MEMORANDUM OF OPINION AND ORDER
[Resolving ECF Nos. 110 and 118]
Plaintiff Tynisa Williams (“Plaintiff’) brought this putative class action under 42 U.S.C. § 1983 against Defendant City of Cleveland (the “City” or “Defendant”) al
I. Background
A.
As a preliminary matter, the Court notes that the Order (ECF No. 97), entered on October 26, 2015, provides, in pertinent part:
Lead counsel of record are granted leave to confer with one another by telephone in order to prepare written stipulations as to all uncontested facts to be presented by the cross-motions for summary judgment. The stipulations shall be filed with the Court on or before November 2, 2015.
ECF No. 97 at PagelD #: 795. No stipulations were filed.
B.
This case involves booking procedures at the jail that Plaintiff contends are unconstitutional. In July 2011, the Court granted Defendant’s motion to stay the case until Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
In November 2014, the Sixth Circuit reversed and remanded the case for further proceedings. Williams v. City of Cleveland,
After considering the parties’ Status Report and Stipulation (ECF No. 89), the Court scheduled (1) a date for Plaintiffs to serve and file a Second Amended Class Action Complaint, (2) a cutoff date to amend pleadings and add parties, (3) a cutoff date for the parties to serve supplemental initial disclosures, (4) a discovery cutoff date, and (5) dates for the filing of cross-motions for summary judgment. See Order (ECF No. 92). The parties agree that the issue of municipal liability in the case at bar can be resolved by a decision on cross-motions for summary judgment. See Affirmation in Support (ECF No. Ill) at PagelD #: 1549-50, ¶ 7. See also ECF No. 89 at PagelD #: 740, ¶4; ECF No. 92 at PagelD #: 769, ¶ 5.
Plaintiff is the purported representative for the class of all persons incarcerated at the jail between December 26, 2007
Plaintiff was arrested in October 2009 on a non-felony charge of driving with a suspended license. Her license had been suspended because she failed to pay a traffic ticket. Deposition of Tynisa Williams (ECF No. 109) at PagelD #: 1471. After Plaintiff made arrangements with authorities to pay her traffic ticket and fines, she was processed into the jail on October 28, 2009. There, she was instructed to undress and briefly shower in the presence of not only a corrections officer but also two other female detainees. ECF No. 109 at PagelD #: 1486,1492.
Based on these allegations, Plaintiff asserts four claims requesting damages as well as declaratory and injunctive relief under § 1983. The First Cause of Action is for unreasonable search and seizure under the Fourth Amendment related to strip searches and the “compulsory delousing of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons.” ECF 90 at PagelD #: 757, ¶ 51. The Second Cause of Action is brought pursuant to the Fourth and Fourteenth Amendments Jin part) for the alleged imposition of unnecessary medical treatment in reference to the compulsory delousing procedure.
Summary judgment is appropriately granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Johnson v. Karnes,
Once the movant makes a properly supported motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox v. Ky. Dep’t. of Transp.,
The United States Supreme Court, in deciding Anderson v. Liberty Lobby, Inc.,
III. Analysis
Under Florence, there is no longer any question that individualized suspicion is unnecessary to conduct blanket strip searches and to delouse prisoners at intake.
A. Physical Delousing Claim
Plaintiff “not only complaints] about the use of delousing on all detainees, but also about the manner in which the delousing occurs.” ECF No. 90 at PagelD #: 745. In particular, Plaintiff alleges that the City violated detainees’ constitutional rights by spraying delousing solution all over their naked bodies, “specifically aim[ing]” it at the face and genitals, instead of using less invasive delousing methods, such as permitting detainees to apply the delousing solution to themselves. ECF No. 90 at PagelD #: 749, ¶ 12. Several other peno-logical facilities permit the self-application of delousing solution in the manner that Plaintiff requests. See e.g., Florence,
According to the Sixth Circuit,
[bjecause the focus must be on the jail’s interest in carrying out the search and seizure in the particular manner that it chose, see Florence,132 S.Ct. at 1516 , the analysis in this case must balance the detainees’ privacy rights against the jail’s specific interest in spraying them with delousing agent from a pressurized canister while they crouched naked in the presence of other detainees instead of using less invasive procedures to achieve the same end.
Id. at 952. Defendant recounts the “hose method” as not involving physical touching by corrections officers themselves. ECF No. 118 at PagelD #: 1940. The Sixth Circuit found “the distinction is unconvincing.” Id. Contrary to paragraphs 12 and 25 of the Second Amended Class Action Complaint (ECF No. 90),
Plaintiff also alleges that the debusing solution penetrated her anus. ECF No. 90 at PagelD #: 755, ¶ 36. Defendant argues that while there is little doubt that the debusing liquid ran down Plaintiffs buttocks and likely over her anus, it is very hard to believe that the solution managed to actually penetrate her body because she testified as follows:
Q You said that the debusing solution was like a body mist. Was it a light mist like that?
