Elliott v. Strafford County CV-98-637-JD 02/07/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Sheila Elliott
v . Civil No. 98-637-JD
Opinion No. 2001 DNH 025
Strafford County, et al
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 Strafford 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. Defendants Strafford County, Strafford
County Sheriff, Richard Cavanaugh, and Superintendent of the
Strafford House of Corrections, Robert LeClair, move for summary
judgment with respect to Elliott's federal claims against them
and ask the court to decline supplemental jurisdiction as to the
state law claims.
________________________ 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 18, 1995. On November 20,
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.
2
("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 on December 22, 1995. Elliott was jailed in Henry County,
Tennessee, from December 22 until December 31, 1995.
On December 28, 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 31, 1995, to take
custody of Elliott. Once she was in Transcor's custody, Vogel
conducted a strip search, 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
1See Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir.
1985) (defining "strip search" and "visual body cavity search").
3
Elliott was transferred to a different van with officers Junious
Hamm and Sylvester Rush. During the remainder of the seven-day
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.
Upon her arrival at the Strafford County House of
Corrections, as part of the intake process, Elliott was required
to undress in front of a female corrections officer, shower, and
receive a decontamination spray. The parties dispute whether
Elliott was subjected to a strip search. The county's inmate
intake form concludes with a certification that the "inmate has
been interviewed, given a copy of the rules and regulations (or
had them read to him/her), been strip searched, decontaminated,
showered, and received a (full partial) clothing and toiletries
issue." PI. Ex. 8 (emphasis added). On Elliott's form, the
certification is signed by "C/0 Roy." Thereafter, Elliott was
strip searched after each court appearance and contact with
visitors pursuant to county policy. Elliott remained in the jail
from January 7, 1996, until February 3, 1996, and then from
August 26, 1996, until September 8, 1996.
The charges against Elliott were dismissed when it was
determined that she had joint physical custody of her son at the
time she was charged with interference with custody.
4
Discussion
The Strafford County defendants contend that they are
entitled to summary judgment with respect to Elliott's claim of
unreasonable searches in violation of the Fourth Amendment
because the intake process did not involve a strip search and the
only strip searches performed by the defendants were justified.
Defendant LeClair alternatively contends that he is entitled to
qualified immunity. The Strafford defendants contend that they
are entitled to summary judgment with respect to Elliott's
unreasonable arrest claim in Count II and her unlawful
transportation claim in Count III because they were not involved
in either circumstance. They also move for summary judgment on
Elliott's Sixth Amendment claims. Count IV, and her invasion of
privacy claims. Count VI. Anticipating that summary judgment
will terminate Elliott's federal claims, the Strafford defendants
ask the court to decline supplemental jurisdiction as to
Elliott's state law claims. Elliott objects.
A. Unreasonable Searches - - Count I
In Count I, Elliott alleges that "Defendants' acts of strip
searching the Plaintiff at numerous times throughout this ordeal
5
and without justification" violated her constitutional rights.2
The Strafford defendants argue that they are not liable for the
strip search conducted by Transcor employee, Marlene Vogel, that
no strip search was conducted as part of Elliott's intake
process, and that subsequent strip searches were justified under
the circumstances.3 Defendant Robert LeClair asserts qualified
immunity as to the claims in Count I against him.
1. Liability arising from the actions of Transcor
defendants.
In her objection to summary judgment, Elliott acknowledges
that liability under § 1983 cannot be based on a theory of
vicarious liability. See Monell v. Dep't of Soc. Servs., 436
2Although 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); Maqill v. Lee
County,
990 F. Supp. 1382, 1386 (M.D. Ala. 1998).
3The Strafford defendants do not challenge the basis of
Elliott's § 1983 claims against them for strip searches conducted
by other employees of Strafford County. Apparently, therefore,
the Strafford defendants concede that Elliott has sufficiently
alleged claims against them under theories of supervisory or
municipal liability. See, e.g.. Miller v. Kennebec County, 219
F.3d 8, 12-13 (1st Cir. 2000); Swain v. Spinney,
117 F.3d 1, 10-
12 (1st Cir. 1997); Allen v. Bd. of Comm'rs of County of Wyandot,
773 F. Supp. 1442, 1451 (D. Kan. 1991).
6
U.S. 658, 691 (1978). A supervisor may be held liable under §
1983 only if the plaintiff establishes that "his conduct or
inaction amounts to reckless or callous indifference of her
constitutional rights and that an affirmative link existed
between the constitutional violation and his acts or omissions."
