Martin v. City of San Antonio

Full title: ROBERTA L. MARTIN, Plaintiff, v. CITY OF SAN ANTONIO, NORMA WOODS, BADGE…

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jul 25, 2006

Civil Action No: SA-05-CA-0020-XR (W.D. Tex. Jul. 25, 2006)

Opinion

Civil Action No: SA-05-CA-0020-XR.

July 25, 2006

ORDER

XAVIER RODRIGUEZ, District Judge

On this date, the Court considered Defendants' Motion for Summary Judgment (docket no. 59), Plaintiff's Response in Opposition (docket no. 61), and Defendants' Reply (docket no. 63). After careful consideration, the Court will grant in part and deny in part the motion.

Facts and Procedural Background

Plaintiff Roberta Martin filed this suit pro se complaining about the violation of her constitutional rights during a traffic stop and arrest on the night of January 15, 2003. This Court appointed an attorney to represent her. The Second Amended Complaint, filed May 17, 2006, is the live pleading. According to the Complaint, Plaintiff drove to visit a friend at someone's home, but after determining that her friend was not there, she returned to her car and drove away. A short time later, she saw flashing police lights and pulled over. Officer Rodriguez approached the driver's side window and asked Plaintiff for her identification. Plaintiff did not have her driver's license, but gave Officer Rodriguez a medical i.d. card and her proof of insurance. When Plaintiff asked why she had been stopped, Officer Rodriguez stated that she was not wearing her seat belt. Plaintiff protested that she was in fact wearing her seat belt. A second officer, Officer Carrion, approached her car at the passenger side window and shone his flashlight inside the car. Plaintiff testified at her deposition that Officer Carrion also stated that Plaintiff had not been wearing her seat belt.

Plaintiff was then instructed to exit the vehicle, and she and the officers moved to an area at the rear of the vehicle. Plaintiff alleges that Officer Carrion then began searching her car, and that the officers "found" a crack pipe and a small amount of cocaine on the ground by the driver's side door. The police report states that the crack pipe fell from Plaintiff's pocket when she was asked to remove her hands from her pockets, and that Plaintiff dropped the crack on the ground from her hand. Plaintiff asserts that Officer Carrion said they knew she had come from a crack house and they said "You know what they do to snitches." Officer Willingham also arrived at the scene. Plaintiff was handcuffed and the officers ran a criminal background check. Plaintiff alleges that, after learning of her criminal record for drug possession and prostitution, the officers began calling her derogatory names such as "crackhead" and "nigger,"¹ and also told her that someone was coming to search her "pussy." Plaintiff was placed in the back of a patrol car. The officers repeatedly stated "Get Butch." A canine unit arrived, and a canine search of Plaintiff's vehicle revealed no drugs or evidence of criminal activity. Eventually, Officer Norma Woods arrived. Plaintiff testifies that Woods told Plaintiff to exit the vehicle or she would be forcibly removed. Woods put on a pair of blue gloves and moved Plaintiff to an area at the back of the police car. Plaintiff alleges that Woods started checking her outer clothing, and then pulled her pants down. Plaintiff testified that Woods then penetrated her vagina with her fingers for three-to-five minutes, and that when Plaintiff tried to turn around to see Woods's badge, Woods told her to "turn around and shut the fuck up, bitch." Woods then attempted to insert her finger in Plaintiff's anus, but Plaintiff "went ballastic." Plaintiff testified that she protested that that was "virgin territory," to which Officer Willingham allegedly responded that she should be used to being fucked back there and that her asshole should be as wide open as the outdoors. Woods completed the search without penetrating Plaintiff's anus, and placed Plaintiff back in the police car. Officers Rodriguez and Carrion took Plaintiff to the jail, and Plaintiff was booked for possession of cocaine. Plaintiff asserts that she began seeing a psychiatrist in November 2003 due to her emotional injuries from the event.

1 At her deposition, Plaintiff first testified that she thought both Officer Carrion and Officer Willingham called her a "nigger." Depo at 106. However, she also testified that she thought only one of them did, but she could not be sure which one. Depo at 110-11.

