and (g) covering up through destruction of PAU documents.
As has been previously discussed, plaintiffs have not presented
sufficient evidence supporting these contentions. See § III(A)(1)
supra. As to the specific contentions: (a) There is one passage in a
training manual and no Managerial Defendant was shown to be responsible
for promulgating or disseminating it. See § II(D)(1) supra. (b)
There is no evidence that, during the pertinent time period, Customs
inspectors were required to have knowledge of racial profiling or
evaluated on such knowledge. See id. (c) In a two and one-half year
period, there were 12 complaints of racial discrimination (not all limited
to women), which cannot be considered widespread in light of the number
of passengers searched. Only one Managerial Defendant was aware that
these complaints were not adequately investigated. See §§ II(D)(4),
(5) supra. (d) There is no evidence that, during the pertinent time
period, the Managerial Defendants were aware of the disproportionate
selection of African-American women for searches, except for Trotter's
(and possibly two others') knowledge of the 1997 strip search statistics
for O'Hare. See II(D)(2) supra. (e)-(f) There is no evidence of a
failure to adequately follow up on an employee complaint of
discrimination in the selection of passengers for searches. See §
II(D)(6) supra. (g) There is no evidence of documents being destroyed in
an attempt to cover up misconduct. See § II(D)(7) supra. Plaintiffs
have not presented a sufficient basis for finding that discrimination
permeated the ranks. Therefore, the intracorporate conspiracy doctrine
precludes any possible conspiracy claim.
Counts IX and X will be dismissed as to all the Managerial Defendants.
Since the parties have agreed to apply this ruling to the Supervisory
Defendants as well, it will be dismissed as to those defendants also. It
is unclear if nonsupervisory Customs inspectors are also claimed to be
involved in the conspiracy. To the extent they are, the intracorporate
conspiracy doctrine would also bar a claim against them. Additionally,
because no conspiracy has been shown to exist, there is no possible basis
for injunctive relief. Counts IX and X will be dismissed in their
C. Injunctive Relief
None of the Managerial Defendants is currently employed in a position
with responsibility for O'Hare. Therefore, even as to the still pending
aspects of Count II, any individual capacity claim for injunctive relief
as against the Managerial Defendants is moot. As to any Supervisory
Defendant who is no longer employed at O'Hare, the Count II individual
capacity injunctive relief claims are also moot. As to Supervisory
Defendants still employed at O'Hare, the individual capacity injunctive
relief claims remain pending as long as the particular count remains
pending against that defendant.
As to Counts II, IV, and VII, official capacity claims for injunctive
relief still remain pending.
D. Letkemann Claim Against Hoteko
On October 31, 1996, named plaintiff Letkemann was subjected to an
intrusive search at O'Hare. She was required to remove all her outer
garments and her bra, but was allowed to keep her panty hose on. She was
then patted down, including between her legs and the Customs inspector
visually inspected her anus and vagina. The incident log for this search
lists defendant Hoteko as the supervisor who approved the search.*fn60
The "search type" is identified as being a "patdown."
Hoteko testified at
his deposition that he has no independent recollection of the search,
even after having his memory refreshed by seeing the incident log.
In his summary judgment affidavit, Hoteko expressly acknowledges and
does not dispute that he was the approving supervisor. He also states:
4. Customs records indicate that I approved a pat
down search of Ms. Letkemann based upon information
that was provided to me by a subordinate Inspector.
The inspector related that the passenger was
unemployed but had nonetheless traveled frequently;
that the travel was to a "high risk" country for
narcotics activity (i.e., Jamaica); and that the
passenger gave some misinformation to the inspector.
Based on that information, I determined that the
requisite "little or no suspicion" standard was met
and authorized a pat down search.
Def. Exh. 7, Hoteko Aff. ¶ 4. Hoteko's deposition testimony is
clear that he has no independent recollection of this information
and instead relies upon the incident log for the statement in his
In prior rulings in this case, it has been held that, as of October
31, 1996, there can be no damages liability for a standard patdown search
because it was not then clearly established that any level of suspicion
was required for such a search. Anderson IV, 199 F.R.D. at 256-57. As of
that time, it was clearly established that intrusive patdown searches
required at least reasonable suspicion. Id. at 258-59. Hoteko contends he
cannot be liable for damages for Letkemann's search because he provided
approval for a standard patdown search, not a strip search, and no
suspicion was required for such a search.
The incident log is insufficient to establish that Hoteko only approved
a standard patdown search. The incident log simply states: "search type:
P," with a list of the codes identifying "P" as "patdown." No testimony
is provided to show that search type on the incident log identifies the
type of search approved, not the type of search actually conducted.
Moreover, the incident log codes do not distinguish between standard and
intrusive patdowns. Therefore, even if the code refers to approving a
patdown, it could mean approving an intrusive patdown which required
reasonable suspicion. Resolving genuine disputes in Letkemann's favor, it
must be assumed for purposes of Hoteko's summary judgment motion that
Hoteko approved an intrusive patdown and strip search. Such an inference
can reasonably be drawn from the evidence that Hoteko approved the search
and the type of search that was actually performed. Letkemann's Counts
I, III, and VI claims against Hoteko will not be dismissed.
