The opinion
IN THE UNITED STATES DISTRICT COURT7
FOR THE NORTHERN DISTRICT OF OKLAHOMA
NATASHA DODSON )
)
Plaintiff, )
)
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 Mike Reed, in
his official capacity as Sheriff of Mayes County Doc. 103 (“Reed” or “Sheriff”). In his motion,
Reed argues that no policy, procedure or custom implemented by him in his official capacity
caused any alleged violation of any constitutional rights of plaintiff Natasha Dodson (“Dodson”).
Dodson opposes Reed’s motion. Doc. 126.
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, Officer Jennifer Eastwood (“Eastwood”) 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. After attempting unsuccessfully to
handcuff Dodson, Eastwood deployed a Jet Protector (“JPX”)1 toward Dodson’s face, and then
conducted the search. Dodson was released the following day.
In her Amended Complaint, Dodson asserts a claim against Eastwood for violation of her
Fourteenth Amendment rights under 42 U.S.C. §1983 (Count A) and a claim against the Sheriff
for official capacity liability (Count B). Doc. 69. She seeks actual, compensatory and punitive
damages for, inter alia, physical torture, abuse, pain, suffering, mental pain and anguish, loss of
capacity and medical expenses. Id.
Reed seeks summary judgment on Dodson’s claim for official capacity liability. Doc. 103.
In his motion, he argues that:
the strip search of Dodson was proper;
no policy, procedure or custom of the Mayes County Sheriff’s Office caused an
unconstitutional strip search;
to the extent the Court believes Dodson’s version of events, the use of force was contrary
to the policies of the Sheriff’s Office;
because Dodson admits she cannot remember some of what occurred at the jail, she cannot
dispute certain material facts set forth by Sheriff Reed;
no Sheriff’s Office policy, procedure or custom caused any constitutional violation; and
there was no denial of medical care and no policy, procedure or custom that would
authorize a denial of medical care.
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.
1 JPX loaders contain 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.
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).
A movant who “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
Jennifer Eastwood was hired as a Detention Officer at the Mayes County Sheriff’s Office
(“MCSO”) in April of 2013. She had previous experience serving as a Detention Officer at the
Muskogee County Jail. Doc. 103, Ex. 1, Eastwood Dep., 13:2-7, 14:18-15:9. Sheriff Reed made
sure Eastwood was trained on the Policy and Procedure Manual, beginning when she started in
2013, including training on dealing with medical issues, first aid training and CPR. Id., Ex. 1,
Eastwood Dep. at 16:2-20, 17:15-17; 20:1-6; 20:18-21:18, 24:4-24; Ex. 2. Jackson Dep. at 24:4-
12, 29:21-30:3; Ex. 3, Reed Dep. at 25:2-5, 31:12-21. The training took place via videos and on-
the-job training, a well as classes. Id., Ex. 1, Eastwood Dep., 26:22-27:5; Ex. 4 Murry Dep, 187:1-
188:18; Ex.3, Reed Dep., 25:205, 31:12-21.
Eastwood also received training on when to conduct strip searches, and she understood that
at the Mayes County Jail, strip searches were not to be performed automatically, but instead
required specifical articulable facts, including when an inmate had brought contraband into the
jail. Id., Ex. 1, Eastwood Dep., 27:15-28:3; Ex. 3, Reed Dep., 92:15-19, 93:17-94:4). Eastwood
also understood that during a strip search, the inmate was not to be touched, and that the search
was to be performed in the detox bathroom with a female officer conducting a strip search of
female inmates. Id., Ex. 1, Eastwood Dep., 28:21-29:15. Additionally, Eastwood was trained on
the Mayes County Jail policies on use of force. Id. at 30:25-33:35; 36:13-23; Ex. 3, Reed Dep.,
63:23-68:18.
In the past, the Mayes County Jail had used Tasers as a less-than-lethal compliance tool.
However, at some point Reed, Undersheriff Gary Shrum (“Shrum”) and then Jail Administrator
Robert Jackson (“Jackson”) decided that it might be beneficial to have to an alternative, less-than-
lethal form of force available for use at the Mayes County Jail. Id., Ex. 3, Reed Dep. at 49:6-16.
