The opinion of the court was delivered by: Honorable Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiff Geneva Zboralski brought this action under 42 U.S.C. § 1983 against eight employees of the Illinois Department of Human Services Treatment and Detention Facility in Joliet, Illinois ("TDF"). Zboralski alleged that defendants subjected her to an illegal body search in violation of her rights under the Fourth and Fourteenth Amendments. She also alleged invasion of privacy and assault and battery. The defendants moved for summary judgment on January 8, 2008. (Doc. 39.) Judge Moran granted the motion as to defendants Monahan and Budz and as to the claim for invasion of privacy. (Moran Opinion at 17.)*fn1 He denied summary judgment as to defendant JoEllen Martin on the assault and battery count, and he entered and continued the motion as to the five remaining defendants on the illegal search count.*fn2 (Id.) Those five defendants now renew their request for summary judgment. (Doc. 103.)
Pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 Ill. Comp. Stat. 207/1 et seq., the State of Illinois was holding Zboralski's husband Brad Lieberman at TDF from 2000 until, at least, July 2005. Zboralski visited Lieberman at TDF regularly-at times, on a daily basis. (Zboralski Dep. at 13.) When multiple visits were possible, Zboralski would sometimes visit TDF as many as three times in one day. (Id.)
Visitors to TDF were required to submit to a pat-down search before being admitted to the facility. When Zboralski visited in the evenings in May 2005, defendant Martin often was the TDF employee who searched Zboralski. (Id. at 17-18.) Zboralski alleges that Martin touched her inappropriately during three pat-down searches over the course of three weeks. That allegation forms the basis of the assault and battery claim on which Judge Moran denied summary judgment. (Moran Opinion at 15-17.)
Sometime in May or June 2005, Zboralski complained to defendants Darrell Sanders and Steve Strock, respectively the Security Director and a Unit Director at TDF, about the searches conducted by Martin. (Defs.' Stmt. ¶ 10.) According to Zboralski, Sanders told her that "he would put a stop to it." (Zboralski Dep. at 43-44.) Strock offered that, instead of being patted down, Zboralski could be searched using the TDF's Rapiscan Secure 1000. (Id. at 54-55.) The Rapiscan is a device which uses backscatter x-ray radiation to generate an image of a person which will reveal items concealed underneath clothing or hair. (Defs.' Stmt. ¶ 31.) TDF used the Rapiscan, rather than strip searches, to search residents who were returning from court appearances or meetings with visitors. The Rapiscan was not used on visitors or employees of TDF. (Pl.'s Stmt. ¶¶ 20-21.)
Strock told Zboralski that the image produced by the Rapiscan would reveal an outline of her body, and Zboralski agreed to be scanned. (Id. ¶ 12.) The parties dispute what precisely Strock told Zboralski, but Zboralski testified that she was told that she would be given the choice at each visit whether to be patted down or scanned. (Zboralski Dep. at 55-56.)
Upon her next visit to TDF, Zboralski was met by defendant Diane Franzen. Franzen told Zboralski that she would have to be scanned with the Rapiscan before entering the facility. (Id. at 57.) Zboralski testified that while she was being searched with the Rapiscan machine she was standing in a location where other TDF employees could see her. (Zboralski Dep. at 61-62.) According to Zboralski, several of those employees later expressed their surprise that she would allow herself to be scanned:
A: After I was going there and being scanned, people were questioning as to why, what was going on, and that there's no way that they would allow anybody to do that to them.
Q: Who were those people?
A: Just employees that work there....
A:... They couldn't understand think [sic] why I was being Rapiscanned, because I had never been accused of anything, or there was never any suspicion of me ever doing anything wrong. (Id. at 65-67.) During the search, Zboralski was completely clothed, except that she was asked to remove her shoes. (Id. at 64.)
Zboralski testified that she never saw the images produced by the Rapiscan. (Id. at 70.) Franzen testified that she would have Zboralski stand in front of the Rapiscan machine while Franzen would go into a separate room to view the image. (Franzen Dep. at 21.) Franzen described the room as the size of a closet, and she stated that no one else was present or able to see the image. (Id. at 26.)
