Opinion
CV-01-269-ST
November 14, 2001
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
Plaintiff, Sandra Silvia ("Silvia"), was arrested and placed into detention in the Clackamas County jail on or about May 28, 1999. She alleges that in connection with that detention, she was subjected to an unlawful strip search and denied her prescribed medications. She brings this action against Clackamas County and three employees of the Clackamas County Sheriff's Office. The individual defendants are Daniel McLean ("McLean"), Lee Anne Phipps ("Phipps"), and Mark Skelton ("Skelton"). Silvia's Amended Complaint alleges four claims against all the defendants under 42 U.S.C. § 1983 for alleged violations of: (1) the Equal Protection Clause (First Cause of Action); (2) the due process clause (Second Cause of Action); (3) the Fourth Amendment (Fifth Cause of Action); and (4) the Eighth Amendment (Alternative Eighth Cause of Action). Silvia also alleges state law claims against Clackamas County for medical negligence (Third Cause of Action), and against all defendants for battery (Fourth Cause of Action), intentional infliction of emotional distress (Sixth Cause of Action), invasion of privacy (Seventh Cause of Action), and negligent hiring and supervision (Ninth Cause of Action).
Clackamas County, Phipps, and Skelton filed six Motions to Dismiss (all included in docket #6) and McLean filed a Joinder in the motions (docket #8). This court has jurisdiction under 42 U.S.C. § 1331 and 28 U.S.C. § 1343, and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).
For the reasons that follow, motions 3 through 6 should be granted, and motions 1 and 2 should be denied.
ANALYSIS
I. Motions 3-6 Conceded
Silvia concedes four of the six motions filed by defendants. As a result, the following motions should be granted: Motion 3 (to dismiss all state law claims against all defendants except Clackamas County); Motion 4 (to dismiss all claims against the Clackamas County Sheriff's Office); Motion 5 (to dismiss all punitive damages claims against Clackamas County); and Motion 6 (to strike the request for damages exceeding the amount available under ORS 30.270).
II. Remaining Motions 1 2
A. Legal Standard
A motion to dismiss under FRCP 12(b)(6) will be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir), cert denied, 522 U.S. 996 (1997). "The issue is not whether a plaintiff will ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the review is limited to the Complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the nonmovant. Kalina v. Fletcher, 522 U.S. 118, 122 (1997); Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir), cert denied, 506 U.S. 999 (1992); Love v. United States, 915 F.2d 1242, 1245 (9th Cir 1989).
B. Allegations Taken as True
The following allegations are taken as true for purposes of deciding defendants' motions to dismiss:
Silvia suffers from back problems, tendinitis, narcolepsy, and dissociative disorder. On May 28, 1999, Silvia was taken to the Clackamas County Jail. Upon her incarceration at that facility, Silvia was ordered to strip and shower in the presence of male officers Skelton and McLean, and female officer Phipps. Silvia objected to the requests to strip and shower in front of the male officers. She was then grabbed by Skelton and McLean, whereupon she fell asleep due to her narcolepsy. She awoke to find herself being held upside down naked by Skelton and McLean. Silvia was then dropped and left slumped naked in the shower with water beating down on her. Silvia also alleges that during her incarceration, she slept continuously for five days because she was denied her medications, Zoloft and dexedrine. The claims premised upon the allegation that defendants denied her medications do not appear to be the subject of defendants' motions.
C. Silivia's Custodial Status
Defendants' remaining two motions seek to dismiss all claims under 42 U.S.C. § 1983 for failure to state a claim and for qualified immunity. Resolution of those motions in part turns on Silvia's custodial status at the time of her search and subsequent incarceration.
Silvia alleges that she was "incarcerated post-conviction and sentencing on an alleged misdemeanor probation violation." Amended Complaint, ¶ 15. However, she now seeks to amend her complaint both to strike paragraph 15 and to allege that she was an arrestee or pretrial detainee. Defendants object to these amendments on the basis that they are futile.
According to Silvia, her arrest on May 28, 1999, was prompted by a "misdemeanor probation violation." Id. Therefore, she apparently was on probation at the time of her arrest. The record does not reveal the nature of the conviction(s) underlying that probation. Defendants have attached to their Reply Memorandum in Support of Rule 12 Motions a copy of a Warrant of Arrest dated January 21, 1999, indicating that Silvia had been indicted on charges of Burglary in the First Degree and Theft in the First Degree by Receiving. That document bears a handwritten notation that it was "served 5-28-99 by Officer Strait, MPD 27140" (Warrant of Arrest, p. 2), but bears no executed return of service by the arresting officer. Defendants have submitted no other evidence to clarify whether the arrest warrant was the basis for Silvia's arrest, or whether her arrest was prompted by some other independent conduct.
