The opinion of the court was delivered by: Dennis M. Cavanaugh, United States District Judge
Before the Court in this Bivens matter are Plaintiff Patricia L. Hurn and Defendants United States of America, United States Department of Treasury, U.S. Customs Service, Raymond Kelly as Commissioner of the United States Customs Service, and other fictional agents inspectors and supervisors of the U.S. Customs Service. Plaintiff alleges that Defendants subjected her to improper search upon returning from a trip to Jamaica that violated her right to: (1) Equal Protection under the Fifth and Fourteenth Amendments; (2) be free from illegal searches and seizures under the Fourth Amendment; (3) Privacy under the Fourth, Fifth and Ninth Amendments and; (4) Due Process under the Fourth and Fifth Amendments. Plaintiff also asserts that she was intentionally subjected to tortious conduct cognizable under the Federal Tort Claims Act ("FTCA"). Presently before the Court are Plaintiff's motion for reconsideration of this Court's Order denying leave to file a Third Amended Complaint and the Government's motion for summary judgment.
Plaintiff is a 35 year-old, African-American woman, who resides in Cleveland, Ohio. Defendant United States of America's Statement in Compliance with Rule 56.1 ("56.1 Statement"), ¶1. Prior to the alleged incident, Plaintiff made several trips to Canada and Jamaica to gamble. In April of 1996, Plaintiff first traveled to Jamaica. 56.1 Statement, ¶2. Plaintiff traveled alone and stayed at a resort for approximately ten or eleven days. Upon her return to the United States, she was stopped by Customs briefly, presented her identification, and proceeded through without incident. 56.1 Statement, ¶ 3. In November of 1996, Plaintiff planned another trip to Jamaica and purchased her airline ticket from Continental Airlines. 56.1 Statement, ¶4. Plaintiff did not take this November of 1996 trip to Jamaica. 56.1 Statement, ¶4.
In May of 1997, Plaintiff traveled to Jamaica, again alone, for another ten-day vacation. 56.1 Statement, ¶5. Plaintiff's stated purpose for the trip was to visit her then boyfriend, Michael Reid, who she met during her April 1996 trip to Montego Bay, Jamaica. 56.1 Statement, ¶5. During this trip, Plaintiff stayed at a resort. 56.1 Statement, ¶6. Plaintiff spent about $100 a-day, in cash, for a total of approximately $1,000. Deposition of Patricia Hurn ("Plaintiff's Dep."), T88:12-25.
On May 25, 1997, after landing at Newark Airport at approximately 5:30 p.m., Plaintiff proceeded to the baggage terminal to claim her luggage (two suitcases). 56.1 Statement, ¶7. Thereafter, Plaintiff approached the Customs Inspection site, where she was met by a "male" "caucasian" Customs official. 56.1 Statement, ¶8. At that time, Plaintiff weighed approximately 165 pounds, and was wearing a "loose fitting" "button up" "long-sleeved rayon blouse" and dress slacks. Plaintiff's Dep., T104:18-19, 24-25, 105:4-11. At the request of the Customs Official, Plaintiff presented her credentials and traveling papers. Plaintiff's traveling papers clearly indicated that the tickets for this May 1997 trip were purchased, at least in part, in "cash." 56.1 Statement, ¶10; Plaintiff's Dep. T81:1-7; T82:20-25. Plaintiff redeemed her unused airline ticket from November 1996 trip to pay for her May 1997 trip.
Plaintiff did not present a Passport to the Customs official, but instead presented her Ohio driver license, Social Security Card, Voter Registration Certificate, and birth certificate. Plaintiff's Dep., T101:1-9; T95:16-20; Declaration of Robert Kirsch ("Kirsch Decl."), Ex. 1-2, 4-6. In fact, Plaintiff has never owned a Passport. Plaintiff's Dep., T6:17-18; T54:23-25; T55:1-2. Each identification yielded consistent information.
