The opinion of the court was delivered by: GERRY
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by the plaintiff, Johnnie Wilkes, against the Borough of Clayton, New Jersey, and Frank Winters, Chief of Police for the Borough of Clayton, and two Clayton police officers, Matthew McDonald and Jane Doe (a female officer later identified as Officer Jeanette Duffy).
This suit arose out of a sequence of events which occurred during the early morning hours of May 5, 1985. The essential aspects of the events are undisputed. As plaintiff was driving through Clayton on her way to her home in Philadelphia, she was stopped by Officer McDonald. Officer McDonald told Ms. Wilkes that her car had been swerving and asked her to perform several sobriety tests, including a breathalyzer test. Ms. Wilkes complied with respect to several of the tests; however, she refused to take the breathalyzer test.
Upon her refusal, Officer McDonald arrested Ms. Wilkes and took her to the Clayton Police Station. At the station, Ms. Wilkes continued to refuse to take the breathalyzer test. She was charged with driving under the influence (N.J.S.A. 39:4-50), refusal to take a breath test (N.J.S.A. 39:4-50.4a), careless driving (N.J.S.A. 39:4-97), and disorderly conduct (N.J.S.A. 2C: 33-2(A)(2)).
While at the station, Ms. Wilkes, who was menstruating, asked Officer McDonald for permission to use the bathroom so she could change her sanitary napkin. Officer McDonald allowed Ms. Wilkes to go to the bathroom but informed her that she would have to be accompanied by a female officer, defendant Jane Doe (Jeanette Duffy). This was consistent with the Borough of Clayton's policy of visual observation, by officers of the same sex, of all persons in police custody using bathroom facilities.
Officers Duffy and McDonald accompanied Ms. Wilkes to a small bathroom in the station. While Officer McDonald remained in the hallway, Officer Duffy followed Ms. Wilkes into the unoccupied bathroom. Once inside, Officer Duffy stood in the open doorway of the bathroom. Officer Duffy refused to allow Ms. Wilkes to close the bathroom door and refused to turn her back while Ms. Wilkes attended to her personal hygienic requirements. Instead, Officer Duffy maintained visual observation while Ms. Wilkes removed her clothing and changed her sanitary napkin. At no time, however, did Officer Duffy physically touch Ms. Wilkes, nor did any of the defendants ask Ms. Wilkes to remove any article of clothing for the purpose of inspecting or viewing her body.
On September 25, 1986, Ms. Wilkes filed a complaint with this court, claiming that Officer Duffy's visual observation was an unreasonable "strip search" and invasion of privacy violative of Ms. Wilkes' rights under the Fourth, Fifth, Ninth and Fourteenth Amendments and the New Jersey Strip Search Act, N.J.S.A. 2A:161a-3, et seq. The complaint sought, inter alia, a declaratory judgment that the Borough's blanket policy of visual observation of detainees using bathroom facilities violated the New Jersey Strip Search Act; a preliminary and permanent injunction restraining defendants from engaging in strip or body cavity searches without probable cause upon custody for non-criminal or traffic offenses; and compensatory and punitive money damages.
On December 16, 1987, this court granted defendants' motion for summary judgment as to plaintiff's claim against defendants Winters, Doe and McDonald in their individual capacities on the basis of qualified immunity. In so ruling, we based our decision on the absence of any clearly established constitutional right of arrestees in police custody to be free from visual observation while using bathroom facilities. Defendants' motion for summary judgment as to plaintiff's suit against Winters, Doe and McDonald in their official capacities was, however, denied.
Before this court presently are cross-motions by the plaintiff and the defendants for summary judgment as to plaintiff's underlying constitutional claim. F.R.Civ.P. 56(c) states that summary judgment may be granted only when the record "show[s] 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." Both the plaintiff and the defendants agree on the material facts; hence, determination of these cross-motions hinges on a question of law. For reasons explained below, we grant plaintiff's motion for summary judgment.
To evaluate a § 1983 claim, such as the plaintiff's, this court:
must focus on whether the two essential elements to a § 1983 action are present:
(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Defendants concede that the actions Ms. Wilkes complains of were undertaken by persons acting under color of state law. Our task thus focuses on the question of ...