Citing ORS 137.540(3) and 137.545, defendants argue that confinement on an alleged probation violation is not an arrest for a new crime, but instead is the execution of the term of the original sentence imposed following a conviction. According to defendants, Silvia's claims are properly analyzed under the same standards applicable to convicted prisoners housed in a prison, rendering her proposed amendments futile. This argument lacks merit.
Probation violations relate to conduct which is separate and apart from the conduct underlying the original conviction. The mere allegation of a probation violation does not automatically result in the probationer being subjected to the maximum penalty that would have been permissible for conviction of a crime that initially resulted in the imposition of probation. Instead, probation violations "may result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions." ORS 137.540(3). Any arrest for an alleged probation violation must be reported to the court within one judicial day, and the probationer must be brought "before a magistrate during the first 36 hours of custody" to determine whether the probationer will be held or released pending a probation violation hearing. ORS 136.545(3). Only for "good cause shown" may the confinement for an alleged probation violation pending a probation violation hearing exceed 14 calendar days. ORS 137.545(6).
Depending upon the date and nature of the underlying conviction, a probation violation may result in revocation of probation and imposition of a sanction up to and including imposition of a sentence which could have originally been imposed. ORS 137.545(5). While any confinement resulting from the revocation of probation may properly be characterized as execution of the original sentence of conviction, confinement based simply on an alleged probation violation is not.
Defendants next assert that Silvia's claims should be analyzed by the standards applicable to pretrial detainees. Arrest warrants are issued based on a finding of probable cause that the identified individual committed the specified crime. ORS 133.110. Because Silvia's detention was pursuant to an arrest warrant issued pursuant to an indictment, it therefore was supported by a finding of probable cause. Thus, according to defendants, her claims are most appropriately analyzed by the standards governing the claims of a pretrial detainee.
As noted above, Silvia alleges that she was incarcerated for a "misdemeanor probation violation," not pursuant to an arrest warrant based on an indictment. However, for the purpose of analyzing the pending motions, this court will assume that Silvia's arrest was based on probable cause and thus apply the analysis applicable to a pretrial detainee.
D. Motion 1 to Dismiss § 1983 Claims Against Clackamas County
Motion 1 seeks dismissal of all § 1983 claims against Clackamas County. Liability against Clackamas County under § 1983 may not be based on a theory of respondeat superior, but instead must be based on an unconstitutional policy or practice resulting in a violation of the plaintiff's civil rights. Price v. Turner, 260 F.3d 1144, 1149 (9th Cir 2001), citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978) and Meehan v. County of Los Angeles, 856 F.2d 102, 106-07 (9th Cir 1988).
Silvia alleges that Clackamas County "promulgated, maintained and enforced policies and procedures that violated the Due Process Clause of the Fifth and Fourteenth Amendment of the Constitution of the United States." Amended Complaint, ¶ 9. Because Silvia has not made this same allegation with respect to paragraphs 6-8, 12, and 15, Clackamas County seeks dismissal of the remaining § 1983 claims. However, Silvia seeks to amend at least paragraphs 9 and 25 of the Amended Complaint to allege that her search was made pursuant to a Clackamas County policy concerning inmate processing (a copy of which is attached to Silvia's Response) which violates the Fourth Amendment. She also seeks to amend to delete references to her alternative Eighth Amendment claim.
Pursuant to these proposed amendments, Silvia alleges that she was subjected to a strip and cavity search pursuant to a blanket policy mandating such searches for all persons who were to be housed in Clackamas County Jail's general jail population. Well before Silvia's strip and cavity search, it was clear that blanket strip search policies justified by nothing more than arrest on suspicion of the commission of a felony or a planned confinement in the general jail population are unconstitutional. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445-46 (9th Cir 1991); Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 713-15 (9th Cir 1990); Thompson v. City of Los Angeles, 885 F.2d 1439, 1446-47 (9th Cir 1989). Therefore, Silvia should be allowed to amend to clarify her § 1983 claims based on the policy that she has submitted.
E. Motion 2 to Dismiss § 1983 Claims Against Individual Defendants
In the remaining motion, the individual officers seek dismissal of the § 1983 claims because they are entitled to qualified immunity. Qualified immunity shields state officials performing discretionary functions from suit for damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Jackson v. City of Bremerton, 268 F.3d 646, 2001 WL 1173792 *3 (9th Cir 2001). The Supreme Court recently reiterated the importance of considering the requisites of a qualified immunity defense in the proper sequence. Saucier v. Katz, 121 S.Ct. 2151, 2155 (2001).
The threshold question is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id at 2156. If no constitutional right would have been violated were the allegations established, there is no need for further inquiry concerning qualified immunity. Id. If, on the other hand, a violation can be established, the next step is to ask whether the right is clearly established. Id. In order to be relevant to the case under consideration, the right the official allegedly violated must be clearly established in a particularized sense and "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id, quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his or her conduct was unlawful in the situation he confronted. Id. If a reasonable officer would have known that his or her conduct violated the right, then the defendant-officer is not entitled to qualified immunity for his or her actions. See Harlow, 457 U.S. at 813-20. The "very action in question" need not previously have been ruled to be unlawful for a court to find that an official violated clearly established federal law. See Anderson, 483 U.S. at 640. The inquiry into whether the right at issue is clearly established "must be undertaken in light of the case's specific context, not as a broad general proposition." Saucier, 121 S.Ct. at 2153. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson, 483 U.S. at 640.