A Yes.
Q So it didn’t hit you with any kind of force?
Á No.
Q Okay. Did you feel it hitting you?
A Yes.
Q Did you feel it just because it was a liquid and cold?
A Liquid and it was cold.
ECF No. 109 at PagelD #: 1519.
The City admits that until April 14, 2010 it required physical debusing of all detainees admitted to the custody of the jail as a matter of municipal policy. ECF No. 118 at PagelD #: 1938; Deposition of Lt. Stella Clark (ECF No. 101) at PagelD #: 1006-1007; ECF No. 105 at PagelD #: 1215-R3.
Defendant asserts the debusing solution was applied to Plaintiff by a nozzled hose affixed to a pressurized canister that resembled an exterminator’s can because it is the experience of the officials at the jail that inmates only follow orders 50% of the time and spraying a debusing agent will likely be more effective and will result in fewer altercations with inmates than allowing the inmate to apply a debusing solution themselves. ECF No. 118 at PagelD #: 1952. David Carroll testified:
Q. ... Do you feel in your experience as the acting commissioner for the department of corrections over the past four years that in general when you give inmates instructions, they listen to you?
MS. DINEHART: Objection.
A. Somewhat. It’s probably 50/50.
ECF No. 99 at PagelD #: 938. Defendant’s justification for physically debusing detainees, as opposed to allowing them to apply debusing solution to themselves is that corrections officers could not “trust” inmates to perform the procedure proper
Plaintiff testified that she was not allowed to shower after the application of the delousing solution. ECF No. 109 at PagelD #: 1507. Nevertheless, the record does not reveal that the delousing inspired a need to shower. Despite being released shortly after processing was completed, Plaintiff did not shower for hours. She took her son trick-or-treating, put her son to bed, and showered as she normally did before bed. ECF No. 109 at PagelD #: 1511. Plaintiff testified to having a vaginal infection that she treated at the hospital a couple of days after release. ECF No. 109 at PagelD #: 1512. She has no proof the infection was related to the delousing. ECF No. 109 at PagelD #: 1499-1501. Plaintiff has not submitted any documentation linking the delousing solution to her infection. She has suffered from these infections at other times. ECF No. 109 at PagelD #: 1512-13.
Defendant argues that the inmates were instructed to shower after the delousing agent was applied. ECF No. 101 at Pa-gelD #: 1028; ECF No. 107 at PagelD #: 1277. Defendant declares that “[tjhere are material issues of fact in this suit, but asserts that [its Cross-Motion for Summary Judgment] can be determined based on Plaintiffs telling of her experience at the House of Corrections.” ECF No. 118 at PagelD #: 1939.
Defendant cites a reported case from a district court in Pennsylvania in its discussion of alternatives to the “hose method.” In Logory v. Cnty. of Susquehanna,
Florence held explicitly that “the strip search procedures... at [the Prisons] are reasonable.” Id. at 311. As those procedures explicitly included a delousing, it is curious as to how Plaintiff could maintain a class premised on an alleged Fourth Amendment violation that in-volv[es] the very same procedures. Plaintiff attempts to play up the differences between the two procedures, that Florence utilized a self-applied shampoo followed by a supervised shower while the instant case concerns a delousing spray followed by an unsupervised shower. It is true that Fourth Amendment reasonableness is a fact-specific inquiry, “not capable of precise definition or mechanical application.” Id. at 301 (citing Bell v. Wolfish,441 U.S. 520 , 559,99 S.Ct. 1861 ,60 L.Ed.2d 447 (1979)). However, the Court agrees with the Defendant that these are de minimis differ-enees that do not materially alter the Fourth Amendment analysis.
Id. at 142. As a result, in Logory, the court found that the plaintiff could not sustain a class action for a Fourth Amendment violation. Id.
The Sixth Circuit has determined that permitting self-application of a delousing solution like that which was used in Florence “could be readily implemented at the jail without compromising the jail’s interest in preventing lice infestations.” Williams,
B. Group Strip Search Claim
“The same analysis applies to the jail’s decision to strip search and delouse plaintiffs in full view of other detainees.” Williams,
Whether a prison search is constitutionally reasonable depends on “whether the jail’s ‘need for the particular search’ outweighs ‘the invasion of personal rights that the search entails.’ ” Williams,771 F.3d at 950 (quoting Bell v. Wolfish,441 U.S. 520 , 559,99 S.Ct. 1861 ,60 L.Ed.2d 447 (1979); Stoudemire,705 F.3d at 572 ). In making this determination, we “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,” id. (quoting Bell,441 U.S. at 559 ,99 S.Ct. 1861 ), while also examining “obvious, easy alternatives” that accommodate the inmate’s privacy interests at little cost to valid penological objectives, id. (quoting Turner v. Safley,482 U.S. 78 , 90-91,107 S.Ct. 2254 ,96 L.Ed.2d 64 (1987)).
