Clark v. Tinnin, 87-C-1216.

• Decision Date: 01 March 1990
• Docket Number: No. 87-C-1216.,87-C-1216.
• Citation: 731 F. Supp. 998
• Parties: Victor Glenn CLARK, Plaintiff, v. Laura TINNIN and the City and County of Denver, Defendants.
• Court: U.S. District Court — District of Colorado

731 F. Supp. 998

Victor Glenn CLARK, Plaintiff, v. Laura TINNIN and the City and County of Denver, Defendants.

No. 87-C-1216.

United States District Court, D. Colorado.

March 1, 1990.

David Lane, Denver, Colo., for plaintiff.

Theodore Halaby, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Plaintiff, Victor Glenn Clark, filed this pro se civil rights suit after certain hair samples were taken from him by a female police officer pursuant to an April 1987 state court order. At the time, the plaintiff had been arrested on first degree sexual assault charges and was a pretrial jail detainee in the City and County of Denver, Colorado. Named as defendants were the Denver Police Department and one of its officers, Laura Tinnin.

I declined to dismiss this action on the Magistrate's recommendation and appointed counsel to represent the plaintiff. Upon the parties' stipulation, I dismissed the complaint and action against the Denver Police Department.

On May 23, 1988, the plaintiff filed an amended civil rights complaint asserting a federal claim under 42 U.S.C. § 1983 for violation of the First and Fourth Amendments to the United States Constitution, together with state law claims for intentional infliction of emotional distress and invasion of privacy. In addition to the defendant Tinnin, the City and County of Denver, Colorado, has been named as a defendant.

Defendants have filed a motion for summary judgment in which they argue (1) that the defendant Tinnin is protected by qualified immunity; (2) that the undisputed facts do not sustain the alleged constitutional violations; (3) that the state law claims should be dismissed because the plaintiff failed to give appropriate statutory notice; and (4) that this court should decline to exercise pendent jurisdiction over the state law claims. Plaintiff has responded by opposing the motion.

The parties have fully briefed the issues and oral argument would not assist my decision. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343, and pendent jurisdiction.

I. Factual Discussion.

On April 12, 1987, the plaintiff was arrested on a charge of first degree sexual assault that allegedly occurred in the City and County of Denver, Colorado. Defendant Tinnin, a Denver police detective who had worked in the Sex Assault Unit since 1981, was assigned to investigate the case.

On April 13, 1987, the State filed a motion in its state court criminal case seeking non-testimonial identification evidence from Clark. Attached to that motion was the defendant Tinnin's affidavit indicating that the female victim had stated that penetration had occurred during the alleged sexual assault.

That same day, state district Judge G.A. Mueller issued an order finding probable cause to believe that the plaintiff had committed the offense of sexual assault. Judge Mueller further ordered "Det. Laura M. Tinnin 74-17, or any officer of the Denver Police Department, ..." to perform "specific non-testimonial identification procedures" involving "blood, hair and saliva," pursuant to Rule 41.1, Colo.R.Crim.P.

In an effort to execute the court's order, the defendant Tinnin contacted the plaintiff at the Denver City Jail. Regarding the taking of pubic hair samples by the defendant Tinnin, the plaintiff alleges in his civil rights complaint here that:

"4. ... Plaintiff was forced by detective Tinnin to expose his genitals to her while he obtained a sample of his pubic hair. This action was undertaken by the female detective, even though several male officers were available to supervise the taking of the pubic hair sample. Detective Tinnin refused to allow Plaintiff an opportunity to cover his genitals, asserting that she had to be certain that the hair taken by Plaintiff came from the pubic region. She then threatened that she would take it herself if Plaintiff refused to cooperate."

Plaintiff's discovery deposition has been attached as an exhibit to the defendants' summary judgment motion. Plaintiff was represented by counsel during the deposition.

In his deposition, the plaintiff stated that he was sitting alone in his jail cell when the defendant Tinnin, accompanied by a male officer from the Sheriff's office, told him that she had a court order to take body samples. Plaintiff was escorted to the nurse's station by the defendant Tinnin and the male officer. Another male officer was present at the nurse's station when they arrived. While at the nurse's station, the plaintiff asked to see the court order. Defendant Tinnin explained the order to him, stating that she would be taking some blood and hair samples. Plaintiff was permitted to read the court order.

Plaintiff testified that before the blood sample was taken, he asked the defendant Tinnin "What if I don't want to give it?" According to the plaintiff, she replied, "Well, we'll hold you down and I'll take it." Plaintiff stated that he voluntarily submitted to the blood sample and the blood was drawn by the male nurse on duty.

After the blood was taken, the defendant Tinnin told the plaintiff to go into an inner room located within the nurse's station, which he did. Plaintiff stated that the two male sheriff's deputies were standing outside the door and that they were watching what was going on.