After researching the JPX device, they began to work on obtaining it. Id. at 49:6-51:15. With
Reed’s authorization, Jackson attended a law enforcement class on the JPX device on July 20,
2013, and afterwards was certified not only to use the JPX himself, but also to train and certify
others. Id., Ex. 2, Jackson Dep.31:8-13, 35:15-36:18; 37:2-24, 162:23-163:10; Ex. 6, Jackson
Instructor Certificate; Ex. 7, JPX Cobra 450 Law Enforcement Training Manual (the “Training
Manual”).
The Training Manual in effect at that time states that the minimum firing distance for the
JPX is five feet, and Jackson trained Eastwood and other officers accordingly. Id., Ex. 7, Training
Manual; Ex. 28, Jackson Dep., 160:1-7; Ex. 9, Oberg Dep., 69:2-25. The JPX manual does not
state that the use of the device is limited to self-defense purposes. Id., Ex. 7, Training Manual; Ex.
2, Jackson Dep., 160:1-7; Ex. 9, Oberg Dep., 69:9-25.2 However, Jackson testified that, based on
his training, it was his understanding the device was supposed to be used only when an officer felt
threatened, and he “didn’t see [any] reason why to use it, other than if someone was, you know,
threatening you.” Doc. 126, Ex. 28, Jackson Dep., 61:9-25.
The MCSO purchased the JPX Cobras and training materials from JPX of America in July
2013, and the devices were in use at the Mayes County Jail in February 2014. Id., Ex. 1, Eastwood
Dep., 41:1-23, 42:17-19; Ex. 8 July 12, 2013 JPX Cobra Purchase Order; Ex. 2, Jackson Dep.,
154:19-155:4; Ex. 3, Reed Dep., 138:24-139:1.
Eastwood and Shift Supervisor Dereck Davis (“Davis”) were both trained on the use of the
JPX Cobra device by Jackson on August 23, 2013. Id., Ex. 10, JPX Class Sign-in Sheet, Ex. 11,
2 In 2017—some two years after the incident giving rise to this lawsuit—JPX of America changed
its training manual to specify a minimum distance of seven feet rather than five feet, and added
language stating that the device should only be used in self-defense. Id., Ex. 9, Oberg Dep. at 78:5-
19; Ex. 13, Reed Dep. at 57:5-21, 155:11-23, 171:20-172:5.
Eastwood Certificate of Training. During the class, they were instructed that the JPX should not
be activated closer than five feet from the end of the JPX to the target, and Eastwood practiced
deploying the device. Id., Ex. 1, Eastwood Dep., 37:10-24; 38:10-16; 42:6-16; 44:21-45:4; Ex. 7,
Training Manual; Ex. 2, Jackson Dep., 30:16-30:22, 38:12-41:17; Ex. 9, Oberg Dep, 77:5-78:21,
86:3-86:17; Ex. 3, Reed Dep., 58:12-20, 61:1-16, 62:9-12. Eastwood took a Law Enforcement
Training Manual test on the use of the JPX, provided by JPX of America, and answered 24 out of
25 questions correctly. Id., Ex. 12, Certification Test of Eastwood on JPX; Ex. 4, Murry Dep,
219:15-220:1; Ex. 2, Jackson Dep., 44:20-48:25, 49:20-50:5, 157:4-158:5, 158:14-17; Ex. 3. Reed
Dep., 58:12-20.
Eastwood was trained to aim the JPX at the nose, and that—if used incorrectly—an
opponent could be seriously injured. Id., Ex. 7, JPX 450 Cobra Training Manual; Ex. 12, Eastwood
JPX Certification Test. She was also trained that if—after decontamination—a subject’s
symptoms appear to be worsening, medical attention should be sought. Id., Ex. 7, Training Manual;
Ex. 12, Eastwood JPX Certification Test; Ex. 2, Jackson Dep., 51:9-15. After this class, Jackson
believed that Eastwood and other attendees had been appropriately trained. Ex. 2, Jackson Dep.,
59:25-60:5.
Kyle Murry (“Murry”) took over as Jail Administrator after Jackson’s departure in
September of 2013. Id., Ex. 2, Jackson Dep., 60:2-8; Ex. 4, Murry Dep., 187:1-9, 191:15-192:14.
