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United States District Court, Northern District of Illinois, E.D

November 3, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Evangeline Roscom ("Roscom") has sued the City of Chicago ("City") and certain of its officials (collectively "City defendants") and the County of Cook ("County") and certain of its officials ("individual County defendants") under 42 U.S.C. § 1983 ("Section 1983"), charging an allegedly unlawful "strip search." City defendants and individual County defendants*fn1 have both moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss Roscom's Amended Complaint (the "Complaint"). For the reasons stated in this memorandum opinion and order, City defendants' motion is granted and individual County defendants' motion is denied. However the claim for punitive damages against County itself is stricken.


In April 1980 Roscom was arrested on a Chicago streeteorner by Chicago police officers Demetrio Pascual ("Pascual") and Diane Thompson ("Thompson"). Her arrest was pursuant to a warrant charging her with deceptive practices (writing dishonored checks).

Roscom was brought to a police station, questioned on the charges, fingerprinted and placed in a lock-up. Several hours later she experienced severe chest pains and was taken to a hospital emergency room for examination. Upon release from the hospital, Roscom was taken to Cook County Jail, where her admission was processed and she was placed in a cell.

Some time later Roscom was led from the cell with several other female detainees and placed in a room. There she and the others were told to remove all their clothing and bend over in a line before an unidentified sheriff's matron ("Doe").*fn3 Without touching Roscom, Doe conducted a visual search of Roscom's body while Roscom was naked and bent over in a squat position. Roscom seeks $100,000 compensatory and $100,000 punitive damages. She does not seek equitable relief.

City Defendants

Complaint ¶¶ 4-5 allege only that Pascual and Thompson arrested Roscom and Pascual questioned her. Roscom does not challenge the lawfulness of her arrest. More importantly, Roscom does not connect Pascual or Thompson in any way to the assertedly unconstitutional strip search. That gap is fatal to Roscom's claims against City defendants.

In this respect the case is controlled by the principle recently reconfirmed in Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982):

  To recover damages under 42 U.S.C. § 1983, a
  plaintiff must establish defendants' personal
  responsibility for the claimed deprivation of a
  constitutional right.

There is no nexus, either directly or inferentially, between Pascual and Thompson and the claimed constitutional deprivation-the strip search at the County Jail.*fn4

It necessarily follows Roscom has also failed to state a claim against Police Captain John Ryle ("Ryle") or Police Superintendent Richard Brzeczek ("Brzeczek") or City itself. Because no Chicago police officer has been connected to the strip search, no factual predicate exists for potential liability of his or her supervisors (Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976)) or of City (Monell, 486 U.S. at 694-95, 98 S.Ct. at 2037-38).

In sum Roscom's Complaint must be dismissed as to all City defendants.

Individual County Defendants

Individual County defendants have made several overlapping contentions in support of their Rule 12(b)(6) motion:

1. Roscom's Complaint is vague and conclusory.

    2. Strip searches do not violate any constitutional
  rights cognizable under Section 1988.

    3. No conduct is alleged in the Complaint supporting
  relief against Cook County Jail Executive Director
  Phillip Hardiman ("Hardiman") or Cook County Sheriff
  Richard Elrod ("Elrod").

All are without merit.

1. Vagueness of the Complaint

Apparently individual County defendants would return us to the era of common law pleading. Their characterization of the Complaint as "vague and conclusory" might best be met by requiring counsel to stand at the blackboard and copy out the forms of complaint included in the Appendix of Forms to the Federal Rules of Civil Procedure (see Rule 84 as well as Rules 8(a), 8(e)(1) and 8(f)). But for the fact their other contentions are at least responsive to the Complaint's allegations, this Court would be tempted to suspect individual County defendants had not bothered to read the Complaint at all.

