T.S. & T.S. v. John Doe

Decision Date13 March 2014
Docket NumberNo. 12–5724.,12–5724.
Citation742 F.3d 632
PartiesT.S. and T.S., next friends of J.S. and K.S., Plaintiffs–Appellees, v. John DOE, Defendant, Jay Ronald Haws; A. Hasan Davis; Mitchell Gabbard; Rebecca Harvey; Gary Sewell; Gary Drake; Jeff Voyles, in their individual capacities, Defendants–Appellants.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED:Roger G. Wright, Lexington, Kentucky, for Appellants. Joe F. Childers, Joe F. Childers & Associates, Lexington, Kentucky, for Appellees. ON BRIEF:Roger G. Wright, Lexington, Kentucky, for Appellants. Joe F. Childers, Joe F. Childers & Associates, Lexington, Kentucky, for Appellees. Marsha Levick, Juvenile Law Center, Philadelphia, Pennsylvania, for Amici Curiae.

Before: BOGGS and DONALD, Circuit Judges; and STAMP, District Judge.*


BOGGS, Circuit Judge.

J.S. and K.S. were taken to the Breathitt Regional Juvenile Detention Center (BRJDC) after being arrested for underage drinking. As part of the facility's intake policy, both teenagers were required to submit to a fully nude visual inspection by a correctional officer of the same sex. Their parents thought this to be unconstitutional and brought suit against the two guards, the supervisors of BRJDC, and administrators with the Kentucky Department of Juvenile Justice (DJJ). The plaintiffs argue that the strip-search policy violated clearly established Fourth Amendment law prohibiting the suspicionless strip search of juveniles accused of nonviolent misdemeanor offenses. However, no clearly established principle of constitutional law—not then and certainly not now—forbids a juvenile detention center from implementing a generally applicable, suspicionless strip-search policy upon intake into the facility. For the reasons that follow, we reverse the district court in part and grant qualified immunity to the defendants against the plaintiffs' federal claims.


In the early hours of June 2, 2009, police officers with the City of Hazard, Kentucky, arrived at a private residence after receiving a report of underage drinking in the home. The officers found a group of minors celebrating their recent graduation from eighth grade. Police asked the teens to step out onto the front porch individually for a breathalyzer test. Seven of them, including J.S. and K. S., tested positive for the presence of alcohol. Police arrested the seven, took them downtown, and notified their parents. Their parents arrived around 4 a.m., and the teenagers remained in the police station for the rest of the morning, save for a brief trip to the hospital for a blood draw.

Eventually, a court-designated juvenile worker arrived at the station. T.S., the father of J.S. and K.S., asked the juvenile worker to release his children to him. However, after speaking with a state judge, the juvenile worker informed the father that the children were to be detained overnight for a court appearance the following day. Police transported the children to BRJDC, located about thirty miles away from Hazard. Upon their arrival, J.S. and K.S. underwent routine intake procedures, such as fingerprinting, mug shots, and metal-detection screening.

After this, they were required to undergo a hygiene inspection and health screening. This screening included a procedure known as the “Body ID/Showering Process.” Both juveniles were required to disrobe completely for a visual inspection of their bodies. The purpose of this inspection, according to BRJDC Policy Number JD 23.2, was to detect “injuries, physical abnormalities, scars and body markings, ectoparasites, and general physical condition prior to [placing the juvenile] into the general population.” A same-sex youth worker (Mitchell Gabbard for J.S. and Rebecca Harvey for K.S.) observed the juveniles for several minutes from a distance of about one to two feet, recording their findings onto a DJJ “Body Identification Form.” The forms were subsequently given to a registered nurse for review.

Both juveniles were then required to shower with delousing shampoo and dress in BRJDC-issued attire. J.S. and K.S. were transferred to a cell block with the other five juveniles arrested the prior evening. Both were released to their parents the following day. The underage-drinking charges were eventually dropped.