Sheriff Reed, Jail Administrator Jackson, and Jail Administrator Murry were happy with
Eastwood’s performance and had no concerns about her prior to February 2014. Id., Ex. 2, Jackson
Dep., 64:22-65:15, 68:19-22; Reed Dep., 153:17-154:13, 161:11-4; Murry Dep., 191:15-192:14.
They had received no information that she used excessive force, or that she had used the JPX at
any point prior to the incident giving rise to this lawsuit; there had been no complaints at all about
her performance; and—as of February 26, 2014—Eastwood had not been reprimanded or
disciplined for any reason during her time at the Mayes County Jail. Id., Ex. 2, Jackson Dep.,
65:22-65:15, 68:19-22; Ex. 3, Reed Dep., 13:17-154:13; 161:11-14; Ex. 4, Murry Dep., 191:15-
192:14.
Additionally, as of February 26, 2014, Sheriff Reed had never received any:
complaints or grievances regarding the use of the JPX at the Mayes County Jail, any
incident at the Jail in which the JPX had been used improperly, or that any inmate suffered
significant injury from the use of the JPX.
complaints that any inmate had not received appropriate medical care after the use of a
JPX. Id., Reed Declaration, ¶¶4-5.
complaints about incidents in which strip searches were improperly performed on inmates,
or performed without sufficient justification. Id., ¶6.
Id., Ex. 13, Mike Reed Declaration, ¶¶1-6.
Jackson was trained by JPX of America via the Law Enforcement User Training Manual
(the “Training Manual”) that the appropriate minimum distance on the JPX Cobra device is five
feet, and he—likewise—trained other jail staff that five feet was the minimum distance. Id., Ex.
7, JPX Cobra Law Enforcement User Training Manual, pp. 11, 14-15, 17; Ex. 2. Jackson Dep.,
52:17-53:16, 56:19-59:4, 156:7-23; Ex. 3, Reed Dep., 58:3-11, 141:14-20; Ex. 8, JPX Cobra
Purchase Order. Training Manual included references to a test that would be given to Mayes
County staff. Id., Ex. 7, JPX Cobra Law Enforcement User Training Manual, pp. 11, 14-15, 17;
Ex. 2, Jackson Dep., 52:17-53:16, 56:19-59:4, 156:7-156:23; Ex. 3, Reed Dep., 58:3-11, 141:10-
20; Ex. 8, July 12, 2013 JPX Cobra Purchase Order. Jackson had no objection to bringing the JPX
to the Mayes County Jail or acting as an instructor on its use. Id., Ex. 2, Jackson Dep., 38:5-8,
42:14-18.
The MCSO purchased the JPX Cobras and training material in July of 2013, and the Cobras
were in use at the Mayes County Jail in February of 2014. Id., Ex. 1; Eastwood Dep., 41-1-23,
42:17-43:19; Ex. 8, JPX Purchase Order; Ex. 2, Jackson Dep., 154:19-155:4; Ex. 3, Reed Dep.,
138:23-139:1. During a class on August 2013, Jackson trained Eastwood, Davis and others on the
use of the JPX—including the requirement that it should not be activated closer than five feet from
the end of the JPX to the target—and the participants practiced deploying the device during
training. Id., Ex. 1, Eastwood Dep., 37:10-20, 38:10-16, 42:6-16, 44:21-45:4; Ex. 10, JPX Class
Sign-in Sheet; Ex. 11, Eastwood Certificate of Training; Ex. 5, Davis Dep., 35:2-36:5, 38:1-40:25;
Ex. 7, Training Manual, Ex. 2, Jackson Dep., 30:16-22, 38:12-41:17; Ex. 9, Oberg Dep., 775-
78:21, 86:3-17; Ex. 3, Reed Dep., 58:12-20, 61:1-16, 62:9-12. Eastwood took a test on the use of
the JPX provided by JPX of America, and got 24 out of 25 questions (98%) correct. Id., Ex. 12,
Eastwood JPX Certification Test.
