Elliott v . Strafford County CV-98-637-JD 01/25/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Sheila Elliott
v. Civil N o . 98-637-JD
Opinion N o . 2001 DNH 019
Strafford County, et a l .
O R D E R
The plaintiff, Sheila Elliott, brings suit alleging civil
rights and state law claims arising from her arrest in Tennessee
on a New Hampshire warrant, the circumstances of her
transportation from Tennessee to New Hampshire, and her treatment
at the Strafford County House of Correction. She brings claims
against Stafford County, New Hampshire; two county officials;
Transcor America, Inc., the transportation company hired by the
county to transport Elliott from Tennessee to New Hampshire; and
two Transcor employees. The Transcor defendants, Transcor
America, Inc., Marlene Vogel, and Junious Hamm, Jr., move for
summary judgment on all of the claims against them. Elliott
objects to summary judgment.
Standard of Review
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). The record evidence is taken in the light most favorable
to the nonmoving party. See Zambrana-Marrero v . Suarez-Cruz, 172
F.3d 122, 125 (1st Cir. 1999). “[A]n issue is ‘genuine’ if the
evidence presented is such that a reasonable jury could resolve
the issue in favor of the nonmoving party and a ‘material’ fact
is one that might affect the outcome of the suit under governing
law.” Fajardo Shopping Ctr. v . Sun Alliance Ins. Co.,
167 F.3d
1 , 7 (1st Cir. 1999). Summary judgment will not be granted as
long as a reasonable jury could return a verdict in favor of the
nonmoving party. See Anderson v . Liberty Lobby, Inc.,
477 U.S.
242, 248 (1986).
Background
Sheila Elliott drove from New Hampshire to Florida with her
five-year-old son on November 17 or 1 8 , 1995. On November 2 0 ,
1995, the chief of police in New Durham, New Hampshire, swore out
a class A misdemeanor complaint, charging Elliott with
interference with custody in violation of N.H. Rev. Stat. Ann. §
(“RSA”) 633:4. On November 2 2 , the chief charged Elliott with a
class B felony on the same charges, and a warrant was issued for
her arrest. Elliott was arrested by the Paris, Tennessee, police
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on December 2 2 , 1995. Elliott was jailed in Henry County,
Tennessee, from December 22 until December 3 1 , 1995.
On December 2 8 , Elliott signed a waiver of extradition and
agreed to return to New Hampshire. The waiver form said that she
agreed “to accompany New Durham New Hampshire P.D. as a prisoner
of Strafford County, State of New Hampshire . . . .” Strafford
County hired Transcor America, Inc. to transport Elliott from
Paris, Tennessee, back to New Hampshire.
Transcor employees, including defendant Marlene Vogel,
arrived at the Henry County jail on December 3 1 , 1995, to take
custody of Elliott. Once Elliott was in Transcor’s custody,
Vogel conducted a strip search of Elliott, including, apparently,
a visual body cavity search.1 Transcor’s policy was to strip
search all prisoners before putting them into the transportation
vehicle.
After the strip search, Transcor agents handcuffed Elliott,
applied a restraint that secured her hands to her waist, applied
leg irons, and placed her in a small metal cage inside of the
transport van. They first stopped in Nashville, Tennessee, where
Elliott was transferred to a different van with officers Junious
Hamm and Sylvester Rush. During the remainder of the seven-day
1
See Blackburn v . Snow, 771 F.2d 556, 561 n.3 (1st Cir.
1985) (defining “strip search” and “visual body cavity search”).
3
trip, whenever they stopped, Elliott was housed in secure
facilities where she experienced substandard conditions including
being required at times to sleep on the floor. They arrived at
the Strafford County House of Corrections on January 7 , 1995.
The charges against Elliott were later dismissed when it was
determined that she had joint physical custody of her son at the
time she was charged with interference with custody.
