660 F.3d 169 (3rd Cir. 2011), 10-3921, Doe v. Luzerne County

Docket Nº:10-3921.
Citation:660 F.3d 169
Opinion Judge:SMITH, Circuit Judge.
Party Name:Jane DOE, Appellant v. LUZERNE COUNTY; Ryan Foy, in his Individual Capacity; Barry Stankus, in his Individual Capacity.
Attorney:Cynthia L. Pollick (Argued), The Employment Law Firm, Pittston, PA, for Appellant. Mark W. Bufalino (Argued), John G. Dean, Paul A. Galante, Elliott Greenleaf & Dean, Wilkes-Barre, PA, for Appellee. Marc Rotenberg, John Verdi (Argued), Electronic Privacy Information Center, Washington, DC, for Am...
Judge Panel:Before: SLOVITER, SCIRICA, and SMITH, Circuit Judges.
Case Date:October 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 169

660 F.3d 169 (3rd Cir. 2011)

Jane DOE, Appellant


LUZERNE COUNTY; Ryan Foy, in his Individual Capacity; Barry Stankus, in his Individual Capacity.

No. 10-3921.

United States Court of Appeals, Third Circuit.

October 12, 2011

Argued Sept. 13, 2011.

Page 170

[Copyrighted Material Omitted]

Page 171

Cynthia L. Pollick (Argued), The Employment Law Firm, Pittston, PA, for Appellant.

Mark W. Bufalino (Argued), John G. Dean, Paul A. Galante, Elliott Greenleaf & Dean, Wilkes-Barre, PA, for Appellee.

Marc Rotenberg, John Verdi (Argued), Electronic Privacy Information Center, Washington, DC, for Amicus Appellant.

Before: SLOVITER, SCIRICA, and SMITH, Circuit Judges.


SMITH, Circuit Judge.

Appellant Jane Doe, a deputy sheriff in the Luzerne County Sheriff's Department (the " Department" ), brought this action against appellees Luzerne County (the " County" ), Ryan Foy, who was a deputy chief for the Department at the time of the events at issue, and Barry Stankus, who was the sheriff of Luzerne County also at that time (collectively, the County, Foy, and Stankus are " County Defendants" ). Doe sought remedies pursuant to 42 U.S.C. § 1983 and claimed, among other things, that County Defendants violated both her federal constitutional right to privacy under the Fourteenth Amendment and her right to be free from unlawful searches and seizures under the Fourth Amendment, and that the County failed to properly train its employees. The District Court granted the County Defendants' motion for summary judgment, dismissing the case in its entirety. We will reverse the District Court's order dismissing Doe's constitutional right to privacy claim under the Fourteenth Amendment and remand the case for further proceedings. We will affirm the District Court's order in all other respects.


On September 27, 2007, the Department, which has employed Doe as a deputy sheriff since 2002, instructed Doe to serve a bench warrant on a resident in Wilkes-Barre, Pennsylvania. Doe and her partner, Deputy Brian Szumski, traveled to and entered the residence, finding it in disarray with garbage and even the carcass of a dead cat on the floor. Although they did not find the subject of the warrant, they were soon to discover other unwelcome residents.

Upon exiting the residence, Doe noticed that there were a multitude of fleas crawling on her and Szumski. The officers radioed the Department's headquarters regarding the flea encounter and asked for further instructions. After some delay, the Department directed the officers to proceed to a nearby Emergency Management Building (" EMA" ) and await construction of a temporary decontamination

Page 172

shower. The officers were told to stay inside their police cruiser until Chief Deputy Arthur Bobbouine, a superior officer to both Doe and Szumski, arrived at the EMA.

Approximately twenty minutes later, Bobbouine arrived at the EMA along with Foy, who was also a superior officer to both Doe and Szumski, and Deputies Erin Joyce and Michael Patterson. Foy brought a video camera and immediately began to film Doe and Szumski, who both remained inside their parked vehicle with the windows up. Doe requested to exit the vehicle because of the high temperature and the fleas' continual biting. Bobbouine and Foy ordered Doe and Szumski to remain in the police cruiser to limit the spread of fleas. Foy continued to film the scene, allegedly laughing at Doe and Szumski's plight and taunting them. Doe testified at her deposition that she asked Foy to stop filming on at least four specific occasions during the events in question, but that he continued and told her at least one time to " shut up" because it was for " training purposes." 1 County Defendants, however, assert that Doe never requested that Foy stop filming.

