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Dillon v. Clackamas County

United States District Court, D. Oregon, Portland Division

May 2, 2018

WILLIAM DILLON; SCOTT GRAUE; DAVID HODGES; ALBERT LOVE; and JAYSON SAYLOR, individually, and on behalf of a class of others similarly situated, Plaintiffs,
v.
CLACKAMAS COUNTY and CRAIG ROBERTS, both individually and in his official capacity as Sheriff, Defendants.

          FINDINGS AND RECOMMENDATIONS

          Youlee Yim You United States Magistrate Judge

         INTRODUCTION

         Plaintiffs are former inmates of the Clackamas County Jail (“CCJ”). In this putative class action, plaintiffs allege that their federal constitutional and state statutory rights were violated by visual strip searches[1] they endured during incarceration. This case was originally filed on May 18, 2014, and included as named plaintiffs William Dillon (“Dillon”), Scott Graue (“Graue”), and David Hodges (“Hodges”).[2] On May 4, 2015, those three plaintiffs, and two additional named plaintiffs, Albert Love (“Love”) and Jayson Saylor (“Saylor”), [3] filed a Second Amended Complaint (“SAC”), [4] alleging claims for: (1) violation of the Fourth and Eighth Amendments to the United States Constitution (“First Claim”); and (2) invasion of personal privacy under ORS 30.865 (“Second Claim”). SAC, ECF #31. Defendants include Clackamas County (“the County”) and the County Sheriff, Craig Roberts (“Roberts”).

         The parties have filed the following motions: (1) Defendants' Motion for Summary Judgment, ECF #58; (2) Plaintiffs' Motion to Certify the Class, ECF #79; (3) Plaintiffs' Motion for Partial Summary Judgment, ECF #82; and (4) Defendants' Motion to Dismiss for Lack of Jurisdiction, ECF #127.

         Defendants assert that subject matter jurisdiction is lacking due to the terms of the Prison Litigation Reform Act of 1995, 42 USC § 1997e(e), as to any claims brought by plaintiffs who were in custody at the time the Second Amended Complaint was filed on May 4, 2015. Additionally, defendants raise arguments under Article III of the United States Constitution, asserting that plaintiffs lack standing to pursue this case both: (1) at all due to the fact that none of the current plaintiffs was an inmate at the CCJ at the time of filing of the SAC; and (2) as to any of the claims of unconstitutional searches on behalf of female inmates at CCJ. Finally, defendants seek summary judgment against: (1) all claims alleged against Roberts under 42 USC § 1983, both on the ground that he did not personally participate in any of the allegedly unlawful conduct and because he is entitled to qualified immunity; and (2) the claim for violation of ORS 30.865 due to failure to comply with the Oregon Tort Claims Act (“OTCA”).

         Both sides seek summary judgment that the searches did (or did not) violate any constitutional guarantee. Additionally, plaintiffs seek to certify this case as a class action under FRCP 23(b) on behalf of all class members who have undergone unjustified and unreasonable visual strip searches at CCJ since May 19, 2012.[5] Finally, plaintiffs seek to certify two subclasses, one involving persons in CCJ custody searched in group and public strip searches from September 25, 2012, forward (“Class One”), and another involving a group of inmates searched on October 10, 2012 (“Class Two”).

         For the reasons that follow: (1) Defendants' Motion to Dismiss for Lack of Jurisdiction (ECF #127) should be DENIED; (2) Defendants' Motion for Summary Judgment (ECF #58) should be GRANTED as to plaintiffs' claims for alleged constitutional violations based on the emergency shakedown search of October 10, 2012, and GRANTED as to all claims under the Eighth Amendment. Otherwise, Defendants' Motion for Summary Judgment (ECF #58) should be DENIED; (3) Plaintiffs' Motion to Certify the Class (ECF #79) should be GRANTED as to Class One, but only as to the Fourth Amendment claims of male inmates at the CCJ who underwent return-from-court visual strip searches between September 25, 2012, and the date in May 2013 the County installed privacy panels in CCJ's hallway. Plaintiffs William Dillon, Scott Graue, David Hodges, and Albert Love should be appointed as class representatives of Class One. Additionally, Leonard Berman should be appointed as class counsel. In all other respects, Plaintiffs' Motion to Certify (ECF #79) should be DENIED; and (4) Plaintiffs' Motion for Partial Summary Judgment (ECF #82) should be DENIED.

         FINDINGS

         I. Factual Background[6]

         A. Custodial Status

         Dillon, Graue, and Hodges filed this action on May 18, 2014 (Complaint, ECF #1), and filed the SAC (ECF #31) naming Love and Saylor (who was later dismissed as a named plaintiff) as additional plaintiffs on May 4, 2015.

         Dillon was in CCJ custody from November 2012 until early 2013, and was not part of the October 10, 2012 group strip search. Decl. William Dillon (“Dillon Decl.”) ¶ 2, ECF #85. However, he avers that he “suffered humiliating public group searches in 2013 without justification.” Id. On May 18, 2014, when this case was filed, Dillon lived outside of Clackamas County. Complaint ¶ 3. It is unclear whether he was in custody or out of custody at that time. A year later, on May 4, 2015, when the SAC was filed, Dillon was in jail custody in Oregon, but not at the CCJ. SAC ¶ 12, ECF #31.