The juveniles, through their parents, brought suit under 42 U.S.C. § 1983 and state law in the United States District Court for the Eastern District of Kentucky against Gabbard and Harvey, BRJDC superintendents Gary Drake and Jeff Voyles, and DJJ administrators Jay Haws, Hasan Davis, and Gary Sewell. 1 After discovery, both sides filed motions for summary judgment.Their first set of briefs focused primarily on the scope of our opinion in Masters v. Crouch, 872 F.2d 1248 (6th Cir.1989), a case in which a panel of this circuit held that the suspicionless strip search of pretrial detainees held on minor, nonviolent offenses violated the Fourth Amendment. Id. at 1250. The defendants argued that Masters is distinguishable because it dealt only with adult detainees and, therefore, did not consider that the state stands in loco parentis when caring for juvenile detainees. The plaintiffs countered that, in light of a juvenile's more fragile psychological state, a prohibition on strip searching adult detainees without some degree of individualized suspicion a fortiori forbids a blanket policy of strip searching juveniles.

Before the district court ruled on the matter, the Supreme Court rendered its decision in Florence v. Board of Chosen Freeholders of the County of Burlington, ––– U.S. ––––, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). In a 5–4 decision, the Court held that officials may conduct suspicionless strip searches of pretrial detainees, regardless of the severity of the offense on which they are held, during their initial entry into the general population of a prison facility. Id. at 1523. The parties subsequently filed a second set of briefs addressing the constitutionality of the searches in light of Florence.

The district court granted partial summary judgment in favor of the plaintiffs. Finding Florence to be irrelevant to the consideration of this matter, the court below held that Masters was dispositive of the constitutional issue for the reasons outlined in the plaintiffs' original brief. The court went on to hold that Masters clearly established the right for both adults and juveniles to be free from strip searches absent individualized suspicion and, accordingly, denied qualified immunity to the defendants. The court further denied qualified official immunity to Gabbard and Harvey against the plaintiffs' state-law claims, finding that their actions were not discretionary in nature. The defendants filed a timely interlocutory appeal of both rulings.


Qualified immunity is an affirmative defense, and a defendant bears the burden of pleading it in the first instance. Lanman v. Hinson, 529 F.3d 673, 683 (6th Cir.2008); Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.2002). Once the defendant raises a qualified-immunity defense, the burden shifts to the plaintiff to demonstrate both that the challenged conduct violated a constitutional or statutory right, and that the right was so clearly established at the time of the conduct “that every reasonable official would have understood that what he [was] doing violate[d] that right.” Ashcroft v. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). If the plaintiff fails to establish either element, the defendant is immune from suit. Where, as here, the district court denies qualified immunity on a motion for summary judgment, we have interlocutory jurisdiction to review the court's order to the extent that it has allegedly erred as a matter of law. McCullum v. Tepe, 693 F.3d 696, 699 & n. 6 (6th Cir.2012). We review the district court's order de novo, viewing the facts as alleged and the evidence produced in the light most favorable to the plaintiffs. Bomar v. City of Pontiac, 643 F.3d 458, 462–63 (6th Cir.2011).


To restate the plaintiffs' constitutional argument as a basic syllogism, they assert the following: Every reasonable officer should know that it is unconstitutional to conduct suspicionless strip searches of adult detainees held on minor offenses. Every reasonable officer should also know that juveniles enjoy the same, if not greater, protection under the Fourth Amendment than adults. Therefore, every reasonable officer should know that it is unconstitutional to conduct suspicionless strip searches of juvenile detainees held on minor offenses. To prevail, the plaintiffs must establish that both the major and minor premises of this syllogism were clearly established as of June 2009.


In Masters, we assessed the reasonableness of a suspicionless-strip-search policy at a county jail under the Supreme Court's balancing test announced in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The plaintiff was arrested on an erroneously issued bench warrant for failure to appear in court on a traffic violation—a minor, nonviolent offense. Despite her pleas of error, authorities placed her in a holding cell for several hours and, pursuant to a generally applicable intake policy, strip searched her before admitting her into the county jail's general population. The plaintiff was later released on her own recognizance, and the faulty charges were dropped. Masters, 872 F.2d at 1250. Distinguishing an earlier case in which we had affirmed a suspicionless-strip-search policy, see Dobrowolskyj v. Jefferson Cnty., 823 F.2d 955 (6th Cir.1987), a unanimous panel of this court held that “a strip search of a person arrested for a traffic violation or other minor offense not normally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or...

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