Hoteko could still avoid liability for this intrusive search if there
was sufficient information to constitute reasonable suspicion. Although
Hoteko's affidavit refers to the purported grounds for conducting the
search, the presence of adequate suspicion is not an argument raised in
defendants' briefs. See Def. Memo. in Support of Summ. Jmt. [Docket Entry
255] at 8 ("Accordingly, this court need not even consider the reasons
proffered for approval of the pat down search."). See also Def. Reply
[Docket Entry 325] at 18-19. Therefore, this issue need not be
addressed. But even if it had been raised, Hoteko would not be entitled
to summary judgment. Hoteko's affidavit statements as to the grounds
supporting the search would have to be rejected because he testified in
his deposition that he had no independent recollection of those grounds.
However, plaintiffs then provided the incident log which would be
admissible as a government record to show the grounds for the search
contained therein. In any
event, the burden would be on Letkemann to
prove a lack of reasonable suspicion. See Woods v. City of Chicago,
234 F.3d 979, 986-87 (7th Cir. 2000), cert. denied, 122 S.Ct. 354
(2001). Plaintiff satisfies this burden because she provides her own
deposition testimony as to the events preceding the search. See Pl. Exh.
1, Letkemann Dep. at 48-57. Plaintiff arrived on a flight from
Switzerland, not Jamaica. There is no evidence that Switzerland is
considered a source country for narcotics. Her testimony does support
that, as of October 1996, she had been unemployed for a short period of
time and that she traveled somewhat frequently because her boyfriend
lived in Switzerland, but she does not testify to providing inconsistent
information to the Customs inspectors. Crediting her testimony, the
record supports that reasonable suspicion was not present. Thus, even if
Hoteko did raise the issue of whether there was adequate suspicion to
conduct an intrusive search, he would not be entitled to summary judgment
as against Letkemann.
Plaintiffs also contend that Hoteko is incorrect in contending that he
was not directly involved in any of the other searches of a named
plaintiff. They point to the statement in his affidavit that he had the
authority to approve X-ray examinations. Def. Exh. 7, Hoteko Aff. ¶
5. Plaintiffs contend this statement shows Hoteko was directly involved
in the searches of the two named plaintiffs who were subjected to X-ray
examinations. It will be considered that these two plaintiffs, Gwendolyn
Richards and Jacqueline Walter, still have pending Counts I, III, and VI
claims against Hoteko.
Defendants' motions for summary judgment will be granted in part and
denied in part. All the individual capacity claims against the Managerial
Defendants will be dismissed except those Count II claims that are
specified, certain claims for injunctive relief, and the Counts I, III,
and VI claims against Hoteko that are specified. Counts IX and X are
dismissed as against all defendants. The parties are to submit a draft
order as to the Count II, IV, and VII claims against Supervisory
Still being briefed is defendants' summary judgment motion as to the
Count VIII claim for injunctive relief based on national practices. That
claim would involve many factual issues that are distinct from all the
other remaining claims. Therefore, appropriate procedures for trying the
other claims in this case can be addressed prior to resolving the Count
VIII motion. Within two weeks, the parties shall meet to discuss possible
trial procedures. By April 19, 2002, the parties shall file a revised
joint trial plan proposal, or separate proposals if they cannot reach
agreement. The proposal will be discussed at a May 1, 2002 status
IT IS THEREFORE ORDERED that:
(1) Plaintiffs' motion to strike [330-1] is denied without prejudice.
(2) Plaintiffs' motion for leave to file additional pleadings [330-2]
is granted in part and denied in part. Plaintiffs are granted leave to
file their "initial surreply," which is Exhibit A to motion .
(3) Plaintiffs' motion for leave to file supplemental surreply
instanter [332-1] is granted.
(4) Managerial and Supervisory Defendants' motions for summary
judgment [255, 314] are granted in part and denied in part. All
individual capacity claims against managerial defendants are dismissed
except: (a) Count I, Count III, and Count VI claims of plaintiffs Arcadia
Letkemann, Gwendolyn Richards, and Jacqueline Walter against defendant
(b) Count II damages claims against (i) defendant Patrick
Noonan; (ii) defendant Robert Trotter based on strip searches occurring
after July 21, 1998; and (iii) defendant Sergei Hoteko based on searches
occurring from May 25, 1997 through September 15, 1997. Counts IX and X
are dismissed in their entirety. All claims against defendants Sam
Banks, George Weise, and Kevin Weeks are dismissed and those defendants
are dismissed from this action.
(5) By March 22, 2002, the parties shall submit a draft order
clarifying which claims against supervisory defendants are dismissed and
which remain pending.
(6) By April 19, 2002, the remaining parties shall submit a proposed
revised joint trial plan for all remaining claims except Count VIII, or
separate proposed plans if the parties cannot agree.
(7) Status hearing set for May 1, 2002 at 11:30 a.m.