Discussion
The Transcor defendants contend that they are entitled to
summary judgment with respect to Elliott’s civil rights claim
based on the strip search on the ground that the search did not
violate her constitutional rights, or alternatively, because they
are protected by qualified immunity. They contend that four of
Elliott’s counts do not allege claims against them and challenge
two other claims on the merits. They ask that this court decline
supplemental jurisdiction if the federal claims against them are
dismissed. Elliott objects to all of the defendants’ grounds for
summary judgment.
A. Strip Search
Elliott contends in Count I of her complaint that the strip
search conducted by Vogel at the Henry County jail was
4
unreasonable and in violation of her Fourth and Fourteenth
Amendment rights.2 Her claim is brought pursuant to 42 U.S.C.A.
§ 1983. Vogel and Transcor argue that the search was not
unreasonable, and alternatively, that Vogel is entitled to
qualified immunity from liability as to that claim.3
Neither party has addressed the question of state action
under § 1983. See American Mfrs. Mut. Ins. C o . v . Sullivan, 526
U.S. 4 0 , 50 (1999). Apparently the Transcor defendants concede
that in the context of this case, although Transcor is a private
company, they are deemed to be state actors. See, e.g., Wyatt v .
Cole,
504 U.S. 158, 162 (1992); Lugar v . Edmondson Oil Co.,
457
U.S. 922, 929, 938-39 (1982); Flagg Bros., Inc. v . Brooks,
436
U.S. 149, 157 (1978). Qualified immunity, however, is not
necessarily available to private individuals who provide
governmental services. See Richardson v . McKnight,
521 U.S. 399,
2
Although Elliott also alleges that the strip searches
violated her due process rights, she is essentially claiming that
the strip searches were unreasonable, in violation of the Fourth
Amendment. See Albright v . Oliver, 510 U.S. 266, 273 (1994);
Bell v . Wolfish,
441 U.S. 520, 560-61 (1979) Magill v . Lee
County,
990 F. Supp. 1382, 1386 (M.D. Ala. 1998).
3
The parties do not question the basis of Transcor’s
liability under § 1983 for the search conducted by its employee,
Vogel. See, e.g., Daniels v . Williams, 474 U.S. 327, 334 (1986);
Monell v . v . Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978).
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402-04 (1997). Because Vogel has not shown that she would be
entitled to qualified immunity based on the policy considerations
underlying that doctrine and a history of immunity provided to
persons in her position, she has not shown that the qualified
immunity defense is available to her. See id. at 403-04.
To be reasonable within the meaning of the Fourth Amendment,
“strip and visual body cavity searches must be justified by at
least a reasonable suspicion that the arrestee is concealing
contraband or weapons.” Swain v . Spinney, 117 F.3d 1 , 7 (1st
Cir. 1997). The appropriate inquiry is “whether, on [the
particular facts of the case], an objective officer would have
had a reasonable suspicion that [the arrestee] was concealing
drugs or contraband on her person.”
Id. at 8 . For that reason,
searches conducted pursuant to blanket strip search policies,
without particularized reasonable suspicion, are
unconstitutional. See Blackburn,
771 F.2d at 563-65; see also
Skurstenis v . Jones,
2000 WL 1880179, *2 (11th Cir. Dec. 2 8 ,
2000) (joining all other circuits to have considered issue in
holding that strip search policy without reasonable suspicion
violates Fourth Amendment).
The defendants contend that Elliott was strip searched
pursuant to Transcor’s policy to strip search all prisoners
before beginning the transport. The defendants argue that the
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strip search of Elliott was justified because she was going to be
transported from the Henry County jail to the Strafford County
jail which would involve contact with other inmates and “danger
inherent in the transfer.” The defendants do not, however,
articulate any basis for a reasonable suspicion that Elliott was
hiding contraband or weapons. She was charged with interference
with custody, which does not involve weapons or contraband, and
they took custody of her after she had spent more than a week in
the Henry County jail. Based on the facts presented for summary
judgment, a factual issue remains as to whether the Transcor
defendants had reasonable suspicion to justify the strip search.