.. .searches conducted in view of other inmates—who “do not share the searching officers’ institutional need to view [another prisoner] unclothed”—are exceedingly intrusive. Williams,771 F.3d at 953 ....
Id. at 530. “Applying this test, the [Sixth Circuit] has held that strip searches performed in view of other inmates without a legitimate penological justification violate
On the other hand, “[p]rison administrators ... should be accorded wide-ranging deference in the adoption and execution of pohcies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell,
Plaintiff was required to submit to a strip search in the presence of two other female detainees. ECF No, 109 at PagelD #: 1486, 1492. She was required to remove her clothing, including her underclothes and brassiere while under the visual observation of a female corrections officer, for the specific purpose of detecting contraband. ECF No. 109 at PagelD #: 1486, 1492; Deposition of Mary Bounds (ECF No. 98) at PagelD #: 850, 852-53. The City contends that Plaintiff and the two other inmates were standing side-by-side in the private Clothing Room
The justification put forward by Defendant for requiring detainees to disrobe in each other’s presence is that the jail was “busy,” and corrections officers need to strip search multiple detainees for expediency. ECF No. 108 at PagelD #: 1381, 1384. However, Lt. Clark admitted that, while it may “slow things down just a little bit,” detainees could easily be strip searched individually versus as part of a group. ECF No. 101 at PagelD #: 1066-67. Evidence of the regulation’s impropriety exists when “there are ready alternatives available to the regulations in question that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests,” that go untapped. Spies v. Voinovich,
The State of Ohio recommends the use of modesty panels. The Ohio Corrections Officer Basic Training Manual provides, in pertinent part:
2. Based on several lawsuits on these kinds of cases, there are some general rules
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c. Search area should provide privacy from outside observation
1. Modesty panels are inexpensive and effective
2. Use of these panels demonstrates good faith of a department to conduct searches in a constitu- ■ tional manner
ECF No. 111-18 at PagelD #: 1646. The City does not explain how the installation of modesty panels in the Clothing Room at the jail could not be accomplished should there be a legitimate need for strip searching multiple detainees.
Upon examining the evidence, the Court finds that, under the particular circumstances at the City’s House of Correction, the corrections officers implementing the group strip searches did not strike a reasonable balance between Plaintiffs privacy interests and the need to provide safety and security at the jail. Therefore, the Court finds the visual strip search at the jail violated Plaintiffs constitutional rights. Defendant can perform searches one at a time or in multiples with appropriate privacy partitions to allow detainees to remove their clothing without being viewed by other detainees, while still being observed by a corrections officer.
C. Injunction
Four factors must be considered when deciding whether to grant an injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether there is a threat of irreparable harm to the movant; (3) whether others will suffer substantial harm as a result of the injunction, should it issue; and (4) whether the public interest will be served by the injunction. See Rock & Roll Hall of Fame and Museum, Inc. v. Gentile Prods.,
Plaintiff requests that the Court grant her request for a permanent injunction. In the alternative, should the Court believe that there are disputed issues of fact precluding Plaintiffs entitlement to summary judgment, she requests that the Court grant her a preliminary injunction so that Defendant’s “abhorrent” policies can be held in abeyance until this matter is tried before the Court. ECF No. 112 at PagelD #: 1698. In view of the above, the Court finds Plaintiff has demonstrated all of the factors that a court must consider when deciding whether to issue an injunction. Plaintiff is, therefore, entitled to a permanent injunction enjoining the City
IV. Conclusion
Viewing the probative evidence and all reasonable inferences drawn therefrom,
Plaintiffs Motion for Summary Judgment and Permanent Injunction (ECF No. 110) is granted in part and denied in part; and
Defendant’s Motion for Summary Judgment (ECF No. 118) is granted in part and denied in part.
The issue of municipal liability in the case at bar is hereby resolved by the within decision. The cross-motions for summary judgment are denied in part due to the fact that they were filed prior to the Court’s determination that Plaintiff-Inter-venor Shawn Bealer is not suitable to proceed as a class representative in this case.
Defendant’s Motion for Summary Judgment (ECF No. 118) is granted with respect to the alleged imposition of unnecessary medical treatment in reference to the compulsory delousing procedure as set forth in the Second Cause of Action.
The claim and factual assertions in the Second Amended Class Action Complaint that a Workhouse inmate sprayed Shawn Bealer with delousing solution and directed him to shower is dismissed. See ECF No. 90 at PagelD #: 756, ¶ 47.