While Motion 2 seeks dismissal of all of Silvia's § 1983 claims against the individual defendants, the supporting materials submitted by defendants address only two issues, namely whether defendants are entitled to qualified immunity: (1) for conducting the strip search at all; and (2) for the male officers conducting the search. Thus, this court addresses only those two issues.
1. Subjecting Silvia to a Strip Search
a. Whether a Constitutional Right Was Violated
The first right allegedly violated was Silvia's right to be free from a strip search. Based on her proposed amendments, Silvia alleges that she was strip searched pursuant to a blanket policy mandating strip searches of all persons entering the general jail population at the Clackamas County Jail. It has been clear for at least a decade that such an allegation will support a claim for violation of a constitutional right. Fuller v. M.G. Jewelry, 950 F.2d at 1445-46. While a "body cavity search could be justified where officials had `reasonable suspicion' to conduct a particular search," id at 1446, Silvia alleges that there was "no reason for the search." When presented with a motion to dismiss, this court must construe this allegation in her favor.
Citing Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir 1989), defendants assert that the existence of the arrest warrant ends the inquiry. Because Silvia was arrested for a "crime of violence," they claim that they were justified in conducting a strip search. However, nothing presently in the record indicates that the arrest warrant was in fact the basis for Silvia's arrest, nor does anything else in the record indicate the circumstances surrounding the strip search. Moreover the Ninth Circuit in Thompson noted that placement of an inmate into the general jail population was a factor which "by itself cannot justify a strip search," and carefully limited the holding to the specific facts before the court: "[O]ur decision is extremely narrow and only applies to theft of an automobile; we express no opinion on the validity of a blanket strip search policy as applied to arrestees charged with other crimes against property, whether they be classified as felonies or misdemeanors." Id at 1447 and n6.
Additionally, the plaintiff in Thompson was arrested while driving the car which he allegedly stole. His arrest and the subsequent strip search was conducted directly on the heels of his alleged commission of the crime. In contrast, the arrest warrant proffered by defendants was signed over four months prior to Silvia's arrest. Nothing indicates the circumstances of Silvia's arrest which might give rise to the same types of concerns articulated in Thompson which justified that search. Finally, cases subsequent to Thompson make clear that the classification of the charge alone will not justify a search. Fuller, 950 F.2d at 1445-46; Kennedy, 901 F.2d at 710-14.
Thus, at least on the basis of the record presently before this court, defendants are not entitled to dismissal of Silvia's claim to the extent that it is based on an allegation that the search was carried out pursuant to a blanket policy of conducting a strip search on every person who would be housed in the general population of the County Jail.
2. Male Officers Conducting Silvia's Strip Search
Defendants also assert that they are entitled to qualified immunity against Silvia's claims that her search was performed by male officers. Only two of Silvia's present claims appear to be premised on that allegation, namely the Equal Protection Clause claim and the Eighth Amendment claim. Amended Complaint, ¶¶ 6, 15. Defendants have not suggested that they are entitled to qualified immunity against the Equal Protection Clause claim, and Silvia has requested permission to amend her pleadings to eliminate the Eighth Amendment claim.
With respect to the remaining Fourth Amendment claim, defendants would indeed be entitled to qualified immunity if it rests on an allegation of a cross-gender search. Carlin v. Manu, 72 F. Supp.2d 1177, 1178 (D Or 1999) (concluding that as of August 19, 1999, there was no clearly established right by female inmates to be free from the presence of and viewing by male guards while being strip searched). Clackamas County's policy does specify that "only male deputies will strip search male prisoners and only female deputies will strip search female prisoners." Policy 22.8.2. Arguably, male officers violated this policy by conducting a cross-gender strip search on Silvia. However, Silvia's remaining Fourth Amendment claim appears to be premised not on the difference in gender between Silvia and the officers who performed the search, but instead on the manner in which the search was conducted and the lack of a reasonable basis for the search in the first instance. Amended Complaint, ¶ 12.
Thus, defendants' motion to dismiss Silvia's § 1983 claims for a cross-gender search should be denied as moot.
RECOMMENDATIONS
For the reasons stated above, the Rule 12 Motions filed by Clackamas County, Phipps, and Skelton (docket #6) and McLean's Joinder in Clackamas County Defendants' Rule 12 Motions (docket #8) should be GRANTED as to Motions 3, 4, 5, and 6, and DENIED as to Motions 1 and 2.
Plaintiff shall file her amended pleading within 10 days of a final ruling by a District Court Judge on these motions.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due December 4, 2001. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than December 21, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.