Plaintiff's Complaint asserts a cause of action pursuant to 28 U.S.C. § 1983 against Officers Rodriguez, Willingham, Woods, and Carrion for a violation of her Fourth Amendment rights based on the strip and body cavity search conducted in the field. The second cause of action is brought against the City pursuant to § 1983 for a violation of Plaintiff's Fourth Amendment rights based on the field strip and body cavity search. The Complaint alleges that, although the City has a facially neutral policy and custom regarding strip searches, the officers acted with "deliberate indifference" to Plaintiff's Fourth Amendment rights and rights under the Texas Constitution. The second cause of action further alleges that the City has an established custom and unwritten policy of conducting strip and body cavity searches "of certain female arrestees" in the field, and that this established custom and unwritten policy was the moving force behind the violation of Plaintiff's constitutional rights.

The third cause of action alleges a § 1983 claim against the City for a violation of Plaintiff's Fourteenth Amendment rights based on harassing and abusive verbal conduct toward her during the arrest. And the fourth cause of action alleges a § 1983 claim against the individual officers for a violation of Plaintiff's Fourteenth Amendment rights based on their verbal harassment of her as well.

Defendants' Motion for Summary Judgment

Defendants move for summary judgment on the bases that: (1) Plaintiff fails to establish any liability on the part of the City because she fails to produce any evidence of a policy or custom that was the moving force behind the alleged constitutional violation; (2) Plaintiff fails to establish a claim under the equal protection clause of the Fourteenth Amendment based on the officers' alleged abusive and harassing language toward her because there is no deprivation of equal protection when the officers' conduct consists solely of speech; (3) the individual officers are entitled to qualified immunity because, at the time of the incident, the law was unclear whether a police officer having probable cause and individualized reasonable suspicion that the Plaintiff possessed contraband could perform a body cavity search at an arrest site under the circumstances with which these officers were faced; (4) the individual officers are entitled to qualified immunity because, at the time of the incident, the law was not sufficiently clear that a reasonable officer would understand that the alleged language could violate a constitutional right; (5) the individual officers are entitled to qualified immunity because their actions were objectively reasonable; and (6) no cause of action exists under the Texas Constitution.

Analysis

A. Plaintiffs' claims against the City of San Antonio ²

Defendant City of San Antonio argues that Plaintiff has failed to establish that the City had a custom or practice that was the moving force behind the violation of either her Fourth or Fourteenth Amendment rights. Accordingly, the City argues, it is entitled to summary judgment on all of Plaintiff's claims against it. Plaintiff fails to refute this argument in her response to the motion for summary judgment.

With respect to the City, Plaintiff must demonstrate both that a municipal employee violated a clearly established constitutional right and that the violation was the result of a municipal policy or custom. Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th Cir. 1999). As noted by Defendant, Plaintiff admits that the City has a written policy that prohibits strip and body cavity searches of arrestees by its officers in the field. The City's written policy states that, "[b]efore transporting prisoners, officers are responsible for conducting a search, not to include a strip or body search, of prisoners to remove all weapons, dangerous objects, contraband, or evidence." Further, "[o]fficers having reasonable suspicion to believe a prisoner possesses contraband, evidence, or a weapon within his/her body which, if not found, would constitute a danger to the safety of the officers or others, will request a complete strip search, not to include an inner-body or cavity search, of the prisoner for those items by Detention Center personnel." And, "[o]fficers having a reasonable suspicion to believe a prisoner possesses contraband, evidence, or a weapon within his/her body which, if not found, would constitute a danger to the safety of the officers or others, shall transport the prisoner to a qualified medical facility and request a complete inner-body or cavity search of the prisoner for those items within the body by qualified medical personnel."

Despite the existence of this policy, Plaintiff alleges, the City has "an established custom and unwritten policy" of allowing officers to conduct body cavity searches "of certain female arrestees" in the field. However, Plaintiff has not offered any evidence that this type of search was more than an isolated event.³ Isolated violations are not the persistent, often repeated, constant violations that constitute custom and policy. Bennett v. City of Slidell, 728, 762, 768 n. 3 (5^th Cir. 1984) (en banc) (citing Berry v. McLemore, 670 F.2d 30, 32 (5th Cir. 1982) (holding that single, improper arrest is not the kind of systematic, municipally supported abuse that constitutes custom)). In addition, she offers no evidence that any official policy makers were actually or constructively aware of a custom by officers of ignoring the written policy and conducting strip and body-cavity searches in the field such that they were deliberately indifferent towards the constitutional rights of persons who came into contact with the police. Accordingly, Plaintiff fails to create a fact issue to prevent summary judgment on her § 1983 claims against the City.

