Opinion
Case No. 3:14-cv-00820-YY
04-20-2020
WILLIAM DILLON, SCOTT GRAUE, DAVID HODGES, and ALBERT LOVE, individually, Plaintiffs, v. CLACKAMAS COUNTY and CRAIG ROBERTS, both individually and in his official capacity as Sheriff, Defendants.
FINDINGS AND RECOMMENDATIONS :
Plaintiffs, former inmates of Clackamas County Jail ("CCJ"), have brought suit pursuant to 42 U.S.C. § 1983, against defendants Clackamas County (the "County") and Sheriff Craig Roberts, based on visual body cavity searches they endured while incarcerated. Defendants have filed a second motion for summary judgment (ECF #210), which should be GRANTED for the reasons discussed below.
The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 and § 1343.
The court finds this motion suitable for decision without oral argument pursuant to L.R. 7-1(d)(1).
FINDINGS
I. Procedural Background
This case was originally filed on May 18, 2014, as a putative class action, and included named plaintiffs William Dillon, Scott Graue, and David Hodges. Compl., ECF #1. On May 4, 2015, plaintiffs filed a Second Amended Complaint (ECF #31), adding two additional plaintiffs, Albert Love and Jason Saylor, who has since been dismissed from the case (ECF #65). Plaintiffs raised claims arising out of visual body cavity searches, hereafter referred to as strip searches, in two factual contexts: (1) a single, group strip search of approximately 160 inmates on October 10, 2012, and (2) group strip searches conducted routinely when plaintiffs and other CCJ inmates returned from court proceedings.
On January 9, 2017, plaintiffs filed a "Voluntary Dismissal of Jayson Saylor" with prejudice "due to non-communication and disappearance." ECF #65.
On July 23, 2018, this court issued an order deciding several motions (ECF #160), including a motion for summary judgment filed by defendants (ECF #58). The court granted defendants' motion for summary judgment regarding the October 10, 2012 strip search and as to all claims under the Eighth Amendment, but denied it as to plaintiffs' claims based on the return-from-court strip searches under the Fourth Amendment and O.R.S. 30.865. The court also granted plaintiffs' motion to certify the class (ECF #37) "as to the Fourth Amendment claims by male inmates at the CCJ who underwent return-from-court visual strip searches between September 25, 2012, and the date in May 2013 on which the County installed privacy panels in CCJ's hallway." ECF #160. Defendants later filed a motion to decertify the class (ECF #177), which the court granted (ECF #217).
After the July 23, 2018 order was issued, the court directed the parties to "confer and provide the court with a proposed schedule for the remainder of the case." ECF #161. On August 14, 2018, plaintiffs submitted a Joint Litigation Schedule, which included another round of summary judgment motions following expert discovery. ECF # 168. The court issued an order adopting the proposed schedule (ECF #169), and defendants have now filed the present motion for summary judgment against all remaining claims (ECF #210).
II. Section 1983 Claims Against Sheriff Roberts
The Findings and Recommendations ("F&R") issued on May 2, 2018 (ECF #148), which were adopted by Order on July 23, 2018 (ECF #160), concluded that Sheriff Roberts should be granted summary judgment on the § 1983 claims. F&R 15-16, ECF #148. The F&R observed that § 1983 does not recognize a theory of vicarious liability; therefore, "'[a] supervisor may be liable [under § 1983] only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor's conduct and the constitutional conduct.'" Id. at 15, ECF #148 (quoting Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)). Plaintiffs had presented no evidence of Sheriff Roberts' personal involvement or a causal link. Id. at 16. Moreover, any claims against Sheriff Roberts in his official capacity are redundant because "[a]n official capacity suit against a municipal officer is equivalent to a suit against the entity," and the County has been sued in this case. Id. (quoting Ctr. for. BioEthical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep't., 533 F.3d 780, 799 (9th Cir. 2008)).
Due to an oversight, the F&R failed to include in its recommendations that the § 1983 claims against Sheriff Roberts should be dismissed, and the Order (ECF #160) likewise did not state that summary judgment was granted as to the § 1983 claims against Sheriff Roberts. In the current motion for summary judgment, Sheriff Roberts requests that the court clarify its previous decision in this regard. Reply 5, ECF #215. Plaintiffs offer no new evidence or argument, other than these two sentences: "Roberts ratified an unconstitutional policy. He is liable." Resp. 2, ECF #214.