Eastwood was trained that she was to aim the JPX Cobra 450 at the nose, and that if used
incorrectly, an opponent could be seriously injured. Id., Ex. 7, Training Manual; Ex. 12, Eastwood
JPX Certification Test; Ex 2, Jackson Dep., 40:12-50:24. She was also trained that if—after
decontamination—a subject’s symptoms appear to be worsening, medical attention should be
sought. Id., Ex. 7, Training Manual; Ex. 12, Eastwood JPX Certification Test; Ex. 2, Jackson Dep.,
51:9-15. Upon completion of the class, Jackson believed Eastwood and others had been
appropriately trained. Id., Ex. 2, Jackson Dep., 59:25-60:5.
After Jackson’s departure in September of 2013, Kyle Murry took over as Jail
Administrator. Id., Ex. 2, Jackson Dep., 60:2-8; Ex. 4, Murry Dep., 187:1-9, 191:15-192:14.
Sheriff Reed and Jail Administrators Jackson and Murry were happy with Eastwood’s performance
and never had any concerns about her before February 2014. Id., Ex. 3, Reed Dep., 153:17-154:13,
161:11-14; Ex. 2, Jackson Dep., 64:22-65:15, 68:19-22; Ex. 4, Murry Dep., 191:15-192:14.
As of February 26, 2014, Reed had received no complaints or grievances regarding the use
of the JPX at the Jail, nor had he heard of any incident at the jail in which the JPX had been
improperly used, that any inmate suffered significant injury from the use of the JPX, or that any
inmate did not receive appropriate medical care after the use of a JPX. Id., Ex. 13, Reed
Declaration, ¶¶1-5. Finally, as of February 26, 2014, Reed had never received any complaints
regarding incidents in which strip searches were improperly performed or performed without
sufficient justification. Id., ¶6.
On Wednesday, February 26, 2014, Dodson drove to a bar in Langley, Oklahoma, where
she stayed for two or three hours, played pool and drank a “couple beers” and a “couple shots.”
Id., Ex. 14, Dodson Dep., 3:17-33:16, 34:18-35:2. At approximately 9:59 p.m., Dodson left the
bar, driving her vehicle. Subsequently, the vehicle ran off the roadway and overturned, and
paramedics had to extricate Dodson through the back window. Id. at 39:25-40:4, 41:25-42:5; Ex.
15, Oklahoma Traffic Collision Report, pp. 1, 4-5; Ex. 16, Overstreet Dep., 67:13-69:12. Dodson
admitted the accident occurred because she had been drinking, and she told Oklahoma Highway
Patrol (“OHP”) Trooper Colby Overstreet (“Overstreet”) she had consumed three shots of hard
liquor and four beers, had smoked marijuana, and knew she was going to jail. Id., Ex. 14, Dodson
Dep., 38:17-39:4, 42:5-43:4; Ex. 15, Oklahoma Traffic Collision Report, pp. 4-5; Ex. 16,
Overstreet Dep., 71:7-11, 75:13-76:7. In her deposition, Dodson admitted the accident occurred
because she had been drinking and that because of the amount she had been drinking, “there are a
few things that were fuzzy” in her memory. Ex. 14, Dodson Dep., 41:2-6.
Trooper Overstreet observed that Dodson had slurred speech, bloodshot eyes and the strong
smell of alcohol on her, so he arrested her for driving under the influence and took her to the Mayes
County Jail. Id., Ex. 16, Overstreet Dep. at 68:25-69:3; 77:8-16. Because the trooper was a male,
he could not do a full search of Dodson in sensitive areas such as inside her bra or around her
private parts. He testified that, as a result, Plaintiff needed to be searched more thoroughly once
she was at the jail. Id. at 79:4-80:14, 128:19-129:12).
At the jail, Shift Supervisor Dereck Davis observed that Dodson’s speech was slurred and
she was unsteady on her feet. Id., Ex. 5, Davis Dep., 75:23-76:2. The Medical Questionnaire
Davis filled out noted that Dodson was under the influence of alcohol. Id., Ex. 17, Medical
Questionnaire. Davis testified that Dodson was also noncompliant and belligerent, attempting—
against commands—to turn around at the booking counter, and refusing to answer medical
questions. Id., Ex. 5, Davis Dep., 69:8-71:7.