3 At her deposition, Plaintiff stated only that "And this woman [Officer Woods] been doing this. She's been doing it and City know about it. . . . She did another girl that couldn't sit down. . . . Norma Woods need to stop. She's been doing this and getting away with it for the longest, and they know it." However, these conclusory allegations are insufficient to create a fact issue on whether this type of field search occurred on more than one or two occasions and whether the City knew it.

In addition, summary judgment is granted on Plaintiff's claims pursuant to the Texas Constitution because there is no private right of action for violations of the Texas Constitution. City of Beaumont v. Boullion, 896 S.W.2d 143 (Tex. 1995).

Accordingly, the Court finds that summary judgment should be granted on all of Plaintiff's claims against the City, and those claims are dismissed with prejudice.

B. Plaintiff's Claims Against the Individual Officers

1. Fourth Amendment claims

In Count I, Plaintiff alleges that "the actions of Defendants Rodriguez, Carrion, Willingham and Woods, in conducting a body cavity search of Plaintiff MARTIN in the field, on a public street, in failing to heed and accommodate Plaintiff MARTIN's pleas/requests (while under arrest and handcuffed) to stop the body cavity search in the field and transport her to County jail for the search, if necessary, were in violation of Plaintiff MARTIN's Fourth Amendment right to a reasonable search that did not subject her to the egregious humiliation, degradation, and mental anguish she suffered as a result of their actions." 2d Am. Complaint ¶ 44. She further alleges that the officers intentionally, recklessly, and maliciously violated her right to a reasonable search by invading her right to privacy "through the conduct of the field body cavity search." Id. ¶ 45, 46. She sued the officers in their individual capacities and asserted that they are not entitled to qualified immunity.

Defendants move for summary judgment on this count on the basis of qualified immunity. In Harlow v. Fitzgerald, the Supreme Court established that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 818 (1982). The Court subsequently clarified in Siegert v. Gilley, 500 U.S. 226, 232-34 (1991), that courts evaluating § 1983 claims based on allegedly unconstitutional conduct by state actors should conduct a two-prong inquiry to determine whether the state actors are entitled to qualified immunity. "[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz, 533 U.S. 194, 200 (2001). "[I]f a violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established" at the time of the state actor's conduct. Id. at 201. Ultimately, a state actor is entitled to qualified immunity if his or her conduct was objectively reasonable in light of the legal rules that were clearly established at the time of his or her actions. McClendon v. City of Columbia, 305 F.3d 314, 323 (5^th Cir. 2002).

Defendants contend that they are entitled to qualified immunity because, at the time of the incident, the law in the Fifth Circuit "was unclear with regard to whether a police officer having probable cause and individualized reasonable suspicion that the Plaintiff possessed contraband, i.e., rock cocaine, could perform a body cavity search at an arrest site under the totality of circumstances with which these Defendants were faced." On summary judgment, the court looks to the evidence before it in the light most favorable to the plaintiff when evaluating the issue of qualified immunity. Id. Accordingly, this Court's task is to examine the summary judgment record and determine whether Plaintiff has adduced sufficient evidence to raise a genuine issue of material fact suggesting (1) that the Officers' conduct violated an actual constitutional right; and (2) that the Officers' conduct was objectively unreasonable in light of law that was clearly established at the time of their actions.

As the Supreme Court explained in Hope v. Pelzer, 536 U.S. 730 (2002), "qualified immunity operates to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful." Id. at 739. Thus, the salient question under the second prong of the test is "whether the state of the law at the time of the state action gave [the state actors] fair warning that their alleged treatment of the plaintiff was unconstitutional." Id. at 740. If there is no Fifth Circuit of Supreme Court authority on point, the Court considers whether there was a consensus of persuasive authority such that a reasonable officer could not have believed that his actions were justified. McClendon, 305 F.3d at 329 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). In determining what the relevant law is, the Court must necessarily exercise some discretion in determining the relevance of particular law under the facts and circumstances of each case, looking at such factors as the overall weight of authority, the status of the courts that rendered substantively relevant decisions, and the jurisdictions of the courts. McClendon, 305 F.3d at 323. Further, the Supreme Court has recognized that the "clearly established" standard depends substantially on the level of generality at which the relevant legal rule is defined. Id. at 330-31. The factual situation from which the pre-existing constitutional right developed does not have to be "fundamentally similar" to the one before a court when addressing qualified immunity. Williams v. Kaufman County, 352 F.3d 994, 1003 (5^th Cir. 2003). Rather, qualified immunity can be overcome as long as "`prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.'" Id. Officials can still be on notice that their conduct violates established law even in novel factual circumstances. Id.

