United States District Court, Northern District of Illinois, E.D
November 3, 1982
EVANGELINE ROSCOM, PLAINTIFF,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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.
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
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
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'
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
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 ¶
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.