Rogers v. Lewis & Clark County, 091520 MTSC, DA 19-0734

Docket Nº:DA 19-0734
Opinion Judge:Ingrid Gustafson Justice
Party Name:WILLIAM SCOTT ROGERS, individually and on behalf of all others similarly situated, Plaintiffs and Appellants, v. LEWIS & CLARK COUNTY, LEWIS & CLARK COUNTY SHERIFF'S OFFICE, LEO C. DUTTON, in his capacity as Lewis & Clark County Sheriff, JASON GRIMMIS, in his capacity as Lewis & Clark County Undersheriff and former Captain for the Lewis & Clark...
Attorney:For Appellants: John Doubek, Jonathan King, Keif Storrar, Doubek, Pyfer & Storrar, PLLP, Helena, Montana For Appellees: Mitchell A. Young, Maureen Lennon, MACo Defense Services, Helena, Montana For Amici: Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Judge Panel:We concur: MIKE McGRATH, LAURIE McKINNON, JAMES JEREMIAH SHEA, DIRK M. SANDEFUR
Case Date:September 15, 2020
Court:Supreme Court of Montana

2020 MT 230

WILLIAM SCOTT ROGERS, individually and on behalf of all others similarly situated, Plaintiffs and Appellants,

v.

LEWIS & CLARK COUNTY, LEWIS & CLARK COUNTY SHERIFF'S OFFICE, LEO C. DUTTON, in his capacity as Lewis & Clark County Sheriff, JASON GRIMMIS, in his capacity as Lewis & Clark County Undersheriff and former Captain for the Lewis & Clark County Detention Center, ALAN HUGHES, in his capacity as Captain for the Lewis & Clark Detention Center, JOHN and JANE DOES 1 through 50, in their capacity as Employees of the Lewis &Clark County Detention Center, Defendants and Appellees.

No. DA 19-0734

Supreme Court of Montana

September 15, 2020

Submitted on Briefs: July 15, 2020

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV-2018-1332 Honorable Mike McMahon, Presiding Judge

For Appellants: John Doubek, Jonathan King, Keif Storrar, Doubek, Pyfer & Storrar, PLLP, Helena, Montana

For Appellees: Mitchell A. Young, Maureen Lennon, MACo Defense Services, Helena, Montana

For Amici: Marty Lambert, Gallatin County Attorney, Bozeman, Montana

OPINION

Ingrid Gustafson Justice

¶1 William Scott Rogers, leading a group of ninety-six named plaintiffs, filed suit against Lewis and Clark County, the Lewis and Clark County Sheriff's Office, and various officials from the sheriff's office in their official capacities (the "Defendants"), challenging the Lewis and Clark County Detention Center ("Detention Center") policy to conduct an unclothed visual body cavity search or "strip search"[1] of every detainee prior to placement in the general population of the facility, regardless whether reasonable suspicion existed that the individual was concealing a weapon or contraband, as a violation of their constitutional rights and § 46-5-105, MCA. The plaintiffs sought certification as a class action. On December 20, 2019, the First Judicial District Court, Lewis and Clark County, issued an order granting the Defendants summary judgment as to ninety-two of the named plaintiffs (the "Plaintiffs"), who were placed into the general population of the facility at some point after they were strip searched and denied the motion as to four plaintiffs who were never placed in the general population of the facility after they were strip searched. The District Court held that in regard to the ninety-two plaintiffs, the strip search policy does not violate Article II, Sections 10 and 11, of the Montana Constitution or § 46-5-105, MCA. The District Court certified the order as a final judgment under M. R. Civ. P. 54(b) and the Plaintiffs appeal.

¶2 Although we conclude the District Court's certification order is not in substantial compliance with the requirements of M. R. App. P 6(6) and our case law interpreting certification under M. R. Civ. P. 54(b), given the unique circumstances of this case, we assume supervisory control over this proceeding to address the following issues:

  1. Whether the Detention Center's policy to strip search a detainee arrested for traffic or non-felony offenses prior to placement in the general population of the facility without a reasonable suspicion to believe that person is concealing a weapon, contraband, or evidence of the commission of a crime violates Article II, Sections 10 and 11, of the Montana Constitution;

2. Whether the Detention Center's policy to strip search a detainee arrested for traffic or non-felony offenses prior to placement in the general population of the facility without reasonable suspicion to believe that person is concealing a weapon, contraband, or evidence of the commission of a crime violates § 46-5-105,

MCA.

¶3 We affirm the District Court in part and reverse in part and remand for further proceedings consistent with this Opinion.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 The Lewis and Clark County Detention Center is the only detention facility in Lewis and Clark County. It houses pretrial detainees charged with both felonies and misdemeanors, individuals sentenced to jail terms, and individuals convicted of felonies and sentenced to the Department of Corrections who have not been moved to a state facility. The Detention Center includes a booking area, holding cells, solitary cells, and a secure area, which includes a library and housing pods with multiple cells per pod. Inmates are frequently housed in areas not designed for long term occupancy, such as the library and holding cells, because the jail population exceeds the designed bed space.

