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Dillon v. Clackamas County

United States District Court, D. Oregon

July 23, 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.

          ORDER

          Michael H. Simon, United States District Judge.

         United States Magistrate Judge Youlee You issued Findings and Recommendation in this case on May 2, 2018. ECF 148. Plaintiffs, former inmates at Clackamas County Jail (“CCJ”), bring this class action against Defendants for alleged violations of Plaintiffs' state statutory and federal constitutional rights arising from group strip searches at CCJ. Judge You recommended that (1) Defendants' motion to dismiss for lack of jurisdiction be denied; (2) Defendants' motion for summary judgment be granted in part and denied in part; (3) Plaintiffs' motion to certify the class be granted in part and denied in part; and (4) Plaintiffs' motion for partial summary judgment be denied.

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         Plaintiffs timely filed an objection (ECF 150) to which Defendants responded, ECF 155. Plaintiffs object to the portions of Judge You's recommendation finding that (1) Plaintiffs had not presented a genuine question of material fact as to whether the October 10, 2012 emergency shakedown search was exaggerated or excessive; and (2) the record was insufficient to determine whether the daily return-from-court searches were unreasonable under the Fourth Amendment. Defendants also timely filed an objection (ECF 154) to which Plaintiffs responded, ECF 159. Defendants object to Judge You's recommendations that (1) the Court should certify the class of plaintiffs whose claims are predicated on the daily return-from-court searches; (2) the Court should deny Defendants' motion for summary judgment as to the claim that the return-from-court searches violate the Fourth Amendment; and (3) the Court should deny Defendants' motion for summary judgment as to Plaintiffs' claims for a violation of Or. Rev. Stat. (“ORS”) § 30.865.

         A. Plaintiffs' and Defendants' Objections to Findings on Motions for Summary Judgment

         1. October 12, 2010 Emergency Shakedown

         Plaintiffs object to Judge You's finding that there was no genuine question of material fact that the October 12, 2010 emergency shakedown search was unreasonable. As Judge You correctly noted, the test for whether a visual strip search of an incarcerated person violates the Fourth Amendment requires consideration of “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.” Bell v. Wolfish, 441 U.S. 520, 559 (1979) (emphasis in original). When there is a possibility that a prisoner has access to a weapon, strip searches have a legitimate penological purpose, and Plaintiffs bear “the burden of showing that [prison] officials intentionally used exaggerated or excessive means to enforce security . . .” Michenfelder v. Sumner, 860 F.2d 328, 332-333 (9th Cir. 1988). Judge You found that Plaintiffs failed to counter Defendants' evidence that the emergency search was conducted because a possible weapon, in the form of a piece of metal, was unaccounted for. Judge You also found that Plaintiffs presented no evidence that Defendants' response to the discovery of the missing metal was exaggerated or excessive. Plaintiffs now argue only that the video evidence showing portions of the emergency search do not show that the search was reasonable and that alternative, more private locations were available. Given the justification for the search, the proffered video evidence-which Judge You also considered, and which shows inmates stripping in groups of up to six in front of their cells- does not raise a reasonable inference that the place, manner or scope of the search was unreasonable, or that the prison officials' response was exaggerated or excessive.

         2. Routine Return-From-Court Strip Searches

         Both Plaintiffs and Defendants object to Judge You's finding that, based on the record, it was impossible to determine whether the daily return-from-court visual strip searches were unreasonable under the Fourth Amendment, and her recommendation that the Court deny both motions for summary judgment on this claim. Judge You concluded that, although there was no indication that Defendants had considered measures to restrict the viewing of naked inmates by third parties, Plaintiffs had also not presented evidence of “exactly what could be seen on the CCTV monitors and by whom, how frequently female third parties could and did view them naked, and the like.” For this reason, she recommended denial of both Plaintiffs' and Defendants' motions for summary judgment on Plaintiffs' Fourth Amendment claim based on these searches.

         Plaintiffs' objections to this finding are difficult to parse. Plaintiffs appear to argue that the record was sufficient to justify summary judgment for Plaintiffs because (1) Defendants' strip search practices were inconsistent with their own regulations; and (2) it is uncontested that the opportunity existed for staff members not involved in the searches to observe naked inmates. Local laws and regulations may create privacy requirements for strip searches that are more demanding than those imposed by the Constitution. That an agency fails to follow its own standards, therefore, does not render its actions unconstitutional as a matter of law. Similarly, that the privacy panels allowed for the opportunity for staff members not involved in searches to observe the inmates does not render the search practices unconstitutional as a matter of law. The reasonableness test articulated in Bell and Michenfelder is a highly fact-specific inquiry. Judge You correctly concluded that a further showing regarding to whom and how often the naked inmates were actually exposed to third parties is necessary to demonstrate that the scope, manner, justification and place of the search practices were so unreasonable as to violate the Fourth Amendment.

         Defendants' objections largely reiterate their argument in briefing before Judge You on their motion for summary judgment. Defendants argue that they must be granted summary judgment under Bell because that case held that searches similar to the routine strip searches challenged in this case were constitutional. Defendants' argument is focused almost entirely on the justification for such routine strip searches. Under Bell, although strip searches may be justified without probable cause, they must nevertheless be conducted in a reasonable manner. 441 U.S. at 560. The decision in Bell did not contemplate whether strip searches conducted in the manner described in this case are reasonable, but rather addressed the narrow issue of “whether visual body-cavity inspections . . . can ever be conducted on less than probable cause.” Bell, 441 U.S. at 560. The justification for the searches is not contested here. Rather, Plaintiffs challenge the allegedly unreasonable circumstances of the searches-specifically, that they were exposed to CCTV cameras and female inmates after fully disrobing and presenting their intimate sexual areas and bodily orifices for detailed visual inspection.

         The Ninth Circuit has previously held that, depending on the frequency, regularity, and proximity, cross-gender observation of strip searches may be unconstitutional. See, e.g., Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919 (9th Cir. 2017) (holding that male pretrial detainees had stated a claim for a Fourth Amendment violation where they alleged frequent and up-close cross-gender observation of their showering and toilet use); cf. Michenfelder, 860 F.2d at 334 (holding that strip searches were not unconstitutional specifically because female guards were “not routinely present for strip searches” and observation from video monitors was largely obstructed). Given the evidence that Plaintiffs were exposed to female inmates and CCTV cameras while undergoing strip searches and the lack of evidence of exigent circumstances or efforts on behalf of the Defendants to restrict the viewing of naked inmates by third parties, Judge You correctly denied Defendants' motion for summary judgment.

         3. ORS § 30.865

         Defendants object to Judge You's finding that Plaintiffs' claim for invasion of privacy in violation of ORS § 30.865, which was alleged for the first time in Plaintiffs' second amended complaint, relates back to Plaintiffs' original complaint and is thus not barred by the statute of limitation. The Court agrees with Judge You that conduct giving rise to Plaintiffs' statutory claim arises from the exact same conduct alleged in Plaintiffs' original complaint. ...


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