A "Subject Record" maintained in the Treasury Enforcement Communication System ["TECS"] indicated that Patricia Hurn was under an active investigation by the Secret Service as a "suspect" for credit card fraud. 56.1 Statement, ¶13. TECS is a national database used by Customs and other law enforcement agencies that contains information on suspect individuals, criminal investigations, and criminal histories. 56.1 Statement, ¶13. This TECS record listed Plaintiff's name and identified Plaintiff's proper date of birth and social security number. 56.1 Statement, ¶13. This record was viewed by Pat Orender, the "unknown" male Customs official who detained and questioned Plaintiff prior to her patdown and strip search. 56.1 Statement, ¶13.
The Declaration of Ronald M. Loveitt indicates that Patrick Orender accessed this TECS record at 18:13 (6:13 p.m.), prior to Plaintiff's referral to the female Inspectors for Plaintiff's search. 56.1 Statement, ¶13. Another Customs' document, which was prepared within minutes of the subject detention and search, indicates that the personal search at issue occurred between 18:20 and 18:25 (6:20-6:25 p.m.). 56.1 Statement, ¶13.
Plaintiff recalled that this male Customs official asked her where she worked, and that she responded that she worked at a company called "Accounts Temp." Plaintiff's Dep., T103:1-4. Accounts Temp. is a "temporary" agency where Plaintiff worked intermittently from 1997 until 1998. Plaintiff's Dep., T21:6-21. Plaintiff also recalled other routine questions regarding who packed her luggage and whether she made any purchases in Jamaica. Plaintiff represented that she packed all of her own luggage. Plaintiff's Dep., T102:18-22. Plaintiff does not recall any other questions asked of her. Plaintiff's Dep., T104:3-5.
While asking Plaintiff questions, the Inspector proceeded to examine the contents of Plaintiff's luggage in her presence, which took "about five to ten minutes." Plaintiff's Dep., T111:24-25; T112:9-10; T113:13-114:8. Plaintiff testified that the male official was initially respectful, courteous, and polite to her, but that she "detect[ed] a little anger or nastiness in his voice" after attempting to grab her undergarments during the search. Plaintiff's Dep., T114:15-21; T107:11-108:3; T108:13-17. Plaintiff was admittedly annoyed at this point and when asked if she expressed her displeasure verbally to the Inspector, Plaintiff testified "probably so." Plaintiff's Dep., T115:4-13.
All of Plaintiff's interactions with the male official were conducted in a public, "open" area. Plaintiff's Dep., T127:13-19. The official did not utter any racial or gender based statements to Plaintiff during their interaction. Plaintiff's Dep., T120:18-121:4. After examining Plaintiff's bags, the official advised Plaintiff to wait in the same open area where he searched Plaintiff's bag. Plaintiff's Dep., T120:2-17, T127:19. A few minutes later, the male Customs official returned with two female Customs Inspectors. Plaintiff's Dep., T117:3, T119:15-19. The male official then advised Plaintiff that she would have to be further searched. Plaintiff's Dep., T119:23-120:1. Plaintiff admitted she was annoyed and irritated at the prospect of being searched, and she expressed "reactions" of "concern and fear." Plaintiff's Dep., T126:8-21.
Customs' Search of Plaintiff
Regarding the two female Inspectors, Plaintiff testified that "one may have been Caucasian and one was foreign[,]" having the appearance of being an "immigrant." Plaintiff's Dep., T122:1-2, 22-25. The two female Customs Inspectors then accompanied Plaintiff to a private, "average[d sized] room," with no windows. Plaintiff's Dep., T129:11-22; T132:14-22. The male official was not present, and the two female Inspectors, and Plaintiff, were the only individuals in the room, with the door closed shut behind them. Plaintiff's Dep., T132:8-13, T132:17-22.
Once in the room, one of the female Inspectors again advised Plaintiff that they were going to search her. Plaintiff's Dep., T130:19-P.131:7. The female Inspectors spoke in an "average" and respectful tone and neither Inspector used profanity or racial references at any time. Plaintiff's Dep., T131:13-22; Plaintiff's Dep., T131:23-P. 132:3.
