Dodson v. Reed

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

NATASHA DODSON, )

)

Dodson, )

)

v. ) Case No. 18-CV-221-TCK-CDL

)

MIKE REED, in his official capacity; )

JENNIFER EASTWOOD, )

)

Defendants.

OPINION AND ORDER

Before the Court is the Motion for Summary Judgment filed by defendant Jennifer

Eastwood (“Eastwood”). Doc. 106. In her motion, Eastwood seeks summary judgment on claims

asserted by plaintiff Natasha Dodson (“Dodson”) for unlawful search, excessive force, and denial

of medical care. Doc 106. Dodson opposes the motion. Docs. 122, 127.1

I. Background

Following a single-vehicle rollover accident on February 26, 2014, Dodson was arrested

for driving under the influence, and subsequently transported and booked into the Mayes County

Jail. During the booking process, Eastwood—a jail officer—conducted a search of Dodson’s

purse, in which she found a metal pipe and a container with multiple pills, one of which was

identified as Lortab. Thereafter, Eastwood took Dodson into a bathroom near the jail’s booking

area, and told her that a strip search was mandatory under the circumstances, and that she could

not refuse the search. After attempting unsuccessfully to handcuff Dodson, Eastwood deployed a

1 Doc. 122 is Dodson’s original response to Eastwood’s Motion for Summary Judgment. Doc.

127, “Errata Correction,” contains corrected Exhibits 14 (“JPX Training Manual”) and 24 (JPX

Instruction and Safety Manual)—which were originally reversed, as well as pages that had been

omitted from four of her exhibits.

Jet Protector loader (“JPX”)2 toward Dodson’s face, conducted the search, placed her in the shower

with instructions to wash out the remaining residue in her eyes and gave her a jug of water, and

paper towels to wipe off any residue. Dodson was released the following day.

In her Amended Complaint, Dodson asserts a claim against Eastwood for violation of her

Fourteenth Amendment rights (Count A), and against Sheriff Reed for official capacity liability

(Count B). She seeks actual and compensatory damages and punitive damages in excess of $75,000

for physical torture, abuse, pain, suffering, mental pain and anguish and medical expenses, plus

prejudgment and post judgment interest and costs.

II. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The movant bears the burden of showing that no genuine issue of material fact

exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court

resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party.

Id. However, the party opposing a motion for summary judgment may not “rest on mere

allegations” in its complaint but must “set forth specific facts showing that there is a genuine issue

for trial.” Fed. R. Civ. P. 56(e). The party opposing a motion for summary judgment must also

make a showing sufficient to establish the existence of those elements essential to that party’s case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).

2 The JPX contains shots of oleoresin capsicum—better known as “pepper spray”—which is

derived from the cayenne pepper plant. When sprayed in a person’s face, it temporarily causes

symptoms of burning eyes, nose, mouth and skin, tearing and spontaneous closure of the eyes.

A movant that “will not bear the burden of persuasion at trial need not negate the

nonmovant’s claim, “but may “simply . . . point[] out to the court a lack of evidence for the

nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima

facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth

specific facts’ that would be admissible in evidence in the event of trial from which a rational trier

of fact could find for the nonmovant.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968

F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In a response to a motion for

summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and

may not escape summary judgment in the mere hope that something will turn up at trial. The mere

possibility that a factual dispute may exist, without more, is not sufficient to overcome convincing

presentation by the moving party.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (internal

citations omitted).

III. Material Facts

On the evening of Wednesday, February 26, 2014, Natasha Dodson was drinking at a bar

in Langley, Oklahoma. Doc. 106, Ex. 1, Dodson Dep. at 30:17-23. She had been at the bar for

“two, maybe three hours,” during which she drank beer and had a “few shots of whiskey.” Id. at

32:13-18; 31:2-17. Subsequently, Dodson left the bar, got in her pick-up truck, and drove south

on State Highway 82. Id. at 36:6-38:19. At approximately 9:59 p.m., Dodson lost control of her

truck and overturned on the driver’s side door on the west side of the highway, a half-mile south

of the intersection with County Road 410. Id. at 37:6-38:19; Ex. 2, Overstreet Dep., 19:17-21; Ex.

3, Report; Ex. 4 Official Oklahoma Traffic Collision Report at 4.

