Rankin v. Colman, 84-706

• Decision Date: 29 August 1985
• Docket Number: No. 84-706,84-706
• Parties: 10 Fla. L. Weekly 2056 Roberta Marion RANKIN, Appellant, v. Melvin G. COLMAN, etc., Appellee.
• Court: Florida District Court of Appeals

Page 234

476 So.2d 234

10 Fla. L. Weekly 2056

Roberta Marion RANKIN, Appellant, v. Melvin G. COLMAN, etc., Appellee.

No. 84-706.

District Court of Appeal of Florida,

Fifth District.

Aug. 29, 1985.

Rehearing Denied Oct. 8, 1985.

Deborah C. Edens of Maher, Overchuck, Langa & Lobb, P.A., Orlando, for appellant.

Steven F. Lengauer of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for appellee.

ORFINGER, Judge.

Appellant, Roberta Rankin, appeals from the final order dismissing her third amended complaint after she declined to plead further. The issue on appeal is whether the complaint stated a cause of action in its claim for damages arising from a strip search which was conducted after appellant's arrest for failure to produce her driver's license. ¹ The trial court had jurisdiction to entertain the suit based on the alleged civil rights violation under 42 U.S.C. § 1983. See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980).

Because we are dealing with the dismissal of a complaint for failure to state a cause of action, we assume all well-pleaded allegations of the complaint to be true. With that in mind, we summarize the facts as alleged. On November 11, 1980, Rankin was on her way home from work when she was stopped for a traffic violation. She was arrested for not having a valid driver's license in her possession, and was taken to the Orange County jail. ² Once at the jail, she was not offered bail nor was she informed that she had a right to bail, but she was placed in a cell and was subjected to a strip search and a body cavity search.

Appellant alleges that the search was conducted without probable cause or reason to believe she had on her person any "contraband, dangerous materials or incriminating objects." She further charges that this type of search was routinely performed on all females, without regard to the gravity of the offense with which they were charged, without probable cause to believe they had any contraband on their person, and such searches were authorized by defendant Colman, the sheriff, as part of the policy and procedure of his office. It was further alleged that such policy was in violation of appellant's rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States and that the sheriff knew, or in the exercise of reasonable care, should have known that such policy and procedure was in violation of existing Federal law. We hold the third amended complaint stated a cause of action under 42 U.S.C. § 1983, and that the order of dismissal was erroneous.

42 U.S.C. § 1983 provides in pertinent part Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, 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 adequately state a cause of action under this statute, the plaintiff must allege only that a person acting under color of state law deprived him of rights protected by the United States Constitution or federal statutes. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Complaints alleging violations of civil rights should not be dismissed unless it appears clearly that the plaintiff is entitled to no relief under any state of facts which could be proved in support of his claim. Cruz v. Cardwell, 486 F.2d 550 (8th Cir.1973). This court must consider as true the allegations made in the complaint in considering the correctness of the trial court's order on the motion to dismiss. Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163, 170 (1980); Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983); review denied, 447 So.2d 887 (Fla.1984). The complaint must contain ultimate facts supporting each element of the cause of action. Clark v. Boeing Co., 395 So.2d 1226 (Fla.3d DCA 1981).

Liability under § 1983 cannot be predicated on the respondeat superior theory. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Lozano v. Smith, 718 F.2d 756 (5th Cir.1983) the court stated:

To be liable under section 1983, a sheriff must be either personally involved in the acts causing the deprivation of a person's constitutional rights, or there must be a causal connection between an act of the sheriff and the constitutional violation sought to be redressed. Douthit v. Jones, 641 F.2d 345, 346 (5th Cir.1981). A causal connection may be established, for section 1983 purposes, where the constitutional deprivation and practices occur as a result of the implementation of the sheriff's affirmative wrongful policies by his subordinates, Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir.1980), or where the sheriff wrongfully breaches an affirmative duty specially imposed upon him by state law, and as a result thereof, the complained of constitutional tort occurs. Barksdale v. King, 699 F.2d 744, 746 (5th Cir.1983). Douthit, 641 F.2d at 346; Sims v. Adams, 537 F.2d 829, 831 (5th Cir.1976).

Id. at 768.

The complaint sub judice alleged that Colman had instituted the strip search policy, and that pursuant to this policy, Rankin was forced to undergo the strip search procedure even though there was no reason to believe she had concealed contraband or weapons. The complaint alleged that the policy, practice and procedure of conducting strip searches was done with the approval, authorization, ratification and consent of Colman. The complaint further alleged that the policy and practice of the strip search violated the federal common law under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution; that Colman knew or should have known in the exercise of reasonable care that the practice and policy of strip searches and the failure to provide Rankin with incarceration separate from other prisoners until bail could be arranged violated federal common law and the United States Constitution under Amendments Four, Five, Eight, Nine, and Fourteen. It was further alleged that Colman, as Sheriff of Orange County, had the duty to command, regulate and control the actions of officers, agents and employees under his supervision to prevent those persons from depriving females in custody of their constitutional rights and that Colman failed to discharge that duty by failing to exercise adequate supervision over the subordinates, failing to provide or enforce lawful and proper procedures, and by failing to establish a program whereby an arrestee who has the right to bail will be offered that opportunity to post bail before undergoing a strip search.

Section 1983 imposes liability upon a superior officer when that officer or official, under color of official policy, causes an employee of the official to violate a person's constitutional rights. Monell, supra. In Smith v. Jordan, 527 F.Supp. 167 (S.D.Ohio 1981) the plaintiff initiated a 1983 action against the officer who conducted a strip search of her pursuant to her arrest on the charge of passing bad checks. The plaintiff alleged a violation of her Fourth, Fifth, Sixth and Fourteenth Amendment rights. The plaintiff was told by the officer doing the search that it was standard procedure. The court held that the plaintiff's allegation that strip searches were "standard procedure" at the jail may form part of a "custom or usage" or an "official policy" and therefore could form a basis for the sheriff's liability pursuant to section 1983.

The complaint here alleges that the strip search was conducted as a result of policies and procedures implemented by Sheriff Colman, and this allegation is assumed to be true. Colman argues, however, that no violation of constitutional rights occurred because the United States Supreme Court approved the use of strip searches in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), but he reads too much into that case. Wolfish involved pretrial detainees who were required to submit to body cavity searches conducted after every contact visit with a person from outside the institution. Prison officials contended that these searches were necessary to discover contraband (weapons and drugs) and to deter future smuggling. The District Court imposed a probable cause standard, holding that while strip searches were permissible, body cavity searches were not unless officials had probable cause to believe the inmate had concealed contraband in his person. The United States District Court of Appeals for the Second Circuit affirmed. The Supreme Court addressed the issue of whether "visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause." Id. at 560, 99 S.Ct. at 1885. The Court noted that the Fourth Amendment prohibits only unreasonable searches and held that under the circumstances of the case the searches were not unreasonable. In so holding the Court set forth the following test:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. [Citations omitted].

441 U.S. at 559, 99 S.Ct. at 1884. Applying this test, the Court considered the detention facility as "a unique place fraught with serious security dangers" and weighed that factor against the degree of invasion of privacy of the inmates. Balancing those factors the Court concluded that the...