In Bell v. Wolfish, which involved body cavity searches of pretrial detainees, the Supreme Court noted that the Fourth Amendment prohibits only unreasonable searches, but that the test of reasonableness is not capable of precise definition or mechanical application. 441 U.S. 520, 558-59 (1979). In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Id. Courts must consider 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. Id. at 559; see also Moore v. Carwell, 168 F.3d 234, 237 (5^th Cir. 1999) (listing these factors to determine reasonableness of search).

Here, Plaintiff's evidence suggests that the scope of the particular intrusion is severe — Plaintiff's pants and underwear were pulled down in public view of male officers and passing vehicles, and Officer Woods "fondled" her, penetrated her vagina for "three to five minutes," and attempted to penetrate her rectum. Strip searches and body cavity searches are "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, [and] signifying degradation and submission." Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983); see also Way v. County of Ventura, 445 F.3d 1157, 1160 (9^th Cir. 2006) (describing a visual body cavity inspection that did not involve touching as indisputably a "frightening and humiliating" invasion the intrusiveness of which "cannot be overstated). The highly intrusive search was conducted on a public street rather than at a medical facility or, at a minimum, in a private room. Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) ("One of the critical, and certainly most obvious, elements in the Bell v. Wolfish balancing inquiry into the reasonableness of the strip search is `the place in which it is conducted.'"). Officers had taunted Plaintiff about the impending search and used abusive language toward her, and Plaintiff testified that Woods used abusive language toward her during the strip and body cavity search. Even if the officers reasonably suspected that Plaintiff was concealing contraband in a body cavity, there were no exigent circumstances requiring the search to be conducted on the public roadside rather than at a medical facility in compliance with SAPD procedures. Under these circumstances, the Court finds that the alleged manner of the search would have violated Plaintiff's Fourth Amendment rights and that no reasonable officer would have believed the manner of the search to be reasonable.⁴

4 In Williams v. Kaufman County, 352 F.3d 994, 1012 (5^th Cir. 2003), decided on December 9, 2003, and thus after these events, the Fifth Circuit stated that "If, perhaps, defendants were within their constitutional authority to strip search plaintiffs to begin with, but impermissibly conducted the strip search in a public area, then plaintiffs may have had a privacy-oriented Fourth Amendment claim."

The Court also finds that the law was sufficiently clear by January 15, 2003 that no reasonable officer would have believed the manner of the search to be reasonable at that time. The Supreme Court's decision in Bell v. Wolfish and Fifth Circuit precedent had clearly established by January 15, 2003 that searches cannot be conducted in an abusive fashion, and they must be conducted in a reasonable manner. The Fifth Circuit has noted that few searches are more intrusive than a body cavity search, U.S. v. Caldwell, 750 F.2d 341, 343 n. 2 (5^th Cir. 1984), and "[t]he more intrusive the search, the heavier is the government's burden of proving its reasonableness." United States v. York, 578 F.2d 1036, 1041 (5^th Cir. 1978). Thus, it was well settled by January 15, 2003, that strip searches and body cavity searches raise serious Fourth Amendment concerns. Roe v. Dep't of Protective Regulatory Servs., 299 F.3d 395, 409 (5^th Cir. 2002) (noting that this was established by 1999).