Trooper Colby Overstreet (“Overstreet”) arrived at the scene of the accident and found

Dodson in the back of an ambulance. Id., Ex. 2, Overstreet Dep. at 20:5-10. He noted that Dodson

smelled of alcohol, her eyes were bloodshot, and her speech was slurred. Id. at 20:5-16, 24:13-16;

Ex. 3, Oklahoma Highway Patrol (“OHP”) Report of Investigation, at p. 3. Dodson admitted to

Overstreet that she had been drinking and submitted to a test on his hand-held device, but refused

an official sobriety test. Doc. 106, Ex. 1, Dodson Dep. at 12-17; 38:20-39; 40:20-42:23; Ex. 2,

Overstreet Dep. at 77:19-22, 111:1722; Ex. 3, Report of Investigation. Overstreet arrested Dodson

and transported her to the Mayes County Jail. Id., Ex. 1, Dodson Dep. at 46:22-47:7; Ex. 2,

Overstreet Dep. at 77:19-22, 111:17-22; Ex. 3, OHP Report.

When Overstreet and Dodson arrived at the booking desk inside the Jail, Shift Supervisor

Dereck Davis began the book-in process, part of which involved removing Dodson’s jewelry and

asking her questions. Id., Ex. 1, Dodson Dep. at 5:23-51:2, 52:5-9, 54:1-9; Ex. 2, Overstreet Dep.

at 114:2-15; Ex. 5, Eastwood Dep. at 65:16-20; Ex. 6, Davis Dep. at 70:2-4, 71:1-9.

Eastwood arrived at some point in the initial book-in process, and conducted a pat-down

search of Dodson, checking her pockets while Dodson was fully clothed. Ex. 1, Dodson Dep. at

53:4-12. Dodson’s purse was also searched, and officers found marijuana, a clear thick plastic

dugout with a metal pipe, and a tin container containing one Lortab and two other kinds of non-

controlled substances. Id., Ex. 2, Overstreet Dep. at 114:2-6, 9-15.3

Davis testified during the booking process, Dodson was “very uncompliant” and

“[b]orderline belligerent,” refusing to listen to commands or answer his questions. Id., Ex. 6, Davis

3 Dodson ultimately pled guilty to charges of receiving for driving a motor vehicle while under the

influence, possession of a controlled dangerous substance and unlawful possession of drug

paraphernalia. Doc. 106, Ex. 1, Dodson Dep. at 49:3-15.

Dep. at 69:8-70:24, 74:6-76:2. He also testified that Dodson was “unsteady on her feet,” slurred

her words and appeared to be “under the influence of . . . something.” Id. at 75:23-76-2.

The Mayes County Jail strip search policy then in effect stated that no strip search will be

performed on any arrestee or inmate unless a Jail Facility Officer has reasonable suspicion that the

person possesses a weapon or contraband. Doc. 107, Ex. 14, Mayes County Policy and Procedure

on Strip Searches, 2.15; Id., Ex. 3, Reed Dep. at 20:1-10; Id., Ex. 4, Murry Dep. at 208:9-25, 220:9-

12. Reasonable suspicion could be based on such factors as the nature of the offense charged, the

arrestee’s appearance and conduct, and the prior arrest record. Doc. 103, Ex. 4, Murry Dep. at

208:10-209:3, 209:5-8, 10. Jail staff were provided the strip search policy. Id., Ex. 5, Davis Dep.

at 83:16-84:5, 87:24-88:14, 92:8-93:3.

Because Dodson was refusing to answer questions, Davis told Eastwood to “dress her out

and we would try the booking process again later and that it needed to be a sensitive search,” i.e.,

a strip search. Doc. 106, Ex. 6, Davis Dep. at 75:14-22, 78:25-79:6. The officers believed that a

strip search of Dodson was appropriate based on the nature of Dodson’s charges, the fact that she

possessed a narcotic pill and drug paraphernalia, and her overall demeanor, including her refusal

to answer questions. Id., Ex. 5, Eastwood Dep., 27:22-28:15, 62:11-53:25, 101:7-23, 106, 115:1-

116:1; Ex. 6 Davis Dep., 79:9-25; Ex. 9, Murry Dep., 51:10-22, 72:4-18; Ex. 12, Eastwood

Incident Report, 0002.

Sheriff Reed testified that strip searches are performed “for the safety of the inmates and

also the safety of the jailers,” to prevent people from bringing either contraband and/or a weapon

into the jail. Id., Ex. 13, Reed Dep. at 162:2-14. Eastwood testified she was trained that she could

perform a strip search when she had probable cause—as indicated by the presence of contraband

on their person or property—and she believed the discovery of contraband in Dodson’s purse and

the nature of Dodson’s charges gave her probable cause. Id., Ex. 5, Eastwood Dep,, 27:22-28:15,

29:2-30:2-14, 62:11-63:25, 101:7-23, 106:4-9, 115:1-116:1. Eastwood also knew that in

performing the search, she could not touch Dodson’s body. Id., Ex. 5, Eastwood Dep.,29:3-19,

7l:7.

