Johnson v. Gov't of the Dist. of Columbia

• Citation: 734 F.3d 1194
• Decision Date: 15 November 2013
• Docket Number: No. 11–5115.,11–5115.
• Parties: Dianna JOHNSON, et al., Appellees Rubbiya Muhammed, et al., Appellants v. GOVERNMENT OF the DISTRICT OF COLUMBIA and Todd Dillard, Individually and Officially, United States Marshal, D.C. Superior Court, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

734 F.3d 1194

Dianna JOHNSON, et al., Appellees
Rubbiya Muhammed, et al., Appellants
v.
GOVERNMENT OF the DISTRICT OF COLUMBIA and Todd Dillard, Individually and Officially, United States Marshal, D.C. Superior Court, Appellees.

No. 11–5115.

United States Court of Appeals,
District of Columbia Circuit.

Argued Sept. 13, 2013.
Decided Nov. 15, 2013.

[734 F.3d 1196]

William Charles Cole Claiborne III argued the cause for appellants. With him on the briefs were Barrett S. Litt and Paul J. Estuar. Lynn E. Cunningham entered an appearance.

Robin M. Meriweather, Assistant U.S. Attorney, argued the cause for appellee Todd Dillard. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence and W. Mark Nebeker, Assistant U.S. Attorneys.

Stacy L. Anderson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee District of Columbia. With her on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General. Louis A. Kleiman entered an appearance.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

[734 F.3d 1197]

Opinion concurring in part and concurring in the judgment filed by Circuit Judge ROGERS.

TATEL, Circuit Judge:

Concerned that contraband poses significant dangers to inmates and employees, many penal institutions strip search incoming detainees. The appropriateness of these invasive procedures doubtless looks different from the perspective of detainees such as Appellants—women forced to endure strip searches while awaiting presentment hearings at the District of Columbia Superior Court. Alleging that such searches violate the Fourth Amendment and, where men are not similarly strip searched, the Fifth Amendment's equal protection guarantee, these women filed this class action against the District of Columbia and the former United States Marshal for the Superior Court who administered the Superior Court cellblock. Because men and women at the cellblock are now strip searched only upon individualized reasonable suspicion, we have no occasion to consider whether the policies under which class members were strip searched may continue. Rather, the only question in this case is whether class members can recover damages from the District or from the former Superior Court Marshal. The district court granted summary judgment to the District, concluding that because the Superior Court Marshal in charge of the cellblock was at all times a federal official acting under color of federal law, the city had no authority to prevent the strip searches. The district court also granted summary judgment to the Superior Court Marshal, finding him entitled to qualified immunity. We affirm both rulings.

I.

Under the Anti–Drug Abuse Act of 1988, Pub.L. No. 100–690, tit. VII, § 7608(a)(1), 102 Stat. 4181, 4512–15 (1988) (codified at 28 U.S.C. §§ 561–569), two United States Marshals serve the District of Columbia. The first, the U.S. Marshal for the District of Columbia, serves the U.S. District Court and this Court. 28 U.S.C. § 566(b). The second, the U.S. Marshal for the District of Columbia Superior Court, serves that court only. 28 U.S.C. § 561(c). During the time of the events at issue in this case, Appellee, Todd Dillard, served as Superior Court Marshal.

Sometime in the mid- to late–1990s, Dillard, concerned that detainees were bringing weapons, drugs, and other contraband into the cellblock, began requiring all incoming detainees to undergo a three-step search. Detainees first passed through metal detectors; they were then patted down by deputy marshals; and, finally, they were required to remove their clothing, squat, and cough to dislodge any hidden contraband. The parties refer to these “drop, squat, and cough” searches as strip searches. Given that “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), we infer from the evidence presented that despite Dillard's facially gender-neutral policy, deputy marshals in fact subjected male detainees to strip searches only upon individualized reasonable suspicion. By contrast, all women were forced to drop, squat, and cough. This included female pre-presentment arrestees charged with nonviolent, non-drug offenses. After completing the three-step search process, female pre-presentment arrestees proceeded to interview rooms outside presentment courtrooms. Roughly eighty percent of female arrestees were released following these hearings.