Eastwood, who was on duty, performed a pat-down search of Dodson while Dodson was
still fully clothed. Id., Ex. 14, Dodson Dep., 53:4-54:1; Ex. 1, Eastwood Dep., 68:21-69:15; Ex.
5, Davis Dep., 72:17-21. Eastwood also searched Dodson’s purse, where she discovered a
marijuana pipe and a tin containing a Lortab. Id., Ex. 1, Eastwood Dep., 66:21-69:22, 97:1-10,
99:7-9, 112:17-113:5; Overstreet Dep., 72:13-73:10, 74:19-75:12, 9:19-90:19, 98:8-98:19, 105:8-
16, 110:2-18. To Eastwood’s knowledge, this was the first time the purse had been searched. Id.,
Ex. 1, Eastwood Dep., 112:4-113:5.
The Mayes County Jail strip search policy then in effect required “reasonable suspicion”
to conduct a strip search. Reasonable suspicion could be based on factors such as the nature of the
offense charged, the arrestee’s appearance and conduct, and/or the arrestee’s prior arrest record.
Id., Ex. 18, §2.15, Strip Search Policy and Procedures. Eastwood and Davis believed that a strip
search of Dodson was appropriate and necessary because of her possession of paraphernalia and
Lortab, and her belligerence and conduct, including her refusal to answer medical questions. Id.,
Ex. 1, Eastwood Dep., 62:11-64:15, 115:1-116:2; Ex. 19, Eastwood Jail Incident Report; Ex. 4,
Murry Dep., 209:1-10.
The strip search policy stated that officers could not touch an inmate’s body or search an
inmate’s body cavities or body orifices, and that no other inmates could be present. Id., Ex. 4,
Murry Dep., 208:9-25, 220:9-12; Ex. 18, Mayes County Policy on Strip Searches. The policy also
stated that “[t]he Shift Officer must give approval in writing before a strip search may be
performed.” Id.
With Davis’s verbal approval, Eastwood took Dodson to a private bathroom to perform a
strip search. Id., Ex. 5, Davis Dep., 78:21-79:6; Ex. 14, Dodson Dep., 55:17-56:18, 58:13-15. For
privacy reasons, it was the policy of Mayes County Jail that, in the event a strip search of a female
arrestee was necessary, it would be performed by a female in a private bathroom. Id., Ex. 14,
Dodson Dep., 55:17-56:18, 58:13-58:15; Ex. 4., Murry Dep., 185:6-186:16; Ex. 5, Davis Dep.,
78:21-79:6.
Once inside the bathroom, Eastwood told Dodson that she needed to be strip searched. Id.,
Ex. 1, Eastwood Dep., 56:16-18; Ex. 12, Mayes County Sheriff’s Office Jail Incident Report.
Eastwood testified that after Dodson refused, Eastwood told her the strip search was mandatory—
by which she meant that Dodson did not have the option to refuse it. Id., Ex. 1, Eastwood Dep.,
70:25-71:4; Ex. 4, Murry Dep., 210:5-17; Ex. 18, Strip Search Policy. Davis, who was positioned
just outside the bathroom door, testified he 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. 5, Davis Dep., 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. 14, Dodson Dep., 60:1-7.
Eastwood ordered Dodson several more times to consent to the strip search. Id., Ex. 5,
Davis Dep., 113:7; Ex. 12, Jail Incident Report. Each time, Dodson refused. Id. Finally, Eastwood
decided to try to de-escalate the situation by handcuffing Dodson and returning her to the holding
area, so she ordered Dodson to turn around and face the wall. Id., Ex. 1, Eastwood Dep., 73:12-
74:20. Eastwood testified that Dodson initially complied with the command. Id., 77:16-78:14.
However, when Eastwood attempted to handcuff Dodson’s left hand, Dodson pulled away from
her and turned around so that she was again face-to-face with Eastwood. Id. at 78:13-23. Dodson
testified that she “does not recall” turning back around on Eastwood. Doc. 126, Ex. 2, Dodson
Dep., 60:1-62:2.
