Smith v. Montgomery County, Md.

• Decision Date: 26 October 1983
• Docket Number: Civ. No. Y-82-1323.
• Citation: 573 F. Supp. 604
• Parties: Vivian Anderson SMITH v. MONTGOMERY COUNTY, MARYLAND, et al.
• Court: U.S. District Court — District of Maryland

573 F. Supp. 604

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

Civ. No. Y-82-1323.

United States District Court, D. Maryland.

October 26, 1983.

COPYRIGHT MATERIAL OMITTED

Robert H. Symonds, Lanham, Md., and Ellen J. Flannery, Washington, D.C., for plaintiff; Arthur B. Spitzer, Elizabeth Symonds, Washington, D.C., and Edward L. Genn, Rockville, Md., of counsel.

Robert G. Tobin, Jr., Rockville, Md., for defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH H. YOUNG, District Judge.

Plaintiff Vivian Smith brought this suit pursuant to 42 U.S.C. § 1983 on behalf of herself and as a purported representative of two classes of similarly situated persons alleging that the Montgomery County Detention Center's policy of indiscriminately strip searching all persons detained at the Center violates the Fourth Amendment. Plaintiff and the classes she purports to represent seek declaratory and injunctive relief and damages. Named as defendants are Paul McGuckian, County Attorney of Montgomery County; Charles Gilchrist, County Executive of Montgomery County; Gary Blake, Director of the Department of Correction and Rehabilitation of Montgomery County; Jane Doe,¹ a guard at the Center who conducted a strip search of plaintiff; and Montgomery County.² All the individual defendants are being sued in both their individual and official capacities.

This case was previously assigned to Judge Jones of this District. In a Memorandum and Order dated September 17, 1982, Judge Jones summarized the relevant facts:

Vivian Smith was arrested 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. 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....

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.

All persons 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.... 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.

Smith v. Montgomery County, 547 F.Supp. 592, 593-95 (D.Md.1982) (captions and footnotes omitted). In the same Memorandum and Order, Judge Jones granted plaintiff's motion for a preliminary injunction. The preliminary injunction states:

That defendants are enjoined, during the pendency of this litigation, from permitting, promulgating a policy permitting, and enforcing the present policy permitting, a visual strip search of a temporary detainee at the Montgomery County Detention Center, as defined herein, except upon probable cause to believe such detainee has weapons or contraband concealed on his or her person. Defendants are likewise enjoined from permitting, promulgating a policy permitting, and enforcing the present policy to the extent that it permits the conducting of visual searches other than in private.

By letter dated August 3, 1983, this Court advised counsel that marginal orders had been entered: 1) denying plaintiff's motion for partial summary judgment; 2) dissolving the preliminary injunction; 3) declaring plaintiff's motion for compliance with the preliminary injunction moot; 4) granting in part and denying in part defendant McGuckian's motion to dismiss and alternative motion for summary judgment; 5) denying defendants' motion to dismiss and alternative motion for summary judgment; and 6) granting plaintiff's second motion for order compelling discovery.³ This Memorandum and Order sets forth the reasons for these marginal orders and resolves the motion for class certification.

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

In her motion for partial summary judgment, plaintiff seeks a declaration that the Center's strip search policy is unconstitutional and an order permanently enjoining defendants from strip searching short-term detainees absent probable cause to believe that they are concealing weapons or contraband and from strip searching short-term detainees other than in private. Because, as discussed below, plaintiff lacks standing to seek either declaratory or injunctive relief, this motion must be denied.

To invoke the jurisdiction of a federal court, a plaintiff must satisfy the threshold requirement of an actual "case or controversy" imposed by Article III of the Constitution. Los Angeles v. Lyons, ___ U.S. ___, ___, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983); Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-1953, 20 L.Ed.2d 947. In order to satisfy the case or controversy requirement, a plaintiff must demonstrate "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends..." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In a series of recent cases the Supreme Court has elaborated on the requisite personal stake required to assert a claim for injunctive relief. Lyons, supra; Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). "The plaintiff must show that he `has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.'" Lyons, ___ U.S. at ___, 103 S.Ct. at 1665 (emphasis added). In Lyons, the Court reaffirmed the statement previously made in both Rizzo and O'Shea that "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." ___ U.S. at ___, 103 S.Ct. at 1665. The Lyons Court defined "continuing, present adverse effects" as a "real and immediate threat of repeated injury..." Id. Moreover, "speculation is insufficient to establish the existence of a present live controversy." ___ U.S. at ___, 103 S.Ct. at 1666. Standing to seek injunctive relief, therefore, depends on whether plaintiff is likely to suffer future injury as a result of the conduct sought to be enjoined.

Based on these principles, the Court in Lyons held that a plaintiff who had sustained injury as a result of a chokehold applied by a police officer did not have standing to enjoin the use of chokeholds despite the fact that he had standing to sue for damages. The Court stated that because the plaintiff did not credibly allege that there was a real and immediate threat that he would be the victim of another chokehold, the plaintiff could not sue to enjoin the use of chokeholds. Lyons compels the conclusion that plaintiff in the case at bar lacks standing to seek injunctive relief against the Center's strip search policy. Plaintiff does not allege, nor could she credibly allege, that she will be arrested in the future and strip searched without probable cause to believe she is carrying weapons or contraband.

Plaintiff contends that the instant case is distinguishable from Lyons on the ground that the plaintiff in Lyons, unlike the plaintiff in the instant case, sought to enjoin conduct which was not officially authorized by the governmental defendant. This contention is misplaced. Although the Lyons Court did state that the plaintiff in that case did not have standing to seek injunctive relief because the conduct sought to be enjoined was not authorized by the governmental defendant, the Court made clear that failure to credibly allege threat of future injury, regardless of whether that injury would result from the exercise of official governmental policy, precluded a plaintiff from seeking injunctive relief. In other words, the likelihood of future injury is an inquiry separate and apart from the inquiry of whether or not the conduct sought to be enjoined is authorized by official governmental policy. In § 1983 cases against governmental entities, such as the instant case and Lyons, both inquiries must be answered in the affirmative. A plaintiff must first show that he is likely to sustain injury in the future from the conduct sought to be enjoined. Only after plaintiff has credibly alleged threat of future injury does a court concern itself with whether the conduct sought to be enjoined was based on official governmental policy. In the case at bar, plaintiff's...