Opinion
Docket No. 2:20-cv-00478-NT
2023-08-16
Jaden BROWN, Plaintiff, v. CUMBERLAND COUNTY, et al., Defendants.
Jeremy W. Dean, Law Office of Jeremy W. Dean, Portland, ME, for Plaintiff. Peter T. Marchesi, Michael D. Lichtenstein, Wheeler & Arey, P.A., Waterville, ME, for Defendants Cumberland County, Kevin Joyce, Timothy Kortes. John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, for Defendants Sam Dickey, Deputy Haskell.
Jeremy W. Dean, Law Office of Jeremy W. Dean, Portland, ME, for Plaintiff. Peter T. Marchesi, Michael D. Lichtenstein, Wheeler & Arey, P.A., Waterville, ME, for Defendants Cumberland County, Kevin Joyce, Timothy Kortes. John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, for Defendants Sam Dickey, Deputy Haskell.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Nancy Torresen, United States District Judge
Before me are the motions for summary judgment of Cumberland County, Kevin Joyce, and Timothy Kortes (the "County Defendants' Motion") (ECF No. 76) and Sam Dickey, Carrie Brady, and Daniel Haskell (the "Officer Defendants' Motion") (ECF No. 81). For the reasons stated below, the County Defendants' Motion is DENIED; the Officer Defendants' Motion is GRANTED as to Defendant Brady and DENIED as to Defendants Dickey and Haskell.
BACKGROUND
The following facts are drawn from: (1) documents in the summary judgment record (ECF Nos. 78 & 94); and (2) the parties' consolidated statements of material facts ("CSMF") (ECF No. 105), which is a compilation of the Officer Defendants' statement of material facts (ECF No. 82), the County Defendants' statement of material facts (ECF No. 83), the Plaintiff's response to the Defendants' statements of material facts and her statement of additional material facts (ECF No. 95), the County Defendants' reply to the Plaintiff's statement of additional material facts (ECF No. 99), and the Officer Defendants' reply to the Plaintiff's statement of additional material facts (ECF No. 104).
I. Labor and Delivery
The Plaintiff, Jaden Brown, was pregnant in July of 2018 when she began a fifteen-month sentence at the Cumberland County Jail (the "Jail"). Consolidated Statement of Material Facts Including Defs.' Reply Statement of Material Facts in Supp. of Defs.' Mot. for Summ. J. ("CSMF") ¶¶ 1-2 (ECF No. 105). Brown started having contractions on the morning of February 10, 2019, and she was transported to Maine Medical Center at around 11:00 a.m. CSMF ¶¶ 33-34. Defendant Kevin Joyce, the Sheriff of Cumberland County, had planned to release Brown from custody with an ankle bracelet for monitoring as soon as she went into labor, but this did not happen because of a miscommunication between Joyce and Defendant Timothy Kortes, Jail Administrator for the Jail. CSMF ¶¶ 11, 21, 85. Brown was not considered to be a security or escape risk while in the hospital. CSMF ¶ 83.
As a result of the miscommunication about releasing Brown when labor commenced, corrections officers from the Jail were present at the hospital throughout Brown's labor and delivery. Corrections Officer Angel Dufour was assigned to Brown's guard detail the first day that Brown was in the hospital. CSMF ¶¶ 4, 35, 88. Dufour asked Brown whether she wanted her to remain in the room during Brown's labor, and Brown told her she would like her to stay. CSMF ¶¶ 4, 96. Then, at approximately 10:45 p.m., Defendants Daniel Haskell, Carrie Brady, and Sam Dickey (together, the "Officer Defendants")—corrections officers with the Jail—arrived at the hospital for a shift change. CSMF ¶¶ 4-5.
Defendant Brady was fairly new to the job, with only about six months of experience. CSMF ¶ 17; Dean Decl. Ex. 7 ("Butts Memo") 1 (ECF No. 94-2). By contrast, Defendant Dickey had nearly two decades of experience as a corrections officer and had participated in hundreds of hospital details during his tenure. CSMF ¶¶ 18, 42. And Defendant Haskell, who worked in a supervisory capacity, seems to have had at least several years of experience. CSMF ¶ 36. Both Haskell and Dickey had troubling histories involving inappropriate relationships with inmates. Dickey, for example, had been demoted from Sergeant to Corrections Officer around 2014 after a complaint of an inappropriate relationship with a female inmate. Def. Sam Dickey's Objs. and Resps. to Pl.'s First Set of Interrogs. 5-6 (ECF No. 78-11). And Brown had personally witnessed at least one female inmate strip for Haskell. CSMF ¶ 99.
Although Haskell's length of employment with the Jail is not clear from the record, the Plaintiff alleges that inmates made complaints about his behavior going back at least to 2016. See CSMF ¶ 106.
The Plaintiff asserts that she has "personally witnessed female inmates strip for Defendant Haskell." CSMF ¶ 99. All Defendants request to strike this fact on the grounds of relevance and immateriality. CSMF ¶ 99. The County Defendants agree that Brown testified that she personally witnessed one inmate strip for Haskell. CSMF ¶ 99. The Officer Defendants merely object to the fact and offer no admission, denial, or qualification. CSMF ¶ 99. The fact is relevant, and I deem it admitted as to the Officer Defendants and qualified as to the County Defendants. See D. Me. Local R. 56(f) ("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.").
