Cole v. Snow

• Citation: 586 F. Supp. 655
• Decision Date: 09 May 1984
• Docket Number: No. CA 77-1351-T.,CA 77-1351-T.
• Court: U.S. District Court — District of Massachusetts
• Parties: Shirley COLE, et al., Plaintiffs, v. Linwood SNOW, et al., Defendants.

586 F. Supp. 655

Shirley COLE, et al., Plaintiffs, v. Linwood SNOW, et al., Defendants.

No. CA 77-1351-T.

United States District Court, D. Massachusetts.

May 9, 1984.

COPYRIGHT MATERIAL OMITTED

Jeffrey W. Kobrick, Charles R. Capace, Boston, Mass., for plaintiffs.

Francis J. O'Rourke, Hale, Sanderson, Byrnes & Morton, Boston, Mass., for Snow, Higgins & Plymouth County.

Paul Sullivan, Scituate, Mass., for Snow & Higgins.

Alexander Gray, Asst. Atty. Gen., Boston, Mass., for Hall.

OPINION

TAURO, District Judge.

Plaintiff, Ruth McCarthy Blackburn, brought this action under 42 U.S.C. § 1983 (1981), seeking compensatory and punitive damages for alleged violations of her constitutional rights arising out of a strip search policy instituted at the Plymouth House of Corrections ("Plymouth").¹ Pursuant to that policy, Ms. Blackburn was strip searched three times during April 1977, while attempting to visit her brother, Richard McCarthy.² Defendants are Plymouth County and Sheriff Linwood Snow. The latter was sued both in his official capacity and as an individual.³

During a nine day bench trial, the court heard testimony from the named parties as well as from: Dr. Stuart Grassian, a psychiatric expert retained by plaintiff;⁴ Dr. Norman Zinberg, a psychiatric expert retained by the defendants; Joseph M. Cannon, an expert on prisons; and Richard Warren, a Barnstable High School Guidance Counselor.⁵ After an extended post-trial briefing and conference schedule, the case was taken under advisement.

I THE FACTS

Richard McCarthy was transferred from Barnstable County Jail to Plymouth in January 1977. He was placed in a 23-hour a day lockup from the outset and had virtually no visitors other than his sister, Blackburn, who saw him on a weekly basis.

Prior to March 1977, visits to Plymouth were subject to strict security procedures. Visitors were required to undergo pat-down searches, as well as metal detector inspections. Personal possessions were banned from the visiting room. That room was supervised by guards and monitored by a television system that exposed ninety percent of the visiting area. All inmates were subject to strip searches after visits.

Notwithstanding these security precautions, Snow believed that the visiting area could not be monitored adequately. In April 1977, he, therefore, ordered that all visitors, children and babies included, be strip searched prior to entering the visiting room. Visitors could not avoid the strip search by opting for a non-contact visit.⁶

The Sheriff did not specify the procedures to be used in the searches, nor where they were to be conducted. He anticipated that they would include visual and contact inspection of body cavities, including the rectum and the vagina. Sometime after the policy had been implemented, he became aware that female matrons were conducting strip searches of female visitors in a small hallway next to a rest room.

Pursuant to Snow's order, Blackburn was required to submit to a thorough strip search on three occasions when she sought to visit her brother in April 1977. On the first occasion, a matron directed Blackburn to a small room and instructed her to remove all of her clothing. The matron then checked Blackburn's ears and looked down her throat using a "stick" and a small flashlight. The matron examined Blackburn's hair, looked in her armpits and lifted her breasts to inspect underneath them for contraband. The matron required Blackburn to turn toward a wall and stand "spread eagled" while the matron conducted a visual inspection of Blackburn's anus.

On the second visit, during which she was accompanied by her brother Mathew, a different matron inspected Blackburn. Blackburn testified that this matron "was much more gruff and seemed hostile toward me, and she seemed to be enjoying what she was doing." This matron lifted Blackburn's breasts, "twice on each side," and manually spread Blackburn's buttocks.

At the conclusion of their visit, Blackburn and Mathew were walking across the Plymouth lawn. Snow, accompanied by another person, directed them to stop. He told them that they were not to cross the lawn. He also expressed his concern that, if visitors were permitted to do so, they might drop contraband on the lawn for the inmates to retrieve later.