After the first scan, Zboralski researched the Rapiscan on the Internet and was alarmed by what she saw. (Defs.' Stmt. ¶ 15.) Zboralski found photos on the Internet which appeared to be images generated by the same Rapiscan model:
A: The size of your breasts; the size of your genitals if you're a male; your vagina; your buttocks. It shows if you've got prosthetics or breast implants or any of that information. (Zboralski Dep. at 68.) She testified that, "I felt like I had been -- I was humiliated. I felt like I had been strip-searched standing right there in that hallway for everybody to see." (Id. at 64.) Zboralski also read on the Internet that the Rapiscan "emits radiation." She testified that, "I'm a cancer survivor, so there was a scare there as well." (Id. at 72.)
Zboralski left phone messages for both Strock and Sanders saying that she no longer wanted to be scanned. (Defs.' Stmt. ¶ 15.) According to Zboralski, she eventually spoke to Strock on the phone, and he assured her that she was not to be scanned again. (Zboralski Dep. at 77-78.) But when Zboralski visited TDF over the next three weeks, TDF employees continued to insist that she be searched with the Rapiscan. (Id. at 75.) According to Zboralski, Franzen used the Rapiscan another twenty or more times (id.), although Franzen only recalled using the device two or three times (Franzen Dep. at 26.). Zboralski also remembered being scanned once by defendant Lori Biermann and once by defendant Brenda Wilts. (Id. at 75-76.) Eventually, TDF stopped using the Rapiscan and resumed using pat-down searches to screen Zboralski. (Defs.' Stmt. ¶ 18.)
Zboralski filed her complaint on July 12, 2006. The case was assigned to Judge Moran. The defendants answered, and then filed a motion for summary judgment on January 30, 2008. (Doc. 42.) In connection with the motion, defendants submitted the complaint, the answer, depositions of Zboralski and four of the defendants, and affidavits from five defendants. (Doc. 49.) Zboralski attached to her response some of the same depositions as well as two articles about the Rapiscan and a document entitled "Rapiscan Secure 1000 Whole Body Imager Operator Manual" which she claims to have received from the manufacturer. (Doc. 56, Exs. 1-8.)
Judge Moran issued a Memorandum Opinion and Order on August 20, 2008 granting in part, denying in part, and continuing in part defendants' motion. (See Moran Opinion.) Judge Moran granted summary judgment to defendants on Zboralski's invasion of privacy claim because she offered no "evidence demonstrating that her image was in fact saved, printed or inappropriately viewed by officers." (Id. at 9.) Judge Moran held that summary judgment was not appropriate for the claim of assault and battery against defendant Martin. The factual question of whether Martin intended to touch Zboralski inappropriately could not be resolved on a motion for summary judgment. (Id. at 15.)
As to Zboralski's claim of unlawful search, Judge Moran concluded that a factual question existed about whether Zboralski consented to the search. (Id. at 14-15.) However, Judge Moran entered and continued defendants' motion as to this count, leaving undecided the question whether the Rapiscan search was reasonable under the Fourth and Fourteenth Amendments. The court stated:
While the foregoing gives us some basis upon which to rule regarding reasonableness, we do not believe that it is enough given the fact that this issue has never before been addressed. Several important questions remain that cannot be answered on this record. For instance, we have very little evidence of how the Rapiscan actually works and the quality of images it produces. Examples and experts in the field would be helpful to better understand body scan technology. We would also appreciate testimony on how reasonable persons would feel being subjected to such a scan. Is it psychologically similar to, or even less intrusive than a pat-down because the person cannot view his or her image and no touching is involved? Or is the thought that another person might be viewing a detailed naked image enough to make a person feel as violated as they would during a manual strip search? Finally, we are unsure whether the level of detail affects whether or not the search is closer to a pat-down or a strip search. Will every body scan search need to comport with the same standard of reasonableness regardless of the level of detail in the image?
Or will factual determinations need to be made in each case depending on how the machine was calibrated at the time of the search? How was the machine calibrated in this case? We do not have that evidence. (Id. at 13-14.) Before the summary judgment ...