Jones v. Bowman

• Decision Date: 16 June 1987
• Docket Number: Cause No. S87-289.
• Citation: 664 F. Supp. 433
• Parties: Marilyn JONES, Plaintiff, v. Dick W. BOWMAN, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

664 F. Supp. 433

Marilyn JONES, Plaintiff, v. Dick W. BOWMAN, et al., Defendants.

Cause No. S87-289.

United States District Court, N.D. Indiana, South Bend Division.

June 16, 1987.

Stephen G. Drendall, South Bend, Ind., Richard A. Waples (Legal Director, Indiana Civil Liberties Union Fdn., Inc.) Indianapolis, Ind., for plaintiff.

John D. Ulmer, Goshen, Ind., for defendants.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for Stephen E. Platt.

MEMORANDUM AND ORDER

MILLER, District Judge.

Plaintiff Marilyn Jones brings this suit for injunctive relief and monetary damages due to a strip search performed upon her in September, 1985, followed by seven days' custody on a civil attachment before being taken to court. Her motion for preliminary injunction was heard on June 4, 1987. This memorandum opinion is intended as compliance with the requirements of Rule 52(a), Fed.R.Civ.P.

The court concludes that because Ms. Jones has shown neither continuing, present, adverse effects of her 1985 strip search at the hands of Elkhart County Sheriff personnel nor any likelihood that she will be subjected to another strip search in the future, she has no standing to maintain a claim for a preliminary injunction against the sheriff's strip search policy. The court further concludes, for the same reasons, that she has no standing to maintain a claim for a preliminary injunction against the failure to bring persons arrested on civil attachments into court within a reasonable time.

I.

Ms. Jones brings this action pursuant to 42 U.S.C. § 1983, naming as defendants Richard Bowman (who was Sheriff of Elkhart County during Ms. Jones' search and detention), the Office of Sheriff of Elkhart County,¹ Hon. Stephen Platt, Judge of the Elkhart Superior Court, and unknown staff members of the Elkhart Superior Court. Jurisdiction is proper under 28 U.S.C. § 1343.

A.

In January, 1983, Ms. Jones (then named Marilyn Rabius) filed a proceeding in Elkhart Superior Court No. 2 to enforce an Ohio child custody decree. Judge Platt presides over Elkhart Superior Court No. 2. Several hearings were held before April 11, 1984, when Ms. Jones' former husband petitioned for an emergency custody order. In response to that petition, Judge Platt ordered Ms. Jones to appear before him at 1:30 p.m. on May 7, 1984, to show cause why she should not be punished for violation of the court's earlier orders. On May 2, 1984, Ms. Jones' attorney moved to withdraw his appearance, and Judge Platt set the hearing on that motion for May 7 at 1:30, stating for the record that "failure of the wife to appear on that date will result in a body attachment".

Ms. Jones did not appear on May 7, 1984. Judge Platt issued a body attachment without bond.² Later that month, at another hearing at which Ms. Jones failed to appear, Judge Platt modified the custody order, granting custody to Mr. Rabius and ordering Ms. Jones to pay support in a weekly sum of $30.00.

B.

On September 23, 1985, the Sheriff of Johnson County, Indiana arrested Ms. Jones on the body attachment, and held her until September 25, when Elkhart Sheriff's deputies arrived to take her into custody. At the time of her arrest, Ms. Jones was on bond on a criminal confinement charge in Johnson County; she was charged with, and later convicted of, confinement of her son.

Ms. Jones was driven, shackled and handcuffed, to the Elkhart County Jail in Goshen, Indiana. As the deputy pulled into the police garage, a female officer took custody of Ms. Jones. The female officer frisked Ms. Jones, including her chest, buttocks and crotch, and took her to the booking area. Ms. Jones was fingerprinted and photographed; the warrant was read to her.

Jail records report that Ms. Jones arrived at the county jail at 2:10 p.m. on September 25, 1985, and that the court was notified that she was in custody at 3:05 p.m. that day. Elkhart County Police Captain Nelson Stutsman testified that fifty-five minutes from booking to notification of the court is about average for non-intoxicated persons taken into custody on civil attachments when the courts are open.

Ms. Jones was taken to the women's ward on the jail's third floor, where a female deputy checked Ms. Jones' hair, mouth and ears. The female deputy instructed Ms. Jones to step into the shower, remove her clothes, and give her clothes to the deputy. After checking Ms. Jones' clothes, the deputy instructed the nude Ms. Jones to lift each of her breasts, turn around, and squat three times. Ms. Jones complied.