         It is unclear whether Graue or Hodges were in custody when this case was initially filed on May 18, 2014. Complaint ¶ 3, ECF #1. However, Graue, Hodges, and Love were in CCJ custody at various times between February 2011 and September 2014, and were each subjected to the October 10, 2012 group visual strip search. Decl. Kevin Thies (“Thies Decl.”) ¶ 19, ECF #59; Decl. Scott Graue (“Graue Decl.”) ¶ 2 (ECF #83); Decl. David Hodges (“Hodges Decl.”) ¶ 2 (ECF #86); Am. Decl. Albert Love (“Am. Love Decl.”) ¶ 2 (ECF #89); Decl. Lee Eby ¶ 4, ECF #23 (noting that Dillon, Graue, Hodges, and Love were no longer in CCJ custody as of September 22, 2014). At the time the SAC was filed on May 4, 2015, Love lived out of jail custody in Multnomah County and Dillon, Graue, and Hodges were in jail custody at a facility other than the CCJ. SAC ¶¶ 12, 14; see also ECF #54, at 2 (indicating that, as of October 2016, Graue was confined at Snake River Correctional Facility and Hodges was confined at Oregon State Penitentiary).

         B. County Search Policy

         The relevant County policy regarding searching inmates who are in the custody of CCJ are set forth in CCJ Policies § 25.47. See ECF #33-1. The policy provides that searches are conducted “on a routine and random basis” with “[s]pecial attention . . . to inmates” who are:

1. returning to the facility from court, medical/dental transports, and other venues outside the jail;
2. moving from their assigned housing area to another area of the jail;
3. whose cells or living area are being searched;
4. who are working as inmate vendors; and
5. who are being transported from the jail to another venue.

Id. at 1-2, CCJ Policies § 25.47.4(C).

         Among other provisions, the visual body cavity search policy states:

Visual Body Cavity Search. Visual body cavity searches are unclothed searches which include a visual inspection of the anus and/or genital area; generally, requiring the subject to bend over and spread the cheeks of the buttocks, to squat, and/or otherwise assume a posture which more fully exposes body cavity orifices. Visible body cavity search procedures will be done in compliance with the following guidelines:
b. visual body cavity searches will be done in a manner that reasonably ensures inmates being searched can only be observed by: 1) staff members conducting or assisting with the search; 2) staff members working in the area; and, 3) other inmates being searched at the same time.
f. visible body cavity searches should be performed for inmates:
I) returning to the facility; 2) in or leaving administrative segregation (or other restricted area); 3) prior to transportation to court, a medical clinic or other such venues: 4) during work projects outside the jail perimeter; 5) as part of a cell shakedown; 6) returning from other activities within the facility; 7) an in-transit courtesy hold for another criminal justice agency; 8) going to, while involved in, and/or returning from work release; 9) returning from contact visits; 10) entering or exiting their living areas; and II) reasonable suspicion exists that they may be in possession of contraband.
g. Unclothed searches should be performed for detainees:
1) when Corrections Deputies have reasonable suspicion that an inmate is in possession of a weapon, drug, or other contraband; 2) whose charges or history involve violence, weapons, drugs, or felony-person charges; 3) who are inmates, parolees, or probationers under the jurisdiction of the Oregon Department of Corrections; or, 4) serving a sentence ordered by the courts.

Id. at 3-4, CCJ Policies § 25.47.4(D)(3).

         C. The “Public” or “Group” Searches at CCJ

         Plaintiffs allege that their constitutional rights were violated by “group” and/or “public” visual strip searches conducted both: (1) routinely when they and other CCJ inmates returned from court proceedings; and (2) during an “emergency shakedown” on October 10, 2012.[7]

         1. Routine Searches Conducted on Inmates Returning From Court

         Plaintiffs assert that, while housed at CCJ, they were subjected to repeated “public” or “group” visual strip searches involving 5-15 inmates at a time, occurring twice a day following morning and afternoon court transports. These visual strip searches took place in CCJ hallways and holding rooms where the inmate being searched could see other inmates naked and vice versa. Dillon Decl. ¶ 3, ECF #85; Graue Decl. ¶ 3, ECF #83; Hodges Decl. ¶ 3, ECF #86; Am. Love Decl. ¶ 3, ECF #89. Additionally, at least prior to the installation of “privacy panels, ” the hallway visual strip searches allowed: (1) other deputies to “watch [inmates] naked remotely” on the CCJ's internal video monitors (“CCTV”) at any one of ten computer terminals located throughout the CCJ;[8] (2) female deputies staffing the “records window” to see inmates naked; and (3) inmates being searched to be seen naked by other deputies passing by in the hallways and by and female inmates performing laundry duties. Dillon Decl. ¶¶ 3-6; ECF #85; Graue Decl. ¶¶ 3-6, ECF #83; Hodges Decl. ¶¶ 3-6, ECF #86; Am. Love Decl. ¶¶ 3-6, ECF #89; ECF #88-7 at 7-9, 21.[9]

         In May 2013, [10] the County installed “privacy panels” in CCJ's “back” hallway. ECF #88-7 at 21, ECF #109-2, at 11. These panels consist of six curtains that extend outward a few feet into the hallway from the wall, creating five “stalls” where deputies can search individual inmates, and provide spaces where inmates being searched can see only the lower portion of other inmates' legs. See ECF ##88-5, 88-7, at 18-19. The panels do not prevent other deputies from walking down the hallway, but “there is no reason” for deputies not conducting the search to be in the area. ECF #88-7, at 18-19.