Per jail practice, Dodson was originally placed in a detoxification cell, which is akin to a

holding cell. Id., Ex. 6, Davis Dep., 124:7-14; Ex. 10, Oberg Dep., 52:15-54; Ex. 11, Mayes

County Sheriff’s Office (“MCSO”) Cell Movement Log, 987. From these cells, inmates are

transferred to other general population pods in the jail, as Dodson eventually was. Id., Ex. 6, Davis

Dep., 124:7-14; Ex. 11, MCSO Cell Movement Log, 987.

Eastwood moved Dodson from the detoxification cell to a bathroom off of the booking

area. Id., Ex. 5, Eastwood Dep. at 28:24-29:2; Ex. 1, Dodson Dep. at 56:6-18. No one else was

present in the bathroom, but Davis was positioned outside. Id., Ex. 6, Davis Dep. at 15-21. The

booking area bathroom has a toilet in the back-left corner and a shower in the front left corner. Id.,

Doc. 107, Ex. 5 at 2-3, bathroom photos. The back right corner is off-set from the bathroom by

12 additional inches. Id., Ex. 5 at 2, 4. The distance from the left-front corner to the back-right

corner is approximately 10.13 feet. Id., Ex. 16, MCSO Booking Area Bathroom Blueprint.

Once inside the bathroom, Eastwood told Dodson that she needed to be strip-searched. Id.,

Ex. 1, Dodson Dep. at 56:16-18. When Dodson refused, Eastwood told her the strip search was

mandatory. Id., Ex. 5, Eastwood Dep. at 70:25-71:4. Davis, who was positioned just outside the

bathroom door, heard Dodson tell Eastwood that she could not “make her,” which he believed was

Dodson’s response to Eastwood’s command that she submit to a strip search. Id., Ex. 6, Davis

Dep. at 81:15-21; 116:12-23. Dodson denies that she refused to be strip-searched, and claims she

only told Eastwood she needed to use the restroom—a request Eastwood refused. Id., Ex. 1,

Dodson Dep. at 59:10-60:13.

In an attempt to de-escalate the situation, Eastwood decided she would handcuff Dodson

and return her to the holding area, so she ordered Dodson to turn around and face the wall. Id.,

Ex. 5, Eastwood Dep. at 73:12-74:20. Eastwood testified that Dodson initially complied with the

command, but when Eastwood attempted to handcuff her left hand, Dodson pulled away from her

and turned around so that she was face-to-face with Eastwood. Id. at 77:16-78:23.

Trooper Overstreet testified he “specifically remember[ed] numerous warnings were

given” by Eastwood to Dodson that she was going to utilize the pepper gun if Dodson didn’t turn

around. Id., Ex. 2, Overstreet Dep. at 46:10-22. Dodson testified she did “not recall” Eastwood’s

attempts to handcuff her, that Eastwood asked for a JPX Jet Protector or ordered her three times

to turn around, or that she did not comply with the orders. Id., Ex. 1, Dodson Dep. at 61:6-25.

The Jail’s Use of Force/Deadly Force provides, in pertinent part:

C. INFLAMMATORY AGENTS

1. INFLAMMATORY AGENTS (products such as Oleoresin Capsicum

Pepper Spray and Oleoresin Capsicum/CS Pepper Grenades) MAY BE

USED IN THE FOLLOWING SITUATIONS:

 In self-defense and in defending the general public, staff and inmates

such as:

 To prevent or quell a disturbance

 To enforce regulations and/or orders in which violation of may

threaten security and safety

 To prevent or halt damage to property

 To prevent escape

2. The amount of force used in the use of inflammatory agents will be no

more than is necessary to control the situation.

3. Inflammatory agents will only be used by staff that has successfully

completed training in its use.

4. Inflammatory agents will not be carried by individual staff into inmate

contact living areas. Placement of inflammatory agents in contact inmate

living areas shall require the approval of the Jail Administrator/designee.

Inflammatory agent spray will be weighed and logged upon reception,

quarterly, and after each use. Upon expiration the Jail

Administrator/designee will ensure proper disposal. When no[t] in use

inflammatory agents will be stored in Central Control.

Id., Ex. 17, §4.08.5.C.

Eastwood, who had been trained on those policies, asked someone outside in the booking

area to give her a JPX and a loaded JPX was handed to her through a crack in the door. Id., Ex. 5,

Eastwood Dep. at 30:25-33:14; 36:13-23, 79:2-15; Ex. 12, Report; Ex. 28, JPX Certification Test.