Though recognizing the Fourth Amendment implications of strip and body cavity searches, the Fifth Circuit does not appear to have considered the reasonableness of a body cavity search conducted in public in the manner confronted here. Nevertheless, the defendant officers would still have been put on notice by existing Fifth Circuit and Supreme Court precedent as well as a consensus of persuasive authority from other courts that the search, if conducted in the manner alleged by Plaintiff, would violate Plaintiff's Fourth Amendment rights. In Moore v. Carwell, the Fifth Circuit held that a strip search of a male prisoner by a female officer in the absence of emergency circumstances constitutes a claim that "could entitle [plaintiff] to relief for a Fourth Amendment violation." The Court noted that one must consider the manner in which a search is conducted in determining whether the search is reasonable. Thus, it was established in this Circuit in 1999 that, regardless of whether the search is justified, it may be a violation of the Fourth Amendment if it is conducted in an unreasonable manner. See also Tennessee v. Garner, 471 U.S. 1, 7-8 (1985) (reasonableness depends not only on when a search or seizure is made, but also how it is carried out). Further, in 2002, the Fifth Circuit noted that it and other courts of appeals had recognized that prisoners have a right to bodily privacy that provides limitations on the manner in which searches may be carried out. Oliver v. Scott, 276 F.3d 736, 745 n. 13 (5^th Cir. 2002) (citing Hayes v. Marriott, 70 F.3d 1144, 1147-48 (10th Cir. 1996) (holding that body cavity search of male prisoner in front of female guards stated a claim for Fourth Amendment violation absent showing of security need)). Though acknowledging that visual body cavity searches are reasonable under appropriate circumstances, the Fifth Circuit in 2002 in Johnson v. Scott, 31 Fed. Appx. 836 (5^th Cir. 2002), held that a prisoner's complaint that body cavity searches were performed every time the prisoner had non-contact visits and that the searches were conducted in an insensitive and humiliating manner, outside in view of male officers working in the area and delivery persons making deliveries to the prison, stated a claim that officials acted with deliberate indifference to the unreasonable searches or implemented or condoned a custom or policy of unreasonable body cavity searches.

In 1994, the Fifth Circuit considered a § 1983 claim by a prisoner who was subjected to a visual body cavity search in the general presence of other inmates, guards, and nonsearching officers for a violation of his Fourth Amendment rights. Elliott v. Lynn, 38 F.3d 188 (5^th Cir. 1994). The Court held that the group, institution-wide visual cavity search conducted in view of others did not violate the Fourth Amendment, but because there were exigent circumstances. And, when strip and body cavity searches have been upheld without such "exigent circumstances," the Court has pointed out that the government conducted the search in a private and reasonable manner. See, e.g., United States v. Lilly, 576 F.2d 1240 (5^th Cir. 1978) (noting that body cavity search of female was conducted by a female medical officer in the prison clinic in the presence of only the medical officer and a female correctional officer).

In addition, sufficient precedent existed in other jurisdictions at the time of the event for the officers to have reasonable notice that their conduct would violate the Fourth Amendment. See Kraushaar v. Flanigan, 45 F.3d 1040, 1054 n. 7 (7^th Cir. 1995) (noting that "there are several cases which suggest that qualified immunity would not exist for a strip search conducted in public view"); see also, e.g., Amaechi v. West, 237 F.3d 356, 364 (4^th Cir. 2001) (denying qualified immunity to male officer who physically searched the genitalia of half-naked female arrestee with bare hand on public street); Isby v. Duckworth, 175 F.3d 1020 (7^th Cir. 1999) (unpublished) ("Although the prison officials' decision to conduct the rectal cavity search was reasonable, we must also consider whether Isby was searched in a reasonable manner. To make this determination, courts consider issues such as privacy, hygiene, the training of those conducting the searches, and whether the search was conducted in a professional manner."); Rodriguez v. Furtado, 950 F.2d 805, 811 (1^st Cir. 1991) ("At least where there are no exigent circumstances present, the severity of the personal intrusion manifested by these [vaginal] searches would indicate that they be conducted by a doctor in a private and hygienic setting and in a medically approved manner."); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7^th Cir. 1982) ("Bell recognizes that even in cases where routine strip searches are justified by legitimate security concerns, they nevertheless `must be conducted in a reasonable manner.' Defendant naturally does not maintain that routine strip searches may be conducted in a room open to the prying eyes of passing strangers consistent with the reasonableness requirement imposed on all searches under the Fourth Amendment, nor would such a contention be entertained."); Logan v. Shealy, 660 F.2d 1007, 1014 (4<sup>th</sup> Cir. 1981) ("We think that, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity, whether or not any actually viewed the search, is a constitutionally valid governmental `invasion of (the) personal rights that (such a) search entails.'"); U.S. v. Cameron, 538 F.2d 254, 258 (9^th Cir. 1976) (noting that "any body search, if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard for the subject's privacy and be designed to minimize emotional and physical trauma" and thus a reasonable search will include "reasonable steps to mitigate the anxiety, discomfort, and humiliation that the suspect may suffer"). Cf. Evans v. Stephens, 407 F.3d 1272 (11^th Cir. 2005) (holding that no preexisting case law on point was needed to establish that the search was unreasonable, as the Fourth Amendment itself requires reasonableness and the violation was obvious).