Defendant Junious Hamm contends that because no allegations
are made as to him pertaining to the strip search, he is entitled
to summary judgment on Count I . Elliott has not addressed the
issue of whether she intended to make a claim against Hamm in
Count I . Since there are no allegations about Hamm in Count I
and because the undisputed facts are that he was not present or
otherwise involved in the strip search, Hamm is entitled to
summary judgment in his favor on Count I .
B. Counts I I , I I I , X , and XI
The Transcor defendants contend that Counts I I , III, X , and
XI do not allege any claims against them.
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In Count I I , Elliott alleges that the “Defendants’ acts of
arresting the Plaintiff on a New Hampshire warrant while located
in Tennessee, contrary to the warrant on its face,” violated her
constitutional rights. Elliott does not differentiate among the
various defendants named in the complaint, including the Henry
County, Tennessee, defendants, who have been dismissed from the
case for lack of personal jurisdiction. In her objection,
Elliott contends that her claim should be interpreted to mean
that the Transcor defendants unreasonably detained her. Despite
her use of the word “detention” in the caption and once in the
body of Count I I , Count II alleges only that “Defendants’ acts of
arresting the Plaintiff” violated her constitutional rights.
Elliott’s imaginative interpretation of her claim is insufficient
to meet the pleading requirements of Federal Rule of Civil
Procedure 8(a)(2). See, e.g., Romero-Barcelo v . HernandezAgosto, 75 F.3d 2 3 , 28 n.2 (1st Cir. 1996); Abdullah v . Acands,
30 F.3d 264, 269 n.6 (1st Cir. 1994). Since the record does not
even suggest that the Transcor defendants arrested Elliott or
participated in her arrest, Transcor is entitled to summary
judgment on Count I I .
In Count III, Elliott alleges that because she agreed in the
extradition waiver to be released to the New Durham, New
Hampshire, police, “Defendants’ acts of releasing the Plaintiff
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to a private, for-profit corporation, rather than to a police
officer of the State of New Hampshire,” violated her
constitutional rights. Elliott asks that her allegations in
Count III be construed to allege that the Transcor defendants
“unlawfully transported the Plaintiff.” Even if Elliott’s
allegations were susceptible to such an interpretation, she does
not provide any factual support in the record with respect to
actions by the Transcor defendants pertaining to her waiver of
extradition. See Burns v . State Police Ass’n of Mass., 230 F.3d
8 , 9 (1st Cir. 2000) (“The opposing party must offer ‘definite,
competent evidence’ to defeat a properly supported motion for
summary judgment.” quoting Torres v . E.I. Dupont De Nemours &
Co.,
219 F.3d 1 3 , 18 (1st Cir. 2000)). Therefore, because there
is no trialworthy issue as to the Transcor defendants alleged in
Count III, they are entitled to summary judgment.
Count X , which is titled “Respondeat Superior,” names only
Strafford County and the dismissed defendant Henry County, and
Count X I , which is titled “Negligent Hiring, Training, and
Supervision,” names only Richard Cavanaugh, Robert LeClair, and
the dismissed defendant Leon Williams. Elliott has not objected
to summary judgment on these counts. Since the Transcor
defendants are not included in Counts X and X I , they are entitled
to summary judgment on those counts.
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C. Count IV - Violation of the Plaintiff’s Right to a Speed
Trial, Assistance of Counsel, and Right to Bail
In Count IV, Elliott alleges that “Defendants’ acts
immediately after the Plaintiff’s arrest, deprived the her [sic]
of and violated her rights, privileges, and immunities to a
speedy trial, bail and assistance of counsel . . . .” The
Transcor defendants argue that because they did not take custody
of Elliott until December 3 1 , nine days after she was arrested,
they were not involved in acts immediately after her arrest.
Alternatively, the defendants argue that they did not violate the
rights alleged. Elliott argues that her allegations in Count IV
charge the Transcor defendants with denying her requests to
contact an attorney and denying her “speedy access to the New
Hampshire Courts.”4
Elliott states in her affidavit submitted in opposition to
the defendants’ motion for summary judgment that she asked the
Transcor defendants to be allowed to contact an attorney and that
they denied her requests. In her deposition, however, Elliott
testified about asking to contact an attorney as follows:
Q. So that I understand your testimony, you didn’t ask
the TransCor agents to allow you the opportunity to
call a lawyer; isn’t that true?
