Zboralski v. Monahan

• Decision Date: 14 August 2006
• Docket Number: No. 06 C 3772.,06 C 3772.
• Citation: 446 F.Supp.2d 879
• Parties: Geneva ZBORALSKI, Plaintiff, v. Tom MONAHAN, in his individual and official capacities; et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

446 F.Supp.2d 879

Geneva ZBORALSKI, Plaintiff, v. Tom MONAHAN, in his individual and official capacities; et al., Defendants.

No. 06 C 3772.

United States District Court, N.D. Illinois, Eastern Division.

August 14, 2006.

John Thomas Moran, John T. Moran & Associates, Chicago, IL, for Plaintiff.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

Plaintiff Geneva Zboralski brings a motion to proceed in forma pauperis in an action against Tom Monahan, Tim Budz, Darryl Sanders, Steve Strock, Joanne Martin, Diane Fransen, Lori Berman, and Brenda Wilts. She alleges claims against the defendants in their individual and official capacities for violations of her constitutionally-protected Fourth and Fourteenth Amendment rights, invasion of privacy based on intrusion upon seclusion, and assault and battery. For the following reasons, we grant plaintiff's motion to proceed in forma pauperis.

Pursuant to 28 U.S.C. § 1915(a), we may authorize plaintiff to proceed in forma pauperis if she demonstrates an inability to pay the required costs and fees. In her financial affidavit, plaintiff indicates that she is unemployed, has received no more than $200 from any source in the last twelve month, has less than $200 in any cash, savings, or checking account, and owns no real estate or personal property asset with a current market value over $1,000. In light of these representations, plaintiff has evidenced her financial need.

Our inquiry, however, does not end with the finding of indigence. As part of the initial review of a petition to proceed in forma pauperis, we analyze the claims and dismiss the complaint if we determine that the action is frivolous or malicious, it fails to state a claim upon which relief may be granted, or seeks damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Alston v. DeBruyn, 13 F.3d 1036, 1039 (7th Cir. 1994). For purposes of this decision, we take plaintiff's allegations as true. See Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.2000).

Unlike many in forma pauperis petitioners, plaintiff is represented by counsel in this case. While representation does not preclude plaintiff from proceeding in forma pauperis (Neitzke v. Williams, 490 U.S. 319, 330, n. 9, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("it is possible for a plaintiff to file in forma pauperis while represented by counsel")), we do not construe the pleadings as liberally as we would if she appeared pro se. Cf. Clabault v. Shodeen Management, 406 F.Supp.2d 877, 879 (N.D.Ill.2005). In analyzing whether plaintiff's complaint fails to state a claim upon which relief may be granted, however, we accept the complaint's wellpleaded factual allegations as true, including the inferences reasonably drawn from them. McDonald v. Household Intern., 425 F.3d 424, 425 (7th Cir.2005).

We take the following facts from plaintiffs complaint. Since September 2000, plaintiff regularly visited a patient at the Illinois Department of Human Services Treatment and Detention Facility ("Facility") in Joliet, Illinois, From May 4, 2005 to May 11, 2005, plaintiff was subjected to patdown searches by defendant Martin, a Security Therapist Aid II at the Facility, in which defendant Martin placed her fingers in plaintiffs vaginal area and required plaintiff to remove her shoes prior to being allowed to visit the patient. Such searches occurred at least four times during the aforementioned time period.