The county jail policy manual in effect on September 25, 1985 and at the time of the hearing³ provides in pertinent part:

.04 STRIP SEARCH

A. An officer may have a person strip searched if he believes it is in the interest and safety and security of the officers and other inmates, or he believes the subject is concealing some item by finding only part of an item or the action of the person being searched. Strip Searches will not ordinarily be conducted unless the person is processed for long term holding.

B. Male officers will handle male inmates and female officers the female inmates at all times in a strip search situation. Extreme caution should be exercised before deciding to conduct a strip search. Such searches will be handled in a dignified manner.

C. The inmate will be taken to a contained area, preferably a rest room and asked to remove all clothing. The clothing is searched thoroughly. Keep in mind that cuffs, collars, and seams of clothing are good hiding places for contraband. The subject's shoes will be searched inside and out. Be on the watch for false heels and soles as well as the material used for shoestrings.

D. Have the subject face you and put arms straight out at shoulder level. Search hair with your fingers and have subject open mouth. Use wooden tongue depressor to check mouth cavity. Also search nostrils as drugs can be hidden there. Be careful not to stick fingers in the subject's mouth where they can be bitten. Check the armpit area. Have subject turn around and bend over and grab his ankles. Use flashlight to inspect the rectal area. Check the scrotum as some contraband can be concealed around the area under the penis. Check the bottom of the feet.

E. After you are certain the subject has not sic contraband return the clothing to the subject and have him get dressed.

F. NOTE: Be careful if you let the subject remove his own belt. There are small belt buckle knives that look like belt buckles. The wallet can contain a cleverly concealed firearm. There are gun wallets made and sold to the general public. Hair picks may be camouflaged as razor or dagger instruments which look completely innocent at a glance.

.05 EXCEPTIONS TO REQUIREMENT

Persons arrested for traffic offenses and booked into the jail will not be strip searched as a rule but will be frisk searched. Body cavity searches will be only on express permission of the Sheriff Jail Commander or Jail Warden, and only for just cause.

* * * * * *

.02 STRIP SEARCH

(See GO: 51703.04)

The strip search for the female inmate is the same procedure as for males with the exception of certain body areas. Check the vaginal area while subject is bent over for the rectal search. A search under the breasts is required. It is possible for a female to have pouches surgically placed under the breasts. The pouch cannot be seen by quick observation. Instruct the subject to lift the breast for inspection.

Captain Stutsman testified that county jail personnel perform strip searches of persons charged with a serious felony or when officers have information that the arrestee is dangerous or may have contraband. Persons brought in on civil attachments, he stated, are not normally subjected to a strip search. A strip search of Ms. Jones, Capt. Stutsman stated, would have been inconsistent with jail policy. Ms. Jones contends that the Elkhart County Sheriff Department's policy is to routinely subject to strip searches all arrestees other than traffic offenders.

Ms. Jones saw no male officers during the strip search. She was humiliated; her arthritic knees and dislocated left hip made it difficult and uncomfortable to squat and stand. Although Ms. Jones concedes that the female deputy handled the search in a professional manner, she still has nightmares about the experience.

C.

Ms. Jones was placed in the jail's general female population following the search. She was not taken to court until October 2, seven days after her arrival at the Elkhart County Jail and nine days after her apprehension on the body attachment. Capt. Stutsman testified that seven days is longer than the normal delay in being taken to court on a civil body attachment; delays of one to three days are not unusual. Judge Platt submitted an affidavit in which he stated that, "when persons are arrested on a writ of attachment, they are normally brought into the Court within 24 to 48 hours of their arrest, exclusive of weekends and holidays", unless the availability of attorneys and other necessary parties causes a greater delay. Affidavit of Judge Platt, ¶ 4. With respect to the delay in bringing Ms. Jones to court,

her former husband, Mr. Rabius, was represented by Max K. Walker, Jr., a Deputy Prosecuting Attorney in Elkhart County. Since criminal charges had been filed against Mrs. Jones in another case, Mr. Walker had to withdraw from this case on behalf of Mr. Rabius, and Mr. Rabius had to obtain other counsel.

Affidavit of Judge Platt, ¶ 4.

Judge Platt also explained that when he orders issuance of a writ of attachment for persons in contempt, he ordinarily fixes an amount of bail or escrow as required by Indiana law,⁴ unless extenuating circumstances exist, such as Ms. Jones' "attempt to take and secrete the child from the custodial parent and remove herself and the minor child from the jurisdiction of the Court". Affidavit of Judge Platt, ¶ 3.

Two days after her court appearance before Judge Platt, Ms. Jones was released...