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Florence v. Board of Chosen Freeholders of the County of Burlington

February 4, 2009

ALBERT W. FLORENCE PLAINTIFF,
v.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rodriguez, Senior District Judge

FOR PUBLICATION

OPINION

This matter comes before the Court on cross-motions for summary judgment filed by Albert W. Florence ("Florence" or "Plaintiff") and Defendants. Plaintiff represents a class certified by this Court as:

All arrestees charged with non-indictable offenses who were processed, housed or held-over at Defendant Burlington County Jail and/or Essex County Correctional Facility from March 3, 2003 to the present date who were directed by Defendants' officers to strip naked before those officers, no matter if the officers term that procedure a "visual observation" or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons.

Defendants named in the complaint are Board of Chosen Freeholders of the County of Burlington, Burlington County Jail ("Burlington Jail), Warden Juel Cole, Individually and Officially as Warden of Burlington County Jail, Essex County Correctional Facility ("Essex Jail"), Essex County Sheriff's Department and several John Does.

Plaintiffs seek:

1. Summary judgment on the issue of law regarding whether Defendants violated Plaintiffs' constitutional rights by their policy of strip searching nonindictable arrestees without reasonable suspicion;

2. Preliminary injunctive relief on behalf of the class against Defendants Burlington and Essex Counties' strip search policies.

Defendants seek:

1. Summary Judgment on the issue of law regarding whether the strip searches were constitutional;

2. Eleventh Amendment immunity for the Board of Chosen Freeholders of Burlington County, Warden Juel Cole in his official capacity, and Burlington County Jail;

3. Qualified Immunity for Warden Juel Cole in his individual capacity;

4. Dismissal of Count Five - § 1983 Municipality Custom Violations regarding Essex County.*fn1 For the reasons expressed below, Plaintiffs' motions are granted in part and denied in part. Defendants' cross-motions for summary judgment are denied, and the claims for Eleventh Amendment immunity and qualified immunity are also denied. Defendant's claim to dismiss the § 1983 Municipality Custom Violations Count is denied.

I. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiffs' 42 U.S.C. § 1983 claim for violation of their federal constitutional rights.

II. FACTUAL & PROCEDURAL BACKGROUND

A. Facts Relating to Plaintiff's Arrest,

Detention, and Alleged Strip Searches The parties are familiar with the facts of this case. For purposes of summary judgment, however, the facts shall be provided herein, in large measure undisturbed from this Court's previous opinion certifying the class. See Florence v. Bd. of Chosen Freeholders, 2008 WL 800970, *1-*5 (D.N.J. March 20, 2008).

On March 3, 2005, Florence was a passenger in his sport utility vehicle, which was being driven by his wife on Interstate Highway 295 in Burlington County. (See Pl.'s Statement of Undisputed Material Facts at ¶ 1.) The vehicle was stopped by a New Jersey State Trooper, who directed Florence to exit the vehicle. (Id. at ¶ 2.) Florence was arrested based on an Essex County bench warrant that was issued on April 25, 2003. (Id.) Florence contends that the warrant charged him with a form of civil contempt that is a non-indictable offense. (Id. at ¶ 3.) In fact, the warrant related to a fine which Florence had already paid. (Id.) Despite Florence's protests about the warrant's validity, he was taken by the State Trooper to the Burlington Jail. (Id. at ¶ 3.)

At the jail, Florence was subjected to what he alleges was a full strip and body cavity search.*fn2 (Id. at ¶ 3.) According to his deposition testimony, an officer directed him to remove all his clothing and, while nude, open his mouth, lift his tongue, hold his arms out, turn fully around, and lift his genitals. (Id.) Florence complied with these requests while the officer sat approximately one arm's length in front of him. (Id. at ¶ 4.) The officer then instructed Florence to shower. (Id.) In the end, Florence was held at the Burlington Jail for six days. (Id.)

After the sixth day, the Essex County Sheriff's Department collected Florence and transported him to the Essex Jail. (Id. at ¶ 5.) Upon his arrival, Florence was processed and again subjected to what he alleges was a full strip and body cavity search. (Id.) According to Florence's deposition testimony, Essex Jail officers told him and four other arrestees to enter separate shower stalls, strip all their clothing and shower. (Id. at ¶ 6.) Florence and the other arrestees complied by completely removing their clothes while two officers watched. (Id.) Florence then showered, and was directed to open his mouth and lift his genitals. (Id.) Next, he was ordered to turn around so that he faced away from the officers, after which time he was told to squat and cough, and then turn back around to face front. (Id. at ¶ 7) Following this episode, Florence was placed with the general jail population until the next day when the charges against him were dismissed. (Id.)