Because there are no viable § 1983 claims against Sheriff Roberts, the court should issue an order dismissing these claims. III. Stare Decisis , Issue Preclusion, and Claim Preclusion
Regarding their § 1983 claims against the County, plaintiffs do not address the new evidence presented in the County's motion for summary judgment or respond to the substance of the County's arguments. Resp., ECF #214. Instead, they contend that the doctrines of stare decisis, issue preclusion, and claim preclusion bar the present motion because the issues were previously litigated in the earlier motions for summary judgment. However, as there is no final judgment in this action, those doctrines do not apply. Moreover, the court has discretion to consider another round of summary judgment, which the parties jointly requested.
A. Stare Decisis
The doctrine of stare decisis dictates that binding authority must be followed, i.e., "[a] district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue, or with Supreme Court Justices writing for a majority of the Court." Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Here, the previous decision that plaintiffs cite as binding authority is this court's order on a prior motion for summary judgment, which is not an appellate decision. Accordingly, the doctrine of stare decisis does not apply.
B. Preclusion Doctrines
While stare decisis binds all litigants in future cases, res judicata prevents parties from revisiting final decisions on issues they have already litigated. Claim preclusion and issue preclusion, collectively referred to as res judicata, are related doctrines used to protect the finality of decisions and prevent the proliferation of litigation. Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1159-61 (9th Cir. 2002); see also Littlejohn v. United States, 321 F.3d 915, 919 (9th Cir. 2003) ("The two doctrines are based on the same general principles: After a claim or issue is properly litigated, that should be the end of the matter for the parties to that action.").
Here, the court's denial of a prior motion for summary judgment does not preclude it from ruling on another motion for summary judgment pertaining to the same issues. "All rulings of a trial court are 'subject to revision at any time before the entry of judgment.'" U.S. v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (quoting Fed. R. Civ. P. 54(b)); see also U.S. v. Smith, 389 F.3d 944, 948 (9th Cir. 2004) (noting that a district court "may reconsider its prior rulings so long as it retains jurisdiction over the case"). Thus, an "order denying a motion for summary judgment is . . . subject to reconsideration by the court at any time." Preaseau v. Prudential Ins. Co. of America, 591 F.2d 74, 79-80 (9th Cir. 1979) (citation and internal quotation marks omitted); Dessar v. Bank of America Nat. Trust. and Sav. Ass'n, 353 F.2d 468, 470 (9th Cir. 1965) ("Such a denial merely postpones decision of any question; it decides none."); Andrews Farms v. Calcot, Ltd., 693 F. Supp. 2d 1154, 1165 (E.D. Cal. 2010) ("A denial of a summary judgment motion has no preclusive effect, does not merge into a final judgment, and is an interlocutory, unappealable order that can be reviewed by the district court at any time before final judgment is entered."). Accordingly, neither claim preclusion nor issue preclusion applies to the present motion.
Nor is this court constrained by the doctrine of law of the case, which plaintiffs have not asserted. "The 'law of the case" doctrine is "wholly inapposite to circumstances where a district court seeks to reconsider an order over which it has not been divested of jurisdiction." Guerra v. Paramo, 251 F. App'x 424, 425 (9th Cir. 2007) (cited pursuant to Ninth Circuit Rule 36-3).
C. Court's Discretion to Entertain Successive Motion for Summary Judgment
"[D]istrict courts have discretion to entertain successive motions for summary judgment. . . ." Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). "[A]llowing a party to file a second motion for summary judgment is logical, and it fosters the 'just, speedy, and inexpensive' resolution of suits." Id. (quoting Fed. R. Civ. P. 1). "[A] successive motion for summary judgment is particularly appropriate on an expanded factual record." Id.
Here, after the first round of summary judgment motions was decided, the parties proposed a schedule that allowed for additional summary judgment motions following expert discovery. ECF #168. The present motion includes and relies upon expert evidence not previously presented, specifically the declaration of Captain Lee Eby (ECF #211). A successive motion for summary judgment is appropriate under these circumstances where it expands the evidence beyond what the court considered in ruling on the parties' prior motions for summary judgment. Further, addressing the present motion for summary judgment will promote the "just, speedy, and inexpensive" resolution of this action, particularly where it is dispositive of the claims, as discussed infra. Accordingly, the court acts well within its discretion to allow defendants' second motion for summary judgment.
IV. Fourth Amendment Claim
Plaintiffs allege that the return-from-court strip searches deprived them of their Fourth Amendment rights because they were performed without probable cause, in groups, and in public. Second Am. Compl. ¶ 72, ECF #31. Previously, this court denied the parties' cross-motions for summary judgment on this claim because the Fourth Amendment requires a "highly fact specific-inquiry" and there was an insufficient record "regarding to whom and how often the naked inmates were actually exposed to third parties[.]" Order 4, ECF #160. In its renewed motion for summary judgment, the County offers additional evidence on these issues, which plaintiffs have not responded to in any substantive way. Because this new evidence establishes that there is no Fourth Amendment violation, the County's motion for summary judgment on this claim should be granted.