One of the female Inspectors then proceeded to perform a pat down of Plaintiff, who was fully clothed, by manually inspecting the contours of Plaintiff's body through her outer clothing. Plaintiff's Dep., T137:1, 7. During the pat down, the Inspector did not physically touch any part of Plaintiff's skin or body, except through Plaintiff's clothing. The pat down consisted of an examination up and down Plaintiff's legs to her feet, the stomach area, groin area, and her breasts, although she cannot recall the order of the examination. Plaintiff testified that the Inspector "fondled" her breasts and groin. When asked what she meant by her use of the word "fondled," Plaintiff responded: "[p]ressed on it." Plaintiff's Dep., T137:13-15. The entire pat down took only "[a] few minutes." Plaintiff's Dep., 151:12-17.
The other female Inspector observed the patdown. Plaintiff's Dep., T136:2-8. Neither of the Inspectors spoke to her, or each other, and Plaintiff did not say anything to the Inspectors, during the pat down. Plaintiff's Dep., T137:16-25; T144:15-18. After the patdown, both female Inspectors left the room. Plaintiff's Dep., T138:18-24.
A few minutes later, the same two female Inspectors returned and again closed the door for privacy. Plaintiff's Dep., T139:6-T140:7; T140:21-24. One of the Inspectors then advised Plaintiff that a further search of Plaintiff's person was necessary. Plaintiff's Dep., T140:9-10. Again, Plaintiff described the Inspector's demeanor and tone of voice as average and respectful. Plaintiff's Dep., T141:4-25. Plaintiff did not ask either of the Inspectors why they felt an additional search was necessary, even though the additional search made her concerned about her ability to catch her connecting flight. Plaintiff's Dep., T140:13-20.
After telling Plaintiff that they were going to have to perform an additional search, one of the Inspectors asked Plaintiff to remove her shirt. Plaintiff's Dep., T142:2-6. Plaintiff was not wearing a bra, but nonetheless, Plaintiff complied and removed her blouse for examination. Plaintiff's Dep., T142:7-18. Plaintiff was then asked to remove her pants for inspection, which she did. Plaintiff's Dep., T143:5-6; T147:10-12, 23-4. After the Inspector examined Plaintiff's pants, she asked Plaintiff to remove her undergarment. Plaintiff's Dep., T147:13-22; T148:1-3. Plaintiff, without objection, removed her undergarment, and was thus forced to await the inspection of her garments in the nude, albeit within a closed and private room. Plaintiff's Dep., T142:22-143:4; T149:1-4, 19-24. Plaintiff admitted "that she was wearing a pantiliner in her underwear," and upon removal of her underwear, displayed the "inside of the lining of the pantiliner to the Inspectors." Second Amended Compl., ¶19.
After inspecting Plaintiff's garments, one of the female Inspectors then asked Plaintiff to bend down and touch her toes. Plaintiff's Dep., T150:1, 12-14. Plaintiff describes that she was then asked to spread her buttocks to permit the Inspectors to conduct a "visual rectal inspection." Plaintiff's Rule 56.1 Counterstatement of Material Disputed Facts, ¶16; Plaintiff's Dep., T153:14. This inspection apparently took place for about a minute. Plaintiff's Dep., T153:20-25. At no time during this search did the Inspector ever touch Plaintiff. Plaintiff's Dep., T152:16-18. Immediately thereafter, one of the Inspectors advised Plaintiff that she could get dressed. Plaintiff's Dep., T154:1-3. Both Inspectors, then, briefly left the room again and returned a couple minutes later. Plaintiff's Dep., T154:5-12. One of the Inspectors then advised Plaintiff that she was free to go. Plaintiff's Dep., T154:13-15.
Plaintiff testified that she then asked the Inspectors why she was searched. Plaintiff's Dep., T155:8-9. Although Plaintiff is unaware which female Inspector responded, one of them told her it was because Plaintiff was traveling alone. Plaintiff's Dep., T155:12-18. In an admittedly angry, sarcastic tone of voice, Plaintiff responded, "you all must love your job." Plaintiff's Dep., T156:6-17. Plaintiff left the room and found her two bags as she left them. Plaintiff's Dep., T157:5-15. Plaintiff then proceeded to ...