She testified that Dodson was in the back right corner of the room, so she stepped under the shower

in the front left corner of the room, which she believed was at least five feet away from Dodson.

Id., Ex.5, Eastwood Dep. at 52:22-53:2, 79:2-22; Ex. 12, Report. She did this to increase the

distance between Dodson and her so she could use the JPX. Id., Ex. 5, Eastwood Dep. at 52:22-

53:2, 79:2-22; Ex. 12, Report. Dodson claims Eastwood did not step back five feet, but instead

held the JPX ten inches from her face. Id., Ex. 1, Dodson Dep. at 62:6-63:14, 67:15-68:5.

When Eastwood attempted to deploy the JPX, it misfired. Id., Ex. 5, Eastwood Dep. at

53:18-21. Eastwood asked for someone outside the bathroom to give her another JPX. She then

stepped over to the door, cracked it open, and was handed a loaded JPX. Id. at 53:18-54:15.

Eastwood testified that she again stepped back under the showerhead to ensure she was

more than five feet away from Dodson, commanded Dodson to turn around, and—after Dodson

refused the command—placed the sights of the JPX on Dodson and discharged it. Id. at 51:1. Id.,

Ex. 5 at 51:13-15, 54:16-18; Ex. 12, Report. Dodson, however, denies Eastwood stepped back.

Id., Ex. 1, Dodson Dep at 66:17-25.

Immediately after Eastwood fired the JPX, Davis entered the bathroom. Id., Ex. 6, Davis

Dep. at 120:1-8. He testified that when he opened the bathroom door, Dodson was in the corner

directly in front of him and Eastwood was in the opposite corner to the left of him. Id. at 25:23-

26:4. Dodson was standing up and appeared to be in pain. Id. at 26:15-18.

Eastwood testified that after being shot with the pepper gel, Dodson “complied with the

strip search and [I] placed her under the shower.” Id., Ex. 5 at 55:14-19.

Eastwood went to get a towel and jumpsuit. When she returned, she tried to help Dodson,

and was able to remove a little bit of gel before Dodson said she didn’t want to be touched anymore.

Id. at 28:15-8, 16:20. Davis testified that, during this time, Dodson was not screaming like she

was in pain, but her face was red and slightly inflamed from the pepper spray. Id., Ex. 6 at 28:21-

29:2. Eastwood helped Dodson get into a jumpsuit, then placed her in a detox cell with a large

glass window in front of booking, so that her condition could be monitored. Id., Ex. 5 at 29:3-14.

Eastwood testified that she gave Dodson an ice pack and a small jug of water, “thinking if she

won’t let us clean her off . . . [m]aybe she’ll clean herself.” Id. at 29:15-19.4

Davis testified that throughout the night “[w]e’d go by and check on her.” Id., Ex. 6, Davis

Dep. at 29:20-23. He also testified he had been trained that if an individual had taken a direct shot

of pepper spray in the face and had not been decontaminated, there would be redness and swelling

that would eventually stop burning, “but it will take a lot longer.” Id. at 30:5-13.

Davis testified that at 7:00 a.m. that morning, he opened Dodson’s cell door and asked her

“if she was okay, if she needed anything, and she said, [n]o I don’t need anything.” Id. at 31:3-6,

4 Dodson disputes this, and testified that Eastwood brought her only a jug of water. Doc. 122, Ex.

2, Dodson Dep. at 71:25-72:8.

9-15. Dodson was later moved to a regular cell in general female population, with other female

inmates. Id., Ex. 1, Dodson Dep., 76:17-77:5, 79:7-8; Ex. 10, Oberg Dep., 54:5-21.

Around 8:30 a.m., Jail Nurse Amy Welker5 (the “Jail Nurse”) saw Dodson. Id., Ex. 19,

Welker Incident Report, Doc. 107-8; Ex. 1, Dodson Dep. at 76:17-77:15, 79-8; Ex. 20, Amy Moore

Dep. at 44:17-45:8, 50:20-23, 60:13-20, 61:16-20, 63:9-64:25. She observed that Dodson’s left

eye was swollen and contained pepper gel, and also saw dried pepper gel on Dodson’s left cheek.

Id., Ex. 19, Welker Incident Report; Ex. 20, Moore Dep. at 44:17-45:8, 50:20-23, 60:13-20, 61:16-

20, 63:9-64:25. The Jail Nurse told Dodson to further rinse out her eye in the shower, and she

gave her a “warm cold pack.” Ex. 1, Dodson Dep. at 76:17-77:15, 79:7-8; Ex. 9, Murry Dep. at

197:21-198:8. Dodson testified she rinsed her eye out in the sink but didn’t use the shower

because she hadn’t been given any towels. Id., Ex. 1 at 78:24-79:19. At approximately 1:30 p.m.,

the Jail Nurse saw Dodson again and noted that the orange pepper gel was still in her eye. Id., Ex.