The parties shall settle on the form of the permanent injunction forthwith. In the absence of agreement on form, Plaintiff shall present a form of injunction to the Court, in not later than fourteen (14) days from the date of this Order.
IT IS SO ORDERED.
Notes
. Inmates are incarcerated at the jail as pretrial detainees, civil commitments or for misdemeanors with sentences that cannot be more than one year.
. On December 15, 2015, the Court agreed with Defendant’s unopposed suggestion that Plaintiff-Intervenor Shawn Bealer is not suitable to proceed as a class representative in this case. See Order (ECF No. 120).
. This is the date alleged in the Second Amended Class Action Complaint (ECF No. 90), which is two years before the filing of the original complaint. ECF No. 90 at PageID #: 747, ¶ 7.
. The City stopped delousing detainees utilizing the "hose method” on this date. See Email Message, dated April 14, 2010, from Commissioner Jacqueline Lewis (ECF No. 111-15).
. A brand of pediculicide called Liceall was used.
. ECF Nos. 111-35, 111-38, and 111-41 are photographs of the Shower Room. ECF No, 111-35 shows the separate stalls with complete privacy partitions.
. Defendant argues that while it would be possible to install a partition in the Clothing Room, that partition poses a security risk and limits the view of the corrections officers. ECF No. 118 at PagelD #: 1949-50.
. ECF No. 111—42 is a diagram of the Shower Room, including measurements, prepared by Plaintiff’s counsel.
. According to Defendant, ”[t]he Sixth Circuit’s opinion in this matter, though informative, was not based on the facts that have been developed in this record.” ECF No. 118 at PagelD #: 1959. Plaintiff alleges that she was instructed to spread her buttocks. ECF No. 90 at PagelD #: 754, ¶ 36. According to Defendant, Plaintiff does not state in her deposition that she was asked to spread her buttocks. ECF No. 118 at PagelD #: 1941.
. The Sixth Circuit footnoted that “Plaintiffs appear to have abandoned any argument with respect to the second cause of action noted in their proposed second amended complaint.” Williams,
Because Plaintiff failed to meet her burden in opposing summary judgment on her claim for the alleged imposition of unnecessary medical treatment in reference to the compulsory delousing procedure, Plaintiff has abandoned this claim and waived any argument concerning dismissal of such claim. Hicks v. Concorde Career Coll.,
. 12....The City employs the "hose treatment,” where detainees are forcibly sprayed with delousing solution from the hose [of] an exterminator can. The effluent from the "hose treatment” is specifically aimed at the face and genitals of detainees....
25. Furthermore, the City’s method of delousing detainees, the "hose treatment,” is both offensive and absurd. Forcibly spraying the genitals of detainees, versus allowing detainees to apply the delousing solution themselves, is the hallmark of an abusive and unnecessary jail policy....
. This compulsory physical debusing regimen was also reflected in the City’s written policies. See Workhouse Post Order (ECF No. 111-8) at PagelD #: 1619 (corrections officer “[ajssures that inmates shower and are sprayed with appropriate antiseptic or are referred to the medical staff for debusing prior to putting on institutional clothing.”); Workhouse Hygiene and Clothing Policy (ECF No. 111-12) at PagelD #: 1635 (“Showering and debusing is required prior to being issued institutional clothing.”).
. Jacqueline Lewis, a former supervisor of the jail, the City’s Rule 30(b)(6) deponent, indicated that she believes the former physical debusing policy to be fine, and would consider reinstituting it at the end of this litigation. ECF No. 105 at PagelD #: 1215.
. Defendant argues that in Williams, the Sixth Circuit exhibited “a bizarre misunderstanding of the importance of sanitation within a jail facility and in fact the entire purpose behind compulsory delousing, of the type deemed a valid penological interest in Florence." ECF No. 118 at PagelD #: 1953.
.
. The Second Amended Class Action Complaint (ECF No. 90) does not mention group strip searches in the proposed class definition. See ECF No. 90 at PagelD #: 747, ¶ 7. Paragraph 54 of the Second Amended Class Action Complaint states, however, that "Plaintiffs’ rights were [] violated because their strip searches and debusing occurred in the presence of other detainees.” ECF No. 90 at Pa-gelD #: 758 (emphasis added). Plaintiff will, however, seek to address group strip searches when she moves the Court for class certification. ECF No. 121 at PagelD #: 2034. See Robidoux v. Celani,
. ECF Nos. 111-26, 111-28, and 111-29 are photographs of the Clothing Room. ECF No. 111-33 is a diagram of the Clothing Room, including measurements, prepared by Plaintiff's counsel.
. During his deposition, Former Jail Manager Joseph Stottner, agreed to this scheme when shown a photograph (ECF No. 111-32) Of Plaintiff's counsel’s rendering of where a privacy partition could be installed. ECF No. 107 at PagelD #: 1334-37.