DiLoreto v. Borough of Oaklyn

Decision Date21 August 1990
Docket NumberCiv. A. No. 88-4489(SSB).
Citation744 F. Supp. 610
PartiesShirley DiLORETO and Wendall K. Littles, Plaintiffs, v. BOROUGH OF OAKLYN; Patrolman Robert A. Kane, Individually and as to the Arresting Officer; Patricia Walsh, Individually and as an Officer of Haddon Township, Defendants.
CourtU.S. District Court — District of New Jersey


Puff & Aimino by Michael A. Aimino, Woodbury, N.J., for plaintiffs Wendall K. Littles and Shirley DiLoreto.

Montano, Summers, Mullen, Manuel & Owens by F. Herbert Owens, III, Cherry Hill, N.J., for defendant Borough of Oaklyn.

Martin, Crawshaw & Mayfield by John R. Riordan, Westmont, N.J., for defendant Robert A. Kane.

Schuenemann, Gercke, Dumser & Feld by John R. Gercke, Cherry Hill, N.J., for defendant Patricia Walsh.


BROTMAN, District Judge.

Presently before the court are the following motions: (1) plaintiff Wendall K. Littles' motion to dismiss all claims against defendants and plaintiff Shirley DiLoreto's motion to dismiss all claims for excessive use of force against defendants Borough of Oaklyn and Robert Kane1; (2) plaintiff DiLoreto's motion to amend the complaint; (3) defendant Patricia Walsh's motion to amend her answer; (4) defendant Patricia Walsh's motion for summary judgment; and, (5) plaintiff DiLoreto's motion for summary judgment against Walsh, Kane, and Borough of Oaklyn.


On June 6, 1987, Shirley DiLoreto, plaintiff (hereinafter "plaintiff"), was a passenger in a car driven by Wendall Littles. Defendant Robert Kane, a police officer in Oaklyn Township, claims that Littles' car was swerving and speeding at 75 miles per hour and that a high speed chase ensued. After bringing the car to a stop, the police officer approached the car. Officer Kane asserts that he did not know that anyone other than Littles was in the car when he first approached. He then saw plaintiff DiLoreto come up from a crouched position on the floor. Littles could not produce a registration for the car and had no insurance, and the police arrested him for driving under the influence of alcohol and a number of other charges.

Plaintiff DiLoreto was patted down to check for weapons or contraband, but nothing was found. See Deposition of R. Kane at 28.2 She was then taken to the Oaklyn Police Station for questioning regarding the possibility that the car was stolen and that she was involved in that possible theft. Plaintiff was never charged with any offense as a result of the incident, and it was later discovered that the car was not stolen.

While at the station, plaintiff asked to use the bathroom.3 Officer Kane called the Haddon Township police station to request that a matron be sent to accompany plaintiff. Officer Kane explained his actions in the following manner:

Question: At some point in time she requested to use the bathroom; is that correct?
Answer: It's my recollection that when we were there she asked and then on the way to there she asked and when we got there she asked. At that point it was pretty obvious she had to use the bathroom and at that point we did not know—we didn't have the computer look up on the tag to see whether it was or was not stolen. So we did not know whether she was going to be charged or not be charged at that point due to—if the car was stolen then she was going to be charged with the possession also. But we did not—I believe Mr. Littles said that it was his car or somebody in his family's vehicle but we did not know for sure. At that point I contacted Haddon Township and Patty Walsh was brought over to the police station so that Miss DiLoreto could go to the bathroom.
Question: Why did you make the decision that you had to have a female officer there?
Answer: Because number one, it was a possibility that she was going to be charged with the possession of the vehicle and that if she was retaining any contraband that it could be discovered at that point. I did not want her to dispose of contraband if she went into the bathroom by herself and I could not accompany her to the bathroom. That's why I had a female officer there. Of course we had a female in custody, so we had a female matron per se there.

Deposition of R. Kane at 29-30.