Plaintiff seated himself on the examining table in the inner room of the nurse's station. He then pulled some hair samples from his head and chest and placed them in plastic bags.

Defendant Tinnin then advised the plaintiff that she needed some pubic hair samples. I quote at length from the plaintiff's deposition regarding his description of the procedure utilized in taking these samples:

"Q. Then after the chest hairs are collected, what happens next?"

"A. Then she wanted pubic hair."

* * * * * *

"Q. What do you recall about her precise words?"

"A. `I need some pubic hair in this bag. You can pull your pants down and give it to me, or I can get it.'"

* * * * * *

"Q. Did you say anything in response?"

"A. I don't think so."

"Q. What did you do?"

"A. There was two of them outside, and I was kind of scared to say a whole lot."

"Q. You're speaking of the sheriff's officers?"

"A. Deputies. Yes, they don't—sometimes they're not real nice to you."

"Q. ... So you didn't say anything after she told you this?"

* * * * * *

"A. Yes. I remember asking her if I could turn sideways, and she said no, she had to make sure that it came from the right area — the same area, instead of up high."

"Q. What do you recall about the precise words you used in asking her this?" Plaintiff's November 22, 1988 deposition at 42-43.

"A. I said — I'm pretty sure I said, `Can I turn sideways?' And she said, `No, I have to see where it comes from to make sure it comes from the pubic region,' or something like that."

"Q. Now, how were you dressed at that time?"

"A. Let's see. I've got on a green shirt they gave me and a white pair of pants that they gave me." Plaintiff's November 22, 1988 deposition at 43-44.

* * * * * *

"Q. So at the time you're saying Detective Tinnin told you that after you asked her if you could turn to the side, are you sitting or standing?"

"A. Standing."

"Q. ... What did you do?"

"A. I pulled a hair and gave it to her. It was either that or them hold me down and do it."

"Q. Them? Who is `them'?"

"A. Well, she said if I didn't give it, then they would hold me down and they would take it."

* * * * * *

"Q. When did she tell you that?"

"A. When we first got there."

"Q. Before the blood was collected?"

"A. Right." Plaintiff's November 22, 1988 deposition at 45.

"Q. So you unfastened the button and unzipped the trousers?"

"A. Yes, ma'am."

"Q. Then what did you do?"

"A. I had to push them down a little bit so I could get to the pubic hair, which kind of exposed me a little. And she had to make sure that it came from the genital region or the pubic hair region or whatever, that was her — that's what she told me."

* * * * * *

"Q. So where were you facing at the time?"

"A. Toward the door."

"Q. And where was she standing?"

"A. In front of the door."

"Q. ... Would you say your orientation to Detective Tinnin was ... face to face?"

"A. Pretty close, yes."

"Q. And both of you were standing at that time?"

"A. Yes."

* * * * * *

"Q. And you say you were a little bit exposed. How much exposed were you?"

"A. Well, I wasn't — my pants weren't down to my knees, but they were down." Plaintiff's November 22, 1988 deposition at 48-49.

"Q. How far down."

"A. Down far enough so she could see where the hair came from."

"Q. ... So you're saying your groin region was exposed?"

"A. Yes."

"Q. Was your penis exposed?"

"A. Partly."

"Q. Were your testicles exposed?"

"A. No."

"Q. How much of your penis was exposed?"

"A. I don't remember."

"Q. Are we talking about the top part?"

"A. A little more. About half."

"Q. ... And how many hairs did you pull?"

"A. Eight or ten, I think. I didn't really count them...."

* * * * * *

"Q. ... How far away is she standing from you at that time?"

"A. Four feet maybe." Plaintiff's November 22, 1988 deposition at 50.

* * * * * *

"Q. But you don't remember if your testicles were exposed?"

"A. No, I don't.... I don't think my pants were that low. I don't remember, but I don't think so." Plaintiff's November 22, 1988 at 51.

* * * * * *

"Q. Did you have any discussion with Detective Tinnin at the time you were pulling the pubic samples?"

* * * * * *

"A. I don't remember. I don't think so. I think I asked if we could get a male officer or somebody to take the samples, but I'm not — I'm pretty sure I did, yes." Plaintiff's November 22, 1988 deposition at 53-54.

* * * * * *

"Q. What did she say?"

"A. She said, `No, you'll have to give them to me.'" Plaintiff's November 22, 1988 deposition at 55.

* * * * * *

"Q. And then did you leave the room?"

"A. Yes."

"Q. Where did you go then?"

"A. Back to my cell."

"Q. Who took you?"

"A. I think it was one of the male deputies." Plaintiff's November 22, 1988 deposition at 57.

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