B. Evidence in the Record

The following subsections detail the intake procedures at Burlington and Essex, respectively. Although the parties are familiar with this evidence, see Florence, supra, at *1-*5, the Court reincorporates the pertinent details as they relate directly to the instant cross-motions for summary judgment.

1. Burlington Jail's Procedures

Burlington Jail's intake procedures are based on the document--"Policies and Procedures: Search of Inmates -- No. Section 1186" (hereinafter "Section 1186"). (See Pl.'s Statement of Undisputed Material Facts at ¶ 8.) Section 1186 defines a strip search as "a physical search of an inmate... while unclothed consisting of routine and systematic visual observation of the inmate's physical body to look for distinguished identifying marks, scars or deformities, signs of illness, injury or disease and/or the concealment of contraband on the inmate's body." (Id. at ¶ 9.) The document also provides that "[a] person who has been detained or arrested for commission of an offense other than a crime*fn3... shall not be subject to a strip-search unless there is a reasonable suspicion that a weapon, controlled dangerous substance or contraband will be found." (Id. at ¶ 10.)

Several Burlington Jail officers and Warden Cole testified in depositions about these procedures. Lieutenant Douglas Chilton has worked for the Burlington Jail since 1997. (Id. at ¶12.) He executed a document related to Plaintiff's alleged strip search entitled "Strip Search Authorization Form." (Id.) This form indicates that Plaintiff was not strip searched, per se. (Id.) Lieutenant Chilton testified during his deposition that arrestees who are brought in for non-indictable offenses are subjected to a "visual observation," while those admitted for indictable offenses are strip searched. (Id. at ¶ 13.) He further testified that Plaintiff's Strip Search Authorization Form was marked "not strip searched" because he was admitted for a "failure to appear," which is a nonindictable offense, and which mandates only a visual observation during intake. (Id.)

Officer Haywood Reeder has worked at the Burlington Jail since 1990. (Id. at ¶ 14.) He confirmed that arrestees admitted for non-indictable offenses, such as civil contempt, should not be strip searched. (Id.) Relatedly, he defined a strip search as searching various parts of a nude inmate's body for contraband, scars, marks, or tattoos. (Id. at ¶ 15.) He also testified that all inmates are subjected to a visual observation irrespective of whether they are indictable or non-indictable. (Id. at ¶ 16.) According to Officer Reeder, a visual observation includes: (1) checking a nude arrestee for scars, marks, and tattoos while he strips for a mandatory shower; (2) instructing the nude arrestee on the application of a delousing agent; and (3) instructing the nude arrestee to change into jail clothing following his shower. (Id. at ¶ 17.)

Officer Charles Palmer has worked for the Burlington Jail since 2000. (Id. at ¶ 18.) He also testified that arrestees admitted for non-indictable offenses are subjected to a visual observation. (Id.) Officer Palmer further testified that a visual observation involves taking an inmate into the shower area, having him remove all his clothing, directing him to turn around--while nude--so the officer can look for bruises and distinguishing marks, and then having the inmate take a shower. (Id. at ¶ 19.) According to Officer Palmer, the difference between a visual observation and a strip search is that, with the latter, officers direct arrestees to spread their buttocks and/or lift their genitals. (Id. at ¶ 20.) However, he acknowledged that he has found genital piercings and tattoos during visual observations, (id.), which suggests there is a cursory examination of genitalia during a visual observation.

Officer Sean Gallagher has worked for the Burlington Jail since 1996. (Id. at ¶ 21.) Similar to the other officers, he testified that non-indictable arrestees, such as those arrested for civil contempt, are subjected to a visual observation. (Id.) He further testified that a visual observation entails taking the arrestee to a shower room, having him remove his clothing and turn around while the officer looks at the arrestee's nude body to check for scars, marks, tattoos, and body vermin, before finally instructing the arrestee to shower with a delousing agent. (Id. at ¶ 22.) During these visual observations, Officer Gallagher directs inmates with hanging genitalia to lift their genitals in order to look for contraband, scars, marks, and tattoos. (Id. at ¶ 23.) When asked how this differed from a strip search, Officer Gallagher explained that strip searches are "a little more thorough," and involve having the inmate bend over and spread his buttocks so the officer can "get a view of their anus to see if there is anything that would be suspicious looking...." (Id. at ¶ 24.) In any event, Officer Gallagher acknowledged that all arrestees, whether indictable or non-indictable, are required to take off their clothing while the officer visually observes them and has them turn around. (Id. at ¶ 25.) According to Officer Gallagher, this procedure is required by the Burlington Jail's custom and practice, which every corrections officer follows. (Id. at ¶ 26.)