20, Welker Dep. at 56:4-8, 60:13-61:20, 86:12-18.6

Like Davis and Eastwood, the Jail Nurse never believed Dodson was undergoing a serious

medical condition. She testified that if she had believed so, she would have made sure Dodson

received transportation to a medical facility. Id. at 88:24-89:7. Additionally, neither Jail

Administrator Murry nor Sheriff Reed believed Welker or Eastwood lied or fabricated any portion

of their reports. Id., Ex. 9, Murry Dep., 198:21-199:10; Ex. 13, Reed Dep. at 156:13-157:4.

5 At the time of the incident giving rise to this lawsuit, the witness’s last name was Welker. At

the time of the witness’s deposition, her last name was Moore.

6 Welker’s Report states that when she asked Dodson why she had not washed out her eye, Dodson

responded that “she wanted the Judge to see.” Id., Ex. 19, Welker Incident Report. See also, Ex.20,

Welker Dep. at 56:4-8;, 60:13-61:20, 86:12-18. Dodson denies a second interaction ever occurred.

Id., Ex. 1, Dodson Dep. at 80:2-17.

Dodson was released from jail custody on February 27, 2014 at 2:23 p.m. Id., Ex. 1, Dodson

Dep. at 87:7-24; Ex. 21, Release Sheet; Ex. 22, Order of Release. The next day, Murry investigated

the events surrounding Eastwood’s use of the JPX. Based on Eastwood’s description of the

incident, Murry measured the distance between Eastwood and Dodson when Eastwood discharged

the JPC, and determined the two were approximately six feet, three inches apart when Eastwood

fired the JPX. He also determined the use of the JPX was permitted under the circumstances. Ex.

4, Murry Dep. at 205:9-207:15, 213:1-214:12; Ex. 29, Interoffice Memo; Ex. 9, Oberg Dep. at

41:2-44:2, 110:4-16.

IV. Analysis

Dodson asserts three Fourteenth Amendment claims against Eastwood. First, she contends

Eastwood lacked cause to perform a strip search on her. Second, she claims Eastwood used

excessive force in firing the JPX at her when she would not comply with Eastwood’s orders. Third,

she claims Eastwood acted deliberately indifferent to her medical condition and thereby denied

her adequate medical care.

A. Dodson’s Unlawful Search Claim

Dodson alleges in her Complaint that the strip search was unlawful because there was no

probable cause or reasonable suspicion to perform a strip search; MCSO has an unconstitutional

“blanket strip search” policy; Eastwood lacked probable cause or reasonable suspicion to search

her; and her right to be free from a strip search under the circumstances was “clearly established.”

Doc. 69, ¶¶15-19, 42. Eastwood, in her summary judgment motion, contends that she had probable

cause to perform the strip search and, moreover, that even if she lacked probable cause or

reasonable suspicion, the Constitution permits officers to perform a strip search with no prior

standard of belief about the individual as long as that individual is not touched in the process, is

set to be admitted to a general population housing unit or something equivalent before the search,

and is the sort of inmate that would normally be admitted to general population housing.

1. Reasonable Suspicion

Eastwood contends she is entitled to summary judgment on Dodson’s strip search claim

because she had reasonable suspicion to perform a strip search.

The Tenth Circuit held that strip-searches of pretrial detainees are permissible when

officers possess reasonable suspicion that the detainee has concealed weapons, drugs or

contraband. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). “Reasonable suspicion

for a search is a minimum level of objective justification based on the totality of the circumstances,

taking into account an officer’s reasonable inferences based on training, experience, and common

sense.” Id. (quotations omitted). However, an officer must “be able to point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant th[e] intrusion.” Stearns v. Clarkson, 615 F.3d 1278, 1287 (10th Cir. 2010).

Here, the undisputed facts establish that:

 Dodson was going to be admitted to the general population;

 Drug paraphernalia and a Lortab were found in Dodson’s purse;

 Dodson was belligerent and uncooperative during the booking process.

These facts formed the basis for a “reasonable suspicion” that Dodson might have concealed drugs

on her person, and supported a conclusion that the strip search was necessary to ensure that

contraband was not brought into the facilities. Accordingly, Eastwood is entitled to summary

judgment against Dodson on her claim that the strip search was unlawful.

