Byrd v. Maricopa County Sheriff's Dept.

• Decision Date: 18 May 2009
• Docket Number: No. 07-16640.,07-16640.
• Citation: 565 F.3d 1205
• Parties: Charles Edward BYRD, Plaintiff-Appellant, v. MARICOPA COUNTY SHERIFF'S DEPARTMENT; Joseph M. Arpaio; Kathleen O'Connell; Austin Peterson; Durango Jail, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

565 F.3d 1205

Charles Edward BYRD, Plaintiff-Appellant, v. MARICOPA COUNTY SHERIFF'S DEPARTMENT; Joseph M. Arpaio; Kathleen O'Connell; Austin Peterson; Durango Jail, Defendants-Appellees.

No. 07-16640.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 2, 2008.

Filed May 18, 2009.

Jarrett A. Green, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, pro bono counsel for the appellant.

Eileen Dennis GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, counsel for the appellee.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. CV-04-02701-NVW.

Before: FERDINAND F. FERNANDEZ, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

IKUTA, Circuit Judge:

Charles Byrd, a former pretrial detainee in the minimum-security Durango Jail in Maricopa County, Arizona, brought this action under 42 U.S.C. § 1983 against Maricopa County Sheriff Joseph Arpaio in his personal and official capacities, Kathleen O'Connell, a former cadet at the Maricopa County Sheriff's Office Training Academy, and Captain Austin Peterson, O'Connell's supervisor.¹ Byrd contends that a search of his housing unit, during which a partial strip search and pat down of his groin area was conducted by a female training cadet despite the availability of male detention officers nearby, violated his constitutional rights. The district court dismissed Byrd's equal protection claim and granted judgment as a matter of law against Byrd on aspects of his Fourteenth and Fourth Amendment claims. After a jury resolved certain factual disputes relating to the search, the district court entered judgment in favor of all defendants. Given the facts and procedural posture of this case, we affirm the judgment of the district court.

I

A

Byrd was a pretrial detainee at minimum-security Durango Jail in Maricopa County, Arizona. In October 2004, there had been multiple fights in Byrd's housing unit, and officials suspected that contraband was circulating in the jail. In order to conduct a coordinated search of Byrd's entire housing unit, jail supervisors requested assistance from the Maricopa County Sheriff's Office Training Academy (Academy) cadets. On October 28, jail officers carrying taser and pepper guns entered Byrd's cell and ordered him to remove all his clothing except his boxer shorts, which were made of thin material. The officers ordered Byrd to walk into an open common area known as the "day room," where 25 to 30 Academy cadets and 10 to 15 uniformed detention officers were present. The cadets wore jeans and white T-shirts with their last names printed on the back in black lettering. Approximately one third of both the cadets and officers in the room were female. At least one person with a hand-held camera was present in the day room.

Jail officials directed five or six inmates at a time to stand in front of a row of waiting cadets in order to be searched. When it was Byrd's turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O'Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd's boxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O'Connell moved Byrd's scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.² The record indicates the search of Byrd was brief. O'Connell demonstrated the search to the jury and testified that it lasted between 10 and 20 seconds, while Byrd testified that it lasted 60 seconds.

Under the County's policies and customs, female officers and cadets are not permitted to observe or conduct cross-gender strip searches if all of an inmate's clothing has been removed. They are, however, permitted to observe and conduct searches, whether visual or tactile, if an inmate is wearing underwear, which at Maricopa County's detention facilities are standard-issue boxer shorts. Females are not permitted to look into a male inmate's underwear when conducting a pat down and partial strip search.

B

After the search, Byrd filed an inmate grievance form with the Maricopa County Sheriff's office. He subsequently filed additional grievances with the County, none of which resulted in remedial action. Byrd filed a pro se complaint in district court on November 26, 2004, and amended it June 14, 2005, alleging that the search violated: (1) his Fourth Amendment right to be free from unreasonable searches; (2) his substantive due process right to be free from punishment;³ and (3) his Fourteenth Amendment right to equal protection of the laws. Byrd alleged that his Fourth Amendment and substantive due process rights were violated because O'Connell caused "wanton and unnecessary infliction of pain" when she "grabbed his genitals twice, then ram[m]ed her index finger through the crack of his butto[cks]." He also alleged that there was no need for a female cadet to touch him because there were more than ten male detention officers present who could have performed the search. In addition, he claimed that jail officials were aware of, but deliberately indifferent to, the psychological pain that a cross-gender body search was likely to cause. Byrd alleged that the search caused him "public humiliation" and "psychological trauma," among other injuries.

The County moved for summary judgment, arguing that "Officer O'Connell conducted the frisk (body) search of Plaintiff in accordance with MCSO policy DH-3; in the presence of her supervisor, Captain Peterson; and in the process demonstrated and instructed detention officers in the proper manner in which to conduct such a search for contraband."

The district court issued an order dismissing part of the complaint, and granting in part and denying in part the County's motion for summary judgment. Under its obligation to dismiss sua sponte certain complaints brought by prisoners proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), and certain claims regarding conditions of confinement, see 42 U.S.C. § 1997e(c), the district court dismissed Count II, which had alleged an equal protection violation, for failure to state a claim.

The district court denied the County's motion for summary judgment on Byrd's Fourth Amendment and Fourteenth Amendment substantive due process claims.⁴ The court held that the County was not entitled to summary judgment on Byrd's Fourth Amendment claim because it had not established that the search was "necessary to security or that it furthered a legitimate penological interest," and was not entitled to summary judgment on Byrd's substantive due process claim because it had not briefed the issue.

C

The district court appointed trial counsel for Byrd. While proceeding pro se, Byrd had made no discovery requests. When Byrd's newly appointed counsel learned that a person with a hand-held camera was present on the day in question, he asked the County to produce footage that may have been shot. The County initially stated it was unaware of any video recording of the search. Shortly before trial, however, O'Connell informed defense counsel that the Academy had given the cadets a Video Yearbook, which showed approximately one minute of footage from the day of the search. The County stated that it did not have the rest of the videotape footage, and that it assumed it had been destroyed pursuant to the County's retention policy. The Video Yearbook did not include any footage of Byrd or of O'Connell performing searches.

Byrd asked the court to exclude all references to the Video Yearbook on the grounds that the brief surviving footage did not show Byrd or O'Connell, and that it would be misleading and prejudicial because it highlighted the cadets in a favorable light. In the alternative, Byrd requested an adverse inference jury instruction that would state the videotape established that the search was done solely for training purposes, and that O'Connell groped Byrd's private parts. The district court reserved its decisions on whether to exclude the Video Year-book, and on whether to give the requested instruction, pending the evidence produced at trial.

At trial, Byrd's counsel questioned Sheriff Arpaio about the video footage. The district court held that this opened the door to the introduction of the Video Yearbook. Both the County and Byrd subsequently showed the video to the jury.

At the conclusion of testimony, both parties moved for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure.⁵ The district court granted judgment as a matter of law in favor of Captain Peterson (O'Connell's supervisor) on the ground that he did not have any role at Durango Jail at the time of the search. Byrd does not challenge this ruling on appeal.

Next, because Byrd had not presented any evidence that Arpaio had instituted an unconstitutional policy (i.e., a policy of conducting searches for an unconstitutional purpose or in an unconstitutional manner), and there was no allegation that Arpaio had personally conducted or supervised the search, the district court held that Arpaio was entitled to judgment as a matter of law, notwithstanding the remaining factual disputes.

This left one remaining defendant, Cadet O'Connell. The district court concluded that the factual disputes over the purpose of the search and the manner in which it was conducted should be...