Shain v. Ellison

• Decision Date: 01 August 2000
• Docket Number: DEFENDANT-CROSS-APPELLEE,Docket Nos. 00-7061,DEFENDANTS-APPELLANTS-CROSS-APPELLEES,PLAINTIFF-APPELLEE-CROSS-APPELLANT
• Citation: 273 F.3d 56
• Parties: (2nd Cir. 2001) RAY E. SHAIN,, v. JOHN ELLISON, (SHIELD NO. 761), INDIVIDUALLY AND AS A NASSAU COUNTY POLICE OFFICER; JOHN DOE, INDIVIDUALLY AND AS AN ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY; THE COUNTY OF NASSAU, A MUNICIPAL CORPORATION; JOSEPH JABLONSKY,, JAMES H. MADDEN, INDIVIDUALLY AND AS A JUDGE OF NASSAU COUNTY,(L), 00-7069 (XAP)
• Court: U.S. Court of Appeals — Second Circuit

Page 56

273 F.3d 56 (2nd Cir. 2001)

RAY E. SHAIN, PLAINTIFF-APPELLEE-CROSS-APPELLANT, v.JOHN ELLISON, (SHIELD NO. 761), INDIVIDUALLY AND AS A NASSAU COUNTY POLICE OFFICER; JOHN DOE, INDIVIDUALLY AND AS AN ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY; THE COUNTY OF NASSAU, A MUNICIPAL CORPORATION; JOSEPH JABLONSKY, DEFENDANTS-APPELLANTS-CROSS-APPELLEES,JAMES H. MADDEN, INDIVIDUALLY AND AS A JUDGE OF NASSAU COUNTY, DEFENDANT-CROSS-APPELLEE.

Docket Nos. 00-7061 (L), 00-7069 (XAP)

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 19, 2000

Decided: October 19, 2001

[Copyrighted Material Omitted]

Robert L. Herbst, Herbst & Greenwald, Llp (Gayle Pollack, on the brief), New York, Ny; Ray E. Shain, pro se, Williston Park, Ny, for Plaintiff-Appellee-Cross-Appellant.

Paul F. Millus, Snitow & Cunningham, Llp (Robert P. Devlin, on the brief), New York, Ny, for Defendants-Apellants-Cross-Appellees County of Nassau and Joseph Jablonsky.

Carol Fischer, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Robert E. Forte, Deputy Solicitor General, and Michael S. Belohlavek, Assistant Solicitor General, on the brief), New York, Ny, for Cross-Appellee Judge James H. Madden.

Herbst & Greenwald, Llp (Robert L. Herbst and Gayle Pollack of counsel), New York, Ny, for Amici CuriaePutative Class Members in Augustin v. Jablonsky.

Emery Cuti Brinckerhoff & Abady PC (Richard D. Emery, Matthew D. Brinckerhoff, John R. Cuti, and Nina Morrison, of counsel), New York, NY for Amici Curiae65,000 Class Members in Tyson v. City of New York and Plaintiffsin O'Day v. Nassau County.

Daniel L. Greenberg, Sarah Kerr, John Boston, Laura Johnson, New York, Ny, for Amicus Curiae Legal Aid Society.

Michael D. Hess, CorporationCounsel of the City of New York(Larry A. Sonnenshein and Kathleen Alberton of counsel), New York, Ny, for Amicus Curiae New York City Department of Correction.

Before: Cabranes, Pooler, Katzmann, Circuit Judges.

Judge Katzmann concurs in a separate opinion; Judge Cabranes dissents in part in a separate opinion.

Pooler, Circuit Judge

This appeal requires us to determine whether it was clearly established in July 1995 that corrections officers in a local correctional facility could not perform a strip search including a non- intrusive examination of body cavities on an individual arraigned on misdemeanor charges unless the officers had reasonable suspicion that the individual possessed contraband or weapons.We hold that after this court's decisions in Wachtler v. County of Herkimer, 35 F.3d 77(2d Cir.1994), Walsh v. Franco, 849 F.2d 66(2d Cir.1988), andWeber v. Dell, 804 F.2d 796(2d Cir.1986), no law enforcement officer reasonably could have believed that it was permissible to perform such a search absent individualized reasonable suspicion.

BACKGROUND

I. Shain's Arrest and Strip Search

On July 29, 1995, Nassau County police officers including Peter Ellison¹ responded to a 911 call from Dr. Donna Denier, who was then married to plaintiffRay Shain, at the couple's residence.Denier showed Ellison a recently expired order of protection that required Shain to stay out of her bedroom.When Ellison realized that he could not arrest Shain for violation of the order of protection, he interviewed Denier because

[He] wanted to get a clearer picture of exactly what [Shain] did, to see if [he] could arrest him, if there was another charge that [he] could arrest him on besides the order of protection [and after the interview, he] determined that [he] could arrest him minus the order of protection, without it.

