaneous documents do not
specify where the contraband was understood to be secreted (Progress Note (dkt. #19-1) 1
(noting “a large quantity of methamphetamine hidden internally”); Incident Rpt. (dkt.
#19-1) 2 (noting “a large amount of meth inside her ‘body cavity’” (capitalization
altered)). While the court credits plaintiff’s assertion that the anal cavity search was the
most offensive portion of her ordeal, its inclusion is not enough to make the search
unreasonable on these facts. Cf. Green v. Hallam, 105 F. App’x 858, 862 (7th Cir. 2004)
(unpublished) (finding no Fourth Amendment violation where guard digitally searched
prisoner’s rectum as plaintiff “submitted no evidence to challenge the prison’s explanation
that the guards had reasonable cause to search [plaintiff] based on the fact that [he]
possessed contraband, refused to cooperate, and injured a guard”).
Certainly, plaintiff has reason to question Revels’ decision to order such an invasive
search of her person based on third and fourth-hand reports of her admission, but police
chiefs and deputy police chiefs must make such judgments regularly in their positions with
lives at stake and as previously noted, the knowledge of other officers is imputed to
17
Revels. 16 Accordingly, because a reasonable jury could not conclude that the body cavity
search of plaintiff was unreasonable, he is entitled to summary judgment, 17 and since none
of its actors violated the Fourth Amendment, so is Polk County.
ORDER
IT IS ORDERED that:
1) Defendants’ motion for summary judgment (dkt. #11) is GRANTED.
2) Plaintiff’s motions to reschedule the final pretrial conference or to appear via
telephone (dkt. ##36, 37) are DENIED AS MOOT.
3) The clerk of court is directed to enter judgment for defendants and close this
case.
Entered this 16th day of August, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Moreover, plaintiff has not come forward with any evidence that Revels or the other officers had
a reason to doubt the credibility of the informing inmates. See e.g., United States v. Clark, No. 182604, 2019 WL 3821808, at *1 (7th Cir. Aug. 15, 2019) (criminal defendant entitled to Franks
hearing where warrant application omitted “damaging information about the credibility of [the]
confidential informant,” who had two pending criminal charges, 15 prior convictions, a history of
drug abuse, was paid for his services and hoped to receive a reduced sentence). To the contrary, it
is undisputed that Hilleshiem had no reason to doubt Duke’s report and Nurse Johnson found
Nelson’s to be credible, as opposed to “the weekly, unfounded reports she regularly received when
one inmate was simply trying to get another inmate in trouble.” (See Defs.’ Reply to Pl.’s Resp. to
Defs.’ PFOF (dkt. #26) ¶¶ 25, 33.)
16
Even if this reliance could be found unreasonable on these facts by a jury, the absence of any law
holding that reliance on multiple hearsay in finding reasonable suspicion of dangerous contraband
would entitle Revels to qualified immunity in any event.
17
18
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