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O'BRIEN v. BOROUGH OF WOODBURY HTS.

February 11, 1988

Patrick Michael O'Brien, Plaintiff,
v.
Borough Of Woodbury Heights, et al., Defendants; Carol Ann Lind, Plaintiff, v. Borough Of Woodbury Heights, et al., Defendants



The opinion of the court was delivered by: BROTMAN

 I. INTRODUCTION

 These consolidated civil rights actions arise out of the arrest and imprisonment of plaintiffs Patrick Michael O'Brien and Carol Ann Lind by the Borough of Woodbury Heights, the County of Gloucester and six individually named law enforcement officers employed by these entities. Plaintiffs bring their claims pursuant to 42 U.S.C. ยง 1983, alleging, inter alia, that defendants subjected them to unlawful detentions and strip/body cavity searches in violation of plaintiffs' constitutional rights. Plaintiffs also assert state law claims for false imprisonment and intentional infliction of emotional distress, as well as other additional state law claims (hereinafter referred to as "additional state law claims") *fn1" , and seek punitive damages from the individual defendants. *fn2"

 Presently before the court are the parties' cross-motions for summary judgment, Fed. R. Civ. P. 56, on the following issues:

 (A) Whether defendants are liable to plaintiffs under Section 1983 for subjecting them to strip/body cavity searches;

 (B) Whether defendants are liable under Section 1983 for the detentions of plaintiffs;

 (C) Whether defendants are liable to plaintiffs under the laws of the State of New Jersey for false imprisonment. Defendants also move for summary judgment on the questions of:

 (D) Whether defendants are liable to plaintiffs under the laws of the State of New Jersey for intentional infliction of emotional distress; and

 (E) Whether the individual defendants are entitled to immunity on plaintiffs' additional state law claims under the New Jersey Tort Claims Act.

 Finally, defendants move:

 (F) to dismiss plaintiffs' claims for punitive damages against the individual defendants.

 For the reasons set forth below, the motions of the parties are granted in part and denied in part.

 II. FACTUAL BACKGROUND

 Patrick Michael O'Brien was arrested in the early morning of December 28, 1985 by the East Greenwich Police Department at the request of the Borough of Woodbury Heights Police Department. O'Brien's arrest followed an alleged altercation at Gallagher's Tavern, a bar in Woodbury Heights, New Jersey, during which plaintiff was involved in a fight with a Bruce Leap. Upon his arrest, O'Brien was taken to the Woodbury Hospital, where the officers who had arrested him turned plaintiff over to defendant Patrolman Dean Golding of the Woodbury Heights Police.

 On May 4, 1986, at approximately 12:30 A.M., Carol Ann Lind was arrested at Gallagher's Tavern by Patrolman Lindsay and Patrolman James Golding of the Woodbury Heights Police Department. This arrest followed an altercation at Gallagher's between Ms. Lind and a Mr. Selfridge. During this incident, Johnson, the bar manager, telephoned the police.

 Lind was taken by the officers to the Gloucester County Jail, where plaintiff was ordered to disrobe, subjected to a visual strip/body cavity search conducted by a female officer, defendant Nicola Easter, showered, and sprayed with a delousing agent. Lind was then placed in a cell, where she spent the rest of the night.

 At approximately 8:15 a.m. on May 4, 1986, Lind was transported to the Borough's police station, where George Johnson filled out a complaint against her for disorderly conduct. This complaint was subsequently dismissed due to Johnson's failure to appear in court.

 No judicially authorized warrant was sought for the arrest or detention of either plaintiff. Defendants concede that both plaintiffs were detained pursuant to the custom and policy of the Woodbury Heights Police Department to detain individuals believed to pose a danger to themselves, to others or to property at the County jail for a period not to exceed twenty-four hours. Defendants also concede that Lind and O'Brien were subjected to the strip/body cavity search procedure pursuant to the policy of the Gloucester County Jail to conduct such searches on all arrestees prior to incarceration, regardless of the nature of the charges against them.

 III. DISCUSSION

 The standard for granting summary judgment is a stringent one. Fed. R. Civ. P. 56(c) provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Insurance Co., 721 F.2d 118 (3d Cir. 1983). In deciding whether an issue of material fact does exist, the court is required to view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984); Knoll v. Springfield Township School District, 699 F.2d 137, 145 (3d Cir. 1983); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). The threshold inquiry is whether there are genuine issues that properly can be resolved only be a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986). The Supreme Court has interpreted Fed. R. Civ. P. 56(c) as mandating:

 
. . . the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265, 273 (1986). Thus, if the plaintiff's evidence is merely "colorable" or is "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 106 S. Ct. at 2511.

 The court will first consider those issues arising under plaintiffs' Section 1983 claims.

 (A) Whether Defendants are Liable to Plaintiffs Under Section 1983 for Subjecting Them to Strip/Body Cavity Searches ?

 It is the confessed policy of the Gloucester County Jail to conduct a visual strip/body cavity search on each arrestee who is brought to the jail for the purposes of incarceration, regardless of the offense with which the person is charged. Pursuant to this search procedure, prospective inmates are required to disrobe and to expose their body cavities to a visual inspection by an officer of the same sex as the person being searched.

 Defendants move for summary judgment on those counts of the complaints that allege that plaintiffs' Fourth Amendment rights were violated when they were subjected to visual strip/body cavity searches at the Gloucester County Jail. Defendants argue that such searches are necessary to insure that weapons or contraband are not introduced into the facility. Plaintiffs cross-move for summary judgment, arguing that strip/body cavity searches are impermissible under the Fourth Amendment unless based on a reasonable suspicion of concealment. Because this court finds itself in total agreement with the predominating caselaw in this area, which has found blanket strip/body cavity search policies such as the one in force at the Gloucester County Jail to be insupportable and unconstitutional, plaintiffs' motion for summary judgment on this issue will be granted and defendants' corresponding motion will be denied.

 1. The Unconstitutionality Of The Searches

 In evaluating the permissibility of body cavity or strip searches of arrestees, seven of the United States Circuit Courts of Appeals have held that such searches must be based on a "reasonable suspicion" *fn3" that an arrestee is concealing contraband or weapons. See Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert denied sub nom County of Monroe v. Weber, 483 U.S. 1020, 107 S. Ct. 3263, 97 L. Ed. 2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985), cert. denied, 475 U.S. 1066, 89 L. Ed. 2d 604, 106 S. Ct. 1378; Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 85 L. Ed. 2d 479, 105 S. Ct. 2114; Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert. denied, 455 U.S. 942, 102 S. Ct. 1435, 71 L. Ed. 2d 653 (1982). And while the Third Circuit has yet to address the question, in a recent opinion issuing from this district, the Honorable Mitchell H. Cohen declared unconstitutional a blanket policy of the Camden County Jail which subjected all arrestees to indiscriminate strip/body cavity searches. Davis v. City of Camden, 657 F. Supp. 396 (D.N.J. 1987).

 Nonetheless, defendants contend, in the face of this overwhelming contrary authority, that the blanket strip/body cavity search policy of the Gloucester County Jail is a necessary and constitutional procedure. Defendants further argue that the case of Davis v. City of Camden was wrongly decided and is inconsistent with the Supreme Court's holding in Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1970). In Bell v. Wolfish, the Court upheld as ...


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