Brown testified that she asked Dufour to tell the Officer Defendants to stay out of the hospital room. CSMF ¶ 132. In an incident report, Dufour reported that she told Dickey, "I know you may already be aware but the policy has changed and we are not allowed to be in the delivery room when she is giving birth," to which Dickey responded, "OK." Dean Decl. Ex. 9 ("Dufour Incident Report") (ECF No. 94-2).
The Defendants object to the incident report on the grounds of hearsay. See CSMF ¶ 137. But Dufour was an agent or employee of Cumberland County, and her report is a non-hearsay statement of a party opponent at least as to the County Defendants. See Fed. R. Evid. 801(d)(2)(D). As to the Officer Defendants, I consider the incident report to show the effect on Dickey, not to show the truth of the matter asserted. See United States v. Pena, 24 F.4th 46, 61 (1st Cir. 2022) (" 'Out-of-court statements offered not to prove the truth of the matter asserted but merely to show context—such as a statement offered for the limited purpose of showing what effect the statement had on the listener—are,' by definition, 'not hearsay' and thus not excludable under [Federal Rule of Evidence] 802." (quoting United States v. Cruz-Dìaz, 550 F.3d 169, 176 (1st Cir. 2008))). The Defendants' request to strike is therefore denied.
Despite Dufour's warning, Defendants Dickey and Brady sat in Brown's birthing room until early the next morning and were present while Brown was in labor and giving birth. CSMF ¶ 93. A photograph of the Plaintiff's hospital room shows a large, mostly empty room with a hospital bed in the corner immediately next to a bench:
Image materials not available for display. Dean Decl. Ex. 20 ("Photograph") (ECF No. 94-2).
The Defendants request to strike the photograph on the grounds of hearsay, foundation, and lack of authentication. CSMF ¶ 142. According to the Plaintiff, however, "[t]he photograph was supplied by Defendants and was created and used by them in investigating this incident." CSMF ¶ 142. Questions regarding authenticity are best resolved at trial after a foundation is laid, so here I consider the photograph, which provides additional visual context for the events at issue, only for summary judgment purposes.
While in the birthing room, Dickey sat to the left on the bench at the side of Brown's hospital bed, approximately one and a half to two feet from where she lay, next to Brown's legs. CSMF ¶¶ 139, 143, 208. During his shift, Dickey watched TV, napped, and laughed at jokes that Defendant Haskell made. CSMF ¶ 155. For the most part, Brady, a female officer, sat on the right side of the bench, about four feet away from Brown, but she moved to the foot of Brown's hospital bed when Brown began pushing. CSMF ¶¶ 71, 145, 160, 207. Both Defendants Brady and Dickey were in a position to see, hear, and smell everything that was happening during Brown's labor and delivery.
The Plaintiff asserts that the Officer Defendants "positioned themselves so that they could see, hear, and smell everything that was happening while she labored and delivered her baby and could hear everything that medical staff said." CSMF ¶ 197. The Defendants deny the fact and object to that statement as "speculation," without providing any explanation for how people sitting mere feet away from a birthing person for hours could possibly avoid seeing, hearing, and smelling everything that was happening.
Defendant Haskell stood and roamed in and out of the room, though it is not clear whether he was present at the time of actual delivery. CSMF ¶¶ 8-9, 209. At one point, Haskell joked that Brown and her baby were "one and a half inmates" and told Brown that she should name her daughter after the Jail. CSMF ¶¶ 187-88. At another point, Haskell spoke to Brown about an accusation made by a female inmate at the Jail, who had accused Haskell of having sex with her. CSMF ¶¶ 189-90. Defendant Haskell mocked the woman's appearance and told Brown he had not had sex with her because she was not his type, asking Brown, "Can you believe it? You know my type. Is she my type?" CSMF ¶ 191. Brown understood this question to refer to the "type" of female inmates she had previously witnessed stripping and flashing for Defendant Haskell in the Jail, who tended to be young, petite, blonde women. CSMF ¶ 192.
The Defendants admit these facts but request to strike them on relevance and materiality grounds. CSMF ¶¶ 187-92. The conduct of the Officer Defendants during the Plaintiff's labor and childbirth, however, is relevant and material to these motions for summary judgment.
During the course of Brown's labor, medical staff conducted multiple examinations to see how dilated her cervix was. CSMF ¶ 198. During each of these examinations, medical staff inserted gloved fingers into Brown's vagina to manually check the dilation of her cervix, which required her to have her legs wide open. CSMF ¶ 199. At one such cervical dilation exam, while Brown's legs were open, Defendant Brady stood or sat near the end of Brown's bed with a hand mirror and asked Brown if she would like to see her baby being born—an offer that Brown refused and later described as "horrif[ying] and dehumaniz[ing]." CSMF ¶¶ 156-59. In addition to cervical exams, medical staff administered an epidural to Brown and inserted a urinary catheter. CSMF ¶ 201. Medical staff would also periodically monitor the baby's heartbeat, which required them to expose Brown's belly and breasts. CSMF ¶ 202. When it came time for Brown to push, medical staff held up her legs for her because she could not hold them high enough. CSMF ¶ 205.
