Florence v. Board of Chosen Freeholders

Citation595 F.Supp.2d 492
Decision Date04 February 2009
Docket NumberNo. 05-3619.,05-3619.
PartiesAlbert W. FLORENCE, Plaintiff, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF BURLINGTON, et al., Defendants.
CourtU.S. District Court — District of New Jersey

Susan Chana Lask, Esq., New York, NY, for Plaintiffs.

J. Brooks DiDonato, Esq., Parker McCay, Marlton, NJ, for Defendant Burlington.

Alan R. Ruddy, Esq., Office of the Essex County Counsel, Newark, NJ, for Defendant Essex.

OPINION

RODRIGUEZ, Senior District Judge.

This matter comes before the Court on cross-motions for summary judgment filed by Albert W. Florence ("Florence" or "Plaintiff") and Defendants. Plaintiff represents a class certified by this Court as:

All arrestees charged with non-indictable offenses who were processed, housed or held-over at Defendant Burlington County Jail and/or Essex County Correctional Facility from March 3, 2003 to the present date who were directed by Defendants' officers to strip naked before those officers, no matter if the officers term that procedure a "visual observation" or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons.

Defendants named in the complaint are Board of Chosen Freeholders of the County of Burlington, Burlington County Jail ("Burlington Jail"), Warden Juel Cole, Individually and Officially as Warden of Burlington County Jail, Essex County Correctional Facility ("Essex Jail"), Essex County Sheriff's Department and several John Does.

Plaintiffs seek:

1. Summary judgment on the issue of law regarding whether Defendants violated Plaintiffs' constitutional rights by their policy of strip searching non-indictable arrestees without reasonable suspicion;

2. Preliminary injunctive relief on behalf of the class against Defendants Burlington and Essex Counties' strip search policies.

Defendants seek:

1. Summary Judgment on the issue of law regarding whether the strip searches were constitutional;

2. Eleventh Amendment immunity for the Board of Chosen Freeholders of Burlington County, Warden Juel Cole in his official capacity, and Burlington County Jail;

3. Qualified Immunity for Warden Juel Cole in his individual capacity;

4. Dismissal of Count Five § 1983 Municipality Custom Violations regarding Essex County.1

For the reasons expressed below, Plaintiffs' motions are granted in part and denied in part. Defendants' cross-motions for summary judgment are denied, and the claims for Eleventh Amendment immunity and qualified immunity are also denied. Defendant's claim to dismiss the § 1983 Municipality Custom Violations Count is denied.

I. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiffs' 42 U.S.C. § 1983 claim for violation of their federal constitutional rights.

II. FACTUAL & PROCEDURAL BACKGROUND
A. Facts Relating to Plaintiff's Arrest, Detention, and Alleged Strip Searches

The parties are familiar with the facts of this case. For purposes of summary judgment, however, the facts shall be provided herein, in large measure undisturbed from this Court's previous opinion certifying the class. See Florence v. Bd. of Chosen Freeholders, 2008 WL 800970, *1-*5 (D.N.J. March 20, 2008).

On March 3, 2005, Florence was a passenger in his sport utility vehicle, which was being driven by his wife on Interstate Highway 295 in Burlington County. (See Pl.'s Statement of Undisputed Material Facts at ¶ 1.) The vehicle was stopped by a New Jersey State Trooper, who directed Florence to exit the vehicle. (Id. at ¶ 2.) Florence was arrested based on an Essex County bench warrant that was issued on April 25, 2003. (Id.) Florence contends that the warrant charged him with a form of civil contempt that is a non-indictable offense. (Id. at ¶ 3.) In fact, the warrant related to a fine which Florence had already paid. (Id.) Despite Florence's protests about the warrant's validity, he was taken by the State Trooper to the Burlington Jail. (Id. at ¶ 3.)

At the jail, Florence was subjected to what he alleges was a full strip and body cavity search.2 (Id. at ¶ 3.) According to his deposition testimony, an officer directed him to remove all his clothing and, while nude, open his mouth, lift his tongue hold his arms out, turn fully around, and lift his genitals. (Id.) Florence complied with these requests while the officer sat approximately one arm's length in front of him. (Id. at ¶ 4.) The officer then instructed Florence to shower. (Id.) In the end, Florence was held at the Burlington Jail for six days. (Id.)