A. Legal Standard on Summary Judgment
Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citing Fed. R. Civ. P. 56(e)).
The court "does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). "Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party." Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
B. New Evidence
In support of its motion for summary judgment, the County offers a 22-page declaration by Captain Eby, the current commander and captain of CCJ, along with photographs and a map of the areas where the strip searches were conducted. Eby Decl., ECF #211; id., Exs. 4-8 (photos), 10 (map), ECF #211-1. Captain Eby attests as follows:
Plaintiffs previously deposed Captain Eby on July 28, 2016. Gordon Decl., Ex. 1, ECF #109-1. However, plaintiffs did not seek to depose Captain Eby again after defendants disclosed him as an expert witness. Lilligren Decl. ¶ 5, ECF #216.
CCJ is a 101,619 square foot facility that houses approximately 465 inmates, some who are pretrial detainees and others who are serving sentences. Id. ¶ 3. Like other jails, CCJ has policies to deter and detect contraband, including drugs and weapons, which "disrupt the safe operation of a jail." Id. ¶ 10. Contraband is "prevalen[t]" at CCJ. Id. ¶ 14. Since 2014, CCJ has had "816 documented instances of contraband, including 245 instances of drugs brought into the facility and 55 instances of weapons." Id. ¶ 11. Inmates secret contraband into the facility in various ways, such as hiding it in their clothing, and taping and tucking it on their bodies, including their mouths, rectal cavities, and genitals. Id. ¶ 12.
This case was filed in 2014. Dillon was in CCJ custody from November 2012 until early 2013. Dillon Decl. ¶ 2, ECF #85. Graue, Hodges, and Love were in CCJ custody at various times between February 2011 and September 2014. Thies Decl. ¶ 19, ECF #59; Graue Decl. ¶ 2, ECF #83; Hodges Decl. ¶ 2, ECF #86; Am. Love Decl. ¶ 2, ECF #89.
CCJ policy § 25.23.2 defines contraband as "[a]ny item not authorized by the CCJ or altered from its original purpose/design." Eby Decl. ¶ 10, ECF #211; CCJ Policy § 25.23.2, ECF #211-1.
CCJ transports inmates—usually between 22 and 25 in number—to their court appearances at the Clackamas County courthouse in two secure vans, multiple times each weekday. Id. ¶¶ 13, 14. At the courthouse, inmates who are not attending court appearances are held in five holding tanks. Id. ¶ 16. After inmates complete their court appearances, deputies drive them back to CCJ where they are subject to visual strip searches upon arrival. Id. ¶¶ 20, 21. Upon exiting the transport vans, the inmates are separated according to gender and safety concerns. Id. ¶ 21. Female deputies conduct strip searches of the female inmates, and separately, in a different area of the jail, male deputies conduct strip searches of the male inmates. Id. The strip searches take approximately thirty seconds, involve no touching, and are conducted in small groups ranging from one to five inmates at a time. Id. ¶¶ 21, 35. Because deputies at CCJ must perform many other duties, the number of deputies available to perform these return-from-court strip searches is limited and it is "unworkable" for CCJ to conduct them individually. Id. ¶¶ 38-39.
CCJ's rationale for conducting the return-from-court strip searches is that inmates come in contact with other inmates, new arrestees, and the public during their visits to the Clackamas County courthouse and may attempt to bring contraband into the jail. Id. ¶¶ 19, 39, 46. In 2015, near the time when the strip searches in this case were conducted, staff recovered 5,999 items of contraband, including drugs and weapons, at the Main Street entrance of the Clackamas County courthouse. Id., Ex. 2 (Security Checkpoint Report), ECF #211-1.
Video cameras are located in the booking, intake, housing, and common areas of CCJ. Id. ¶ 41. In fact, federal regulations implementing the Prison Rape Elimination Act of 2003 require that an "agency shall ensure that each facility it operates shall develop, document, and make its best efforts to comply on a regular basis with a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. . . ." 28 C.F.R. § 115.13(a) (emphasis added).
Deputies monitor the video footage in the control room, which has 12 monitors, each with 13 to 16 cameras set on different locations. Eby Decl. ¶ 42, ECF #211. "Image resolution on the cameras are from an analog signal," and the images "do not have great detail and at times are blurry or out of focus due the distance and location of the cameras." Id. The control room deputies generally rotate through or "call up" the various cameras in random manner. Id. One of the cameras may, "on an incidental basis where the camera image is rotating through various images," include views of inmates during return-from-court strip searches. Id. ¶ 41.