The Plaintiff testified that between examinations she was usually covered with a johnny and a sheet, and that the medical staff "tried their best" to keep her body covered during examinations to preserve her privacy. Brown. Dep. 102:3-102:12; 103:24-104:2 (ECF No. 78-1). Despite those efforts, there were times when Brown's breasts and genitals were exposed. CSMF ¶¶ 202-03, 206. For example, Brown's genitals were completely exposed during delivery because it was not possible to keep a sheet over her while her legs were held up in the air by hospital staff. CSMF ¶ 206. For their part, the Defendants maintain that Brady, Dickey, and Haskell did not place themselves in a position to observe Brown's naked body; that they "never observed" or "viewed" Brown's naked body; and that, in particular, they never observed Brown's exposed breasts or genitals. CSMF ¶¶ 60-70, 206.
The Plaintiff testified that the Officer Defendants' presence in her hospital room made her feel "embarrassed" and "numb." CSMF ¶ 211. Brown also testified that, after giving birth, she had planned to have immediate skin-to-skin contact with her baby and breastfeed her, but that she did not do those things because she did not want to have such "an intimate moment" in front of the guards. CSMF ¶ 213; Brown Dep. 123:1-123:5.
The Defendants deny the Plaintiff's statement that she felt embarrassed and numb, but the basis of the denial is only that "Brown never told the officers that she had a problem with them being in the room or asked them to leave." CSMF ¶ 211. This is a qualification, not a denial.
Jail staff never informed Brown of her right to privacy while in labor and delivery. CSMF ¶ 82. Brown did not ask the Officer Defendants to leave the room. CSMF ¶ 210. She testified that she "probably would have asked them to leave the room had [she] felt comfortable to do so," but "when you're naked and your legs are spread open it's just like—it's over. Let's just get it done with." Brown Dep. 120:13-120:19.
A member of the medical staff did approach Defendant Dickey after Brown gave birth, when he left Brown's hospital room for a bathroom break, and the staff member told Defendant Dickey that he should not have been in Brown's hospital room while she gave birth because it violated her privacy. CSMF ¶ 162. Defendant Dickey recounted this conversation when he got back into the hospital room, and asked Brown, "Did I fucking make you feel uncomfortable in any way?" CSMF ¶¶ 163-65. Brown's response to Defendant Dickey's comment is disputed. Brown states that she was intimidated and did not respond, while the Defendants contend that Brown responded "absolutely not." CSMF ¶¶ 165-66.
II. Consequences
After Brown gave birth, she filed a complaint about the Officer Defendants being present in her room and an investigation was initiated. CSMF ¶ 14. As a result of the investigation into Brown's complaint, Defendant Joyce determined that Brady and Dickey had both violated Maine state law and Cumberland County policy by being present in Brown's birthing room during her labor and the delivery of her child. CSMF ¶ 15. Defendant Brady was given a "verbal counseling" for her actions, and Defendant Dickey's employment was terminated, though it was later reinstated following his filing of a union grievance. CSMF ¶¶ 17-19. III. Jail Policies, Training, and Practices
The Jail had policies in place surrounding the privacy of inmates during childbirth in February of 2019, at the time of the Plaintiff's labor and delivery. Cumberland County Sheriff's Office Standard Operating Procedure No. D-244, titled "Use of Restraints" (the "Use of Restraints Policy"), for example, included the following language:
Privacy: When a prisoner . . . is admitted to a medical facility or birthing center for labor or childbirth, a corrections officer may not be present in the room during labor or childbirth unless specifically requested by medical personnel. If a corrections officer's presence is requested by medical personnel, the corrections officer must be female if practicable.Kortes Aff. Ex. A ("Use of Restraints Policy") 3 (ECF No. 78-7). This policy was also enshrined in state law. See 30-A M.R.S. § 1582(4).
By contrast, Policy No. D-250A, entitled "Hospitalized Inmates" (the "Hospitalized Inmates Policy"), states that when an inmate is hospitalized, "the Officer shall station themselves in the doorway of the hospital room so they can see the inmate and monitor all activity." Dean Decl. Ex. 18 ("Hospitalized Inmates Policy") 2 (ECF No. 94-2). The Hospitalized Inmates Policy does not reference the Use of Restraints Policy or contain any exception for pregnant or birthing inmates. Similarly, and though it is disputed whether it was in effect in February of 2019, Cumberland County Sheriff's Office Post Order #28, titled "Hospital Detail Officer" (the "Hospital Detail Officer Order"), states that "[s]taff will position themselves near the room door and within sight of the inmate to afford both security and privacy for medical issues." Dean Decl. Ex. 19 ("Hospital Detail Officer Order") 1 (ECF No. 94-2); CSMF ¶¶ 293-94.
The Defendants request to strike references to the Hospital Detail Officer Order on the grounds of "hearsay, relevance, and immateriality." CSMF ¶¶ 293-94. The Defendants do not explain why this document should be considered inadmissible hearsay. As for relevance and immateriality, the Defendants argue that the Order is irrelevant because it did not go into effect until March 2019, after the Plaintiff gave birth. CSMF ¶ 293. I find, however, that the Order is relevant and material to how the jail instructs officers to guard hospitalized inmates.
Defendant Kortes testified that the Sheriff's Office provides training to all of its corrections officers on an ongoing basis and that some of that training includes having corrections officers review and sign off on existing polices and standard operating procedures. CSMF ¶¶ 21-22. According to Defendant Kortes, training records for Defendants Haskell, Dickey, and Brady show that Haskell and Dickey signed off on the Use of Restraints Policy in January of 2018, and Brady signed off on the Use of Restraints Policy in August of 2018. CSMF ¶ 24.