4
Elliott is therefore deemed not to make a claim against the
Transcor defendants based on alleged violations of her right to
bail.
10
A . I might have asked them if I could call my family,
but, you know, I didn’t ask for a lawyer.
Elliott dep. at 150-51. Elliott offers no explanation for the
contradiction between her affidavit and her deposition.
“When, as here, ‘an interested witness had given clear
answers to unambiguous questions, [she] cannot create a conflict
and resist summary judgment with an affidavit that is clearly
contradictory but does not give an explanation why the testimony
is changed.’” Williams v . Raytheon, 220 F.3d 1 6 , 220-21 (1st
Cir. 2000) (quoting Colantuoni v . Alfred Calcagni & Sons, Inc.,
44 F.3d 1 , 5 (1st Cir. 1994)). Since Elliott offers no competent
evidence that the Transcor defendants denied her requests to
contact an attorney, they are entitled to summary judgment with
respect to her claim in Count IV based on a violation of right to
assistance of counsel.
Elliott argues that the Transcor defendants “transported the
Plaintiff in such a way as to deny her speedy access to the New
Hampshire Courts.” Assuming that Elliott is asserting a right to
a speedy trial protected by the Sixth Amendment, she must show
that a trialworthy issue exists in light of the four factors used
to analyze such claims: “(1) length of delay; (2) reason for the
delay’ (3) defendant’s assertion of [her] right; and (4) the
prejudice to defendant.” United States v . Salimonu, 182 F.3d 6 3 ,
11
69 (1st Cir. 1999). A plaintiff cannot make a Sixth Amendment
speedy trial claim absent a showing of prejudice. See Reed v .
Farley, 512 U.S. 339, 353 (1994). Since the plaintiff has made
no evidentiary showing as to any of the four elements and in
particular has not shown that a trialworthy issue exists as to
prejudice, the Transcor defendants are also entitled to summary
judgment on the speedy trial part of Elliott’s claim in Count IV.
D. Count V - Violation of Right to Privacy
In Count V , Elliott alleges a violation of her right to
privacy actionable under § 1983 and the common law of New
Hampshire.5 The Transcor defendants argue that the strip search
conducted by defendant Vogel did not violate Elliott’s right to
privacy for the same reasons that the search did not violate the
Fourth Amendment. Based on the record presented for summary
5
Elliott does not explain what federal constitutional or
statutory right to privacy, other than the Fourth Amendment right
alleged in Count I , she might have intended to claim. Instead,
it appears that Elliott alleges only a state law privacy claim.
Elliott cites Sutherland v . Kroger Co., 110 S.E.2d 716 (W.Va.
1959) in support of her claim. Since Sutherland was premised on
West Virginia law of trespass, it appears that Elliott intends to
allege a similar claim under New Hampshire law, despite the lack
of citation to relevant legal authority. It is not necessary,
however, to resolve the legal basis of her claim for purposes of
the present motion for summary judgment.
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judgment, a triable issue remains as to whether the strip search
was supported by a reasonable suspicion. Since the defendants
offer no other basis for summary judgment, the motion is denied
as to Count V.
E. Supplemental Jurisdiction
The defendants ask the court to decline supplemental
jurisdiction with respect to Elliott’s state law claims. See 28
U.S.C.A. § 1367(c). Since summary judgment has not been granted
on all federal claims because a trialworthy issue remains as to
Elliott’s § 1983 claim in Count I , the defendant’s request is
denied.
Conclusion
For the foregoing reasons, the Transcor defendants’ motion
for summary judgment (document n o . 60) is granted as to defendant
Junious Hamm, Jr. in Count I and as to all Transcor defendants in
Counts I I , III, IV, X , and X I . The motion is otherwise denied.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
January 2 5 , 2001
cc: James W . Craig, Esquire
Donald E . Gardner, Esquire
Michael D. Ramsdell, Esquire
Charles K. Grant, Esquire
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