773 F.Supp. 1442 (D.Kan. 1991), Civ. A. 90-2059, Allen v. Board of Com'rs of County of Wyandotte

Docket Nº:Civ. A. 90-2059
Citation:773 F.Supp. 1442
Party Name:Allen v. Board of Com'rs of County of Wyandotte
Case Date:August 02, 1991
Court:United States District Courts, 10th Circuit, District of Kansas

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773 F.Supp. 1442 (D.Kan. 1991)

Sarah L. ALLEN, Plaintiff,


The BOARD OF COMMISSIONERS OF THE COUNTY OF WYANDOTTE; Owen L. Sully; Wyandotte County Sheriff's Department; Joan A. Grogan; Roger C. Riley; Theodore Robinson; State of Kansas; Kansas Board of Regents; University of Kansas; B.D. Harrelson; and Sandy Omtvedt, Defendants.

Civ. A. No. 90-2059-O.

United States District Court, D. Kansas.

Aug. 2, 1991

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Douglas C. Beach, Beach & Hanson, Overland Park, Kan., for plaintiff.

John M. Duma, Kansas City, Kan., Catherine R. Hutson, Wm. Terry Fitzgerald, Gregory F. Maher, Stephen P. Doherty, Niewald, Waldeck & Brown, Overland Park, Kan., for defendants Owen L. Sully, Wyandotte County Sheriff's Dept., Joan Grogan, Roger Riley and Theodore Robinson.


EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on the summary judgment motion of defendants Wyandotte County Sheriff's Department, Owen L. Sully, Joan A. Grogan, Roger C. Riley and Theodore Robinson (hereinafter "Sheriff's Department"). Plaintiff Sarah L. Allen (hereinafter "Allen") was allegedly strip searched and incarcerated by the Sheriff's Department after Kansas University police officers charged her with driving on a suspended license and expired tags. Plaintiff contends defendants deprived her of her civil rights in violation of 42 U.S.C. § 1983. Allen also alleges that defendants battered and falsely imprisoned her. In addition, she claims that the Sheriff's Department was negligent. We do not believe that oral argument would be helpful in this case. Plaintiff's request pursuant to Local Rule 206(d) for oral argument will therefore be denied. For the reasons stated below, the court will grant in part the defendants' motion for summary judgment.


Defendant officers B.D. Harrelson (hereinafter "Harrelson") and Sandra Omtvedt (hereinafter "Omtvedt"), members of the Kansas University Medical Center (hereinafter "KUMC") police department, stopped the driver of a 1985 Ford Mustang on March 11, 1989, at approximately 9:30 p.m. after they observed the expiration of the vehicle's license tag. At the officers' request, the driver, Allen, displayed her license. The state's computer system revealed that plaintiff's driver's license had been suspended. Harrelson and Omtvedt therefore performed a pat-down search, handcuffed plaintiff, and placed her under

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arrest. She was then driven to the KUMC police station.

Allen was later transported to the Wyandotte County jail by Harrelson. The jail was in the charge and custody of Sheriff Owen L. Sully (hereinafter "Sully"). Sergeant Roger C. Riley (hereinafter "Riley"), Deputy Theodore Robinson (hereinafter "Robinson"), and Deputy Joan A. Grogan (hereinafter "Grogan") were on duty during Allen's confinement at the jail. After she was escorted to the fifth floor of the jail, plaintiff claims that she was unlawfully detained and subjected to a strip search by defendant Grogan. 1 Grogan, according to plaintiff, ordered her to remove her clothing, exposing her breasts as well as her genitals, buttocks and anus. Allen alleges that the strip search was conducted "in a rude, insolent, abusive, and violent manner." More specifically, plaintiff contends that she was strip searched in a closet at the jail. Allen states that the closet door remained open so anyone outside the closet could observe the strip search taking place. After the strip search, plaintiff was confined with other prisoners while awaiting her release. At approximately 3:00 a.m. on March 12, Allen was released, having been charged with driving on a suspended license and expired tags.