The statement of fact asserting this claim in turn cites to the affidavit of Defendant Kortes, in which he stated, "I have reviewed the training records for Daniel Haskell, Samuel Dickey, and Carrie Brady. Those records show that Daniel Haskell signed off on D-244 in January, 2018, that Samuel Dickey signed off on D-244 in January, 2018, and Carrie Brady signed off on D-244 in August 2018." Aff. of Timothy Kortes ¶ 4 (ECF No. 78-7). The Plaintiff denies this claim on the basis that she "has been unable to identify any documents provided by Defendants that support this claim." CSMF ¶ 24. As indicated by the Plaintiff's objection, the original training records do not appear to be in the record.
Although the Officer Defendants may have signed off on the Use of Restraints Policy, it is unclear whether they received specific training on the treatment of hospitalized and/or birthing inmates. For example, in a memo dated March 11, 2019, Captain Steve Butts wrote to Defendant Kortes that the training provided to the Jail's staff had last been revised in February of 2013 and did not cover "in-custody childbirths and the law." See Butts Memo 1. Further, in a letter from Cumberland County Manager James H. Gailey to the local National Correctional Employees Union, in which Gailey reversed Dickey's termination and reinstated him to his position at the Jail, Gailey averred to an informal poll conducted by the Union showing that "10 out of 12 staff asked about [the state law forbidding corrections officers from being in the labor and delivery room] got it wrong." CSMF ¶ 304; Dean Decl. Ex. 2 ("Reinstatement Letter") 2 (ECF No. 94-2). Finally, Defendant Dickey, who says that he participated in hundreds of hospital details during his tenure with the Cumberland County Sheriff's Office, indicated that "the hospital detail assignment has always been to stay with the inmate." CSMF ¶¶ 42-43.
The Defendants object to the Plaintiff's citation to information contained in Captain Butts' memo as hearsay. See CSMF ¶ 299. It appears that Butts was an agent or employee of Cumberland County and his report is therefore a non-hearsay statement of a party opponent. See Fed. R. Evid. 801(d)(2)(D).
The Plaintiff's statement of material facts states that "Cumberland County cited" the Union's poll. CSMF ¶ 304. The Defendants object to this fact on the grounds of hearsay and object specifically to the Plaintiff's assertion that it was Cumberland County that "cited" the poll. CSMF ¶ 304. As for the Defendants' objection to the Plaintiff's characterization of the poll, the Defendants are technically correct insofar as Gailey mentioned the poll in a section of the letter describing the Union's position, and it was the Union, not the County, that initially "cited" the poll in appealing Dickey's termination. See Dean Decl. Ex. 2 ("Reinstatement Letter") 2 (ECF No. 94-2). But the fact that Gailey referenced the Union poll in his Reinstatement Letter indicates to me that the County relied in part on the poll in making its decision to reinstate Dickey's employment. An inference can thus be drawn that the County adopted the Union's position that the lack of training on the state law governing inmates in delivery undercut the rationale for terminating Dickey. As for the Defendants' hearsay objection, the Reinstatement Letter is a statement of a party opponent and not hearsay under Fed. R. Evid. 801(d)(2), at least as to the County Defendants.
IV. The Plaintiff's Lawsuit
In December of 2020, the Plaintiff filed a lawsuit against the Officer Defendants, as well as against Defendants Joyce, Kortes, and Cumberland County (together, the "County Defendants"). Compl. (ECF No. 1). As is relevant here, the Plaintiff alleged violations of her rights pursuant to 42 U.S.C. § 1983 ("Section 1983") and the Maine Civil Rights Act (the "MCRA"), 5 M.R.S. § 4682. Compl. ¶¶ 85-131. Now, the Officer Defendants and the County Defendants each move for summary judgment on the Plaintiff's claims. See Defs. Sam Dickey, Deputy Carrie Brady, and Deputy Daniel Haskell's Mot. for Summ. J. ("Officer Defs.' Mot.") (ECF No. 81); Mot. for Summ. J. of Defs. Cumberland County, Kevin Joyce and Timothy Kortes (ECF No. 76).
Several of the Plaintiff's claims, including all of those against another Defendant, Mark Renna, were dismissed in August of 2021. See Order on Defs.' Mot. to Dismiss (ECF No. 29).
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A genuine dispute is 'one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.' " Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d 41, 53 (1st Cir. 2019) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A fact is material where it could influence the outcome of the litigation. Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011). On a motion for summary judgment, I must construe the record in the light most favorable to the non-movant and resolve all reasonable inferences in the nonmovant's favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016).
DISCUSSION
I. Officer Defendants' Motion for Summary Judgment
The Plaintiff brings claims against the Officer Defendants pursuant to Section 1983 and the MCRA, 5 M.R.S. § 4682. Specifically, the Plaintiff argues that the Officer Defendants' presence in her hospital room during labor and delivery of her child violated her right to privacy under the federal Constitution. Compl. ¶¶ 86-87, 96-97, 106-07; Pl.'s Opp'n to Defs.' Mots. for Summ. J. ("Pl.'s Opp'n") 3 (ECF No. 96). The Officer Defendants respond that they did not violate the Plaintiff's rights as a matter of law and, even if they did, they are entitled to qualified immunity. See Officer Defs.' Mot. 1.
"[T]he protections provided by the Maine Civil Rights Act, including immunities, are coextensive with those afforded by 42 U.S.C. § 1983." Est. of Bennett v. Wainwright, 548 F.3d 155, 178-79 (1st Cir. 2008). Thus, "[t]he disposition of a 42 U.S.C. § 1983 claim also controls a claim under the MCRA." Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007).