Though the parties dispute whether the search occurred in the manner alleged by Plaintiff, Plaintiff has produced sufficient summary judgment evidence to raise a fact issue on that claim. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that the individual officers' motion for summary judgment based on qualified immunity should be denied. Accordingly, the motion for summary judgment on Plaintiff's claims against the individual officers based on a violation of the Fourth Amendment is denied.

2. Fourteenth Amendment violations

Plaintiff asserts § 1983 claims against the individual officers for violation of her Fourteenth Amendment rights based on their abusive and harassing language towards her during the arrest. Specifically, Count IV alleges that the police officers called her derogatory names and also used racial epithets (specifically, "nigger"), and that this conduct violated her right to equal protection under the Fourteenth Amendment.

Defendants move for summary judgment on this claim, arguing that the contours of the law in the Fifth Circuit were not sufficiently clear on January 15, 2003 that a reasonable officer would understand that the language allegedly used during Plaintiff's arrest could violate a constitutional right. Defendants also argue that Plaintiff's equal protection claim must fail because she has not alleged nor made any showing that similarly situated non-minorities were treated differently. Last, Defendants argue that summary judgment must be granted in favor of Officer Rodriguez because Plaintiff admitted in her deposition that Rodriguez did not verbally abuse or harass her.

In Williams v. Bramer, 180 F.3d 699 (5^th Cir. 1999), the Court considered whether an officer's use of a racial epithet, standing alone, violated a detainee's equal protection rights. The Court held that the evidence that the officer used a racial epithet was insufficient to make out an equal protection violation because the alleged use of the epithet did not amount to conduct, such as harassment, that would deny the plaintiff of equal protection of the laws. Id. at 705. The Court stated that "an officer's use of a racial epithet, without harassment or some other conduct that deprives the victim of established rights, does not amount to an equal protection violation." Id. at 706. The Court discussed its prior decision in Johnson v. Morel, 876 F.2d 477, 478 (5^th Cir. 1989), which involved allegations that an officer used his vehicle to push the plaintiff's broken down car over a bridge while transmitting racial slurs and epithets over his vehicle's loud speaker. The Court noted that other circuits have interpreted that decision to stand for the principle that racial epithets coupled with harassment are sufficient to support a cause of action under the Equal Protection Clause. Williams, 180 F.3d at 706. In 2003, in Williams v. Kaufman County, 352 F.3d 994, 1013 n. 60 (5^th Cir. 2003), the Court referred to Bramer and noted that it had "impliedly held that racial epithets that accompany harassment or a violation of established rights may amount to a separate equal protection violation." (Emphasis omitted.)

The Court concludes that the defendant officers, pursuant to Morel and other cases, would have been put on notice that the use of racial epithets coupled with harassment (the body cavity search) are sufficient to support a cause of action under the Equal Protection Clause. Though the parties deny the use of racial epithets in the manner alleged by Plaintiff, Plaintiff has produced sufficient summary judgment evidence to raise a fact issue on that claim. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that the individual officers' motion for summary judgment based on qualified immunity should be denied. Accordingly, the motion for summary judgment on Plaintiff's claims against the individual officers based on a violation of the Fourteenth Amendment is denied.

However, summary judgment on this Fourteenth Amendment claim is granted in favor of Officer Rodriguez because Plaintiff admits in her deposition that Rodriguez did not verbally abuse or harass her.

Conclusion

Defendants' Motion for Summary Judgment (docket no. 59) is granted in part and denied in part. Summary judgment is GRANTED in favor of the City of San Antonio on all of Plaintiff's claims against it. The individual officers' motion for summary judgment on Plaintiff's Fourth Amendment claims is DENIED. The individual officers' motion for summary judgment on Plaintiff's Fourteenth Amendment claims is DENIED, however, summary judgment on this Fourteenth Amendment claim is granted in favor of Officer Rodriguez.