After plaintiffs complaints to Bernard Akpan, an Exec. II at the Facility, and defendant Strock, the Assistant Security Director of the Facility, and facility patient Brad Lieberman's complaints to defendant Budz, Director of the Facility, defendant Sanders, Security Director of the Facility, and defendant Strock, plaintiff was no longer required to submit to patdown searches by defendant Martin. Rather, plaintiff's visits were preceded by a Rapiscan scan of her person. According to plaintiff's complaint, a Rapiscan machine is an electronic screening device used to scan a person's entire body. "These machines produce a naked image of the person and can also produce evidence of highly sensitive details such as the following; mastectomies, colostomy appliances, penile implants, catheter tubes, and the size of a person's breasts and genitals" (cplt., ¶ 2). From May 17, 2005 to June 19, 2005, plaintiff was subjected to 20 to 25 Rapiscan scans. Plaintiff's complaint further alleges that other Facility staff members were allowed to view her scanned image, her scanned image was not erased from the machine, and staff members viewed her image hours after she was scanned, all without her consent (cplt., ¶¶ 24-26, 29). Additionally, while later told that she should have had the choice between the Rapiscan scan or a physical patdown prior to visiting a patient, plaintiff was never informed of such a choice during the two months she underwent the Rapiscan scans. Based on these factual allegations, plaintiff alleges that defendants violated her Fourth and Fourteenth Amendment rights to be free of unreasonable searches and committed the torts of invasion of privacy based on intrusion upon seclusion and assault and battery.

We turn first to plaintiffs claim of unlawful search under the Fourth and Fourteenth Amendments. She brings her claims under 42 U.S.C. § 1983, which protects a citizen from "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by an action of any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia." As employees at an Illinois Department of Human Services Treatment and Detention Facility are properly considered state actors, plaintiff rightfully asserts her constitutional claims under § 1983.

As we read her complaint, plaintiff makes two unlawful search allegations: one based on defendant Martin's patdown searches and the other based on the remaining defendants' use and/or approval of the use of the Rapiscan machine and preservation of the Rapiscan images.

Plaintiff sufficiently pleads a search that "occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Searches can occur either in general criminal law enforcement, or, as here, in the civil context for protection of health and safety. See Edmond v. Goldsmith, 183 F.3d 659, 662 (7th Cir.1999) (recognizing the difference between searches related to criminal law enforcement and searches related to border security). "[T]he Supreme Court has insisted that `to be reasonable under the Fourth Amendment', a search ordinarily must be based on individualized suspicion of wrongdoing, `save in cases of "special need" based on concerns other than crime detection.'" Id. (citing Chandler v. Miller, 520 U.S. 305, 313-14, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)). In terms of such "special need" searches, the majority of cases fall into three categories: (1) airport Security searches; (2) border searches; and (3) searches of incarcerated or detained persons. With regard to an airport search, although airport travelers have impliedly given consent, the search must be "narrowly tailored to the purpose for which it was legitimately undertaken." U.S. v. McDonald, 100 F.3d 1320, 1331, n. 5 (7th Cir.1996) (cataloguing cases). For border searches, border agents or personnel can conduct a search based on reasonable suspicion, rather than probable cause, because the expectation of privacy at the border is reduced. U.S. v. Yakubu, 936 F.2d 936, 939 (7th Cir.1991). See also Anderson v. Cornejo, 284 F.Supp.2d 1008, 1025-1026 (N.D.Ill.2003) (while "routine questioning and searching of luggage at the border does not require any level of suspicion ... [p]erforming a standard patdown search[ requires some level of suspicion that the person has contraband on his or her person, with the level of suspicion required being balanced against the level of indignity imposed on the traveler"). Finally, courts have found that in the prison context, searches may be more intrusive. See Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (finding that visual cavity searches of convicted prisoners and pretrial detainees do not violate the Fourth Amendment, stating that "[t]he Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable"); Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (finding that "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell"). But see Thompson v. County of Cook, 412 F.Supp.2d 881, 890 (N.D.Ill.2005) (cataloguing cases in which "courts have generally held that persons detained for minor offenses not involving weapons or drugs may not be subjected to a strip search or visual cavity search absent reasonable suspicion that the particular arrestee or detainee is concealing such items").

In Bell, the Court noted that the reasonableness test under the Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." 441 U.S. at 559, 99 S.Ct. 1861. See also Stanley v. Henson, 337 F.3d 961, 964 (7th Cir.2003); Thompson, 412 F.Supp.2d at 891.

Like other searches conducted for safety and security purposes, search of plaintiff upon entering the Facility must be reasonable. And while we recognize that by entering a state building housing detainees, plaintiff may have had a reduced expectation of privacy, we find that she has sufficiently pled an unreasonable search with respect to both the patdowns...