"Qualified immunity is a doctrine that shields government officials from individual-capacity suits for damages under § 1983 'when they made a decision that, even if constitutionally deficient, reasonably misapprehended the law governing the circumstances they confronted.' " Lachance v. Town of Charlton, 990 F.3d 14, 20 (1st Cir. 2021) (quoting Taylor v. Riojas, 592 U.S. 7, 141 S. Ct. 52, 53, 208 L.Ed.2d 164 (2020)). "Government officials sued in their individual capacities are immune from damages claims unless '(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.' " Irish v. Fowler, 979 F.3d 65, 76 (1st Cir. 2020) (quoting Dist. of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018)).
A. Whether the Officer Defendants Violated the Plaintiff's Rights
The first prong of the qualified immunity analysis turns on whether the Officer Defendants violated the Plaintiff's rights. The Plaintiff asserts that the Officers violated her right to privacy under the Fourth, Eighth, and Fourteenth Amendments of the Federal Constitution and her analogous rights under the Maine Constitution. Complaint at ¶¶ 86-87, 96-97, 106-07, 130; Pl.'s Opp'n 3.
In Cookish v. Powell, 945 F.2d 441, 446 (1st Cir. 1991), the First Circuit held that prisoners retain a right to privacy in their bodies, which is "violated when guards of the opposite sex regularly observe him/her engaged in personal activities, such as undressing, showering, and using the toilet." Id. at 446. Under Cookish, "inadvertent, occasional, casual, and/or restricted observations of an inmate's naked body by a guard of the opposite sex [do] not violate the Fourth Amendment . . . [, but] if the observation [is] other than inadvertent, occasional, casual, and/or restricted, such observation would (in all likelihood) violate the Fourth Amendment, except in an emergency condition." Id. at 447.
The First Circuit is not an outlier in this respect. As I explained at the motion to dismiss stage, a broad consensus of other circuits recognize inmates' right to bodily privacy, though some courts have grounded the right to bodily privacy in the Fourteenth Amendment's Due Process Clause or the Eighth Amendment's prohibition on cruel and unusual punishment, rather than in the Fourth Amendment's protections. See Brown v. Cumberland Cnty., 557 F. Supp. 3d 169, 180, n.12 (D. Me. 2021).
In 1987, the Sixth Circuit, addressing the derivation of a male inmate's right to be free from surveillance by female guards while showering and using the toilet observed that: "Two of the three circuits that have considered and/or recognized such a right have done so without detailing its constitutional origins. Perhaps it is merely an abundance of common experience that leads inexorably to the conclusion that there must be a fundamental constitutional right to be free from forced exposure of one's person to strangers of the opposite sex when not reasonably necessary for some legitimate, overriding reason, for the obverse would be repugnant to notions of human decency and personal integrity." Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987) (first citing Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981); and then citing Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, (8th Cir.), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980)).
Here, the Officer Defendants argue that no constitutional violation occurred under Cookish because "there is no evidence in the summary judgment record that any of the Officer Defendants' observed—let alone searched—Ms. Brown's naked body." Officer Defs.' Mot. 6. I am not persuaded by either argument.
First, as to the Officer Defendants' claim that there is no evidence that they "observed" the Plaintiff's naked body, Officer Defs.' Mot. 6, they maintain that they did not put themselves in a position to view Brown's naked body and that they "never observed" or "viewed" Brown's naked body, her exposed breasts, or her genitalia. CSMF ¶¶ 60-70, 206. The record, however, is replete with facts that cast doubt on the Officer Defendants' assertions. For example, the photograph of the hospital room provides ample evidence from which a reasonable juror could conclude that the Officer Defendants did in fact place themselves in a position to observe Brown's naked body. See Photograph. The photograph shows that the hospital room was large, with plenty of space where the Officer Defendants could have positioned themselves. Yet, rather than position themselves near the doorway or farther away from the Plaintiff's hospital bed, where they could have afforded Brown more privacy, Defendants Brady and Dickey chose to sit on the bench immediately to the side of Brown's bed.
The Defendants spent hours on that bench while the Plaintiff underwent intimate medical examinations, gave birth, and, at least at times, had her genitals and breasts exposed. It is undisputed that Defendants Brady and Dickey sat right next to Brown through the entirety of their shifts and Defendant Haskell was in and out of the Plaintiff's hospital room, at times conversing with Brown about his sexual preferences in the context of an alleged sexual relationship with another inmate. See CSMF ¶¶ 8-9, 139, 143, 160, 189-91, 195, 207-209.
The Defendants point to the Plaintiff's inability to recall what the Officer Defendants were doing and/or looking at during the course of her labor and delivery as smoking gun evidence that the Officer Defendants never observed her naked body. Officer Defs.' Mot. 5. But it is not at all surprising that the Plaintiff was not focused on whether the guards were watching given her embarrassment and the fact that she was giving birth.