¶5 Unwritten Detention Center policy requires a strip search of any person being placed into the general population of the facility to prevent arrestees from bringing weapons or contraband into the secure housing area of the facility and to identify any wounds, tattoos, or other visible artifacts which might affect individual safe placement. Under the policy, any placement in which two or more inmates have the opportunity for direct physical contact without direct supervision by a detention officer or law enforcement officer is considered a general population placement. Strip searches at the facility are conducted by an officer of the same sex as the inmate. Before conducting the strip search, the officer conducting the search removes his or her body camera and takes the detainee into a private room. The officer instructs the detainee to remove all of his or her clothing while the officer observes. The officer inspects the soles of the inmate's feet, the inmate's armpits, and inside the inmate's mouth. The officer then instructs the inmate to turn around and spread his or her buttocks while in a half prone position, cough while squatting, and, if male, turn and face the officer and lift his genitals, and, if female, to lift her breasts and remove any feminine hygiene products in use. The officer does not physically touch the inmate during the search.

¶6 The Plaintiffs allege they were each arrested for a traffic or non-felony criminal offense and subject to a strip search as part of the booking process at the Detention Center without reasonable suspicion to believe they were in possession of weapons or contraband. They allege the Detention Center's blanket policy to strip search anyone being booked into the general population of the facility violates their constitutional and statutory rights. The Plaintiffs brought seven claims against the Defendants in their amended complaint captioned "Constitutional Violations" (Count I), "Negligence" (Count II), "Negligence Per Se" (Count III), "Negligent Supervision" (Count IV), "Intentional Infliction of Emotional Distress" (Count V), "Negligent Infliction of Emotional Distress" (Count VI), and "Invasion of Privacy" (Count VII). Defendants did not concede the absence of reasonable suspicion to conduct strip searches of the individual Plaintiffs but conceded the Plaintiffs would have been strip searched whether or not reasonable suspicion existed.

¶7 The Plaintiffs filed a motion for partial summary judgment, a motion for class certification, and a class discovery motion. In response, the Defendants filed a motion to dismiss, which the District Court converted into a motion for summary judgment. After a hearing on the motions, the District Court denied Plaintiffs' motion for partial summary judgment, granted summary judgment to the Defendants in regard to the ninety-two Plaintiffs placed in general population, stayed the motions for class certification and class discovery, and certified the order as a final judgment under Mont. R. Civ. P. 54(b).

STANDARD OF REVIEW

¶8 We review de novo a district court's grant or denial of summary judgment, applying the criteria of M. R. Civ. P. 56(c). Deserly v. Dep't of Corr., 2000 MT 42, ¶ 11, 298 Mont. 328, 995 P.2d 972. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admission on file, together with any affidavits, demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c).

DISCUSSION

¶9 Before we can reach and address the merits of the issues in this case, we must first address whether this Court has jurisdiction to consider this appeal. The District Court purported to certify this case under M. R. Civ. P. 54(b) as a final order. The Plaintiffs filed a notice of appeal with this Court acknowledging the appeal was certified under M. R. Civ. P. 54(b) in accordance with M. R. App. P. 4(4). Without waiting for this Court to issue an order allowing the appeal to continue under M. R. App. P. 4(4) and without noticing the Court of the pending issue, the parties proceeded to fully brief the case.

¶10 Parties cannot stipulate certification of an order under M. R. Civ. P. 54(b) was proper and this Court will dismiss cases, even fully briefed cases, improperly brought on appeal under M. R. Civ. P. 54(b). See, e.g., Satterlee v. Lumberman's Mut. Cas. Co., 2007 MT 325, ¶ 11, 340 Mont. 176, 178 P.3d 689; In re Marriage of Armstrong, 2003 MT 277, ¶ 6, 317 Mont. 503, 78 P.3d 1203. Whether the District Court properly certified an order as final under Rule 54(b) is a jurisdictional issue for this Court and cannot be waived. Kohler v. Croonenberghs, 2003 MT 260, ¶¶ 8-9, 317 Mont. 413, 77 P.3d 531; Weinstein v. Univ. of Mont., 271 Mont. 435, 443, 898 P.2d 101, 106 (1995). Thus, this Court must address the issue even when no party raises it. See Satterlee, ¶ 11; In re Marriage of

Armstrong, ¶ 6; Kohler, ¶ 9; Roy v. Neibauer, 188 Mont. 81, 84, 610 P.2d 1185, 1187-88 (1980).

¶11 A district court may direct entry of final judgment under M. R. Civ. P. 54(b) "only upon an express determination that there is no just reason for delay" and, [i]n so doing, the...

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