2. Constitutionality of Blanket Strip Search Policy

Eastwood and the Sheriff deny the jail has a policy of mandatory strip searches. However,

Eastwood argues that even if the strip search occurred as part of a mandatory policy, it was not

unconstitutional. “The Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish,

441 U.S. 520, 558 (1979), and “while an inmate’s right to privacy ‘does not vanish altogether,’ it

‘must yield to the penal institution’s need to maintain security.’” Farmer v. Perrill, 288 F.3d 1254,

1259 (10th Cir. 2002) (internal quotation marks omitted).

The Supreme Court directly addressed the constitutionality of blanket strip search policies

in Florence v. Board of Chosen Freeholders of Burlington, 566 U.S. 318 (2012). In Florence, the

plaintiff had been stopped by a New Jersey state trooper. Id. at 323. During the stop, the trooper

learned of an outstanding 2003 bench warrant that—unknown to the trooper—had mistakenly

remained active in a law enforcement database despite plaintiff’s having paid the underlying fine.

Id. He was taken to the Burlington County Detention Center, and held for six days, and then to

the Essex County Correctional Facility, where he was held for two days, until charges against him

were dismissed. Id. at 323-324. Pursuant to blanket strip search policies, both facilities required

him to submit to a strip search. Id. Subsequently, the plaintiff sued both facilities alleging violation

of his rights under 42 U.S.C. §1983. The district court granted the plaintiff’s motion for summary

judgment on the unlawful search claim, concluding that any policy of “strip searching”

nonindictable offenders without reasonable suspicion violated the Fourth Amendment. Id. at 325.

A divided panel of the Third Circuit Court of Appeals reversed, concluding that the procedures

struck a reasonable balance between inmate privacy and the security needs of the jails. Id. The

plaintiff appealed the decision to the Supreme Court. Id.

The Supreme Court reversed the Court of Appeals, stating that, “in addressing this type of

constitutional claim courts must defer to the judgment of correctional officials unless the record

contains substantial evidence showing their policies are an unnecessary or unjustified response to

problems of jail security,” Id. at 322-323. Citing Atwater v. City of Lago Vista, 532 U.S. 318, 347

(2001), it stated:

Officers who interact with those suspected of violating the law have an “essential

interest in readily administrable rules.” The officials in charge of the jails in this

case urge the Court to reject any complicated constitutional scheme requiring them

to conduct less thorough inspections of some detainees based on their behavior,

suspected offense, criminal history, and other factors. They offer significant

reasons why the Constitution must not prevent them from conducting the same

search on any suspected offender who will be admitted to the general population in

their facilities. The restrictions suggested by petitioner would limit the intrusion

on the privacy of some detainees but at the risk of increased danger to everyone in

the facility, including the less serious offenders themselves.

Id. at 338. The Court concluded that the search procedures at the two facilities “struck a reasonable

balance between the needs of the institutions.” Id. at 339.

In Hyberg v. Enslow, 801 Fed. Appx. 647 (10th Cir. 2020), a state prisoner who was housed

at the Sterling Correctional Facility and worked at the Colorado Correctional Industries Seating

Factory, filed a pro se lawsuit challenging the facility’s practice of subjecting him to strip searches

when he left the Seating Factory at the end of his shift. The appellate court acknowledged that

“[t]he scope of the searches here was undeniably invasive” and “[t]here can be no doubt that a strip

search is an invasion of personal rights of the first magnitude.” Id. at 650. Nonetheless, it

concluded that “there are obvious security concerns inherent when an inmate will be placed in the

general prison population, and because the inmate was returning to general population when he

was subjected to the end of his shifts at the Seating Factory, “[t]here were therefore legitimate

security interests served by the searches.” Id. It further noted that the searches were conducted “in

a uniform manner, following routine protocol, in a designated area with limited access for other

inmates and staff.” Id.7

The Court concludes that even if—as Dodson alleges—the Jail had a blanket practice of

strip searching all arrestees as part of the process of booking them into the general population of a

detention facility, the practice is constitutionally permissible. Accordingly, Eastwood is entitled to

summary judgment on Dodson’s claim that the strip search violated §1983 and the Fourteenth

Amendment.