I also note that even the presence of the Officer Defendants, regardless of where they were looking, arguably violated the Plaintiff's right to privacy. In Cookish v. Powell, the First Circuit referred to guards observing "personal activities, such as undressing, showering, and using the toilet." 945 F.2d 441, 446 (1st Cir. 1991). One can observe someone using the toilet without observing their naked body. It is the intrusion into a private and personal act and whether the intrusion is inadvertent, occasional, casual, restricted, and/or justified that determines the legality of the conduct under Cookish. See also Baggett v. Ashe, 41 F. Supp. 3d 113, 120 (D. Mass. 2014) ("The constitutionality of the search does not hinge solely on what the officer of the opposite sex happens to see but, instead, on the degradingly vulnerable position the inmate is forcibly placed in."). As far as the nature of the activity observed here, I can think of few activities that are more intimate than childbirth. And a reasonable juror could find that what the officers did was not inadvertent, occasional, or casual; that their vantage point was not restricted; and that there was no security risk that justified their presence in the Plaintiff's room.
Overall, given the size of the room, the length of the time they were in it, and the types of activities that were occurring there, whether Officers Brady and Dickey placed themselves in a position to observe Brown's labor and delivery and whether they observed the Plaintiff's exposed body are disputed material facts. While Officer Haskell was apparently not in the room for as long as Officers Brady and Dickey, he was there for an hour earlier in the evening when he relieved Officer Dufour from duty, and he was in and out of the delivery room during the time of the shift change. Further, the comments that Officer Haskell made to Brown regarding his sexual preferences and the fact that Officer Haskell does not deny that Brown saw an inmate strip for him, could give a juror reason to doubt his claims that he never observed Brown's naked body.
Defendants Dickey and Brady were present in the Plaintiff's hospital room from about 10:45 p.m. on February 10, 2019, until early morning on Monday, February 11, 2019. CSMF ¶¶ 4-5, 93.
Second, the Officer Defendants assert that Cookish and the Fourth Amendment, which protects against "unreasonable searches and seizures," are inapplicable in this case because "[t]he summary judgment record cannot support a finding that a search occurred." Officer Defs.' Mot. 5. The Officer Defendants' narrow read of the Fourth Amendment's scope is not supported by First Circuit caselaw. In the First Circuit, "[a] search within the meaning of the Fourth Amendment occurs whenever the government intrudes upon any place and in relation to any item in which a person has a reasonable expectation of privacy." United States v. Moss, 936 F.3d 52, 58 (1st Cir. 2019); see also United States v. Bain, 874 F.3d 1, 12 (1st Cir. 2017). And the First Circuit has recognized that there is "a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have one's 'private' parts observed or touched by others." Wood v. Hancock Cnty. Sheriff's Dep't, 354 F.3d 57, 62 (1st Cir. 2003). Here, the Plaintiff alleges that the Officer Defendants intruded on her hospital room where she was giving birth and over which she had a reasonable expectation of privacy. Even assuming that a search did not occur here, the Defendants offer nothing in response to the Plaintiff's argument that the right to privacy acknowledged in Cookish—which covers the observation of "personal activities, such as undressing, showering, and using the toilet"—arguably extends beyond the realm of traditional searches and seizures to other invasions of privacy. There is also the possibility, as explained above, that the type of violation alleged here would implicate the Fourteenth Amendment's Due Process Clause and/or the Eighth Amendment's prohibition on cruel and unusual punishment, neither of which require a search.
In sum, on this record a reasonable juror could conclude that the Officer Defendants violated the Plaintiff's constitutional right to privacy by observing the Plaintiff's naked body during labor and childbirth. The Officer Defendants are therefore not entitled to summary judgment on this basis.
B. Whether the Unlawfulness of the Officer Defendants' Conduct was Clearly Established
The Officer Defendants' next argument turns on the second prong of the qualified immunity analysis—that is, whether the unlawfulness of the Officer Defendants' conduct was clearly established at the time. The "['clearly established'] inquiry has 'two related aspects,' namely: (1) the relative clarity of the governing law to a reasonable official on the date of the alleged wrong and (2) whether the specific characteristics of the situation confronted by the official would have made it clear to a reasonable official how the governing law applied in the given situation." Lawless v. Town of Freetown, 63 F.4th 61, 67 (1st Cir. 2023) (internal citation omitted) (first quoting Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 9 (1st Cir. 2013); and then citing Punsky v. City of Portland, 54 F.4th 62, 66 (1st Cir. 2022)).
"The plaintiff bears the burden of demonstrating that the law was clearly established at the time of the alleged violation, and it is a heavy burden indeed." Lachance, 990 F.3d at 20 (quoting Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015)). "The first [part of the "clearly established" analysis] requires the plaintiff to identify either 'controlling authority' or a 'consensus of cases of persuasive authority' sufficient to send a clear signal to a reasonable official that certain conduct falls short of the constitutional norm." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). "The second [ ]part asks whether an objectively reasonable official in the defendant's position would have known that his conduct violated that rule of law." Id. "Together, these aspects of the inquiry must persuade [the Court] that available precedent placed the legal question beyond debate such that any reasonable official would have appreciated the illegality of the conduct in question." Lawless, 63 F.4th at 67 (quoting City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 611, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015)).
In regard to the first part of the analysis, the Officer Defendants argue that even if the Officer Defendants violated the Plaintiff's privacy rights, those rights were not clearly established because there is no case concerning an inmate's right to privacy during labor and childbirth. See Officer Defs.' Mot. 8-9. The Officer Defendants are correct that Cookish did not specifically mention the presence of officers during an inmate's labor and childbirth as a type of "personal activity" that implicates privacy concerns, but "[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances," Irish, 979 F.3d at 76, so long as the "contours [of the right] were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it," Kisela v. Hughes, 584 U.S. 100, 138 S. Ct. 1148, 1153, 200 L.Ed.2d 449 (2018). Moreover, "[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Irish, 979 F.3d at 76.