Miller,
219 F.3d at 13 (quotation omitted). A municipality may
be liable only if the plaintiff identifies a municipal custom or
policy that caused her injury. See, e.g.. Miller,
219 F.3d at
12-13; Swain,
117 F.3d at 10-12. Elliott argues in opposition to
summary judgment that the Strafford defendants are liable under §
1983 for the strip search conducted by Transcor employee, Marlene
Vogel, because Sheriff Cavanaugh hired Transcor with allegedly
"reckless or callous indifference" to her constitutional rights.
Elliott, however, did not include any allegations of
supervisory or municipal liability in Count I of her complaint.
In order to meet the pleading requirements of Federal Rule of
Civil Procedure 8(a)(2), Elliott must at least "set forth factual
allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory." Romero-Barcelo v. Hernandez-Agosto, 75
F.3d 23, 28 n.2 (1st Cir. 1996). She cannot overcome
deficiencies in her complaint with arguments submitted in
opposition to summary judgment that are not alleged in the
complaint. See Bauchman v. West High Sch.,
132 F.3d 542, 550
7
(10th Cir. 1997) .
Therefore, the Strafford defendants are entitled to summary
judgment with respect to any claim in Count I that is based on
the strip search conducted by Transcor employee Vogel.
2. Intake process.
The defendants contend that no strip search occurred during
the intake process when Elliott arrived on January 7, 1996, at
the Strafford County House of Corrections. They rely on
Elliott's description of the intake process in her deposition to
show that no strip search occurred. Elliott contends that she
was strip searched at that time.
Elliott testified as part of her deposition that she was
first scanned with a "yellow thing" that is "like a paddle."
Then a female guard took her into a room where, Elliott
testified, "I removed my clothes and had to take a shower and
then she sprayed me down. I don't know whether I would consider
that a strip search or not, but I was told to remove my clothing,
take a shower, and she sprayed me down with some kind of lice
thing." Elliott dep. at 59-60. Elliott testified that she did
not remember whether the guard stayed in the room while she
showered. She said that she was told to turn around after she
took off her clothes and before she showered. When she was asked
if anything else happened, she said no. In her affidavit
8
submitted in support of her objection to the defendants' motion
for summary judgment, Elliott stated, "On January 7, 1996, I
arrived at the Strafford County House of Corrections, where I
again was subjected to a strip search, to stand naked in front of
the correctional officer, to move my body parts, and to exhibit
myself." Pi. Ex. 5.
A party cannot create a factual issue sufficient to survive
summary judgment by submitting an affidavit that contradicts her
own previous sworn statement unless she adequately explains the
contradiction or resolves the disparity. See Williams v.
Raytheon, 220 F.3d 16, 220-21 (1st Cir. 2000) . Elliott contends
that her affidavit does not contradict her deposition testimony,
but merely provides "a more complete description of the events
that occurred."
It is not necessary to resolve the discrepancies between
Elliott's two statements because a factual issue exists as to
whether she was strip searched on January 7 even if the affidavit
statement were not considered. Elliott's description of the
circumstances of her shower, taken in the light most favorable to
her, provide some evidence that a strip search occurred. That
evidence is bolstered by the fact that the corrections officer
who signed Elliott's inmate intake form certified that she had
been strip searched as part of the intake process. Therefore, a
trialworthy issue remains as to whether a strip search occurred
9
at that time.
The defendants argue alternatively that if a strip search
occurred, it was constitutionally permissible. 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, 117 F.3d at 7. The defendants argue that the risks
associated with putting Elliott, who was charged with a felony,
into the general population of the jail justified a strip search.
Elliott was charged with interference with custody, which is not
a crime of violence or involving contraband. In addition,
Elliott had been in jail and then in the custody of Transcor for
more than two weeks before her arrival at the Strafford County
facility. The defendants offer nothing that would have given
them a reasonable suspicion that she would be carrying weapons or
contraband and therefore have not demonstrated that they would be
entitled to judgment as a matter of law with respect to a strip
search conducted during the intake process. See Fed. R. Civ. P.
5 6 (c) .
10
3. Strip searches following contact visits and court
appearances.
Elliott contends that the strip searches conducted after she
had contact with visitors and after her court appearances
violated the Fourth Amendment. The defendants argue that those
searches are justified and do not violate the Fourth Amendment.