2. Constitutionality of Strip Searches

Individual County defendants seem to believe Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) held strip searches constitutional as a matter of law (Mem. 1-2; R.Mem. 8-10). Instead Wolfish applied a balancing test under which in certain circumstances body cavity searches were held not violative of the Fourth Amendment,*fn5 441 U.S. at 559-60, 99 S.Ct. at 1884-1885 (citations and footnotes omitted):

    The test of reasonableness under the Fourth
  Amendment is not capable of precise definition or
  mechanical application. In each case it requires a
  balancing of the need for the particular search
  against the invasion of personal rights that the
  search entails. Courts must 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. . . . A detention
  facility is a unique place fraught with serious
  security dangers. Smuggling of money, drugs, weapons,
  and other contraband is all too common an occurrence,
  And inmate attempts to secrete these items into the
  facility by concealing them in body cavities are
  documented in this record, App. 71-76, and in other
  cases . . . That there has been only one instance
  where an MCC inmate was discovered attempting to
  smuggle contraband into the institution on his person
  may be more a testament to the effectiveness of this
  search technique as a deterrent than to any lack of
  interest on the part of the inmates to secrete and
  import such items when the opportunity arises. We do
  not underestimate the degree to which these searches
  may invade the personal privacy of inmates. Nor do we
  doubt . . . that on occasion a security guard may
  conduct the search in an abusive fashion. . . . Such
  abuse cannot be condoned. The searches must be
  conducted in a reasonable manner. . . . But we deal
  here with the question whether visual body-cavity
  inspections . . . can ever be conducted on less than
  probable cause. Balancing the significant and
  legitimate security interests of the institution
  against the privacy interests of the inmates, we
  conclude that they can.

Our Court of Appeals has recently confirmed the incorrectness of defendants' per se reading of Wolfish. Tikalsky v. City of Chicago, 687 F.2d 175, 181-82 nn. 10-1l (7th Cir. 1982). In so doing it pointed to three post-Wolfish cases where strip searches were found unconstitutional under the circumstances. Id., at 182 n. 12.

For Roscom's Complaint to survive a motion to dismiss, it is enough that strip searches may be unconstitutional. Individual County defendants' claimed policy justifications for their practices (Mem. 2; R.Mem. 3-5, 6, 8-10) are not germane to a Rule 12(b)(6) motion; They go to whether or not, on the facts, the strip search of Roscom was unreasonable. As for the present question-whether that strip search might have been unreasonable-Wolfish and Tikalsky command both an affirmative answer to that question and denial of individual County defendants' motion.

3. Liability of Hardiman and Elrod

In Crowder our Court of Appeals recently defined indirect individual responsibility for Section 1983 deprivations (687 F.2d at 1005):

  . . . a defendant's direct participation in the
  deprivation is not required. An official satisfies the
  personal responsibility requirement of section 1983 if
  she acts or fails to act with a deliberate or reckless
  disregard of plaintiff's constitutional rights, or if
  the conduct causing the constitutional deprivation
  occurs at her direction or with her knowledge and

Thus the fact Hardiman and Elrod did not personally conduct Roscom's strip search is not determinative of their potential individual liability.

Complaint ¶ 3c alleges Jail Executive Director Hardiman is responsible for implementing the police policies within Cook County Jail. Substantially the same allegation of responsibility is made of Shariff Elrod (Complaint ¶ 3e).

Such supervisory officers may be responsible under Section 1983 if their actions in some way cause the alleged constitutional deprivation. See Rizzo, 423 U.S. at 371, 96 S.Ct. at 604; see also Crowder, 687 F.2d at 1005-06 (comparing degrees of participation in unconstitutional deprivation). Again, the ultimate liability of Hardiman and Elrod will depend on facts adduced by later proceedings. For Rule 12(b)(6) purposes, however, the Complaint survives individual County defendants' motion to dismiss.

4. County's Liability For Punitive Damages

Roscom prays $100,000 punitive damages from defendants "and each of them" as an undifferentiated class. County cannot be liable for punitive damages in a Section 1983 action. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981). This Court sua sponte strikes the punitive damages claim against County.


City defendants' motion to dismiss is granted. Individual County defendants' motion to dismiss is denied. Roscom's punitive damages claim is stricken as to County. All County defendants are ordered to answer the Complaint on or before November 15, 1982.

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