Deputies working at the control room desk are almost always male, because a vast majority of CCJ deputies are male. Id. ¶ 45. "To the extent female deputies work at the control room desk, they could view monitors of male inmates who are subject to an unclothed visual strip search, but this occurs rarely based on the number of female deputies working the control room[.]" Id. Moreover, the images "would have been casually noted while scanning" one of the 12 monitors. Id. Additionally, the control room deputies are trained to focus on high risk areas within the CCJ, which does not include the areas where inmates are subject to strip searches after returning from court. Id. ¶ 41.
"Of the 47 correctional deputies assigned to the day shift at the CCJ between September 2012 and May 2013, only seven were female correctional deputies." Eby Decl. ¶ 45, ECF #211.
On May 2, 2013, CCJ installed privacy panels comprised of six curtains that create five stalls for deputies to search individual inmates. Id. ¶ 55; id., Exs. 5-6 (photos), ECF #211-1. The "[p]rivacy panels were installed to afford inmates privacy from other inmates involved in the group strip search, not third parties." Id. ¶ 55. Captain Eby is "not aware of any information that suggests a female CCJ deputy or staff person observed a male inmate being strip searched after returning from court in a manner that was not inadvertent, occasional or at a distance." Id. ¶ 53.
C. Strip Search Policy
The routine, return-from-court strip searches are incorporated into CCJ's policies. CCJ Policy § 25.47.4(C)(1) provides that "[t]o control, detect and remove contraband from the CCJ, . . . searches of inmates are conducted on a routine and random basis," with "[s]pecial attention . . . given to . . . inmates" who are "returning to the facility from court. . . ." Eby Decl., Ex. 3 ("CCJ Policy"), ECF #211-1. The policies specifically provide that "visible body cavity searches should be performed for inmates . . . returning to the facility. . . ." CCJ Policy § 25.47.4(D)(3)(f).
Visual body cavity searches are described as "unclothed searches which include a visual inspection of the anus and/or genital area; generally, requiring the subject to bend over and spread the cheeks of the buttocks, to squat, and/or otherwise assume a posture which more fully exposes body cavity orifices." CCJ Policy § 25.47.4(D)(3). CCJ policies require that visible body cavity searches "will be done in a professional manner" and "in a manner that reasonably ensures inmates being searched can only be observed by":
1) staff members conducting or assisting with the search;CCJ Policy § 25.47.4(D)(3)(b).
2) staff members working in the area; and,
3) other inmates being searched at the same time.
D. Fourth Amendment Analysis
"The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by government officials, including law enforcement agents. . . ." Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (citation omitted). "The reasonableness of a search is determined by reference to its context." Bull v. City & Cty. of San Francisco, 595 F.3d 964, 971 (9th Cir. 2010) (citing Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988)).
Here, the search policy at issue applies to pretrial detainees returning from court appearances. "Because the purpose of the search policy at issue was to further institutional security goals within a detention facility, the principles articulated in Bell v. Wolfish, [441 U.S. 520 (1979)], and Turner v. Safley, [482 U.S. 78 (1987)], govern [the court's] analysis." Bull, 595 F.3d at 971.
1. The Bell Test
Bell holds that the "test of reasonableness . . . requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." 441 U.S. at 559. "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. The incarcerated person "bears the burden of showing [jail] officials intentionally used exaggerated or excessive means to enforce security." Michenfelder, 860 F.2d at 333 (citations omitted).
After applying the relevant factors in Bell, the Supreme Court held that a routine visual strip search of pretrial detainees "after every contact visit with a person outside the institution" was constitutional. 441 U.S. at 558. The Court recognized that "[a] detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record . . . and in other cases." Id. at 559. "Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates," the Court concluded that visual strip searches may be conducted on less than probable cause. Id. at 560.
Since Bell, the Supreme Court has held that a visual body cavity search for contraband is authorized under the Fourth Amendment, even where the individual is being admitted to the jail on only a minor offense. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318 (2012). In Florence, the Court again recognized how "[w]eapons, drugs, and alcohol all disrupt the safe operation of a jail," and observed that "[e]veryday items can undermine security if introduced into a detention facility[.]" Id. at 332; see also Hudson v. Palmer, 468 U.S. 517, 518 (1984) (noting "the proliferation of weapons, drugs, and other contraband" in custody). The Court declined to carve out an exception for inmates taken into custody for minor offenses, noting that jails have a "substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population." 566 U.S. at 333.