In considering a motion for summary judgment, the court must examine all the evidence in a light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981); Mahomes-Vinson v. United States, 751 F.Supp. 913, 916 (D.Kan.1990). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. S.W. Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985); see also 6 J. Moore, Moore's Federal Practice ¶ 56.04 (1990) (court is authorized to examine materials outside complaint to determine whether there is genuine issue of material fact to be tried). If the moving party does not bear the burden of proof, he must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). This burden is met when the moving party identifies those portions of the record which demonstrate the absence of material fact. Id. at 323, 106 S.Ct. at 2553; Deines v. Vermeer Mfg. Co., 752 F.Supp. 989, 993 (D.Kan.1990).

Once the moving party meets these requirements, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (emphasis added). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleading." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511; Tersiner v. Union Pac. R.R. Co., 740 F.Supp. 1519, 1522-23 (D.Kan.1990).


The Civil Rights Act of 1871 (hereinafter "the Act") establishes a civil action for the deprivation of federal rights. Plaintiff Allen claims that the Wyandotte County Sheriff's Department, acting under

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the color of state law, violated rights guaranteed to her by the Fourth and Fourteenth Amendments. 2 The Act is embodied in 42 U.S.C. § 1983 and provides in pertinent part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in the action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create substantive rights. Rather, this provision provides a recovery mechanism for the deprivation of federal rights. Watson v. City of Kansas City, Kan., 857 F.2d 690, 694 (10th Cir.1988); Williams v. Anderson, 562 F.2d 1081, 1101 (8th Cir.1977). In order to establish a cause of action under section 1983, a plaintiff must allege: (1) the deprivation of a federal right (2) by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Martinez v. State of Calif., 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481, reh'g denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980).


The Sheriff's Department claims that it was permitted and indeed required by Kansas statutory law to conduct a strip search of Allen. 3 Plaintiff was charged with violating K.S.A. 8-262. Subsection (a)(1) of K.S.A.1989 Supp. 8-262 prohibits any person from driving a motor vehicle on a state highway "at a time when such person's privilege to do so is ... suspended." 4 K.S.A.1989 Supp. 8-2104(a)(2) provides that a person stopped by a law enforcement officer for violation of K.S.A. 8-262 "shall be taken into custody and taken without unnecessary delay before a judge of the district court." 5

Ordinarily, a person arrested for violation of a traffic offense is not to be strip searched "unless there is probable cause to believe that the individual is concealing a weapon or controlled substance." K.S.A. 22-2521(a). 6 Neither the arresting officers

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nor the guards at the jail possessed probable cause to believe that Allen was harboring any contraband or weapons. Subsection (b) of K.S.A. 22-2524 provides, however, that the foregoing provision shall not apply "when a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate." K.S.A. 22-2524(b) (emphasis added). Defendants note that "[Allen] was, in fact, confined with other prisoners." 7

The Fourth Amendment applies with its fullest vigor against any intrusion of the human body. Horton v. Goose Creek Indep. School Dist., 690 F.2d 470, 478, reh'g denied, 693 F.2d 524 (5th Cir.1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). 8 The test of reasonableness under the Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); Levoy v. Mills, 788 F.2d 1437, 1439 (10th Cir.1986). 9 A strip search is a substantial intrusion of personal rights. Cruz v. Finney County, Kan., 656 F.Supp. 1001, 1005 (D.Kan.1987); Shoemaker v. Handel, 619 F.Supp. 1089, 1101 (D.N.J.1985), aff'd, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986). 10 Strip searches must be conducted with regard for the subject's privacy and be designed to minimize emotional and physical trauma. United States v. Cameron, 538 F.2d 254, 258 (9th Cir.1976); see also N. Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales through the Least Intrusive Alternative Analysis, 63 N.Y.U.L.Rev. 1173, ---- (1988) (strip searches should not be upheld unless government satisfies least intrusive alternative requirement).


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