A strip search complies with the requirements of the Fourth
Amendment as long as it is reasonable. See Bell, 441 U.S. at
559. 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." Swain,
117 F.3d 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. 28,
2000) (joining all other circuits to have considered issue in
holding that strip search policy without reasonable suspicion
violates Fourth Amendment).
In Bell, the Supreme Court found that a policy to conduct
strip searches and visual body cavity searches of all inmates
following contact visits (in which the inmate has direct contact
with visitors from outside the prison) did not offend the Fourth
Amendment because of the possibility of smuggling contraband into
11
the prison. See Bell, 441 U.S. at 558-59; see also Peckham v.
Wise. Dep't of Corrections,
141 F.3d 694, 697 (7th Cir. 1998) .
Inmates may also have direct contact with visitors from outside
the prison during court appearances. Elliott has not
demonstrated or even alleged special circumstances that would
except her case from the circumstance considered in Bell. See,
e.g., Gary v. Sheahan,
1997 WL 201590, *12 (N.D. 111. Apr. 18,
1997). Therefore, the Strafford defendants are entitled to
summary judgment with respect to Elliott's claims in Count I that
arise from strip searches conducted after contact visits and
court appearances.
4. Qualified immunity.
Defendant Robert LeClair asserts that he is entitled to
qualified immunity from liability for Elliott's claim in Count I
alleging that she was strip searched during the intake process.
"Qualified immunity shields government officials performing
discretionary functions from civil liability for money damages
when their conduct does not violate 'clearly established'
statutory authority or constitutional rights of which a
reasonable person would have known." Roldan-Plumey v.
Cerezo-Suarez, 115 F.3d 58, 65 (1st Cir.1997) (quoting
Nereida-Gonzalez v. Tirado-Delgado,
990 F.2d 701, 704 (1st
Cir.1993)). Qualified immunity depends on a two-step analysis:
12
"First, was the constitutional right in question clearly
established at the time of the alleged violation? . . . Second,
would a reasonable, similarly situated official understand that
the challenged conduct violated that established right?" Swain,
117 F.3d at 9. Because qualified immunity is an affirmative
defense, the burden of proof falls on the party asserting its
protection. See DiMarco-Zappa v. Cabanilla,
2000 WL 38433, *8
(1st Cir. Jan. 19, 2001).
LeClair contends that it was not clearly established in 1996
that a pretrial detainee, charged with a felony, had a right not
to be strip searched absent reasonable suspicion that she was
hiding weapons or contraband. LeClair acknowledges, based on
Moser v. Anderson, 93-634-B (D.N.H. Nov. 25, 1996), that it was
clearly established in 1996 that an arrestee charged with a minor
offense had a right not to be strip searched absent a reasonable
suspicion that she was hiding contraband. LeClair distinguishes
Elliott's circumstances because Elliott was charged with a
felony, which LeClair assumes does not qualify as a minor
offense.
In Bell, decided in 1979, the Supreme Court established that
the constitutionality of a warrantless strip search depended on
the need for the particular search balanced against the intrusion
into the personal rights of the person to be searched. See Bell,
441 U.S. at 559. This court, in 1993, held that Strafford
13
County's policy of strip searching all protective custody
detainees violated the Fourth Amendment. See Kidd v. Gowen, 829
F. Supp. 16, 19 (D.N.H. 1993). Long before 1996, many courts
held that strip searches of detainees were not constitutional
unless they were justified by at least reasonable suspicion that
the person was concealing weapons or contraband. See Swain,
117
F.3d at 7, 9; see also Ciraolo v. New York,
216 F.3d 236, 238 (2d
Cir. 2000); Kidd,
829 F. Supp. at 18. It was also clearly
established in 1996 that the nature of the offense charged was
important in determining whether a strip search was justified,
which depended on the likelihood that violence or contraband was
involved, not on whether the offense was designated a felony or a
misdemeanor. See, e.g.. Fuller v. M.G. Jewelry,
950 F.2d 1437,
1446-47 (9th Cir. 1991); Masters v. Crouch,
872 F.2d 1248, 1251-
55 (6th Cir. 1989); Newkirk v. Sheers,
834 F. Supp. 722, 787-89
(E.D. Pa. 1993). Further, Strafford County had particular notice
in 1993 that its blanket strip search policies were
unconstitutional. See Kidd,
829 F. Supp. at 18-19.
LeClair offers no argument as to whether a reasonable
official in his position would understand that a strip search of
Elliott during the intake process would violate her
constitutional rights. Nothing in the record submitted by
LeClair even suggests that the offense of interference with
custody or other circumstances in Elliott's situation supported a
14
reasonable suspicion that she was hiding contraband or weapons.
A reasonable official in LeClair's position would have known that
a strip search performed either pursuant to a blanket policy or
randomly, without reasonable suspicion, violates the Fourth
Amendment.
Based on the record presented for summary judgment, LeClair
has failed to show that he is entitled to qualified immunity with
respect to Elliott's claim in Count I arising from an alleged
strip search during the intake process.
B. Counts II and III - - Unreasonable Arrest/Detention and
Unlawful Transportation
In Count II, 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. In Count III, she 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 to a private, for-profit corporation, rather than to a
police officer of the State of New Hampshire," 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.
15
The Strafford defendants move for summary judgment on the
grounds that Elliott was arrested and detained in Tennessee by
the Paris, Tennessee, police department, and she was released by
the Henry County officials. Therefore, the Strafford defendants
contend that Elliott has failed to allege that they were involved
in her arrest, detention, and transportation.
Elliott argues that the Strafford defendants are liable
because they initiated the arrest process and hired Transcor to
transport her. Elliott, however, did not plead any such claims
in Counts II and III. See Fed. R. Civ. Pro. 8(a)(2). The
Strafford defendants are entitled to summary judgment on Counts
II and III.
C. Count IV - Sixth Amendment Claims
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
Strafford defendants contend that the claims do not apply to them
because they did not have contact with Elliott immediately after
her arrest. Elliott nevertheless argues that the Strafford
defendants are liable based on conduct by Transcor. Since
Elliott has not alleged supervisory or municipal liability claims
against the Strafford defendants, based on Transcor's conduct,
16
they are entitled to summary judgment on Count IV.4
D. Count V - - Violation of a 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. The Strafford defendants argue that the intake
procedure and strip searches after contact visits and court
appearances did not violate Elliott's right to privacy for the
same reasons that those incidents did not violate the Fourth
Amendment. Elliott argues only that a non-consensual search is a
trespass and that the searches were unconstitutional.5
The defendants are entitled to summary judgment with respect
to Elliott's claim that the strip searches after contact visits
4In addition, even if such claims had been made, the court
previously determined that Elliott had not presented a sufficient
record to avoid summary judgment on her claim that Transcor
violated her Sixth Amendment rights. See Order issued January
25, 2001, at 10-12.
5Elliott 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. Elliott
cites Sutherland v. Kroger Co., 110 S.E.2d 716 (W.Va. 1959) in
support of her claim, which was premised on West Virginia law of
trespass. Elliott may intend to make a similar claim under New
Hampshire law, despite the lack of citation to relevant legal
authority. Her lack of developed argumentation on the issue,
however, prevents a separate analysis under state law. See,
e.g.. United States v. Torres-Rosa,
209 F.3d 4, 6 (1st Cir.
2000).
17
and court appearances were unconstitutional. Elliott offers no
other basis to determine whether a different right of privacy,
pertinent to those claims, exists under state or federal law. It
remains unresolved, however, based on the record presented for
summary judgment, whether reasonable suspicion justified a strip
search during the intake process as required by the Fourth
Amendment. Since the defendants offer no other basis for summary
judgment, the motion is denied as to Elliott's privacy claim
based on the intake process.
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
part of Elliott's § 1983 claim in Count I, the defendants'
request is denied.
Conclusion
For the foregoing reasons, the Strafford defendants' motion
for summary judgment (document no. 62) is granted as to claims in
Count I and Count V arising from strip searches conducted by a
Transcor employee and following contact visits and court
appearances, but is denied as to claims arising from a strip
18
search during the intake process at Strafford County House of
Corrections. Summary judgment is also granted with respect to
Counts II, III, and IV.
With the resolution of the summary judgment motion, the
parties should undertake good faith efforts to arrive at a
nontrial disposition of this case.
SO ORDERED.
Joseph A. DiClerico, Jr.
District Judge
February 7, 2001
cc: James W. Craig, Esquire
Donald E. Gardner, Esquire
Michael D. Ramsdell, Esquire
Charles K. Grant, Esquire
19
