Fann v. City of Cleveland, Ohio

• Decision Date: 08 July 1985
• Docket Number: Civ. A. No. C83-4306.
• Citation: 616 F. Supp. 305
• Parties: Kristy FANN, Plaintiff, v. The CITY OF CLEVELAND, OHIO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

616 F. Supp. 305

Kristy FANN, Plaintiff, v. The CITY OF CLEVELAND, OHIO, et al., Defendants.

Civ. A. No. C83-4306.

United States District Court, N.D. Ohio, E.D.

July 8, 1985.

Carl J. Character, Cleveland, Ohio, for plaintiff.

Nick Tomino, Janet R. Beck, Kathleen A. Martin, Barbara Marsburger, Asst. Directors of Law, Cleveland, Ohio, for defendants.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Kristy Fann seeks damages under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for alleged violations of her constitutional rights during a strip search that occurred following her arrest by Cleveland police officers on August 13, 1983. Pending before the Court are cross-motions for summary judgment and myriad ancillary motions. For the reasons set forth below, the strip search of Fann was unconstitutional and she is entitled to partial summary judgment on the issue of liability with respect to certain defendants. Other defendants are entitled to summary judgment themselves under the doctrine of qualified immunity.

Jurisdiction rests on 28 U.S.C. § 1331 and 1343.

I.

Fann's complaint, filed on October 25, 1983, alleges that following her arrest she was strip searched "without reason or cause to believe that weapons and/or contraband were being concealed on or about her body; while bond was being posted for her, and in violation of her constitutional rights." Complaint ¶ 1. She contends that she "was greatly embarrassed and humiliated, and suffered great emotional pain and distress," id. ¶ 8, because of a search which "deprived Plaintiff of the following rights, privileges and immunities preserved to her by the Constitution of the United States:

a. The right of plaintiff to be secure in her person against unreasonable search and seizure under the Fourth and Fourteenth Amendments of the United States Constitution;

b. The right of plaintiff to privacy in her person against unreasonable intrusion under the Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution;

c. The right of plaintiff not to be deprived of life, liberty or property without due process of law and the right to the equal protection of the law secured by the Fourteenth Amendment of the Constitution of the United States;

d. The right of plaintiff not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments of the Constitution of the United States."

Id. at ¶ 13.

The defendants are the City of Cleveland ("the City"); Mayor George Voinovich; Safety Director Reginald Turner; Chief of Police William T. Hanton; two police officers, David Hoke and Sharon Dickerson; and unnamed police officers and an unnamed jail matron. In a proposed amendment to her complaint, Fann seeks to substitute as "named defendants" both "Unknown Jail Matorn sic Mary Pritchett" and "Unknown Policeman Andrew Lang." Each defendant (except the City) is sued both individually and in his or her official capacity.

Fann demands compensatory and punitive damages and attorney's fees.

II.

Fed.R.Civ.P. 56(c) governs summary judgment motions and provides:

... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

The nature of materials properly presented in a summary judgment pleading is set forth in Fed.R.Civ.P. 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 398 S.Ct. 144, 26 L.Ed.2d 142 (1970); Hasan v. CleveTrust Realty Investors, Inc., 729 F.2d 372 (6th Cir.1984). "The party seeking summary judgment must conclusively show that there exists no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Bender v. Southland Corp., 749 F.2d 1205, 1210 (6th Cir.1984) (citing Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979)) (emphasis in original).

III.

The following factual summary is based on the materials appended to the cross-motions for summary judgment and the defendants' opposition to Fann's motion: affidavits by Hanton, Hoke, Dickerson, and Pritchett, and Hanton's answers to interrogatories. The defendants have moved to strike that portion of Fann's motion designated "Statement of Fact" because it contains numerous unsworn allegations unsupported by the record. That motion is well-taken and is granted pursuant to Fed.R.Civ.P. 12(f), and this Court will examine only those facts found in the attached materials, rather than in Fann's motion itself.

On August 13, 1983, Officers Hoke and Dickerson stopped Fann's automobile and arrested her for allegedly disobeying a traffic signal and operating a vehicle without license plates. The arrest took place in the Third District, which has no detention facilities for holding prisoners, so the officers took Fann to the Central Prison Unit at 1300 Ontario Street in Cleveland for booking. After Fann was booked, Hoke escorted her from the booking officer, Lang, to the custody of a jail matron, Pritchett. According to defendants' answers to interrogatories, Fann

... was taken by Matron Pritchett to the corridor behind the female cell block and searched. Matron Pritchett offered the plaintiff the opportunity to make a telephone call. The matron took the plaintiff into the office to make out her prisoner record card. Plaintiff was placed in Cell No. 8. This conduct was taken pursuant to the standard arrest, booking procedures and matrons' duties in effect at the time under the authority of the Chief of Police.

The answers to interrogatories and Hanton's affidavit describe the search policy itself in greater detail. The latter states in part:

4. The booking procedures require every prisoner to be thoroughly searched during admission. All money, valuables and articles which might be used by prisoners to injure themselves and others or which can be used to damage the prison were to be confiscated and receipts given.

5. Jail matrons had the duty of conducting a thorough search of every female prisoner placed in their custody pursuant to booking.

6. The policy in effect on August 13, 1983, for jail matrons' conduct of searches was as follows: Searches were to be conducted in the matrons' lavatory or the corridor behind the female cell block, two private areas. No male officers were allowed in the matrons' office or corridor area while a search was being conducted. Prisoners were required to pull up their brassiere and shake it, so as to permit any article secreted therein to fall out. Prisoners were required to lower any pants, pantyhose they were wearing, turn, and squat, thus causing any articles being concealed to fall to the floor. Pockets in clothing were to be turned out. Shoes and socks were to be shaken out. Purses and their contents were inspected, as well as any other belongings.

7. On August 13, 1983, I did not believe that the search policy described above caused violation of prisoners' constitutional rights.

In her affidavit, Pritchett states in part:

3. I searched Fann according to the procedures in effect on August 13, 1983.

4. In order to conduct that search, I took Fann to the corridor behind the women's cell block. No one was present in that area other than Fann and myself.

5. With Fann facing me, I asked her to hold her blouse up and to hold out her brassiere if she had one on. After she had done that, I asked her to lower her pants or shorts to the knees, and squat low.

6. After Fann had done that, I took her back to the matrons' office to finish her admitting processing. Then I placed her in Cell No. 8.

7. I did not visually inspect this female's vaginal or anal areas at any time. I did not touch her during this search.

IV.

This Court begins by examining the constitutionality of the strip-search policy utilized by the City at the time of Fann's arrest.¹ If that policy is deemed to be invalid, various defendants assertions of immunity, and other objections to Fann's claims and pleadings, will then be examined.

Title 42 U.S.C. § 1983 provides

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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 an action at law, suit in equity, or other proper proceeding for redress.

To recover under § 1983, Fann must demonstrate that the undisputed facts prove that the strip search deprived her of a constitutionally protected right, that one or more of the defendants are legally responsible for that deprivation, and that such deprivation was the proximate cause of her injury. While federal courts traditionally have been reluctant to interfere with the operation of state...