After being informed by her sergeant that there was a woman in custody in Oaklyn, Officer Walsh went to the Oaklyn Township police station. Upon her arrival, she inquired as to why she was there. Officer Tortaretto, a Haddon Township police officer who was present when the car was stopped and as plaintiff was taken into custody, told Officer Walsh that plaintiff had to use the bathroom. Deposition of P. Walsh at 9. No other reason for the need to accompany plaintiff was given. Deposition of P. Walsh at 10. Walsh accompanied plaintiff to the bathroom and stood by the sink watching plaintiff urinate. Deposition of P. Walsh at 15-16.4 When asked in deposition whether there was any reason why she was observing plaintiff, Officer Walsh replied, "no." Deposition of P. Walsh at 11. Officer Walsh checked the toilet after plaintiff was through, but denies giving plaintiff any instructions regarding the removal of any of her clothing. She contends that plaintiff was wearing a long skirt so that only below the calf was visible. See Deposition of P. Walsh at 24. Officer Walsh asserts that she did not check plaintiff's undergarments nor touch her body. Finally, Officer Walsh conceded in her deposition that she had received no training as to accompanying women to the bathroom. Deposition of P. Walsh at 19.

According to plaintiff, the events occurred somewhat differently. Plaintiff alleges that Officer Walsh directed her to raise her dress up above her waist, Deposition of S. DiLoreto at 216, and inspected plaintiff's person and her underwear. Deposition of S. DiLoreto at 217. Walsh also inspected the toilet, Deposition of S. DiLoreto at 217, and told her that this was the "procedure." Deposition of S. DiLoreto at 223.

Officer Kane denies instructing Walsh to observe plaintiff urinate. Deposition of R. Kane at 33. He testified in his deposition as follows:

Question: Did you give Pat Walsh any instructions prior to her accompanying Miss DiLoreto into the bathroom?
Answer: What I recollect was that we did not know specifically what we had, that she had to go to the bathroom and I did not want any—whether there was any contraband, I didn't want any contraband flushed down the toilet.
Question: So you wanted her to observe Miss DiLoreto while she went to the bathroom; is that correct?
Answer: No, I did not. Alls sic I asked her to do was make sure that the toilet was not flushed and make sure there was no contraband sent down the toilet.

Deposition of R. Kane at 33. When asked the general custom regarding individuals who are not free to leave the police station and who want to use the bathroom, Officer Kane replied that there was no specific procedure and the decision depends on the seriousness of the situation. See Deposition of R. Kane at 35-36. He noted that plaintiff's situation was serious because it involved a possible stolen vehicle. Officer Kane also made the following statements in his deposition:

Question: Was it fair to say that at the time you decided to call the matron, the only charges you were contemplating would have been in relation to a possible stolen vehicle?
Answer: Correct.
Question: So you weren't contemplating any drug charges or any weapons charges at that point?
Answer: Not at that point, no.

Deposition of R. Kane at 30. See Deposition of R. Kane at 28 (indicating no basis for suspecting DiLoreto had weapons or contraband) (quoted supra, n. 2).

Plaintiff has also had the opportunity to depose John Laggy, who was the Chief of Police for the Borough of Oaklyn at the time of these events. He was "in total charge of the Department." Deposition of J. Laggy at 6. He further responded when asked whether it would have been consistent with the policy of the Borough of Oaklyn to search DiLoreto:

Answer: Under those circumstances, with the alleged investigation ongoing, that she might have been involved, yes, I would say so. I really believe that we're talking as a matter of policies. Policy is policy and, then, there's such a thing as common sense, too.

Deposition of J. Laggy at 16. He finally gave the following testimony as to the substance of the policy with respect to strip searching detainees:

Question: Do you remember, in June of 1987 or prior, did you have any kind of policy with respect to strip searching detainees?
Answer: To the best of my knowledge, no, there was no definite policy on strip searching detainees. I can only recall one incident where we did have a female searched. And, there were, at that time, 2 matrons with her. And we were looking for drug contraband....
Question: Were there ever any training courses on how to conduct a strip search in the Borough of Oaklyn?
Answer: In the Borough of Oaklyn? No.
Question: Were any instructions or orders given on how to conduct a strip search?
Answer: No.
Question: Were any documents or orders or written statements ever given in what to do when you accompany an individual into the Borough of Oaklyn's bathroom?
Answer: No.

Deposition of J. Laggy at 23-24.

Plaintiff seeks to correct the designation of the township by which Officer Walsh was employed. Plaintiff contends that Officer Walsh's acts constituted an unreasonable strip search and thus violated her fourth amendment right to be free from unreasonable searches. Plaintiff argues that Officer Kane is liable for the unconstitutional strip search because he ordered Officer Walsh to be present while plaintiff urinated. Plaintiff also asserts that the Borough of Oaklyn is liable because its strip search policy was unconstitutional as applied to her.

Defendant Walsh moves for summary judgment against plaintiff on the ground of qualified immunity. Plaintiff claims that Officer Walsh failed to raise qualified immunity as a defense.5 These motions will...

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