Trooper Overstreet testified he “specifically remember[ed] numerous warnings were
given” to Dodson that Eastwood was going to utilize the pepper gun. Id., Ex. 16, Overstreet Dep.,
46:10-22. Dodson testified she did “not recall” Eastwood’s attempts to handcuff her; that
Eastwood ordered her three times to turn back around; or that she did not comply with the orders.
Id., Ex. 14, Dodson Dep., 61:5-25.
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.
Id., Ex. 20, §4.08 Use of Force/Deadly Force.
Eastwood asked someone outside in the booking area to give her a JPX Jet Protector
(“JPX”), and a loaded JPX was handed to her through a crack in the door. Id., Ex. 1, Eastwood
Dep., 30:25-33:36; 36:13-23, 79:2-15; Ex. 26, Report. Dodson was in the back right corner of the
room, so Eastwood 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. 1, Eastwood Dep., 52:22-53:2, 79:2-
22; Ex. 26, Report. She testified she did this to increase the distance between Dodson and her so
she could use the JPX. Id., Ex. 1, Eastwood Dep., 52:22-53:2, 79:2-22; Ex. 12, Report. Dodson
claims Eastwood did not step back five feet, but instead held the JPX device ten inches from her
face. Id., Ex. 14, Dodson Dep., 62:6-63:14, 67:15-68:5.
When Eastwood attempted to fire the JPX at Dodson from under the showerhead, it
misfired. Id., Ex. 1, Eastwood Dep., 53:18-21. Eastwood asked for someone outside the bathroom
to give her another JPX. She then stepped over to the door, cracked it, stuck her hand out, and was
handed a JPX. Id., 53:18-54:15.
Eastwood testified that she walked back under the showerhead to ensure she was more than
five feet away from Dodson, and again commanded Dodson to turn around, but Dodson refused to
comply. Id., Ex. 1, Eastwood Dep., 51:13-15, 54:162-3; Ex. 12, Report; Ex. 5, Davis Dep., 51:13-
52:24. Eastwood testified that—while remaining under the shower—she placed the sights of the
JPX on Dodson and discharged it. Id., Ex. 1, Eastwood Dep., 51:1. Subsequently, Davis entered
the bathroom. Id., Ex. 5, Davis Dep., 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. She 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. 1, 55:14-19. Davis testified that although
they attempted to wash the pepper spray off her, Dodson backed off and refused to go back into
the shower. Id., Ex. 5, 26:19-27:9. He then told Dodson she “needed to get in there so—so she
could get the—the spray off because it will alleviate the pain and get rid of it quicker,” but Dodson
still refused. Id., 27:6-9, 14-21.
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., Ex. 1, Eastwood Dep., 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. 5, 28:21-29:2. Eastwood helped Dodson get into a jumpsuit, then took her back out of
booking and placed her in a detox cell with a large glass window in front of booking, so that her
condition could be monitored. Id., 29:3-14. Eastwood testified Dodson was given 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. Dodson, however, testified that she was given a jug of water, no towel and no
paper towels. Id., Dodson Dep., Ex. 14, 71:25-72:11.
Davis testified that that throughout the night “[w]e’d go by and check on her.” Id., Ex. 5,
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., 30:5-13. He had not,
however, been trained on “any specifics of the injuries that it could do.” Id., 30:14-22.
At 7:00 a.m. that morning, Davis opened Dodson’s cell door and asked her “if she was
okay, if she needed anything, and she said, no I don’t need anything.” Id., 31:3-6, 9-15. Dodson
was later moved to a regular cell in general female population, with other female inmates. Id., Ex.
14, Dodson Dep., 76:17-77:5, 79:7-8; Ex. 10, Oberg Dep., 54:5-21.
Around 8:30 a.m., Jail Nurse Amy Welker (“Welker”) saw Dodson. Id., Ex. 19, Welker
Incident Report, Doc. 107-8; Ex. 14, Dodson Dep., 76:17-77:15, 79-8; Ex. 24, Welker Dep., 44:17-
45:8, 50:20-23, 60:13-20, 61:16-20, 63:9-64:25. Welker observed that Dodson’s left eye was
swollen and contained pepper gel, and there was dried pepper gel on Dodson’s left cheek. Id., Ex.
19, Welker Incident Report; Ex. 20, Welker Dep., 44:17-45:8, 50:20-23, 60:13-20, 61:16-20, 63:9-
64:25. Welker told Dodson to further rinse out her eye in the shower, and she gave her a “warm
cold pack.” Ex. 14, Dodson Dep., 76:17-77:15, 79:7-8; Ex. 4, Murry Dep., 197:21-198:8. Welker
testified that at approximately 1:30 p.m., she saw Dodson again and noted that the orange pepper
gel was still in her eye. Ex. 20, Welker Dep., 56:4-8, 60:13-61:20, 86:12-18.3
However, Dodson challenges the accuracy and reliability of Welker’s testimony and her
incident report. First, Welker testified that she has no memory of seeing Dodson, and relies solely
on her incident report. Doc. 126, Ex. 17, Welker Dep. at 46:14-18. Additionally, there are three
different incident reports, purportedly written by Nurse Welker, concerning her interaction with
Dodson on February 27, 2014. See Doc. 126, Ex. 18, Welker Incident Reports. Each concerns
3 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.24,
Welker Dep., 56:4-8; 60:13-61:20, 86:12-18. Dodson denies a second interaction ever occurred.
Ex. 1, Dodson Dep., 80:2-17.
the same event, with various additions, deletions or rewording of certain details. Second, Mitch
Goodman, the Sheriff’s Fed. R.Civ. P. 30(b)(6) witness, testified that—based on all of the
evidence—it appears as though none of the three versions of the incident report were completed
until on or after October 23, 2014—eight months after the incident. Id., Ex. 19, Goodman Dep. at
60:8-61:25; 62:8-12; 63:21-64:3. Finally, Welker—despite not signing the report until—at the
earliest, October 24, 2014, falsified the handwritten date next to her signature, dating it “2-27-14.”
Id., Ex. 18.
Welker testified she never believed Dodson was undergoing a serious medical condition,
and if she believed so, she would have made sure Dodson received transportation to a medical
facility. Id., 88:24-89:7. Neither Jail Administrator Murry nor Sheriff Reed believed Welker or
Eastwood lied or fabricated any portion of their reports. Id., Ex. 4, Murry Dep., 198:21-199:10;
Ex. 13, Reed Dep., 156:13-157:4.
Dodson was released from Mayes County Jail custody on February 27, 2014 at 2:23 p.m.
Id., Ex. 1, Dodson Dep., 87:7-24; Ex. 27, Release Sheet; Ex. 28, 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 JPX, 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., 205:9-207:15, 213:1-214:12; Ex. 29, Interoffice Memo;
Ex. 9, Oberg Dep., 41:2-44:2, 110:4-16.
IV. Analysis
A claim against a state actor in his official capacity—such as Sheriff Reed—“is essentially
another way of pleading an action against the county or municipality” he represents, and is
considered under the standard applicable to §1983 claims against municipalities or counties. Porro
v. Barnes, 623 F.3d 1322, 1328 (10th Cir. 2010). In Monell v. New York City Dept. of Social Servs.,
436 U.S. 658, 694 (1978), the Supreme Court held that municipalities and other local governmental
bodies are “persons” within the meaning of §1983, and that “a local government may not be sued
under §1983 for an injury inflicted solely by its employees or agents.” Accordingly, in order to
establish Monell liability, a plaintiff “must prove an ‘(1) official policy or custom[,] (2) causation,
and (3) state of mind.’” Hinkle v. Beckham Cty. Bd. of Cty. Commissioners, 962 F.3d 1204, 1239
(10th Cir. 2020) (internal citations omitted). In other words, “[a] plaintiff seeking to impose
liability on a municipality under §1983 must identify a municipal ‘policy’ or ‘custom’ that caused
the plaintiff’s injury.” Bd. of County Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403
(1997).
Moreover, a municipality may only be held liable for its own illegal acts and cannot be
held vicariously liable for its employees’ actions. Id. Accordingly, in order for Sheriff Reed to be
held liable in his official capacity, Dodson must establish that “(1) a municipal employee
committed a constitutional violation, and (2) a municipal policy or custom was the moving force
behind the deprivation.” Walker v. City of Orem, 451 F.3d 1139, 1152 (10th Cir. 2006).
