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CALVIN v. SHERIFF OF WILL COUNTY

December 16, 2005.

JAVAR CALVIN, WILLIAM VIRBLE MOORE, and CHARLES DAVIS, Plaintiffs,
v.
SHERIFF OF WILL COUNTY, Defendant.



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Javar Calvin, William Moore and Charles Davis, individually and on behalf of all others similarly situated, filed a class action on May 8, 2003, pursuant to 42 U.S.C. § 1983, challenging certain provisions of the strip search policy of defendant, the Sheriff of Will County ("Sheriff"). In its Memorandum Opinion and Order dated May 17, 2004, this court granted plaintiffs' motion to certify two subclasses of plaintiffs, and denied plaintiffs' motion to certify a third class. Calvin v. Sheriff of Will County, 2004 WL 1125922 (N.D.Ill. May 17, 2004).

Plaintiffs have moved for summary judgment on liability regarding both subclasses pursuant to Fed.R.Civ.P 56, arguing that defendant's strip search policy violates the Fourth Amendment. Defendant has filed a motion to strike portions of plaintiffs' Local Rule 56.1 statement, arguing that they contain legal conclusions and immaterial facts. For the reasons stated below, the court grants plaintiffs' motion for summary judgment and denies defendant's motion to strike as moot. FACTS*fn1

  The instant action concerns the strip search policies of the Will County Adult Detention Facility ("WCADF"). This court previously certified two subclasses in the instant action. Subclass I,*fn2 the "Post-Arrest Strip Search" subclass, is defined as:
Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be:
Arrested on a warrant issued for failure to appear in a misdemeanor or traffic case and, following arrival at the Will County Adult Detention Facility, is or was strip searched without any individualized finding of reasonable suspicion or probable cause that he or she was concealing contraband or weapons. Calvin, 2004 WL 1125922, at * 4.
Subclass II, the "Post-Release Strip Search" subclass, is defined as:
Any person who, from May 8, 2001, to the date of entry of judgment has been, is, or will be:
In the custody of the Sheriff of Will County on a traffic or misdemeanor charge (or on a warrant issued for failure to appear on a traffic or misdemeanor charge), taken to court from the Will County Adult Detention Facility, ordered released by the court, or otherwise became entitled to immediate release, was returned to the Will County Adult Detention Facility to be processed out of the custody of the Sheriff of Will County, and was strip searched without any individualized finding of reasonable suspicion that he or she was concealing contraband or weapons. Id. at *6.
  Policy No. 5080 of the WCADF Policy and Procedures ("Policy 5080") contains search policies for the WCADF, including policies for visual body cavity searches and strip searches. Policy 5080 states that a visual body cavity search is "the visual inspection of the anal or vaginal area," and must be "conducted by trained staff in private." Policy 5080 limits visual cavity searches to instances when there is "a reasonable belief that the inmate is carrying contraband or other prohibited material." Under Policy 5080, a strip search "requires the removal or arrangement of any clothing so that the entire body or party of the body may be viewed." Strip searches may not be performed on persons arrested for traffic, ordinance/regulatory or misdemeanor offenses, except in cases involving weapons or a controlled substance arrest. A strip search may be performed "if there is reasonable belief that the individual is concealing a weapon or concealed substance." Policy 5080 also provides two instances when a strip search may be conducted absent reasonable suspicion: (1) when an arrestee is "remanded to the custody of the Sheriff on any warrant"; and (2) after "transports outside [the facility]."*fn3 Plaintiffs in the instant action challenge these two exceptions. Sergeant Brain Fink ("Fink"), director of training and accreditation for the WCADF, wrote the original draft of Policy 5080 in 1989. Fink testified that during a strip search an inmate is first required to remove all of his clothing and shake it out or hand it to the guards to search the pockets. The inmate is instructed to show his hands, lift his arms, run his hands behind his ears, and lean forward and shake his hair. The inmate in then asked to show his hands again, turn around and show the bottom of his feet, and bend over and spread the cheeks of his buttocks with his hands. Next, the inmate is told to stand up, face the officer, and lift his genitals. Finally, the inmate shows his hands again and is allowed to redress.*fn4 All stip searches at the WCADF are conducted in private areas and by an officer of the same gender as the person being searched.

  Subclass 1 challenges post-arrest strip searches. All persons arrested pursuant to a warrant, including a failure to appear ("FTA") warrant, are stripped searched if they are unwilling or unable to post bail. After being strip searched, these individuals are housed in the "E"pod ("E-pod") at the WCADF, which is a direct observation section of the facility consisting of 120 cells. Individuals who are not strip searched when they arrive at the WCADF, including those arrested on misdemeanor or traffic offenses not based on warrants, are held in the booking area. Defendant asserts that the need to hold arrestees in booking area has resulted in an overcrowding problem in the booking area, an area that was not intended to house inmates, and that even inmates in the E-pod are usually placed in a cell with another inmate due to overcrowding.