Lieutenant Jerry Coleman has worked at the Burlington Jail since 1990. (Id. at ¶ 27.) He testified that arrestees who are not indictable are subjected to a visual observation as part of the intake process. (Id.) According to Lieutenant Coleman, a visual observation involves an officer taking the arrestee to a shower room whereupon the arrestee removes his clothing and turns around so as to allow the officer to check the arrestee's front and back for deformities, bruises, marks, tattoos, and puncture wounds. (Id. at ¶ 28.) Lieutenant Coleman also drew a distinction between a visual observation and a strip search, claiming that the latter requires arrestees to bend down, squat, and lift their genitals. (Id. at ¶ 29.)

Lastly, Warden Juel Cole has worked at the Burlington Jail since 1976 and has been its warden since 1997. (Id. at ¶ 30.) Like the officers, Warden Cole confirmed that an arrestee admitted for a non-indictable offense is subjected to a visual observation, which involves an officer "mak[ing] a quick check" on a nude inmate while he changes clothing or during his shower for bruises, tattoos, or "any item like that of any importance." (Id. at ¶ 31) Sometimes, though apparently not always, the officer conducting the visual observation will direct the nude arrestee to turn around to facilitate a full check of the arrestee's entire body. (Id. at ¶ 32.) Warden Cole acknowledged that if he directed an inmate to remove his clothing, he would be telling the inmate to "strip". (Id. at ¶ 33.) However, according to Warden Cole, a visual observation of an arrestee's nude body does not constitute a "search" under the Burlington Jail's definition of that term. (Cole Dep. 31:11-16, Nov. 30, 2006.)

2. Essex County Correctional Facility's Procedures Essex

Jail intake procedures during the relevant class period are based on two documents: (1) a document entitled "Department of Public Safety: General Order No. 89-17" (hereinafter "Order No. 89-17"); and (2) one called "Department of Corrections:

Administrative Directive No. 04-06" (hereinafter "Directive No. 04-06").*fn4 (See Pl.'s Statement of Undisputed Material Facts at ¶ 34.) Order No. 89-17 went into effect in September 2002 and provides that, upon arrival at the Essex Jail, all arrestees shall be strip searched and then required to shower. (Id. at ¶ 35.) It further states that a strip search is to consist of having an arrestee undress completely. (Id. at ¶ 36.) Officers are supposed to "observe carefully while the inmate undresses." (Id.) Moreover, officers are to examine the interior of the arrestee's mouth; his or her ears, nose, hair and scalp; his or her fingers, hands, arms, and armpits; and all body openings and the inner thighs. (Id. at ¶ 37.)

Order No. 89-17 was superceded in April 2005 by Directive No. 04-06. The latter document provides that officers are required to "[c]onduct a thorough search of individual inmates[.]" (Id. at ¶ 38.) It further directs officers to have all arrestees shower during intake. (Id. at ¶ 39.) Officers are required to "[o]bserve and document" any evidence of body markings, vermin or disease, sores, wounds, and other injuries. (Id. at ¶ 40.) In contrast with Order No. 89-17, Directive No. 04-06 facially prohibits strip searching non-indictable arrestees in the absence of reasonable suspicion that the search will produce weapons, drugs, or contraband. (Id. at ¶ 41.)

Essex Jail officers and Warden Glover testified about intake procedures at that facility. Sergeant Thomas Logue has worked for the Essex Jail since 2005, and was on intake duty on March 9, 2005, the night Plaintiff was booked. (Id. at ¶ 42.) He testified that, for intake processing purposes, all arrestees are treated the same, without any distinction based on whether the arrestee is accused of an indictable or a non-indictable offense. (Id. at ¶ 43.) According to Sergeant Logue, officers call up to three arrestees at a time to enter the shower area during processing. (Id.) Once there, corrections officers direct the arrestees to remove their clothing and place them into gray bins. (Id. at ¶ 44.) The arrestees then simultaneously undress while the officers view their nude bodies. (Id.) Toward the end of his testimony, Sergeant Logue reiterated that the same intake procedures are conducted for all arrestees irrespective of the nature of the charged offence. (Id. at ¶ 45.)