Ellison testified that Denier told him Shain entered her room and threatened to rape her and that Ellison then believed he had probable cause to arrest Shain.In his police report, Ellison said:

COMP REPORTS AT TIME AND PLACE OF OCCURRENCE LAYING IN HER BED READING WHEN HER HUSBAND ENTERED ROOM.SHE TOLD HIM SEVERAL TIMES TO LEAVE AND HE STATED AGAIN, "I'M GOING TO FUCK YOU".SHE TOLD HIM TO LEAVE AGAIN AND FEARING FOR HER SAFETY SHE LEFT THE ROOM AND CALLED THE POLICE

Denier gave a more expansive account of her conversation with Ellison, claiming that she also told him that Shain previously had threatened her and been out of control and that he had thrown a table at her and swung a lamp at her on prior occasions.

Ellison testified that when he arrested Shain for first degree harassment, a Class B misdemeanor, Shain acted in an agitated manner.Shain himself admitted that he did not turn over a pocket knife when he was asked to empty his pockets.After retrieving the pocket knife, Ellison transported Shain to the police station and "rear-cuffed" him to a manacle in a holding cell.Despite Shain's complaints that he had undergone a spinal fusion as an adolescent and was in severe pain, Ellison refused to take the cuffs off or to front cuff Shain.Ultimately, Ellison and another officer took Shain to the Nassau County Medical Center where a doctor who examined him reported that Shain was experiencing muscle spasms and lumbar sprain and ordered that he not be cuffed behind his back.Ellison spent the balance of the night at the central police station.

The next day, Shain appeared before Judge James H. Madden, a District Court judge sitting as a Family Court judge, who arraigned Shain on Denier's family offense petition.Without holding a hearing, Judge Madden remanded Shain to Nassau County Correctional Center("NCCC") without bond.

Upon Shain's arrival at NCCC, Officer James Dantunono directed him to remove all his clothes and submit to a visual body cavity search.Dantunono looked in Shain's ears, his mouth, his hair and under his arms, and then made him turn around, bend over and spread his buttocks apart with his hands to facilitate a visual inspection of his rectum.Dantunono also directed Shain to hold up his external genitalia for inspection.Shain was again strip searched the next morning before he left to appear in Family Court.When Shain appeared in court, Family Court Judge Norman Feiden released him and allowed him to return to his home.Denier withdrew the Family Court petition on August 7, 1995.However, on or about August 28 1995, the Nassau County District Attorney's Office filed harassment charges against Shain pursuant to N.Y. Penal Law § 240.26.Subsequently, these charges were dismissed pursuant to an adjournment in contemplation of dismissal.

II.NCCC's Strip Search Policy

Although NCCC claims that it does not subject individuals charged with misdemeanors and minor offenses to a strip search unless it has reasonable suspicion that the arrestees are concealing contraband or they have been remanded to NCCC's custody by a court, the written policies governing strip searches require corrections officers to strip search each newly admitted inmate.In addition, all of the corrections officials who testified conceded that all newly admitted inmates were strip searched regardless of whether they were judicially remanded.Thus, while arrestees held briefly in holding cells may not have been strip-searched, all arrestees admitted to the jail were.

III.District Court Proceedings

Shain filed his lawsuit in the Eastern District of New York on July 29, 1996.In a second amended complaint dated July 7, 1997, Shain named Ellison; Judge Madden; "John Doe," an assistant district attorney; Joseph Jablonsky, the Sheriff of Nassau County; the County of Nassau and various anonymous corrections officers as defendants and requested damages for false arrest and imprisonment, malicious prosecution, abuse of process, the unconstitutional search of his person, assault and battery, and negligent and intentional infliction of emotional distress.He also sought a declaration that New York State Family Court Act§ 155(2), which allowed his overnight incarceration without bail, and NCCC's strip search policy were unconstitutional and an injunction against their enforcement.

On April 16, 1997, by stipulation and order, the district court dismissed all claims against Judge Madden, leaving him as a defendant in name only to permit Shain to continue his challenge to Section 155(2).On January 9, 1998, the district court sua sponte dismissed Judge Madden as a defendant, finding that "[p]laintiff may not discontinue all claims against Judge Madden yet proceed to use him as a straw man to secure what is, in essence, an advisory opinion as to the constitutionality of § 155(2) of the Act."

On December 31, 1998, defendants moved for summary judgment on all of Shain's claims.Shain cross-moved for partial summary judgment establishing the unconstitutionality of NCCC's strip search policy.In an oral decision, Judge Wexler granted defendants' motion to dismiss Shain's false arrest, malicious prosecution, and abuse of process claims but reserved the excessive force and strip search claims for trial.In a published opinion dated June 1, 1999, Judge Wexler granted Shain partial summary judgment establishing that the strip search policy was unconstitutional and that Jablonsky was not entitled to qualified immunity.SeeShain v. Ellison, 53 F. Supp. 2d 564(E.D.N.Y.1999).More specifically, the court stated:

The policy of strip searching all misdemeanor and minor offense arrestees remanded to the NCCC, without requiring any suspicion that the remanded individual is concealing weapons or other contraband, violates the Fourth Amendment to the United States Constitution.

Id. at 568.The court noted that NCCC presented evidence of security problems that might be triggered by an order prohibiting it from strip searching all arrestees entering the facility but believed itself prohibited from considering this evidence by Weber v. Dell, 804 F.2d 796(2d Cir.1986)andWalsh v. Franco, 849 F.2d 66(2d Cir.1988).Seeid. at 567-68.

A jury heard Shain's excessive force claim and evidence related to damages on the strip search claim.It rejected the...