Applying Bell, the Ninth Circuit has upheld warrantless visual strip searches of inmates during the jail intake process, finding the "government has a strong interest in preventing contraband from entering its prisons and jails. . . ." United States v. Fowlkes, 804 F.3d 954, 961 (9th Cir. 2015); see also Bull, 595 F.3d at 975 (finding jail policy of conducting visual strip searches of arrestees for contraband was "not meaningfully different from the scope, manner, and justification for the strip search policy in Bell, and therefore constitutional). Moreover, where "a facility's visual strip search is restricted to a discrete class of inmates, [the Ninth Circuit has] declined to find that the scope was unreasonably broad." Cunningham v. Multnomah Cty. 737 F. App'x 814, 817 (9th Cir. 2018) (cited pursuant to Ninth Circuit Rule 36-3). In Cunningham, the court held that the jail's policy of conducting a visual strip search of the kitchen crew was reasonable because inmates could obtain contraband from the kitchen. Id. at 816-17. In other cases, the Ninth Circuit has upheld the practice of conducting visual strip searches of inmates leaving their cells in disciplinary segregation units for prison safety and to prevent the spread of contraband. See Rickman v. Avaniti, 854 F.2d 327, 327 (9th Cir. 1988); Michenfelder, 860 F.2d at 332 (finding visual strip searches were constitutional where the prisoners were housed in the most restrictive unit and were "searched both coming and leaving their cells, even when traveling only within the unit while under escort and in chains at all times").
The Ninth Circuit has acknowledged "the fact that a strip search is conducted reasonably, without touching and outside the view of all persons other than the party performing the search, does not negate the fact that a strip search is a significant intrusion on the person searched." Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489-90 (9th Cir. 1986).
In the context of this well-established case law, the return-from-court strip searches in this case—which lasted approximately 30 seconds, were visual and involved no touching, and were conducted on a discrete group of inmates, i.e., those returning from court—do not violate the Fourth Amendment. The searches were justified by the need to prevent contraband from entering the jail, a safety concern that the Supreme Court and Ninth Circuit have repeatedly validated. As Captain Eby explained, when inmates are taken to court, they are able to comingle with each other in small holding tanks in the courthouse and are transported to courtrooms through public, unsecured areas. Eby Decl. ¶¶ 16-17. In the courtrooms, the inmates are in close contact with their attorneys, other inmates, and court staff, and are exposed to members of the public, which "provides a constant opportunity" for contraband to be retrieved and secreted. Id. ¶ 18. Additionally, judges sometimes order defendants to be taken into custody on warrants or following sentencing, and these newly arrested inmates may have contraband. Id. ¶ 10. Notably, contraband is not limited to drugs that "threaten inmate and deputy safety due to a risk of overdose and unpredictable behavior," but also include writing instruments and utensils that have been altered for use as weapons. Id. To illustrate the seriousness of the threat, the County produced a chart detailing that in 2015 alone, almost 6,000 items of contraband were discovered on persons entering through the Main Street security checkpoint of the Clackamas County courthouse. Id., Ex. 2, ECF #211-1. "[S]o long as a prisoner is presented with the opportunity to obtain contraband or a weapon while outside of his cell, a visual strip search" is justified. Michenfelder, 860 F.2d at 332-33 (citation omitted).
Plaintiffs complain that they were searched in hallways and in view of other inmates, without the use of privacy screens. Second Am. Compl. ¶¶ 1, 3, ECF #31; see, e.g., Graue Decl. ¶ 3, ECF #83. According to Captain Eby, CCJ "did not have a practice of conducting strip searches in the hallway." Eby Decl. ¶ 25, ECF #211. Rather, male inmates were searched in two locations: a holding cell marked "REL TK" and a "deep alcove of the hallway adjacent to the holding cell." Id. ¶¶ 21-22; see id., Ex. 10 (Floor Plan), ECF #211-1. These locations were chosen because they are immediately adjacent to the carport where inmates return from court, which reduces the risk of contraband entering the facility. Id. ¶ 22.
Captain Eby further explained that the hallway is used exclusively to access the carport, and the alcove does not access any other part of the jail. Id. ¶ 24. "Accordingly, when the male inmates are subject to a strip search after returning from court, there is no reason for other jail deputies, staff or inmates to be in the hallway" and "no reason or realistic opportunity for jail deputies, staff or inmates not involved in the search to view the inmates being searched in either the holding cell or deep alcove." Id. ¶¶ 24, 25. Moreover, "if a deputy or staff person not involved in the search had entered the hallway, the supervising deputies would have redirected them before they could have observed any of the inmates being strip searched," and "before the strip searches begin, the deputies provide a radio announcement to all other jail deputies to alert them that strip searches are occurring." Id. ¶ 25.