3. Qualified Immunity

Eastwood also argues that she is entitled to qualified immunity from liability on Dodson’s

unlawful strip search claim. Law enforcement officers “are entitled to qualified immunity under

§1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness

of their conduct was clearly established at the time.” Dist. of Columbia v. Wesby, 138 S.Ct. 577,

589 (2018) internal citation omitted). “Clearly established,” in turn, “means that, at the time of

the officer’s conduct, the law was sufficiently clear that every ‘reasonable official would

understand that what he is doing’ is unlawful.” Id. “In other words, existing law must have placed

the constitutionality of the officer’s conduct ‘“beyond debate.”’ Id. (citations omitted). This

7 Recently, in Hinkle v. Beckham County Board of County Commissioners, the Tenth Circuit Court

of Appeals addressed a challenge to a Beckham County, Oklahoma, policy that mandated a body-

cavity strip search of all detainees before any decision was made about where particular detainees

would be housed in the jail’s general population. 962 F.3d 1204 (10th Cir. 2020). Under the

policy, all detainees were strip searched before they were even booked. Id. at 1235. The appellate

court observed that in Florence, the Supreme Court “repeatedly stressed that the strip search

comes after the facility determines the detainee ‘will be’ placed in general population” and had

commented that “‘[t]his case does not require the Court to rule on the types of searches that would

be reasonable in instances where, for example, a detainee will be held without assignment to the

general jail population and without substantial contact with other detainees.” Id. at 1237 (emphasis

added). The court concluded that “because the jail officials never decided that Hinkle ‘w[ould]

be’ housed at the county jail, no one had any reason to fear that Hinkle might have secreted

contraband that he could take into the jail’s general population.” Id. at 1239.

demanding standard protects “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S 335, 341 (1986).

“To be clearly established, a legal principle must have a sufficiently clear foundation in

then-existing precedent,” i.e., “[t]he rule must be ‘settled law.’” Hunter v. Bryant, 502 U.S. 224,

228 (1991) (per curiam). To be “settled law,” in turn, it must be dictated by “controlling authority”

or “a robust ‘consensus of cases of persuasive authority.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). “It is not enough that the rule is suggested by then-existing precedent. The precedent must

be clear enough that every reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply. Otherwise, the rule is not one that ‘every reasonable official’ would

know.” Wesby, supra, 138 S. Ct. at 590.

The “clearly established” standard also requires that the legal principle clearly prohibit the

officer’s conduct in the particular circumstances before him or her. The rule’s contours must be

so well defined that it is “clear to the reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v, Katz, 533 U.S. 194, 202 (2001).

In this case, Dodson was bound for general population, where she would (and did) interact

with other inmates. Thus, under Florence, the strip search passed constitutional scrutiny even

without any specific knowledge about Dodson. Additionally, however, Eastwood had reason to

believe Dodson could be carrying contraband based on her belligerent and uncooperative behavior,

the presence of contraband in her purse, and her resistance to Eastwood’s efforts to handcuff her.

Accordingly, Eastwood is entitled to qualified immunity on Dodson’s unlawful strip

search claim.

B. Dodson’s Excessive Force Claim

1. Reasonableness of Use of Force

Before Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015), claims of excessive force

brought under the Fourteenth Amendment were governed by a subjective standard. In other words,

the Fourteenth Amendment was said to apply to “[f]orce inspired by malice or by unwise,

excessive zeal amounting to an abuse of official power that shocks the conscience.” Roska ex rel.

Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003). However, in Kingsley, the Supreme

Court held that an objective—rather than a subjective—standard applies in cases involving a

pretrial detainee’s claim of excessive force,. Id. at 397. In so ruling, it stated:

A court must make this determination from the perspective of a reasonable officer

on the scene, including what the officer knew at the time, not with the 20/20 vision

of hindsight . . . and must also account for the legitimate interests that stem from

[the government’s] need to manage the facility in which the individual is detained,

appropriately deferring to policies and practices that in th[e] judgment of jail

officials are needed to preserve internal order and discipline and to maintain

institutional security.” Id. at 397 (internal citations and quotation marks omitted).

Id. Factors to be considered in making this determination include “the reasonableness or

unreasonableness of the force used; the relationship between the need for the use of force and the

amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper

or to limit the amount of force; the severity of the security problem at issue; the threat reasonably

perceived by the officer, and whether the plaintiff was actively resisting.” Id. (internal citations

omitted).

Although Dodson’s Amended Complaint asserted a Fourteenth Amendment §1983 claim,

it omitted the Fourth Amendment claim.8 However, in response to Eastwood’s argument that

8 The original Complaint included both a Fourth Amendment and a Fourteenth Amendment Claim.

Doc. 2, Complaint at 10. In her response to Eastwood’s summary judgment motion, Dodson

asserts the Fourteenth Amendment “only serves to make the Fourth Amendment applicable to the

Fourteenth Amendment claims are still governed by a subjective standard, she argues that either

the Fourth or Fourteenth Amendment could apply to her claim. The Court rejects this argument,

as Dodson voluntarily withdrew her Fourth Amendment claim.