Here, the record supports a determination that the Officer Defendants' conduct was so obviously egregious in light of Brown's right to privacy that a lack of prior caselaw dealing with these specific facts is not fatal to the Plaintiff's claim. Cookish made clear that observations of an inmate's naked body by a guard of the opposite sex that are not "inadvertent, occasional, casual, and/or restricted" violate the inmate's privacy rights unless justified by exigent circumstances or legitimate penological interests. 945 F.2d at 447. As explained above, whether the Officer Defendants observed the Plaintiff's naked body and the nature of their observations are genuinely disputed. And whether exigent circumstances existed or any legitimate penological interest was served by the Officer Defendants' conduct during the Plaintiff's labor and childbirth is, at best, also disputed.
As to the second part of the "clearly established" analysis—whether objectively reasonable officers in these Defendants' positions would have known they were violating the Plaintiff's rights—the Officer Defendants again unconvincingly claim that their version of events is undisputed. Because the Officer Defendants did not "observe Ms. Brown's naked body at any time," they argue, "a reasonable officer in the Officer Defendants' position could have believed that their actions would not violate Ms. Brown's Fourth Amendment rights." Officer Defs.' Mot. 9. But, as I've already explained, whether the Officer Defendants observed Brown's naked body is disputed, and the Officer Defendants make no argument as to whether a reasonable officer who did observe the Plaintiff's naked body could have believed that his or her actions would not violate Brown's constitutional rights.
Other considerations support the conclusion that reasonable officers in the Officer Defendants' position would have understood their conduct to be a violation of the Plaintiff's constitutional rights. For example, the Officer Defendants' presence and location in Brown's hospital room violated Jail policy and state law. "A lack of compliance with state law or procedure does not, in and of itself, establish a constitutional violation, but when an officer disregards police procedure, it bolsters the plaintiff's argument . . . that 'a reasonable officer in the officer's circumstances would have believed that his conduct violated the Constitution.' " Irish, 979 F.3d at 77 (quoting Stamps v. Town of Framingham, 813 F.3d 27, 32 n.4 (1st Cir. 2016)). Haskell was a supervisor and Dickey had nineteen years of experience as a corrections officer and had participated in hundreds of hospital details during his tenure. CSMF ¶¶ 18, 36, 42. Both men had been around long enough to be expected to know the Jail policies. Moreover, even if a reasonable officer in the Officer Defendants' position could somehow have been ignorant of the policies in place, there is evidence that Dufour reminded Dickey when he arrived at the hospital that officers are not allowed in the delivery room. See Dufour Incident Report. Given the Jail's policies, state law, Dufour's reminder, and Haskell and Dickey's years of experience, I am dubious that a reasonable officer in their position would not have been on notice that his conduct was impermissible, inappropriate, and unlawful.
The Use of Restraints Policy forbids officers from being in a hospital room during labor and childbirth where, as here, medical personnel have not specifically requested an officer's presence. See Kortes Aff. Ex. A at 5 (ECF No. 78-7). And although the Hospitalized Inmates Policy and Hospital Detail Officer Order permit officers to be inside a prisoner's hospital room, both require officers to station themselves in or near the room's doorway, presumably to afford privacy. Dean Decl. Ex. 18 at 2 (ECF No. 94-2); Dean Decl. Ex. 19 at 1 (ECF No. 94-2).
Whether the law was clearly established as to Defendant Brady is a closer question. In Cookish, the First Circuit spoke specifically of observation of inmates by "guards of the opposite sex." 945 F.2d at 446. Cookish's exclusive focus on the "sex" of the guards may strike the modern reader as outdated, and there are signs that the law is evolving away from treating the sex (or gender) of both the observing guard and the inmate as a determinative factor. Although "it is generally considered a greater invasion to have one's naked body viewed by a member of the opposite sex," courts have also recognized that "all forced observations or inspections of the naked body implicate a privacy concern." Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (emphasis added). As one court clarified, "[t]he gender of the parties is just one fact for the court to consider in determining . . . the legitimacy of a challenged practice." Stoudemire v. Mich. Dep't of Corrs., 705 F.3d 560, 575 (6th Cir. 2013). The issue before me, however, is not where the law is going or where it should be, but rather what was clearly established at the time. Given Cookish's language, I cannot find the law was clearly established as to Defendant Brady or that a reasonable officer in her shoes would have known she was violating the Plaintiff's privacy rights. On these facts, Officer Brady is entitled to qualified immunity.
In addition to the fact that Brady is female, she was a relatively new corrections officer and the record is silent as to whether she heard Dufour's advice to stay out of the room. Finally, the record as to Brady contains none of the disciplinary history involving female inmates that exists for both Officers Haskell and Dickey.
II. County Defendants' Motion for Summary Judgment
I turn now to the claims against the County Defendants. The Plaintiff's claims against the County Defendants take two distinct forms: as against Defendants Joyce and Kortes, the Plaintiff asserts supervisory liability, while as against Defendant Cumberland County, the Plaintiff asserts municipal liability. The County Defendants argue that they are entitled to summary judgment because the Plaintiff has not established the essential elements of either a supervisory liability or municipal liability claim. Below I address each of these issues.
The County Defendants also argue that the Officer Defendants did not commit a constitutional violation, and thus there can be no supervisory or municipal liability. Mot. for Summ. J. of Defs. Cumberland County, Kevin Joyce and Timothy Kortes 4 (ECF No. 76). The County Defendants are correct that both supervisory and municipal liability claims require there to be an underlying constitutional violation. See Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002) ("If, however, the officer has inflicted no constitutional harm, neither the municipality nor the supervisor can be held liable."). That said, I have already determined that Defendants Haskell and Dickey are not entitled to summary judgment on the issue of whether they violated the Plaintiff's constitutional right to privacy. Thus this threshold requirement of supervisory and municipal liability has been established.
A. Supervisory Liability—Claims against Kortes and Joyce
I turn first to the Plaintiff's supervisory liability claims against Defendants Kortes and Joyce. In her Complaint, the Plaintiff alleges that the "constitutional and statutory violations of Plaintiff's rights committed by all other Defendants were caused by the acts and/or omissions of Defendant[s] Joyce [and Kortes], including, but not limited to, [their] grossly negligent policies, customs and/or pattern of practice in recruitment, training, supervision, and discipline of all other Defendants." Compl. ¶¶ 116-17, 120-21.
"Generally, a supervisor cannot be held liable under § 1983 on a respondeat superior theory—a 'supervisor's liability must be premised on his or her own acts or omissions' and does not attach automatically even if a subordinate is found liable." Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021) (quoting Guadalupe-Báez v. Pesquera, 819 F.3d 509, 515 (1st Cir. 2016)). "[A] § 1983 claim premised on a theory of supervisory liability must plead an 'affirmative link between the behavior of a subordinate and the action or inaction of his supervisor.' " Ouellette v. Beaupre, 977 F.3d 127, 140 (1st Cir. 2020) (quoting Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011)).
"To connect the liability dots successfully between supervisor and subordinate in this context, a plaintiff must show 'that one of the supervisor's subordinates abridged the plaintiff's constitutional rights' and that the supervisor's (in)action 'was affirmatively linked to that behavior in the sense that it could be characterized as gross negligence amounting to deliberate indifference.' " Justiniano, 986 F.3d at 20 (quoting Guadalupe-Báez, 819 F.3d at 514-15). Deliberate indifference requires a plaintiff to demonstrate "(1) a grave risk of harm, (2) the defendant's actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk." Id. (quoting Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998)). "[M]ere negligence will not suffice: the supervisor's conduct must evince reckless or callous indifference to the constitutional rights of others." Id. (quoting Guadalupe-Báez, 819 F.3d at 515). Additionally, and equally important to the supervisory liability analysis, "the causation requirement 'contemplates proof that the supervisor's conduct led inexorably to the constitutional violation.' " Id. (quoting Guadalupe-Báez, 819 F.3d at 515). Causation may be established by "showing inaction in the face of a 'known history of widespread abuse sufficient to alert a supervisor to ongoing violations.' " Id. at 21 (quoting Guadalupe-Báez, 819 F.3d at 515). "Alternatively, liability might be appropriate 'in a narrow range of circumstances where a violation is a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.' " Id. (quoting Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 28 (1st Cir. 2005)).
In this case, a reasonable juror could find that the facts support the imposition of supervisory liability on Defendants Kortes and Joyce. Although the Jail had a policy that, absent emergency circumstances, officers were not allowed in the room of an inmate in labor and delivery, that prohibition was buried in a policy dealing with the use of restraints and was not contained in the policy on hospitalized inmates. See Use of Restraints Policy; Hospitalized Inmates Policy. And the Hospitalized Inmates Policy required officers to "station themselves in the doorway of the hospital room so they can see the inmate and monitor all activity," without any exception for inmates in labor and delivery. Hospitalized Inmates Policy 2. Officers apparently received no specific training on the rights of inmates giving birth. See Butts Memo 1. And, judging from the informal poll taken by the Union, the vast majority of officers did not understand the policy that required that they not be in the inmate's room for labor and delivery. Reinstatement Letter 2. While it is a close call, the shortcomings in officer training and the contradictory policies could have posed a "grave risk of harm" and there were "easily available measures to address the risk." Justiniano, 986 F.3d at 20. The issue is one that should be left to the jury.
B. Municipal Liability—Claims against Cumberland County
The Plaintiff asserts a claim against Cumberland County pursuant to Section 1983. Compl. ¶ 123-28. A municipality can "be liable in certain cases when its agents and employees committed constitutional violations, but not under a theory of respondeat superior." Young, 404 F.3d at 25. Rather, "a municipality 'may be liable under section 1983 if the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation.' " Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011)). "[It] is only when the governmental employees' 'execution of a government's policy or custom inflicts the injury' and is the 'moving force' behind the constitutional violation that a municipality can be [held] liable." Young, 404 F.3d at 25 (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
Here, the Plaintiff's municipal liability claim is premised on the theory that the Officer Defendants "acted pursuant to official policy when they stayed in [the] Plaintiff's hospital room and put themselves in a position to observe her naked body during labor and childbirth." Pl.'s Opp'n 20. Here, again, the evidence is close. But viewing the facts in the light most favorable to the non-moving party, a reasonable juror could find that the confused state of the Jail policies and lack of training suffice as a basis for municipal liability.
CONCLUSION
For the reasons stated above, the Court DENIES the County Defendants' Motion (ECF No. 76); the Officer Defendants' Motion is GRANTED as to Defendant Brady and DENIED as to Defendants Dickey and Haskell. The claims against Defendant Brady are hereby DISMISSED. SO ORDERED.