After the sixth day, the Essex County Sheriff's Department collected Florence and transported him to the Essex Jail. (Id. at ¶ 5.) Upon his arrival, Florence was processed and again subjected to what he alleges was a full strip and body cavity search. (Id.) According to Florence's deposition testimony, Essex Jail officers told him and four other arrestees to enter separate shower stalls, strip all their clothing and shower. (Id. at ¶ 6.) Florence and the other arrestees complied by completely removing their clothes while two officers watched. (Id.) Florence then showered, and was directed to open his mouth and lift his genitals. (Id.) Next, he was ordered to turn around so that he faced away from the officers, after which time he was told to squat and cough, and then turn back around to face front. (Id. at ¶ 7) Following this episode, Florence was placed with the general jail population until the next day when the charges against him were dismissed. (Id.)

B. Evidence in the Record

The following subsections detail the intake procedures at Burlington and Essex, respectively. Although the parties are familiar with this evidence, see Florence, supra, at *1-*5, the Court reincorporates the pertinent details as they relate directly to the instant cross-motions for summary judgment.

1. Burlington Jail's Procedures

Burlington Jail's intake procedures are based on the document—"Policies and Procedures: Search of Inmates—No. Section 1186" (hereinafter "Section 1186"). (See Pl.'s Statement of Undisputed Material Facts at ¶ 8.) Section 1186 defines a strip search as "a physical search of an inmate ... while unclothed consisting of routine and systematic visual observation of the inmate's physical body to look for distinguished identifying marks, scars or deformities, signs of illness, injury or disease and/or the concealment of contraband on the inmate's body." (Id. at ¶ 9.) The document also provides that "[a] person who has been detained or arrested for commission of an offense other than a crime3 ... shall not be subject to a strip-search unless there is a reasonable suspicion that a weapon, controlled dangerous substance or contraband will be found." (Id. at ¶ 10.)

Several Burlington Jail officers and Warden Cole testified in depositions about these procedures. Lieutenant Douglas Chilton has worked for the Burlington Jail since 1997. (Id. at ¶ 12.) He executed a document related to Plaintiff's alleged strip search entitled "Strip Search Authorization Form." (Id.) This form indicates that Plaintiff was not strip searched, per se. (Id.) Lieutenant Chilton testified during his deposition that arrestees who are brought in for non-indictable offenses are subjected to a "visual observation," while those admitted for indictable offenses are strip searched. (Id. at ¶ 13.) He further testified that Plaintiff's Strip Search Authorization Form was marked "not strip searched" because he was admitted for a "failure to appear," which is a non-indictable offense, and which mandates only a visual observation during intake. (Id.)

Officer Haywood Reeder has worked at the Burlington Jail since 1990. (Id. at ¶ 14.) He confirmed that arrestees admitted for non-indictable offenses, such as civil contempt, should not be strip searched. (Id.) Relatedly, he defined a strip search as searching various parts of a nude inmate's body for contraband, scars, marks, or tattoos. (Id. at ¶ 15.) He also testified that all inmates are subjected to a visual observation irrespective of whether they are indictable or non-indictable. (Id. at ¶ 16.) According to Officer Reeder, a visual observation includes: (1) checking a nude arrestee for scars, marks, and tattoos while he strips for a mandatory shower; (2) instructing the nude arrestee on the application of a delousing agent; and (3) instructing the nude arrestee to change into jail clothing following his shower. (Id. at ¶ 17.)

Officer Charles Palmer has worked for the Burlington Jail since 2000. (Id. at ¶ 18.) He also testified that arrestees admitted for non-indictable offenses are subjected to a visual observation. (Id.) Officer Palmer further testified that a visual observation involves taking an inmate into the shower area, having him remove all his clothing, directing him to turn around— while nude—so the officer can look for bruises and distinguishing marks, and then having the inmate take a shower. (Id. at ¶ 19.) According to Officer Palmer, the difference between a visual observation and a strip search is that, with the latter, officers direct arrestees to spread their buttocks and/or lift their genitals. (Id. at ¶ 20.) However, he acknowledged that he has found genital piercings and tattoos during visual observations, (id.), which suggests there is a cursory examination of genitalia during a visual observation.

Officer Sean Gallagher has worked for the Burlington Jail since 1996. (Id. at ¶ 21.) Similar to the other officers, he testified that non-indictable arrestees, such as those arrested for civil contempt, are subjected to a visual observation. (Id.) He further testified that a visual observation entails taking the arrestee to a shower room, having him remove his clothing and turn around while the officer looks at the arrestee's nude body to check for scars, marks, tattoos, and body vermin, before finally instructing the arrestee to shower...

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    ...that suspicionless custodial strip searches of detained arrestees violate the Fourth Amendment. Florence v. Bd. of Chosen Freeholders of Burlington, 595 F.Supp.2d 492, 511-12 (D.N.J.2009); Martinez v. Warner, No. 07-3213, 2008 WL 2331957, at *14-15 (E.D.Pa. June 5, 2008); Newkirk v. Sheers,......
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