The EMA employees were unable to construct the decontamination shower. Bobbouine therefore instructed Doe and Szumski to drive to Mercy Hospital (the " Hospital" ), which was equipped with a decontamination facility.2 Once at the Hospital, Szumski was taken inside and Doe was told to wait in the police cruiser while Szumski underwent the decontamination process. After approximately forty-five minutes, Foy radioed Doe and directed her to remove her boots and socks, place them in the trunk of the police car, and proceed toward the hospital entrance. As Doe approached, Foy exited the Hospital and walked toward her, filming all the while. Doe testified that she again demanded that Foy stop filming but that Foy refused and reiterated that he was filming for " training purposes."

Doe entered the Hospital and was met by Joyce, a female deputy, who then led her to a large open showering room (the " Decontamination Area" ). Joyce did not follow Doe inside, but stood in the doorway with the door opened slightly so that she could read Doe instructions about the decontamination process and how to apply special chemical shampoo. Doe did not undress until Joyce finished the instructions and closed the door completely (though the door could not be locked because it contained no locking mechanism). Doe then showered without incident.

After Doe completed her shower, she realized that there were no towels in the Decontamination Area. There was, however, a roll of thin paper of the type that typically covers a doctor's examination table. Doe asserts that this paper was semi-transparent or that Doe's wet body caused the paper to become semi-transparent;

Page 173

County Defendants deny both assertions. Through the closed door, Joyce told Doe to wrap the hospital paper around her private areas so that Joyce could enter the room and examine Doe to ensure that no fleas remained. Once Doe had complied, Joyce entered, closed the door behind her and began inspecting Doe for any surviving fleas. At this point, Doe's back was facing the door; most of her back, shoulders and legs were completely exposed, and the thin paper, which could have been semi-transparent, was wrapped around her buttocks and breasts.

While Joyce examined Doe for fleas, Bobbouine and Foy, unbeknownst to the two female deputies, opened the Decontamination Area's door approximately a foot and observed Doe. Foy began filming again. After viewing Doe for some unknown period of time, Bobbouine said, in reference to a tattoo on Doe's back, " What's that shit all over your back?" Startled, Doe thought this meant that there were fleas on her back, and she instinctively turned her head while trying to brush fleas away. As she did so, she caught Bobbouine and Foy out of the corner of her eye. Doe, without turning around, yelled at Bobbouine and Foy to leave the Decontamination Area. She then heard either Bobbouine or Foy say, " They are tattoos on her back. I wonder what they say?" One of Doe's tattoos contains the initials of the woman with whom Doe was in a relationship. Doe, again without turning around, yelled at the men to leave the Decontamination Area.

The parties dispute how much of Doe's body was exposed to Bobbouine and Foy in the Decontamination Area. County Defendants claim that only Doe's bare back, shoulders, legs and arms were observed and filmed, and that at no time were Doe's breasts or buttocks exposed in the Decontamination Area. Doe alleges that there is evidence demonstrating that her breasts and/or buttocks were exposed. Doe asserts that an unknown individual was captured on video stating that he could see her " boobies" and that somebody should grab something to " cover [Doe] up." Doe testified that the outline of her buttocks was visible through the wet paper, and that Bobbouine allegedly made a statement captured on video that he " could see [Doe's] ass."

Joyce closed the Decontamination Area's door, again shielding Doe from Bobbouine and Foy. Joyce then completed her examination of Doe, who was eventually provided with hospital scrubs and transported to the police station.

Later that day, Foy uploaded the video onto his work computer and called several officers, both male and female, into his office to view the footage. It is not clear what Foy showed those congregated in his office. Female Deputy Mandy Leandri testified that Foy displayed a still image of Szumski's bare buttocks, which prompted Leandri to leave Foy's office in disgust. Foy was unable to recall any details about the viewing held in his office other than that Doe was present. Doe, however, testified that she was not present at the viewing and had gone home after the incident at the Hospital. Foy saved several still images, as well as the video of the day's events (collectively, these are the " Doe Files" ), in a public computer folder entitled, " Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County network.

Sometime in April 2008, Leandri rediscovered the " Brian's ass" folder and came across the Doe Files. Leandri testified that she opened one photo of Doe— a close-up of Doe's back showing her tattoo— which Leandri showed to another female deputy and recalled that the two made fun

Page 174

of Doe for tattooing her girlfriend's initials on to her back. Leandri...

To continue reading