Smith v. Montgomery County, Md., Civ. A. No. J-82-1323.

• Decision Date: 13 September 1982
• Docket Number: Civ. A. No. J-82-1323.
• Citation: 547 F. Supp. 592
• Parties: Vivian Anderson SMITH, Plaintiff, v. MONTGOMERY COUNTY, MARYLAND, et al., Defendants.
• Court: U.S. District Court — District of Maryland

547 F. Supp. 592

Vivian Anderson SMITH, Plaintiff, v. MONTGOMERY COUNTY, MARYLAND, et al., Defendants.

Civ. A. No. J-82-1323.

United States District Court, D. Maryland.

September 13, 1982.

Clausen Ely, Jr., Donna M. Murasky, Ellen J. Flannery, Covington & Burling, Washington, D.C., Robert H. Symonds, Lanham, Md., for plaintiff; Arthur B. Spitzer, Elizabeth Symonds, American Civil Liberties Union Fund of the Nat. Capital Area, Washington, D.C., Edward L. Genn, Rockville, Md., of counsel.

Robert G. Tobin, Jr. Deputy County Atty., Suzanne Levin, Carole A. Jeffries, Jennifer Evans, Asst. County Attys., Rockville, Md., for defendants.

MEMORANDUM AND ORDER

SHIRLEY B. JONES, District Judge.

Vivian Anderson Smith brought this action against Montgomery County and several individual defendants,¹ on behalf of herself and similarly situated persons, seeking declaratory and injunctive relief and damages. She challenges the practice of performing nonprivate, visual strip searches on persons detained temporarily² at the Montgomery County Detention Center, absent probable cause to believe these detainees possess weapons or contraband. She does not challenge the county's right to perform a less intrusive search of all persons detained at the center, nor does she challenge its right to perform a visual strip search when there is probable cause to believe a temporary detainee has concealed a weapon or contraband on his or her person. She does, however, seek to have even visual strip searches based on probable cause performed in private.

Plaintiff moved for a preliminary injunction, asking that temporary detainees not be subjected to visual strip search except upon probable cause and that such searches be conducted in private. Memoranda, affidavits, and a stipulation of facts were filed, and testimony was taken and oral argument was heard on July 13, 1982. Although there is little factual dispute on the issues material to the motion, this opinion constitutes my findings of fact and conclusions of law.

The Search of Vivian Anderson Smith

Vivian Smith was arrested³ at her home at about 10:00 p. m. on November 12, 1981 for contempt of court, in failing to appear in the Circuit Court for Montgomery County on October 28, 1981 in connection with a child support action originating in Essex County, New Jersey.⁴ She was taken to the Rockville District police station, where she was photographed and an arrest report was filed. She was then taken, at about 11:40 p. m., to the Montgomery County Detention Center (MCDC), where she remained overnight. The next day she was transported to the Circuit Court for Montgomery County and, after some delay, appeared before a judge, who dismissed the charge against her.

Upon arrival at the detention center, plaintiff was taken to the women's receiving and discharge area, an open room approximately 15 feet by 20 feet containing a shower, desk and one cell normally used as a holding cell. She was ordered to, and did, remove all her clothing. She then had to move her arms, open her mouth, bend over and squat, while a female correctional officer conducted a visual inspection of her body, including her oral, vaginal and anal cavities. This search took place in the presence of another female detainee, who was in the cell in the room. No weapon or contraband was found. Ms. Smith then showered and was placed in the holding cell with the other female detainee overnight.

The Detention Center and the Strip Search Policy

All persons⁵ held or detained in the MCDC undergo the same preliminary procedures. They are made to remove their clothing, which is checked for weapons and contraband, and their body cavities — mouth, nose, ears, anus, and genital area — are visually inspected. Areas such as the soles of the feet, armpits and hair are also inspected. The guard performing the search does not normally touch the detainee in the inspection.

According to Gary Blake, Montgomery County Director of Correction and Rehabilitation, strip searches are normally performed in private, although the MCDC written policy does not state that they must or should be. If there is insufficient space in other women's areas, a female detainee may be housed in the holding cell in the women's reception area. Screens are available to give some privacy, but Blake conceded that they may not always be used and agreed that it would probably be a good idea to state the privacy requirement in the MCDC written policy.

