Cruz v. Finney County, Kan., 86-1287.

• Decision Date: 19 March 1987
• Docket Number: No. 86-1287.,86-1287.
• Citation: 656 F. Supp. 1001
• Parties: Cindy CRUZ, Plaintiff, v. FINNEY COUNTY, KANSAS and Finney County Law Enforcement Center, Defendants.
• Court: U.S. District Court — District of Kansas

656 F. Supp. 1001

Cindy CRUZ, Plaintiff, v. FINNEY COUNTY, KANSAS and Finney County Law Enforcement Center, Defendants.

No. 86-1287.

United States District Court, D. Kansas.

March 19, 1987.

John W. Johnson, Render & Kamas, Wichita, Kan., for plaintiff.

Casey R. Law, Turner & Boisseau, Great Bend, Kan., for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on cross-motions for summary judgment by defendants, Finney County, Kansas and Finney County Law Enforcement Center, and plaintiff Cindy Cruz. Plaintiff brings this action under 42 U.S.C. § 1983 alleging she was arrested for driving on a suspended license, was subjected to a strip search upon booking, and was detained over night.

In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial and grants summary judgment where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, ___, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986). The court is to be concerned with the sufficiency of the evidence, not its weight. Casper v. C.I.R., 805 F.2d 902, 904 (10th Cir.1986.) Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, ___ U.S. at ___, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. There is no genuine issue for trial unless there is sufficient evidence — significantly probative or more than merely colorable — favoring the non-moving party for a jury to return a verdict for that party. ___ U.S. at ___, 106 S.Ct. at 2510, 91 L.Ed.2d at 212. Where there is but one reasonable conclusion as to the verdict and reasonable minds would not differ as to the import of the evidence, summary judgment is appropriate. ___ U.S. at ___, 106 S.Ct. at 2511, 91 L.Ed.2d at 213. The moving party is entitled to judgment as a matter of law where the non-moving party has "failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 273 (1986).

The movant's burden under Fed.R.Civ.P. 56 is to make an initial showing of the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345. (10th Cir.1986). To show an absence of material fact, the movant must specify those portions of "the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits if any." Fed.R.Civ.P. 56(c). "Conclusory assertions to aver the absence of evidence remain insufficient to meet this burden." Windon, 805 F.2d at 345 n. 7. The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in 56(c), which demonstrate a genuine issue remaining for trial. Anderson, ___ U.S. at ___, 106 S.Ct. at 2511, 91 L.Ed.2d at 213. The evidence of the nonmoving party is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." (citation omitted.) Celotex Corp. v. Catrett, ___ U.S. at ___, 106 S.Ct. at 2555, 91 L.Ed.2d at 276.

For purposes of these motions, the uncontroverted facts include:

1. On February 21, 1984, the plaintiff was stopped by a Garden City Police officer for speeding in a school zone. From a computer license check, the officer was informed that plaintiff's license had previously been suspended. Plaintiff was released at that time.

2. The officer later obtained a certified copy of plaintiff's driving record which showed that plaintiff's license was suspended prior to February 21, 1984.

3. This Garden City Police officer was working the midnight shift, 11:00 p.m. to 7:30 p.m., on April 3, 1984. That night he arrested plaintiff at her home around 11:20 to 11:30 p.m. She was handcuffed and taken to the Finney County Law Enforcement Center.

4. Upon her arrival at the Law Enforcement Center, plaintiff was immediately taken to the jail floor and given a pat-down search. Plaintiff was transferred to the booking room where the necessary paperwork was completed. Plaintiff was then photographed and fingerprinted.

5. It is the defendants' practice that once the booking of a prisoner is complete, the jail personnel explain to the prisoner the applicable bond and give them an opportunity to call someone, arrange for bail, and thereby forego the need for being strip searched and placed in jail.

6. After being offered the opportunity to use the phone, plaintiff said she didn't know of anybody that she could contact. Unable to post the bond, plaintiff was strip searched and placed in a female dormitory, occupied by one other female inmate.

7. It was the policy of the Finney County Sheriff's Department that all detainees, regardless of the offense charged, who are to be transferred to the inmate living area, are strip searched, as part of a process of removing their civilian clothes, showering, and being clothed in jail coveralls. The policy requires that the searches be conducted in private rooms in the sole presence of a searcher of the same sex as the detainee; that the detainee remain fully clothed for as much of the search as possible; that the search is performed quickly, professionally and courteously; and that the detainees are not to be touched nor subjected to body cavity searches.

8. Deputy Shirla Holmes has stated that the strip search procedure entailed the arrestee removing all clothes, bending over and spreading his or her buttocks for visual inspection. The arrestee is also required to squat and make a grunting sound.

9. Defendants offer several reasons for conducting strip searches on all detainees placed in the inmate living area — protect the integrity of the jail, the safety of the inmates, and the safety of jail personnel.

10. In a deposition taken at an earlier date in another case, plaintiff stated that she was not touched by the female officer during the strip search. In her deposition in this case, plaintiff stated that the officer touched her ears and lifted her breasts during the search. Other than these alleged touchings, plaintiff's search was in accordance with the Finney County Sheriff's policy.

11. After spending the night in jail, plaintiff discussed her circumstances with a warrant officer, Anna Gallerdo. Upon being told that plaintiff had been arrested without a warrant and was being held, the Sheriff instructed that plaintiff should be released on her own recognizance.

12. The city of Garden City is no longer a party to this action having settled with plaintiff.

Defendants contend there is no question of material fact to prevent a finding that the strip search of plaintiff complied with Finney County jail policy. The differences in plaintiff's deposition testimony in the earlier case and the present case appear to be an instance of inconsistent testimony rather than a contradiction of prior testimony which could be regarded as a sham issue of fact. Cf. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir. 1985), cert. denied ___ U.S. ___, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986). There being questions of material fact on whether plaintiff's strip search was performed in accordance with county jail policy, the court denies summary judgment on that issue.

Apparently, the parties agree the constitutionality of the Finney County jail policy on strip searches is an issue appropriate for summary judgment. Defendants argue the court can and should uphold the jail policy by following their interpretation of Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Plaintiff refers the court to numerous federal court decisions where strip searches of persons charged with traffic offenses or minor misdemeanors have been held to violate the Fourth Amendment.

The Fourth Amendment, as incorporated into the Fourteenth Amendment, provides in relevant part:

The right of the people to be secured in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause....

The issue before this court is whether the Finney County jail policy on strip searches is unreasonable under established Fourth Amendment principles. Searches incident to an arrest have been found reasonable by the Supreme Court, but those searches were less intrusive than a strip search. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1967); Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985).

After summarizing their criticisms of the circuit court decisions, defendants began their analysis with a thorough discussion of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861. Much of defendants' analysis of Wolfish is mistaken. In Wolfish, the pretrial detainees of one facility brought a class action challenging numerous conditions of confinement and practice, including the practice of body searches of all inmates following a contact visit with a person from outside the institution. In deciding challenges to certain conditions other than the practice of strip searches, the Supreme Court employed an analysis of whether the disability imposed on the pretrial detainees amounted to "punishment" in the constitutional sense. Wolfish, 441 U.S....