Even if the group strip searches were conducted in the hallway as plaintiffs contend, they were reasonable under the circumstances. The strip searches were conducted in small groups—plaintiffs claim it was five to 15 inmates, and defendants claim it was one to five inmates. Eby Decl. ¶ 21, ECF #211; Graue Decl. ¶ 3, ECF #83. The Ninth Circuit has upheld group strip searches of five to ten inmates. Cunningham, 737 F. App'x at 817; see also Thompson v. Souza, 111 F.3d 694, 701 (9th Cir. 1997) (rejecting the argument that strip searches must be conducted "out of view of the other prisoners").
Moreover, "[g]iven the facility's interest in safely administering the search, a group search was an expedient and reasonable strategy to deter improper conduct." Cunningham, 737 F. App'x at 817. As Captain Eby explained, inmates are immediately strip searched in areas closest to the carport, to ensure that contraband is not brought into the jail. Eby Decl. ¶ 22, ECF #211. Because of CCJ's physical limitations, jail administration has "no choice but to utilize every area of the jail to conduct daily operations." Id. ¶ 3. Individual strip searches are not feasible because CCJ has "limited deputies to supervise, escort and support the many inmates, civilian staff, volunteers and visitors in this large facility." Id. ¶ 7. Between 14 and 19 deputies work the day shift. Id. ¶ 9. To conduct the return-from-court strip searches, the jail must reassign two to three deputies from their other duties. Id. Thus, by Eby's calculations, already approximately 18% of the day-shift deputies are dispatched to process the return-from-court strip searches. Id. If CCJ were not permitted to conduct group strip searches, "this would create an unworkable circumstance that would greatly affect the time and administration of jail operations at the risk of the safety and security to everyone inside the jail." Id. ¶ 39. "Allocating more deputies to this task would have compromised the tasks of feeding inmates, processing new intakes, releasing inmates and escorting inmates to their attorney contact visits while also increasing the risk of security and safety to inmates, deputies and staff." Id. ¶ 54.
Plaintiffs contend that "[t]here was a records window staffed by female deputies who could see us naked in the hallway." See, e.g., Graue Decl. ¶ 4, ECF #83. Other than this conclusory and speculative assertion, plaintiffs have provided no evidence that female deputies actually saw them during strip searches. Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979) (holding that conclusory and speculative affidavits are insufficient to defeat summary judgment). Plaintiffs have offered no declarations or testimony from female deputies who in fact observed the strip searches through this window. Moreover, defendants have now supplemented the record with uncontroverted evidence that in 1999, this window was covered with a metal blind, which prevented female deputies from observing the searches, and in 2011, the window was completely "walled-in" to create an office. Eby Decl. ¶ 25, ECF #211.
Plaintiffs further complain that other deputies, including female deputies, were able to observe the strip searches on closed-circuit television. See, e.g., Graue Decl. ¶ 3, ECF #83. Captain Eby has explained that the jail uses cameras in the booking, intake, housing, and common areas "[t]o ensure compliance, and for the safety and security of inmates, jail deputies and staff." Eby Decl. ¶ 40, ECF #211 "Security cameras in the CCJ are vital to the safety and security of all persons within the jail not only because they provide an accurate accounting of incidents involving safety or security, but they also deter inmates from engaging in such behavior." Id. ¶ 44. The jail video cameras, which rotate images randomly, may "on an incidental basis" show inmates as they are undergoing visual strip searches. Id. ¶¶ 41, 42. However, the uncontroverted evidence is that the quality of the images is low because they are from an analog system, and the images are blurry and out of focus because of the distance and location of the cameras. Id. ¶ 42. Moreover, the control room deputies are trained to focus on high risk areas within CCJ, which does not include the areas where inmates are subject to strip searches after returning from court. Id.
The cameras do not show interior views of the cells or inmates showering or using the toilet. Eby Decl. ¶ 41, ECF #211.
While female deputies worked in the control room during the time in question, they rarely did so because only seven out of the 47 deputies employed at that time were women. Id. ¶ 45. In Michenfelder, the Ninth Circuit reiterated that "assigned positions of female guards that require only infrequent and casual observation, or observation at distance, and that are reasonably related to prison needs are not so degrading as to warrant court interference." 860 F.2d at 334 (citing Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985) (finding inmate's privacy rights were not unreasonably infringed where female officers were assigned to positions from which their observations of nude male prisoners were infrequent and casual, or from a distance). Additionally, the Ninth Circuit has recognized "both the interest in providing equal employment opportunities and the security interest in deploying available staff effectively" as legitimate penological interests. Michenfelder, 860 F.2d at 334. Thus, here, the infrequent, casual, and distant observation of plaintiffs' strip searches by other deputies, including female deputies, over closed-circuit television did not violate the Fourth Amendment. Id.