The strip search is part of initial proceeding of all MCDC detainees, temporary or permanent. All are taken first to a receiving area. In the case of females, this is the receiving room previously described. After processing, newly arrived females who have not yet appeared before a judge are placed in one of three individual cells in the women's wing used for this purpose. Stipulation ¶ 20. After a short period in this area, they are assigned to the dormitory area of the women's wing or to an individual cell. Normally, females are assigned to the dormitory area.

Men proceed first to a receiving area, where new arrivals are processed and searched, then to an intake dormitory area containing 20 beds, where they usually remain for 24 to 72 hours until they are classified for placement in the general population. They are then assigned to a cell-block.

The MCDC houses convicted offenders sentenced to less than 18 months' imprisonment, see Md.Ann.Code art. 27, § 605 (1982), convicted offenders awaiting sentence, pretrial detainees⁶ and temporary detainees such as plaintiff.⁷ The strip search policy applies to all detainees, regardless of whether there is probable cause to believe they may be concealing weapons or contraband, regardless of where they are housed and regardless of whether they are being held overnight pending a court appearance the next day or for a longer period.

Legal Discussion

Defendants contended at oral argument that plaintiff's claim for injunctive relief is moot. Smith was subjected to the strip search policy once and, except in the unlikely event she might again be a temporary detainee at MCDC, will not be subjected to it again. Her claim for damages has not been mooted, however, and the claim for injunctive relief presents an archetypical situation for application of the "capable of repetition, yet evading review" doctrine. See, e.g., Bell v. Wolfish, 441 U.S. 520, 526 n.5, 99 S.Ct. 1861, 1867 n.5, 60 L.Ed.2d 447 (1979). The policy continues to be applied to temporary detainees, however, and it is impossible for the policy to be applied continuously to any individual temporary detainee, who is by definition only in the MCDC for a very short period of time and perhaps only subjected to strip search once. Class relief has been requested, but this Court has not yet had the opportunity to rule on the class certification motion. There is certainly an Article III case or controversy between the class members and the defendants who are continuing to apply the strip search policy.

Injunctive relief concerning a general policy is not barred because a class action is not certified. Evans v. Harnett County Bd. of Education, 684 F.2d 304, 306 (4th Cir. 1982); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978). Preliminary injunctive relief has been granted in sufficiently compelling cases. Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960) (per curiam); see Tinetti v. Wittke, 479 F.Supp. 486, 488 (E.D.Wis. 1979), aff'd, 620 F.2d 160 (7th Cir. 1980) (per curiam).

The customary standard for deciding whether to issue preliminary injunctive relief is a balancing of hardships test, involving four factors: (1) the likelihood of irreparable harm to plaintiff without the injunction, (2) the likelihood of harm to defendant with the injunction, (3) plaintiff's likelihood of success on the merits and (4) the public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). The first step in analyzing the factors is to weigh the respective harm to the parties. Telvest, Inc. v. Bradshaw, 618 F.2d 1029, 1032-33 (4th Cir. 1980). If the potential harm to plaintiff greatly outweighs the harm to the defendant, plaintiff need not show a likelihood of success on the merits, only a serious question. Wetzel v. Edwards, 635 F.2d 283, 287 (4th Cir. 1980); Telvest, 618 F.2d at 1032-33. As the harm to the plaintiff, compared with that to defendant decreases, the likelihood of success becomes increasingly important. Id. at 1033.

The United States Court of Appeals for the Fourth Circuit has held that a district court "has no discretion to deny relief by preliminary injunction to a person who clearly establishes by undisputed evidence that he is being denied a constitutional right." Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960) (per curiam). Henry was a black civilian employee of the Air Force who was required to sit in a segregated waiting area in the Greenville, South Carolina airport. He had sued on behalf of himself and similarly situated persons to enjoin the practice. The trial court denied a preliminary injunction on the grounds that plaintiff had failed to show irreparable harm to himself and that the injunction would change the status quo. The Fourth Circuit reversed.

Henry is not inconsistent with later Fourth Circuit cases analyzing the standards for granting injunctive relief. Henry may simply represent the end of the balance that the Court described in Telvest, when it said that as the likelihood of harm to the plaintiff decreases, the likelihood of success becomes increasingly important. Denial of a constitutional right continued, and Henry had demonstrated certainty of success.

Although Smith herself will presumably suffer no further harm from the strip search policy, other plaintiffs whom she seeks to represent will be harmed as it continues in the future. Violation of constitutional rights may constitute sufficient...