Moreover, the incident giving rise to this claim occurred pre-Kingsley, and, therefore, pre-

Kingsley standards apply for the purposes of evaluating Eastwood’s claim of qualified immunity.

See, i.e., Austin v. Hamilton, 945 F.2d 1152, 1162 (10th Cir. 1991) (stating that the court’s “holding

in this opinion that fourth amendment protections persist post-arrest obviously does not reflect

law clearly established at the time of the events involved here.”). Accordingly, a subjective

standard applies to the evaluation of Dodson’s excessive force claim.

The Fourteenth Amendment protects pretrial detainees against “arbitrary governmental

action, taken without due process[.]” Porro v. Barns, 624 F.3d 1322, 1326 (10th Circuit 2010).

See also, Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003) (“Force inspired by malice or

by unwise, excessive zeal . . . amounting to an abuse of official power that shocks the conscience

may be redressed under the Fourteenth Amendment.)”

At least one disputed material fact precludes the Court from entering summary judgment

against Dodson on her use of force claim. Specifically, Eastwood claims that she was, at a

minimum, five feet away from Dodson when she deployed the JPX. Dodson, in contrast, contends

that Eastwood was holding the JPX not more than 10 inches away from her face.

Eastwood argues there is no “genuine dispute” of fact because “Dodson fails to show how

her admitted fuzzy memory creates such a genuine dispute,” and she urges the Court to “examine

States through the Due Process clause.” Doc. 122 at 19, n. 1. However, in Kingsley, the Supreme

Court read the Fourteenth Amendment to establish substantive rights to pretrial detainees, stating

that “in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail

by showing that the actions are not “‘rationally related to a legitimate nonpunitive governmental

purpose’” or that the actions “‘appear excessive in relation to that purpose.’”

the facts as presented by Eastwood and confirmed by other witnesses and conclude that Eastwood

engaged in no constitutional violation.” Doc. 131 at 10-11.

The Court, however, declines to do so. Here, Dodson and Eastwood were the only two

witnesses in the restroom. Davis, who was outside the door, could not actually see what was going

on or where Eastwood was standing in relation to Dodson. Because the distance between

Eastwood and Dodson remains a disputed material issue of fact, Eastwood’s Motion for Summery

Judgment on the excessive force claim must be denied.

2. Qualified Immunity

As previously noted, law enforcement officers are entitled to qualified immunity under

§1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness

of their conduct was “clearly established at the time.” Wesby, supra., 138 S.Ct. at 589. The same

fact dispute that defeats Eastwood’s motion for summary judgment on the excessive force claim

—i.e., the conflicting testimony about the distance between Eastwood and Dodson—also

precludes summary judgment on her qualified immunity claim. Accordingly, Eastwood’s

qualified immunity motion is denied.

C. Denial of Medical Care Claim

To prevail on her claim against Eastwood for denial of medical care, Dodson “must allege

acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020).

It is undisputed that:

 Eastwood turned the shower on, sprayed Dodson with water to try to flush her eye

out, and instructed Dodson to wash any remaining residue from her eye;

 Dodson refused, at that time, to allow Eastwood to finish washing out all the spray;

 Eastwood gave Dodson (at a minimum) a jug of water, and placed her back in the

detoxification cell, which was in the booking area and easily visible to staff;

 Throughout the night, Eastwood and Davis checked on Dodson, and before Davis

left his shift at 7:00 a.m., he asked Dodson if she needed anything, and she replied

that she did not.

In light of this evidence, the Court concludes that Dodson has failed to present facts

which—even if taken as true—support her claim that Eastwood failed to provide necessary and

proper medical treatment in deliberate indifference to her medical needs. Accordingly, Eastwood

is entitled to summary judgment on Dodson’s claim against her for denial of medical care.

D. Dodson’s Punitive Damages Claim

Eastwood argues that she is entitled to summary judgment on Dodson’s punitive damage

claim, because there is no evidence that Eastwood deliberately intended to cause Dodson any harm.

However, because a disputed, material issue of fact remains regarding Eastwood’s distance from

Dodson when she deployed the JPX, her motion for summary judgment on the punitive damage

claim must be denied.

V. Conclusion

For the foregoing reasons, Eastwood’s Motion for Summary Judgment is granted in part

and denied in part. Specifically, summary judgment in favor of Eastwood is granted with respect

to Dodson’s unlawful search and denial of medical care claims, and is denied with respect to

Dodson’s excessive force and punitive damages claims.

ENTERED THIS 2nd day of September, 2021.