Finally, plaintiffs allege that when female inmates on laundry duty "loaded the shelving with fresh laundry, they could and did turn the corner and see us strip searched naked on occasion." See, e.g., Graue Decl. ¶ 5, ECF #83. In support of their prior motion for summary judgment, plaintiffs' offered a declaration by another inmate Jessica Dove, in which she attests: "I spoke with female trustees who did laundry and they told me often that when they loaded the shelving with fresh laundry, they could and did turn the corner and see male inmates strip searched naked in nearby view." Dove Decl. ¶ 5, ECF #87. Defendants' previously objected to this statement because it is hearsay. Resp. Pl.'s Mot. Summ. J. 33, ECF #108. Indeed, it is hearsay. Because only admissible evidence may be considered on summary judgment, Dove's declaration cannot be considered. See Chao v. Westside Drywall, Inc., 709 F. Supp. 2d 1037, 1048 (D. Or. 2010), as amended (May 13, 2010) ("Hearsay statements in affidavits are inadmissible" on summary judgment) (citing Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866, 875 n.1 (9th Cir. 2002)).
Moreover, defendants have now supplemented the record with photographs and a map showing that the laundry area is down the hall and around the corner from where the strip searches were conducted, making plaintiffs' claims unlikely. Eby Decl., Exs. 4, 6 (photos), 10 (map) ECF #211-1. Plaintiffs do not refute these photographs with admissible evidence or even argument.
In sum, all four Bell factors weigh in favor of the County, and plaintiffs have not met their burden of proving the County "intentionally used exaggerated or excessive means to enforce security." Michenfelder, 860 F.2d at 333 (citations omitted).
2. The Turner Test
Turner holds that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. The four Turner factors "relevant in determining the reasonableness of the regulation at issue" are: (1) a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) alternative means of exercising the right that remain open to inmates; (3) the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally; and (4) the absence of ready alternatives as evidence of the reasonableness of a prison regulation. Id. at 89-91.
The "Turner factors require [courts] to give more deference to detention officials' determinations than does the balancing test in Bell[.]" Bull, 595 F.3d at 975. In fact, under Turner, corrections officials are accorded "great deference," Michenfelder, 860 F.2d at 331, on the basis that "such a standard is necessary if prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations." Turner, 482 U.S. at 89 (ellipsis in original) (citation and internal quotation marks omitted). Thus, where, as here, the court finds a strip search policy does not violate the Bell factors, "it is not surprising" that application of the Turner factors leads to the same conclusion. Bull, 595 F.3d at 975.
a. Connection Between Prison Regulation and Legitimate Governmental Interest
In Bull, a well-documented record of contraband in the jail and the testimony of a jail administrator regarding the "utmost importance" of keeping contraband out of the jail for the "safety and well-being of all inmates, staff and the public" led the Ninth Circuit to "conclude there was a 'valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.'" 595 F.3d at 976 (quoting Turner, 482 U.S. at 89); see also Beard v. Banks, 548 U.S. 521, 531 (2006) (holding a detention facility administrator's testimony articulating the identified problem and his views on how challenged policy addressed them was sufficient to show "that the regulations do, in fact, serve the function identified").
Here, the County presented a record of the contraband problems at CCJ, including those related to inmates being returned to CCJ from the Clackamas County courthouse. See Eby Decl. ¶¶ 11, 19, ECF #211; id., Ex. 2, ECF #211-1. Additionally, Captain Eby, a CCJ administrator, explained that CCJ's policy of restricting contraband "is intended to increase the safety and security of inmates, deputies and staff," and routine, return-from-court strip searches is "an acceptable correctional practice because it is reasonable to expect that inmates who have contact with the public may attempt to bring contraband, such as weapons or drugs, into the jail." Eby Decl. ¶¶ 10, 46, ECF #211. In light of this evidence, the County has established that there is a connection between CCJ's strip search policy and a legitimate penological interest in keeping contraband out of the jail.
b. Alternative Means of Exercising the Right
As recognized in the concurring opinion in Byrd, the second factor is "somewhat nonsensical" in the context of challenges to strip searches. 629 F.3d at 1148 n.1 (Smith, J., concurring in part) (citing Michenfelder, 860 F.2d at 331 n.1 (noting not all Turner factors are relevant in every case)). Accordingly, this factor is inapplicable here.
c. Impact of Accommodation on Resources
"When the allocation of resources and the ability of administrators to protect staff and detainees at the facility are at issue, 'courts should be particularly deferential to the informed discretion of corrections officials.'" Bull, 595 F.3d at 976 (quoting Turner, 482 U.S. at 90). The court defers to the decisions of corrections administrators when they produce evidence "that the elimination of the strip search policy would 'lead to a higher incidence of illegal contraband in the jails,' and that implementation of more targeted policies 'requires supervisory and line staff training' that 'takes time away from other tasks and necessarily uses resources in scarce supply.'" Id. (quoting Turner, 482 U.S. at 90). In Michenfelder, the Ninth Circuit upheld a policy of conducting strip searches in a hallway in view of other inmates where the alternatives would require additional officers, transporting dangerous inmates to less public locations elsewhere in the prison, or a costly remodel of the facility. 860 F.2d at 333.