Blackburn, who had had no prior contact with Snow, responded that she had no intention of leaving contraband on the lawn. Snow in turn told her: "Well, I don't want to see your face around here anymore." Although Blackburn understood Snow's admonition to mean that she should not walk across the lawn during future visits, his intention was to inform her that she was prohibited from visiting her brother in the future.⁷

Blackburn returned to Plymouth in late April, intending to visit her brother Richard, and was subjected to a third strip search.⁸ Pursuant to Snow's order, however, she was not permitted to visit her brother.

II CLAIMS

Plaintiff claims that the strip searches violated her constitutional rights under the first, fourth, and fourteenth amendments to the United States Constitution. First, she claims that the blanket strip search policy infringed on her first and fourteenth amendment right to communicate and associate with her brother.⁹ Second, plaintiff claims that the strip searches violated her right to be free of unreasonable searches under the fourth and fourteenth amendments to the Constitution. She claims that the strip searches resulted in damages including: severe depression; sexual dysfunction; and post-traumatic stress syndrome.

In response, Snow asserts that he is not liable because he acted in good faith when he instituted the strip search policy. Defendant Plymouth County contests liability on both procedural¹⁰ and substantive grounds. The county relies primarily on plaintiff's alleged failure to present any evidence during the trial addressing the county's liability. Additionally, the county claims that, although the Supreme Court has allowed the imposition of liability on counties, see Owen v. City of Independence Mo., 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), such liability may not be imposed in the instant case because the county was not involved in Sheriff Snow's decision to institute the strip search policy. Further, the county argues that regulation of county jails in Massachusetts is a function of the state, not of the county.

Both Sheriff Snow and Plymouth County contend that Blackburn consented to the search, and cannot now claim that her constitutional rights were violated. Additionally, both defendants dispute that Blackburn suffered any damages.

III ELEMENTS OF LIABILITY

Section 1983 provides that any person who acts under color of state law to deprive another of a constitutional right may be required to pay money damages. 42 U.S.C. § 1983.¹¹ To recover under this section Blackburn must demonstrate, by a preponderance of the evidence, that the strip search deprived her of a constitutionally protected right, that one or both defendants are legally responsible for that deprivation, and that such deprivation was the proximate cause of her injury. See Rogers v. Okin, 478 F.Supp. 1342, 1381 (D.Mass. 1979), aff'd in part and reversed in part on other grounds, 634 F.2d 650 (1st Cir. 1980), judgment vacated by 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982).

Federal courts have repeatedly expressed their reluctance to interfere with the operation of state prisons. See, e.g., Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); Hodges v. Klein, 412 F.Supp. 896, 899 (D.N.J.1976). When a claim of constitutional dimension is raised, however, the law requires courts to consider the issue. See Procunier v. Martinez, 416 U.S. at 405, 94 S.Ct. at 1807 ("A policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims ...."). See also United States v. Chamorro, 687 F.2d 1, 2 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982).

Two constitutional issues are present in this case. The first is whether the first amendment guarantees a right to communicate and associate with incarcerated relatives. The second is to what extent the fourth amendment protects visitors to prisons against being subjected to strip searches.

A. The First Amendment Issue

In Procunier v. Martinez, the Court held that a prison regulation permitting censoring of inmates' mail violated the first amendment rights of both the prisoners and their outside correspondents. Id. at 418, 94 S.Ct. at 1814. The Court relied on the fact that the regulation did not have the redeeming quality of furthering the government's substantial interest in ensuring security and order within a prison setting. Although, unlike the situation in Martinez, the policy of strip searching all visitors to Plymouth was clearly directed toward the goal of preserving internal security, the question remains as to whether its impact was unnecessarily broad.

The limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.

Id. at 413-14, 94 S.Ct. at 1811.¹²

The Court in Martinez also noted that "while not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction." 416 U.S. at 414 n. 14, 94 S.Ct. at 1812. Defendants offered no evidence of any other institution that has a policy of strip searching all visitors.

The strip search policy instituted at Plymouth was unnecessarily broad. More reasonable and yet equally effective alternatives were available to Snow. For example, searches could have been limited to contact visits....