         2. October 10, 2012 “Emergency Shakedown” Search

         In addition to routinely conducting visual strip searches of inmates returning to CCJ from court appearances, on October 10, 2012, CCJ staff conducted a search covering the CCJ's first floor housing area as part of an “emergency shakedown.” Declaration of Kevin Thies (“Thies Decl.”) ¶ 2, ECF #59. The emergency shakedown took place at approximately 6:00 p.m., after CCJ staff discovered that that a 3.5 inch long, .75 inch wide, “thin” piece of metal had been broken off of one of the computers in the first floor library. Id. ¶ 3. Corrections staff had reason to believe the missing piece of metal could be modified to be used as a stabbing weapon and to believe it was in the possession of an inmate in the first floor housing area of the CCJ. Id. ¶¶ 4-5. As a result, the CCJ was placed on lockdown status, meaning all inmates were locked into their cells and no inmate movement was permitted absent necessity. Id. ¶ 6. The Corrections Emergency Response Team (“CERT”) then conducted visual strip searches in the area immediately outside inmates' cells, two or three cells at a time, in groups of no more than six inmates. Id. ¶¶ 8-10, 12. Once each group of inmates was visually strip searched, they dressed and were relocated to the CCJ day room. Id. ¶ 14. The CERT then conducted searches of the vacant cells. Id. ¶ 14. Once the cells were searched, the inmates were moved back to their cells, and the CERT searched the CCJ day room. Id. All remaining plaintiffs excluding Dillon were present for the October 10, 2012 emergency shakedown and visual strip search.

         D. Proposed Classes Identified in the SAC

         In the SAC, plaintiffs identify three proposed classes. Each of the classes describes the offending visual strip search methodology as involving deputies who:

A. Inspects the individual from top to bottom; B. Inspects his hair, ears, mouth, hands, armpits, feet, between toes, nostrils; C. Inspects a woman's breasts or tells a man to separate his penis and testicles; D. Inspects beneath the foreskin of an uncircumcised male; E. Requires the individual to bend and spread buttocks; F. Requires the individual to face a wall so staff can inspect the back of the body.

SAC 5-7, ECF #31.

         All named plaintiffs are proposed class representatives of “Class One, ” which consists of a class period from September 25, 2012, through May 4, 2015, and is identified as the following persons, subjected to the offending search methodology:

All persons (including pre-trial detainees and convicted inmates) who were or currently are in the custody of the CCJ regardless of charges, who have been or will be searched while unclothed in a group and public setting in open areas involving one or more deputy who [engaged in the offending search methodology].

SAC 5-6, ECF #31.

         Additionally, all named plaintiffs are proposed class representatives of “Class Two, ” which consists of a class period involving a one-time public search on October 10, 2012, and is identified as:

All persons (including pre-trial detainees and convicted inmates) who were or currently are in the custody of the CCJ regardless of charges, who were searched while unclothed in a group and public setting in open areas involving one or more deputy who [engaged in the offending search methodology].

SAC 6 (ECF #31).

         Finally, Dillon, Graue, and Hodges are proposed class representatives of “Class Three, ” consisting of a class period commencing September 25, 2012, and extending to the date on which the County is either enjoined from, or ceases to conduct, the allegedly unlawful visual strip searches, and is identified as:

All persons (including pre-trial detainees and convicted inmates) who are or will be placed into the custody of the CCJ regardless of charges, who have been or will be searched while unclothed in a group and public setting in open areas involving one or more deputy who [engaged in the offending search methodology].

SAC 6-7 (ECF #31).

         II. Preliminary Issues

         A. Key Terms and Nature of the Return-From-Court Hallway Searches

         Among other issues raised in the pending motions, plaintiffs seek to certify two classes and both sides seek summary judgment on the issue of whether the daily return-from-court searches conducted at CCJ were or were not constitutional. Both of those requests require identification of the nature of the allegedly unconstitutional action, as well as consideration of how the named plaintiffs' claims compare with those of absent class members. A review of the SAC, the parties' briefs, and the available evidence reveal four issues that call for clarification.

         First, the language used in the SAC is exceptionally broad, and uses expansive and undefined terms like “group” or “public” searches. However, so far as the pleadings and available evidence reveal, the “group” nature of the searches is meant to convey that more than one inmate was searched at a time, meaning that individual inmates being searched could be seen naked by other inmates being searched, such as during the emergency shakedown search of October 10, 2012. The term “public” is apparently meant to encapsulate three additional features of the return-from-court searches, namely that (in addition to being seen by other inmates being searched due to the “group” nature of the searches), naked inmates could be seen: (1) over CCTV on ...


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