  Subclass II challenges post-release strip searches performed on detainees who are ordered released by a judge and then returned to the WCADF to be processed and to retrieve their belongings. Inmates who are taken out of the WCADF to court are not supervised by Will County personnel the entire time that they are at the courthouse. While at the courthouse they are placed in a housing unit cell with other inmates and have contact with people other than Will County Sheriffs. In particular, inmates may have contact with their relatives and their lawyers.

  Fink testified that all persons returned from court to the WCADF are strip searched, even those who have been ordered released by a judge. According to Fink, persons ordered released must be searched because they are "going back in the inmate population and having contact with inmates" while they are being processed before being released and in order to collect their personal possessions. Processing includes checking whether the individual has any outstanding cases, and whether there are any warrants or "holds" from other jurisdictions. Fink also testified that there is a reasonable belief that every inmate who returns from court is carrying contraband or other prohibited material. Defendant changed its post-release procedures since the filing of the instant action. David Van Dyke ("Van Dyke"), deputy chief sheriff for the County of Will, submitted an affidavit attesting that subsequent to September 15, 2004, persons returning from court after being ordered released are not strip searched as a matter of course. Instead, "they are given the option of remaining in a holding area and having facility personnel retrieve their personal belongings from their cell, or they are allowed to return to their cell to obtain their belongings themselves, but after consent, they are strip searched before entering the cell area." SUMMARY JUDGMENT STANDARD

  A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(c); Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. See Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).

  A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.

  DISCUSSION

  In the instant case, despite each party's attempt to create them by inserting legal conclusions and argument into their L.R. 56.1 statements, there are no material facts in dispute. Indeed, there are very few facts at issue. Plaintiffs' motion for summary judgment on the issue of liability is based almost entirely on two pieces of evidence: (1) Policy 5080; and (2) Fink's deposition testimony regarding the policies and practices concerning strip searches at the WCADF. It is clearly established that Policy 5080 required the searching of members of subclasses I and II, and that these policies were effectuated by defendant's personnel. Defendant concedes that it had no reasonable suspicion that any of the class members had contraband or weapons. The question then is whether the strip search policies violated the class members' Fourth Amendment rights.

  I. Subclass 1 — Post-arrest search

  In their subclass I claim, plaintiffs challenge defendant's policy of strip searching every person arrested on an FTA warrant for a misdemeanor or traffic violation who does not post bond. Plaintiffs argue that this policy violates the Fourth Amendment because it does not require an individual determination that there is a reasonable suspicion that the particular arrestee is concealing weapons or other contraband, and that defendant's proffered justifications are not sufficient to justify a strip search that includes a visual body cavity inspection.

  Plaintiffs argue that an FTA warrant does not carry with it the same probable cause finding as an arrest warrant issued for an underlying charge, and that it is not reasonable to assume that a person arrested on an FTA warrant in a traffic or misdemeanor case "will have sought to hide contraband in a spot where it can only be discovered by a strip search." According to plaintiffs, this presumption is particularly inappropriate for individuals issued FTA warrants in misdemeanor or traffic cases. Defendant responds that an FTA warrant is equivalent to any warrant and thus justifies the strip searches of all warrant arrestees. Defendant also argues that every warrant requires it to detain arrestees who cannot post bond, and that arrestees are detained in the E-pod with the general jail population. The strip searches, assert defendant, are thus justified by the jail's legitimate security concerns. For the reasons discussed below, the court grants plaintiffs' motion for summary judgment as to subclass I.

  The Supreme Court's opinion in Bell v. Wolfish, 441 U.S. 520 (1979), is the seminal detainee strip search case. Balancing "the significant and legitimate security interests of the institution against the privacy interests of the inmates," the Bell court upheld a prison policy requiring inmates to submit to routine strip searches with visual cavity inspections after every contact with a person from outside the institution. Id. at 560. Despite holding that particular policy constitutional, Bell did not validate a blanket policy of strip searching pretrial detainees. Wilson v. Jones, 251 F.3d 1340, 1342 (11th Cir. 2001) (citing Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989)); see also Tikalsky v. City of Chicago, 687 F.2d 175, 182 (7th Cir. 1982) (Bell "did not validate strip searches per se"). Rather, Bell held that pretrial detainees retain constitutional rights, including the Fourth Amendment's protection against unreasonable searches and scizures, which are subject to limitations based on the fact of confinement and the institution's need to maintain security and order. Id. at 545-46. In balancing the constitutional rights of the inmate with the interests of the penal institution, a court must consider four factors: (1) the scope of the particular intrusion; (2) the manner in which it is conducted; (3) the place in which it is conducted; and (4) the justification for initiating it. Id. at 559.

  In the instant case, neither the place nor manner of the searches is problematic. Thankfully, the undisputed policy and practice of the strip searches at issue here do not involve the parade of terribles and abuses presented by other strip search cases. See, e.g., Doc v. Calumet City, 754 F. Supp. 1211, 1214-15 (N.D.Ill. 1990) (female arrestees subjected to "offensive touching," digital cavity searches, visual observation by male officers while being strip searched, and fondling by male officers while in plain sight of male officers and others). Plaintiffs do not dispute that the WCADF searches were conducted in ...


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