Officer Richard Monroig has worked at the Essex Jail since 1995. (Id. at ¶ 46.) Like Sergeant Logue, Officer Monroig testified that arrestees are never segregated based on the nature of their offense--i.e., indictable versus non-indictable--during the intake process. (Id.) Officer Monroig candidly explained that processing officers are not even trained as to which charges are indictable and which are not indictable. (Id. at ¶ 47.) According to Officer Monroig, as part of the intake process, arrestees are lead, three at a time, to a shower area where officers direct them to remove their clothing and shower. (Id. at ¶ 48.) The arrestees then take their clothes off and stand nude while an officer watches. (Id.)

Lieutenant Michael Salzano has worked for the Essex Jail since 1987. (Id. at 49.) He works in the shower room daily and is very familiar with the Essex Jail's intake procedures. (Id.) These procedures include a mandatory shower. (Id. at ¶ 49.) Consistent with the previous testimony, Lieutenant Salzano testified that officers bring up to three arrestees into the shower room at a time, and direct them to remove their clothing and take a shower. (Id. at ¶ 50.) Lieutenant Salzano testified that this procedure is the same regardless of whether the arrestee is admitted for an indictable or non-indictable offense. (Id. at ¶ 51.)

Lastly, Warden Larry Glover has been the warden at the Essex Jail since 2004. (Id. at 52.) He testified that arrestees are searched to ensure they carry no contraband. (Id.) This process includes having as many as three arrestees enter the shower area and remove their clothing, which officers proceed to search. (Id. at ¶ 53.) The arrestees shower shortly thereafter and then are directed to put on jail-issued clothing. (Id. at ¶ 54.)

C. Summary Judgment Cross-Motions

Plaintiffs move for summary judgment, claiming that the procedures described above amount to unconstitutional strip searches even if, in the case of Burlington Jail, the procedures are termed a "visual observation" or if, in the case of the Essex Jail, the written policy now facially complies with New Jersey's strip searching rules. See Florence, supra, at *5. Plaintiffs specifically allege that the undisputed facts establish that Defendants' policy of strip-searching all arrestees without individualized suspicion is a violation of clearly established constitutional law. (Pl. Br. at 16.) Plaintiffs further allege that Defendants "admit that every unnamed class member... has been ordered" to completely disrobe and stand nude upon admission to the jail facilities, "without Defendants first articulating a reasonable basis to do so." (Id.) Citing persuasive albeit non-binding case law, Plaintiffs contend that, at minimum, individualized reasonable suspicion for weapons, drugs, or other contraband must first exist before a jail official may strip search anyone charged with a non-indictable offense.

(Id. at 15.) Because no reasonable suspicion existed before the instant searches took place, Plaintiffs maintain that the searches violated their Fourth Amendment rights. (Id.) Plaintiffs consequently assert an action arising under 42 U.S.C. § 1983, claiming violation of their federal constitutional rights. Plaintiffs seek preliminary injunctive relief against Burlington and Essex County Jails.*fn5

Defendants Burlington and Essex answer in their cross-motions that the visual observations/strip search policies are constitutional, and they point to a recent trend in the Circuit Courts of Appeal to substantiate this claim.*fn6 In doing so, Defendants ask this Court to revisit the holding of Davis v. City of Camden, 657 F. Supp. 396 (D.N.J. 1987), contending that it cannot withstand the "weight" of modern authority. (See Def. Burlington Reply Br. at 16.) Next, Defendants contend that the Board of Chosen Freeholders of Burlington County, Warden Cole in his official capacity, and Burlington County Jail are entitled to immunity as arms of the State of New Jersey pursuant to the Eleventh Amendment. Defendant Warden Cole in his individual capacity contends that he is entitled to qualified immunity, thereby barring money damages against him. Finally, Defendant Essex seeks dismissal of the § 1983 arrest claim by Plaintiff, contending it is invalid. These claims are discussed in turn.

III. DISCUSSION

A. Summary Judgment ...


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