In 2002, a class of women detained and strip searched at the Superior Court cellblock

[734 F.3d 1198]

filed this suit seeking damages and injunctive relief. After the United States Marshals Service halted strip searches without individualized reasonable suspicion, class members abandoned their claims for injunctive relief and filed an amended complaint in which they sought only monetary relief from the District of Columbia and Dillard, whom they sued in his personal and professional capacities. The District and Dillard separately moved to dismiss the complaint for failing to state any claims upon which relief could be granted. The district court denied both motions and certified two classes: a Fourth Amendment Class and a Fifth Amendment Class. The Fifth Amendment Class includes all female pre-presentment arrestees held at the Superior Court cellblock between December 2, 1999 and April 25, 2003 and subjected to strip searches “under similar circumstances for which men arrestees were not.” See Johnson v. District of Columbia, 584 F.Supp.2d 83, 86 (D.D.C.2008). The Fourth Amendment Class includes all female pre-presentment arrestees who, during the same time period, were strip searched without individualized reasonable suspicion or probable cause and who were arrested for non-drug, non-violent offenses. See id.

Following class certification, the district court entered summary judgment in favor of the District. Believing that the Superior Court Marshal is a federal official who acted at all times under color of federal law, and that the District therefore had no choice but to turn pre-presentment arrestees over to the Marshal, the court concluded that the District could not be held liable for any unconstitutional acts of the Marshal. Id. at 90–93.

After further discovery, the district court orally granted Dillard summary judgment on all claims against him in his professional capacity, finding that his status as a federal official left him beyond the reach of 42 U.S.C. § 1983. See Johnson v. District of Columbia, 780 F.Supp.2d 62, 68 (D.D.C.2011) (describing this holding). Several months later, the district court, finding Dillard entitled to qualified immunity, granted him summary judgment on all claims against him in his personal capacity. As for the claims of Fourth Amendment Class members, the district court, relying on our recent decision in Bame v. Dillard, 637 F.3d 380 (D.C.Cir.2011), where we rejected similar Fourth Amendment claims brought by male detainees against the very same Marshal Dillard, see id. at 382, concluded that any Fourth Amendment rights Dillard might have violated were insufficiently clearly established at the time of the violation. Johnson, 780 F.Supp.2d at 73–75. As for the claims of Fifth Amendment Class members, the court, relying on Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), found no Equal Protection violation because nothing in the record indicated that Dillard intended to treat women differently from men. Johnson, at 780 F.Supp.2d at 79–81.

On appeal, class members press their claims against the District and Dillard, but only in his personal capacity. We review the district court's grants of summary judgment de novo, viewing the evidence in the light most favorable to class members. See, e.g., Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). We first consider whether class members may hold the District liable for Dillard's conduct. Then, taking the Fourth and Fifth Amendment claims separately, we consider whether Dillard is entitled to qualified immunity.

II.

Members of both the Fourth and Fifth Amendment Classes seek to hold the District of Columbia liable under 42 U.S.C. § 1983 for the Superior Court Marshal's

[734 F.3d 1199]

conduct. As the Supreme Court explained in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipalities can be held liable under section 1983 only “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694, 98 S.Ct. 2018. Conceding that no express District policy gave rise to their injuries, class members offer two theories—the “organic theory” and the “entrustment theory”—to explain how the District might nonetheless be liable under section 1983 for Dillard's conduct.

Organic Theory

According to this theory, the Superior Court Marshal's Office is “part of the organic government of the District of Columbia just as much as the Mayor, City Council and Superior Court.” Appellants' Br. 44 (emphasis omitted). Claiming that the Superior Court is best understood as a state court, not a federal court, class members argue that the Superior Court Marshal derives his authority from “the inherent powers of the Superior Court.” Appellants' Br. 50. Insofar as the Superior Court Marshal “handles pre-presentment arrestees ... as the policy maker for the District, by delegation from the policymaker, or pursuant to a widespread custom or practice in which the District of Columbia acquiesced,” Appellants' Br. 44, class members urge us to find the District liable under section 1983 for any unconstitutional acts of the Marshal.

But we agree with the district...