Here, as explained in detail above, CCJ has "limited deputies" and modification of the strip search policy would create an "unworkable circumstance that would greatly affect the time and administration these areas of jail operations at the risk of the safety and security to everyone inside the jail." Eby Decl. ¶¶ 7, 39, ECF #211. Such "impact on prison personnel and the allocation of prison resources generally . . . bears consideration." Michenfelder, 860 F.2d at 333.
d. Absence of Ready Alternatives and Exaggerated Response
Plaintiffs have previously argued that the installation of privacy panels "plainly establish[es] the alternative means that were available to address" the strip searches that occurred prior to their installation. Mot. Partial Summ. J. 18-19, ECF #82. However, the Fourth Amendment does not mandate privacy from other inmates also undergoing a strip search; rather, where safety issues relating to contraband and staffing exist, as they do here, visual strip searches have been and continue to be authorized in front of other inmates of the same gender. See, e.g., Cunningham, 737 F. App'x at 817 (upholding group strip search of kitchen crew to prevent concealment of contraband and finding jail's pre-privacy panel search policy was justified by the "facility's unique administrative challenges"); Thompson, 111 F.3d at 700 (upholding visual strip search in front of other inmates based on officer safety and potential to discard contraband); Michenfelder, 860 F.2d at 332 (authorizing visual strip searches in hallway in front of other inmates).
Thus, under the Turner factors, CCJ's strip search policy is reasonably related to the legitimate correctional goal of maintaining safety and security at the jail. Because plaintiffs' Fourth Amendment claim fails under both Bell and Turner, the County's motion for summary judgment against this claim should be granted.
V. O.R.S. 30.865 Claim
Defendants also move for summary judgment against plaintiffs' claim of invasion of privacy under O.R.S. 30.865 for recording them with closed-circuit television cameras during their return-from-court strip searches. In their prior motion for summary judgment, defendants argued that this claim should be dismissed for failure to comply with the Oregon Tort Claims Act and because it was untimely. Mot. Summ. J. 7, ECF #58. Those arguments were rejected by this court. Order 5-6, ECF #160. In this round of summary judgment, defendants raise new arguments that warrant dismissal of this claim.
O.R.S. 30.865(1)(a) provides for "a cause of action for invasion of personal privacy if the plaintiff establishes" that:
The defendant knowingly made or recorded a photograph, motion picture, videotape or other visual recording of the plaintiff in a state of nudity without the consent of the plaintiff, and at the time the visual recording was made or recorded the plaintiff was in a place and circumstances where the plaintiff had a reasonable expectation of personal privacy.
However, under Oregon law, "persons seeking to maintain actions against public bodies must do so in strict compliance with statutory provisions." Gable v. State ex rel. State Wildlife Comm'n, 23 Or. App. 670, 672 (1975) (citation omitted). The scope of liability of public bodies is governed by O.R.S. 30.265, which provides that "[t]he sole cause of action for a tort committed by officers, employees, or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification . . . is an action under [ORS] 30.260 to 30.300. . . . No other form of civil action is permitted." ORS 30.265(2) (emphasis added).
Plaintiffs do not seek to hold defendants "liable under the statutes governing liability for public bodies, and as no other form of civil action is permitted, [their] claim for invasion of personal privacy must fail as a matter of law." Branford v. Washington Cty., Oregon, No. 3:17-CV-94-SI, 2019 WL 1957951, at *21 (D. Or. May 2, 2019); see also Gable, 23 Or. App 672-73 (explaining that, in the context of actions against public bodies, "the filing of the claim in substantial compliance with the statute is made a condition precedent to the filing of the action").
RECOMMENDATIONS
For the reasons set forth above, defendants' Motion for Summary Judgment (ECF #210) should be GRANTED in full, in that:
1) the § 1983 claims against Sheriff Roberts should dismissed;
2) the Fourth Amendment claim against the County should be dismissed; and
3) the O.R.S. 30.865 claim against defendants should be dismissed. Because no viable claims remain, this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, May 04, 2020. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED April 20, 2020.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge