Opinion
No. 4:02CV3049.
March 11, 2003
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On April 1, 2002, the plaintiff, Stacy Spencer, filed an amended complaint against the defendants, Mike Moreno and Scotts Bluff County Adult Corrections Facility, alleging four separate causes of action based upon 42 U.S.C. § 1983. (See Am. Compl., filing 11.) Now before me is the defendants' motion for summary judgment, filing 20. For the following reasons, I find that the defendants' motion must be granted in part.
I. BACKGROUND
On June 13, 2001, the plaintiff gave birth to a baby girl. (Pl.'s Index of Evidence, filing 22, Spencer Aff. (hereinafter "Spencer Aff.") ¶ 2.) Four days later, the plaintiff was raped. (Id.) She was taken to an emergency room for treatment twelve hours after she was assaulted. (Id.) At some unspecified time thereafter, but apparently within a short time after her visit to the emergency room, the plaintiff was incarcerated in the Scotts Bluff County Adult Corrections Facility (the Facility) while awaiting trial on charges of "Aiding and Abetting Burglary," "Aiding and Abetting Terroristic threats," "Aiding and Abetting Use of firearm to commit felony," "Aiding and Abetting Assault, 2nd degree," and "Aiding and Abetting Use of firearm to commit felony." (See id. ¶ 3; Defs.' Index of Evidence, filing 19, Ex. 6.) The events giving rise to the plaintiff's claims occurred during her pretrial confinement at the Facility.
On these charges, the plaintiff was found "not responsible by reason of insanity" by a jury on April 4, 2002. (See Defs.' Index of Evidence, filing 19, Ex. 9.)
On June 29, 2001, the plaintiff was transported from the Facility to the Regional West Medical Center in Scottsbluff, Nebraska, for a gynecological examination. (See Am. Compl., filing 11, ¶ 4.) Lt. Mike Moreno was assigned to transport the plaintiff to the center. (See Spencer Aff. ¶ 4.) The plaintiff's examination was performed by Dr. Holloway, who requested that, for safety reasons, the plaintiff's restraints not be removed and that Lt. Moreno be present during the examination. (See Defs.' Index of Evidence, filing 19, Ex. 1, Holloway Aff. ¶ 2. See also id. Ex. 3, Moreno Aff. ¶ 4.) The plaintiff states that she was indeed handcuffed and shackled during the exam, that Moreno was present throughout the exam, and that, due to the plaintiff's restraints, a nurse had to pull the plaintiff's pants down as she bent over a table so that the plaintiff could be examined for injuries stemming from the rape. See Spencer Aff. ¶ 5.) However, according to Dr. Holloway, the nurse, and Moreno, Lt. Moreno was not in a position to view the plaintiff's unclothed body. (See Defs.' Index of Evidence, filing 19, Ex. 1, Holloway Aff. ¶ 2; id. Ex. 2 Kephard Aff. ¶ 2; id. Ex. 3, Moreno Aff. ¶ 2 ("At no time did I see inmate Spencer naked.").)
On July 24, 2001, the plaintiff was transported from the Facility to Panhandle Community Services for a pelvic and breast examination. (See Spencer Aff. ¶ 6.) Once again, Lt. Moreno was assigned to transport the plaintiff to the site of her examination. (See id.) Dr. Kate Painter, the physician who performed the plaintiff's examination, states that she wanted Moreno to be present during the examination for security reasons. (See Defs.' Index of Evidence, filing 19, Ex. 4, Painter Aff. ¶ 2. See also id. Ex 5 Villafranca Aff. ¶ 3; a Ex. 3, Moreno Aff. ¶ 4.) There is evidence that a nurse held up a sheet to screen the plaintiff from Moreno's view while the plaintiff disrobed and that Moreno stood facing away from the plaintiff with his hands cupped around his eyes during the examination. (See Defs.' Index of Evidence, filing 19, Ex. 4, Painter Aff. ¶ 3; id. Ex. 5, Villafranca Aff. ¶ 2.) In addition, Moreno himself states that he did not view the plaintiff's unclothed body during the examination. (See id. Ex. 3, Moreno Aff. ¶ 3.) However, the plaintiff disputes the accounts of the defendants' witnesses. She states that she was not screened by a sheet, but rather by a "paper towel" approximately four feet in height and width. (See Spencer Aff. ¶ 8.) She also states that Moreno did not face away from her and cup his hands around his eyes, but instead stood behind Dr. Painter and faced the plaintiff during the examination. (See id. ¶ 9.) Finally, the plaintiff states that she asked Moreno to leave the room so that she could privately discuss the details of the rape with Dr. Painter. (See id. ¶ 7.) The plaintiff states that Moreno's wife is an investigator in the Scotts Bluff County Attorney's office, that Ms. Moreno was investigating the charges pending against the plaintiff and that in the course of her investigation, Ms. Moreno would be interviewing the individuals who raped her. (See id.) For these reasons, she did not want to discuss the incident with Dr. Painter while Moreno was in the room. (See id.) However, Moreno remained in the small examination room with the plaintiff at all times.
The plaintiff states that she filed a grievance with the Facility concerning the incidents described above. (See Spencer Aff. ¶ 11.) Thereafter, she was uncuffed during examinations and the officers who transported her to the medical facilities remained outside of the examination rooms. See id.) Moreno states that his department tries to match the sexes of the officers and inmates that they must transport, but that this matching was not possible on the dates in question due to "scheduling reasons." (See Defs.' Index of Evidence, filing 19, Ex. 3, Moreno Aft ¶ 6.)
On April 1, 2002, the plaintiff filed an amended complaint alleging a violation of her Fourth and Fourteenth Amendment rights by the Facility (Count I); a violation of her Eighth and Fourteenth Amendment rights by the Facility (Count II); a violation of her due process and equal protection rights under the Fifth, Eighth, and Fourteenth Amendments, presumably by both the Facility and Moreno (Count III); and a violation of her Fourth, Eighth, and Fourteenth Amendments by Moreno (Count IV). Although they purport to be based upon various constitutional amendments, each of the four counts of the plaintiff's complaint allege that the defendants' actions violated the plaintiff's privacy rights. (See generally Am. Compl., filing 11.) The defendants have filed a motion for summary judgment on the plaintiff's amended complaint. (See filing 20.) My analysis of this motion follows.
The fourth claim set forth in the amended complaint is labeled "Count V." (See Am. Compl., filing 11.) In this memorandum, I shall refer to this count as "Count IV."
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). A genuine issue of material fact exists when the evidence favoring the party opposing the motion is sufficient to allow a jury to return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. See Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets its initial burden of establishing the nonexistence of a genuine issue, the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," id. at 256 (citing Federal Rule of Civil Procedure 56(e)).
III. ANALYSIS
The defendants argue that they are entitled to summary judgment on the amended complaint for the following reasons: (1) the plaintiff's rights under the Fourth Amendment were not violated; (2) the evidence does not demonstrate that the plaintiff's Eighth Amendment rights were willfully and wantonly violated; (3) the plaintiff's restraints did not violate her due process rights under the Fourteenth Amendment; (4) the plaintiff cannot demonstrate a violation of her right to equal protection under the Fourteenth Amendment; (5) the Facility is immune from liability for punitive damages; and (6) the plaintiff's claims are barred by the Prison Litigation Reform Act because there is no showing that the plaintiff suffered a physical injury. (See generally Defs.' Br. in Supp. of Mot. for Summ. J. (hereinafter "Defs.' Br.").) In addition, the defendants have included within their brief a supplemental discussion of cases involving "cross gender search or viewing[s]." (Defs.' B.R. at 15). The plaintiff has responded to the defendants' motion, but in doing so she has argued only that she suffered an unwarranted invasion of her right to privacy. (See generally Pl.'s Mem. Br. Opposing Def.'s [sic] Mot. for Summ. J. (hereinafter "Pl.'s Br.").) I shall review each of the parties' arguments in turn.
A. Whether the Plaintiff's Fourth Amendment Rights Were Violated
The defendants argue that the plaintiff's Fourth Amendment claims are "inapplicable" because "there is no allegation of any search which was conducted by any of the defendants." (See Defs.' Br. at 9.) In support of their argument, the defendants refer me to Hudson v. Palmer, 468 U.S. 517, 526 (1984), wherein the Supreme Court held that "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell."
I am unpersuaded by the defendants' argument, and I find that their reliance upon Hudson is misplaced. This case does not involve a search of a prison inmate's cell, but instead involves a male officer's alleged observation of intimate medical exams that were performed not upon a convict, but upon a female pretrial detainee. Cf. Hill v. McKinley, 311 F.3d 899, 908 (8th Cir. 2002) (Hansen, J., dissenting) ("Unlike these prisoners, [the plaintiff], as a nonconvicted arrestee presumed to be innocent, fully retained her Fourth Amendment right to privacy, subject only to such reasonable constraints as must be imposed in the interest of safety or security.") The Eighth Circuit has recently recognized that the Fourth Amendment is violated when a female arrestee is allowed to remain naked and exposed to male guards for a substantial period of time after the threat to security and safety posed by the arrestee has passed. See Hill v. McKinley, 311 F.3d 899, 904 (8th Cir. 2002) (2-1 decision). The court also agreed with "the general statement of the law" that "prison officials must balance an inmate's right to privacy with the security needs of the institution." Id. (citing Bell v. Wolfish, 441 U.S. 502, 529 (1979); Chapman v. Nichols, 989 F.2d 393, 395-97 (10th Cir. 1993); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985)). Thus, it seems to me that the defendants will not be entitled to summary judgment unless they can demonstrate that there is no genuine issue that the plaintiff posed a security threat that justified the alleged intrusions upon her right to privacy.
In the case before me, when the evidence is viewed in a light favorable to the plaintiff, see Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970), Moreno remained present during the plaintiff's vaginal and anal medical exam despite the fact that she was handcuffed and shackled and despite the absence of any evidence that the plaintiff was violent, agitated, aggressive, or uncooperative in any way. There is also evidence that Moreno was present and in a position to view the plaintiff's unclothed body during a separate breast and pelvic exam, again without any indication that the plaintiff presented a security risk. In sum, the evidence now before me does not support a conclusion that the plaintiff; who stands approximately 5 feet, five inches tall and weighs approximately 125 pounds (see Spencer Aff. ¶ 12), posed a security or safety threat sufficient to justify the alleged intrusions upon her right to privacy. Indeed, the evidence shows that after the plaintiff filed a grievance, she was left unshackled and her escorts remained completely outside of the room during subsequent examinations. See Spencer Aff. ¶ 11.) This evidence tends to weigh against the conclusion that the plaintiff posed a security threat that required Moreno to remain present during the first two examinations.
Although the defendants have submitted evidence indicating that each doctor requested the officer's presence in the examination rooms for" security" or "safety" reasons, these reasons have not been specifically identified. I am therefore not persuaded that, as a matter of law, the plaintiff presented a security threat that outweighed her right to privacy during intimate medical examinations.
Since a genuine issue as to whether the plaintiff posed a security threat remains to be resolved at trial, I find that the defendants are not entitled to judgment as a matter of law on the plaintiff's Fourth Amendment "right to privacy" claims.
B. Whether the Plaintiff's Eighth Amendment Rights Were Violated
The defendants next argue that the plaintiff's Eighth Amendment claim fails because "there is no willful and wanton conduct or harassment in any form." (Defs.' Br. at 10.) In support of their argument, the defendants rely on Whitley v. Albers, 475 U.S. 312, 319 (1986), wherein the Supreme Court noted, "After incarceration, only the "`unnecessary and wanton infliction of pain'" . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Id. (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)). The plaintiff has not responded to the defendants' argument.
Although this point was not argued by the defendants, I note that the plaintiff's status as a pretrial detainee renders the Eighth Amendment inapplicable in this case. As stated by the Supreme Court,
Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he state does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979) (quoting Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40 (1977)) (citation omitted). It therefore seems to me that the plaintiff's Eighth Amendment claims are therefore more properly dismissed under Bell, as opposed to Whitley.
The defendants' failure to raise an argument based upon Bell coupled with the plaintiff's decision not to respond to the argument that was in fact raised by the defendants creates a dilemma. The law appears clear that the plaintiff's Eighth Amendment claim cannot stand, but the argument raised by the defendants is wide of the mark, and I hesitate to eliminate claims for reasons not advanced by the parties. However, if the plaintiff's decision not to respond to the defendants' argument is deemed to be a concession of the point raised by the defendants, then summary judgment should clearly be entered against the plaintiff on her Eighth Amendment claim.
In Canada v. Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997), the plaintiff did not file any opposition to the defendant's motion for summary judgment. The court stated,
When a motion would be dispositive of the merits of the cause if granted, courts should normally not treat a failure to respond to the motion as conclusive. They should, instead, as the District Court did here, proceed to examine those portions of the record properly before them and decide for themselves whether the motion is well taken.Id. (emphasis added). The situation now confronting me differs from that presented in Canada. Here, the plaintiff has not completely failed to respond to the defendants' summary judgment motion, but instead has elected to respond by arguing only that summary judgment should not be granted on her "invasion of privacy" claim. (See generally Pl.'s Br.) It is well-established that section 1983 "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)). In the plaintiff's amended complaint, she adhered to this principle by identifying the specific constitutional amendments that support her section 1983 claim. (See generally Am. Compl., filing 11.) The defendants too attempted to address each substantive right cited in the plaintiff's amended complaint by arguing that summary judgment is appropriate on all of the plaintiff's claims, regardless of their basis in law. (See generally Defs.' Br.) However, in her brief in opposition to the defendants' summary judgment motion, the plaintiff has argued only that her "right to privacy" has been violated — she has failed directly to link her arguments to a specific substantive federal right (i.e., the rights afforded under the Eighth Amendment). In short, she has made a generic "invasion of privacy" argument and left it for me to determine which substantive rights support this argument.
I have examined the plaintiff's brief in order to determine whether her arguments can be said to be couched within an Eighth Amendment framework. In so doing, I have been mindful of the Supreme Court's suggestion that inmates may seek to invoke the protections of the Eighth Amendment, in addition to the Fourth, to address violations of privacy rights. See, e.g., Hudson v. Palmer, 468 U.S. 517, 526 (1984) ("Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against `cruel and unusual punishments.'"). However, as the defendants argue in their summary judgment brief, a plaintiff who seeks to raise a claim under the Eighth Amendment's Cruel and Unusual Punishments Clause must show that the defendants have unnecessarily and wantonly inflicted pain upon her. See Whitlev v. Albers, 475 U.S. 312, 319 (1986). The plaintiff has not attempted to make such a showing, and therefore it seems to me that the plaintiff has abandoned her Eighth Amendment claim.
Indeed, it is arguable that the plaintiff has abandoned many of her other claims and remedies for the reasons stated above. (See infra Part III.C-F.)
In sum, the plaintiff has neither shown nor attempted to show that her rights under the Eighth Amendment were violated by the defendants, and I believe the plaintiff has thereby conceded that the Eighth Amendment does not support a cause of action under section 1983 in this case. I find that for this reason the defendants are entitled to summary judgment on the plaintiff's complaint to the extent that her claims are based upon the Eighth Amendment.
C. Whether the Plaintiff's Restraints Violated Her Fourteenth Amendment Right to Due Process
In Count IV of the amended complaint, the plaintiff alleges that Moreno violated her rights under the Fourth and Fourteenth Amendments. (See Am. Compl., filing 11.) Specifically, she alleges, inter alia, that "Defendant Moreno owed a duty as an agent or employee of Scotts Bluff County, Nebraska, to protect and serve the public, including SPENCER and those similarly situated." (Am. Compl., filing 11, ¶ 20.) Perhaps based upon this language, the defendants argue that the plaintiff's claim based upon her Fourteenth Amendment right to due process must fail because "the plaintiff in this case neglects to realize that the restraints which were placed upon her were not just for her protection, but for the protection of those around her." (Defs.' Br. at 12.) In support of this argument, the defendants rely upon DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 193 (1989), wherein the plaintiff's brought a section 1983 action alleging that the defendants deprived one plaintiff of liberty without due process of law in violation of the Fourteenth Amendment "by failing to intervene to protect him against a risk of violence at his father's hands of which they knew or should have known." After summarizing the holdings in prior cases, the Court noted that those cases "stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being."Id. at 199-200. Though the defendants' argument is rather hard to follow, presumably they intend to suggest that they did not violate their "corresponding duty" to protect the plaintiff's safety and well-being, perhaps because of an alleged `third duty' to protect the doctors and nurses who examined the plaintiff. Again, the plaintiff has not responded to the defendants' argument.
Although the amended complaint does contain an allegation that Moreno owed the plaintiff a duty of protection, it goes on to allege that "Moreno had a duty not to violate SPENCER's reasonable privacy," (Am. Compl., filing 11, ¶ 21), that Moreno "acted in a manner which directly resulted in the objectively unreasonable violation of SPENCER's reasonable privacy," (id. ¶ 22), that Moreno's "deliberate and unreasonable conduct" violated the plaintiff's right to privacy and caused "emotional trauma," (id. ¶ 23), and that "[i]n these above-stated actions, Defendant Moreno caused SPENCER to be deprived of her rights, privileges, and immunities to be free from excessive punishment and unreasonable seizure and to due process, as those rights are secured under the fourth, eighth, and fourteenth amendments of the United States Constitution," (id. ¶ 24). Although the defendants should not be faulted for seizing upon the "duty to protect" allegation, it seems to me that the plaintiff may have only intended to allege an alternate legal theory in support of her "invasion of privacy" claim. The allegations set forth in Count IV, taken as a whole, are consistent with this observation. In addition, the plaintiff has not attempted to advance a "failure to protect" claim in her brief in opposition to the defendants' summary judgment motion. Instead, she has argued only that the defendants violated her right to privacy. In any event, I find that the defendants are entitled to summary judgment to the extent that the amended complaint alleges that the defendants violated their duty to protect the plaintiff
D. Whether the Plaintiff's Right to Equal Protection Was Violated
The defendants argue that "there does not appear to be any equal protection case which supports the plaintiff's theory in the instant case." (Defs.' Br. at 13.) The defendants also assert that "male and female inmates are not . . . similarly situated and may be treated differently." (Id.) Again the plaintiff offers no response to the defendants' argument.
The Equal Protection Clause generally requires the government to treat similarly situated people alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Dissimilar treatment of dissimilarly situated persons does not violate equal protection. See Barket, Levy Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 242 (8th Cir. 1994). Thus, the first step in an equal protection case is determining whether the plaintiff has demonstrated that she was treated differently than others who were similarly situated to her. See. e.g., Samaad v. City of Dallas, 940 F.2d 925, 940-41 (5th Cir. 1991). Absent a threshold showing that she is similarly situated to those who allegedly receive favorable treatment, the plaintiff does not have a viable equal protection claim.Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994). In this case, the plaintiff has not alleged that she was treated differently than others who were similarly situated to her. (See generally Am. Compl., filing 11.) She has also failed to respond to the defendants' motion for summary judgment on her Equal Protection claim, and I therefore consider the claim to have been abandoned. For these reasons, I find that the defendants are entitled to summary judgment on the plaintiff's claims based on her Fourteenth Amendment right to equal protection.
E. "Public Entity Immunity"
Under a heading entitled "Public Entity Immunity From Punitive Damages Liability," the defendant presents the following single-sentence argument:
As the court knows, immunity originally for municipalities under 42 U.S.C. § 1983 has been extended to virtually every kind of public entity, including counties. Davis v. Mason County, 927 F.2d 1473, [sic] (9th Cir. 1991 cert. denied, 112 S.Ct. 275; Vinson v. Clarke County, 10 F. Supp.2d 1282 (S.[D]. Ala. 1998); Mitchell v. Dupnik, 75 F.2d 517, [sic] (9th Cir. 1996); Davis v. Fulton County Ark., 884 F. Supp. 1245 (E.D. Ark. 1995), aff. [sic] 90 F.3d 1346.
(Defs.' Br. at 13-14 (emphasis omitted).) If the defendants intend to suggest that municipalities and counties may not be sued under section 1983, their argument must be rejected. See. e.g., Angarita v. St. Louis County, 981 F.2d 1537, 1546-47 (8th Cir. 1992) (finding that there was sufficient evidence to support a section 1983 claim against defendant county). However, the heading accompanying the defendants' argument suggests that the defendants actually intend to argue only that counties are not liable for punitive damages under section 1983. This more narrow proposition is supported by the cases cited by the defendants, and although it seems that the Eighth Circuit has not directly addressed this issue, a court in this district has previously held that "[p]unitive damages are not available against municipalities or counties [in section 1983 cases]." Bruhn v. Foley, 824 F. Supp. 1345, 1358 (D. Neb. 1993) (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)). I therefore find that the defendants are entitled to summary judgment on the plaintiff's claim for punitive damages against the Facility.
In addition, the plaintiff has not responded to the defendants' argument that punitive damages are not available against the Facility, even though her amended complaint does contain a claim for punitive damages against both defendants. (See Am. Compl., filing 11, ¶¶ 26-27.) I therefore assume that the plaintiff has conceded the point raised by the defendants.
F. Whether the Plaintiff's Claims Are Barred by the Prison Litigation Reform Act
Next, the defendants argue that the plaintiff's claims are barred by the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-135, § 803(d), 110 Stat. 1321 (1996), 42 U.S.C. § 1997e. Specifically, the defendants claim that since the plaintiff has not alleged that she suffered a physical injury, her claims are barred by 42 U.S.C. § 1997e(e). This section states,
(e) Limitation on recovery
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.42 U.S.C. § 1997e(e). Once again, the plaintiff has not responded to the defendants' argument.
The defendants refer me to Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) in support of their argument that the plaintiff's claims are barred by section 1997e(e). In Kerr the Seventh Circuit noted that according to section 1997e(h), the term "`prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h). Given this definition, the Seventh Circuit found that Kerr avoided the application of section 1997e(e) by waiting until his release from prison to file his complaint. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). In the instant case, it appears that the plaintiff filed both her original complaint and her amended complaint during her incarceration in the Facility. (Compare Compl., filing 1, (indicating a filing date of February 8, 2002) and Am. Compl., filing 11 (indicating a filing date of April 1, 2002) with Spencer Aff. ¶¶ 2-4 (indicating that the plaintiff's incarceration began sometime between June 17, 2001, and June 19, 2001) and Defs.' Index of Evidence, filing 19, Ex. 9 (indicating that the plaintiff was found not responsible by reason of insanity on April 4, 2002).) Thus, the Seventh Circuit's decision in Kerr suggests that because the plaintiff did not wait until her release to file her complaint, she is subject to the restrictions of section 1997e(e). See Kerr, 138 F.3d at 323. This means that since the plaintiff has not alleged, much less shown, that she suffered from a physical injury, she cannot recover compensatory damages for mental or emotional injuries.
I feel that I must point out that although the defendants referred me to Kerr in support of their argument that the plaintiff's claims must be dismissed pursuant to section 1997e(e), they appear to have misread the case and constructed a meritless argument based upon it. Specifically, the defendants state that "the Seventh Circuit held that the PLRA rule that a prisoner cannot sue for mental injury unless he has suffered a physical injury does not apply to former prisoners," (Defs.' Br. at 14 (citing Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998))), implying that under the Seventh Circuit's rule, section 1997e(e) does not apply in this case because the plaintiff has been released from the Facility. However, in the very next paragraph of their brief, the defendants assert that pursuant to Kerr v. Puckett, 967 F. Supp. 354 (E.D. Wis. 1997), "the PLRA requirement that a prisoner demonstrate physical injury pertains to claims asserted by former, not just present, prisoners." (Defs. Br. at 14-15.) Although the district court in Kerr did conclude that "[u]ltimately, common sense and the overall purposes of the PLRA favor application of § 1997e(e) to actions brought by former prisoners," Kerr v. Puckett, 967 F. Supp. 354, 362 (E.D. Wis. 1997), the Seventh Circuit expressly rejected this conclusion, finding instead that section 1997e(e) does not apply to actions brought by former prisoners,see Kerr v. Puckett, 138 F.3d 321, 322-23 (7th Cir. 1998). Therefore, the defendants' reliance on the district court's finding is misplaced. However, as I have explained above, even though the PLRA may not apply to suits filed by persons who have been released from confinement, it may apply in this case because the complaints were filed during the plaintiff's incarceration. Cf. Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998).
Parenthetically, I note that neither party has offered any argument as to whether the plaintiff's claims must be dismissed in their entirety if section 1997e(e) applies. In other words, if the plaintiff is precluded from recovering mental and emotional damages pursuant to section 1997e(e), must her claims be completely dismissed, or is it possible that she might still be entitled to nominal or even punitive damages? My limited research of this question suggests that it has been answered differently in different circuits. Compare Davis v. District of Columbia, 158 F.3d 1342, 1348-49 (D.C. Cir. 1998) (holding that since plaintiff's claims for compensatory and punitive damages are barred by section 1997e(e), and since plaintiff did not seek nominal damages, district court properly dismissed complaint) with Searles v. Van Bebber, 251 F.3d 869, 878-81 (10th Cir. 2001) (holding that although plaintiff's compensatory damages award must be vacated pursuant to section 1997e(e), plaintiff was still entitled to nominal and punitive damages award). Since this issue has not been addressed, I find that at this time the defendant is entitled to summary judgment only insofar as the plaintiff has claimed compensatory damages for mental or emotional injuries.
G. Miscellaneous Arguments
The final section of the defendants' brief is entitled, "Other Cases on Cross Gender Searches or Viewings." (See Defs.' Br. at 15.) In this section, the defendants summarize Peckham v. Wisconsin Department of Corrections, 141 F.3d 694 (7th Cir. 1998), but do not argue that this case supports the granting of summary judgment in this case. I shall therefore simply disregard this case for the purposes of the defendants' summary judgment motion.
The defendants also refer me to Carlin v. Manu, 72 F. Supp.2d 1177 (D. Or. 1999), Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997), and Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc), which raise the issue of qualified immunity. The concept of qualified immunity has been clearly summarized by the Eighth Circuit:
Qualified immunity protects a governmental official from suit when his "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "What this means in practice is that whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.'" Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (internal quotations omitted). To determine whether an official is entitled to qualified immunity, we apply a two-part inquiry: "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, . . . whether that right was clearly established at the time of the alleged violation." Id. at 609 119 S.Ct. 1692 (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)); see also Sexton, 210 F.3d at 909. When applying this inquiry at the summary judgment stage, the official's conduct must be viewed through the prism of Rule 56 — that is, we must take as true those facts asserted by plaintiff that are properly supported in the record. See Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); see also Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000) ("[I]f there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment." (brackets in original) (quoting Lampert, 187 F.3d at 935)). Once the predicate facts are established, the reasonableness of the official's conduct under the circumstances is a question of law. Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000).Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001). The defendants do not expressly argue that Moreno is entitled to qualified immunity, but instead state only that "even if there was [an actual viewing of the plaintiff by Moreno], it would not have violated a clearly established constitutional standard." (Defs.' Br. at 17.)
The cases cited by the defendants in support of their argument do not persuade me that Moreno's conduct did not violate a clearly established constitutional right. In Carlin v. Manu, 72 F. Supp.2d 1177 (D. Or. 1999), the court concluded that the defendants were entitled to qualified immunity because female inmates had no clearly established right "to be free from the presence of and viewing by male guards while they were being strip searched." Id. at 1178. The present case does not involve a male officer's observation of a strip search for a female inmate, but involves a male officer's repeated observation of gynecological, anal, and breast examinations of a pretrial detainee without regard to whether the detainee was handcuffed and shackled and without any evidence of an emergency situation or security threat that might justify the officer's presence in the examination room. The defendants themselves have not attempted to draw an analogy between Carlin (or any of the other cases they cite in this section of their brief) and the instant one. I therefore find that Carlin is inapposite.
Similarly, in Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997), the court found that prison inmates had no clearly established Fourth Amendment right "to be free from routine unclothed searches by officials of the opposite sex, or from viewing of their unclothed bodies by officials of the opposite sex." It is clear that more than a mere viewing or search of the plaintiff's unclothed body occurred in the instant case, and therefore I am not convinced that Somers weighs in favor of a finding that Moreno's conduct did not violate a clearly established right.
The court also held that the defendants did not violate the plaintiff's clearly established rights under the Eighth Amendment, stating, "To hold that gawking, pointing, and joking violates the prohibition against cruel and unusual punishment would trivialize the objective component of the Eighth Amendment test and render it absurd."Somers, 109 F.3d at 624. Since I have already determined that summary judgment must be entered against the plaintiff on her Eighth Amendment claims, I need not consider whether the defendants are entitled to qualified immunity with respect to those claims.
Finally, in Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc), the Ninth Circuit concluded that "the cross-gender clothed body search policy at the women's prison constituted cruel and unusual punishment in violation of the Eighth Amendment." Once again, this case does not support the defendants' position that Moreno's conduct did not violate a clearly established right, as the present case does not involve clothed body searches of "convicted felons" id. at 1523. Perhaps more importantly, I have already determined that the defendants are entitled to summary judgment on the plaintiff's Eighth Amendment claims, and therefore the question of whether Moreno is entitled to qualified immunity on those claims is moot. (See supra Part III.B.)
In sum, I find that the defendants have failed to demonstrate that the plaintiff's right to privacy was not clearly established at the time of Moreno's actions, and therefore Moreno is not entitled to qualified immunity at this time.
IT IS ORDERED that:
1. The defendants are entitled to summary judgment on the plaintiff's Eighth Amendment claims;
2. The defendants are entitled to summary judgment to the extent that the plaintiff's complaint alleges a "failure to protect" claim;
3. The defendants are entitled to summary judgment on the plaintiff's equal protection claims;
4. The plaintiff may not recover punitive damages against the Facility;
5. The plaintiff may not recover compensatory damages for mental or emotional injury against either defendant; and
6. The defendants' motion for summary judgment, filing 20, is otherwise denied.