Accordingly, the absence of a constitutional violation by the officers of a municipality precludes
a finding of liability against the municipality itself. Hinton v. City of Elwood, 997 F.2d 774, 782
(10th Cir. 1993).
A. Reasonable Suspicion
The Sheriff argues he is entitled to summary judgment on Dodson’s strip search claim
because Eastwood 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, the Sheriff is entitled to summary
judgment against Dodson on her claim that the strip search was unlawful.
B. Constitutionality of Blanket Strip Search Policy
The Sheriff denies the jail has a policy of mandatory strip searches. However, he 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).
In Florence v. Board of Chosen Freeholders of Burlington, 566 U.S. 318 (2012), the
Supreme Court addressed the constitutionality of blanket strip search policies. There, 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. The
plaintiff 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.4
4 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]
Pursuant to Florence, 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,
the Sheriff is entitled to summary judgment on Dodson’s claim that the strip search violated §1983
and the Fourteenth Amendment.
C. Whether Alleged Use of Force Was Tied to a Sheriff’s Office Policy
In Monell, the Supreme Court held that a government entity is only liable under §1983
when the constitutional injury can fairly be said to have been caused by the entity’s own policies
and customs. 436 U.S. at 694-95. In other words, governmental liability for a constitutional
violation “attaches where—and only where—the entity makes a deliberate choice to follow a
course of action from among various alternatives.” Pembaur v. Cincinnati, 475 U.S. 469, 483
(1986). The entity may not be held liable in its official capacity simply because it “employs a
tortfeasor.” Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997).
The Sheriff argues that—even if Dodson’s allegations regarding Eastwood’s use of the JPX
are construed in the light most favorable to Dodson—the evidence nevertheless establishes that
Eastwood was properly trained on the use of the JPX and, if—as Dodson asserts—Eastwood was
less than five feet from her when she deployed the JPX—then Eastwood’s use of the JPX was
contrary to MCSO policies and procedures.
However, the Sheriff’s position ignores at least one issue. It is undisputed that the Sheriff
decided to bring the JPX into the Jail as “a compliance tool other than a Taser.” Doc. 126, Ex. 29,
Reed Dep. at 49:11-50:11 (emphasis added). Thus, there is merit to Dodson’s argument that
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.
“[t]raining employees to use the powerful and dangerous JPX as a tool to quell passive resistance
was not only contrary to the manufacturer’s safety warnings, but also well-established
constitutional norms.” See Doc. 126 at 34.
A material issue of fact remains concerning whether the Sheriff’s decision to use the JPX
as a compliance tool violated Dodson’s constitutional rights. Accordingly, the Sheriff’s Motion
for Summary Judgment on Dodson’s claim for violation of her rights under §1983 is denied.
D. Denial of Medical Care
Dodson alleges she was denied proper medical care in the aftermath of the deployment of
the JPX. “A prison official’s deliberate indifference to an inmate’s serious medical needs is a
violation of the Eight Amendment’s prohibition against cruel and unusual punishment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). “The test for constitutional liability of prison officials involves
both an objective and a subjective component.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
A prisoner must first produce “objective evidence that the deprivation at issue was in fact
sufficiently serious.” Id. at 751. The Tenth Circuit has stated that “a medical need is sufficiently
serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Id.
(internal citation and quotation omitted). The Sheriff does not dispute that Dodson’s injuries
satisfy the objective element of the test. Doc. 103 at 38.
The subjective prong of the test “requires the plaintiff to present evidence of the prison
official’s culpable state of mind,” and it is satisfied if the official “knows of and disregards an
excessive risk to inmate health or safety . . . [T]he official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also
draw the inference.” Id. “A prison medical professional who serves solely . . . as a gatekeeper for
other medical personnel capable of treating the condition may be held liable under the deliberate
indifference standard “if she delays or refuses to fulfill the gatekeeper role.” Id. (internal citations
omitted).
To meet the subjective prong, Dodson must show that an individual agent of the Sheriff in
his or her official capacity acted with a “sufficiently culpable state of mind,” in a manner so
egregious that it constitutes “deliberate indifference” to a substantial risk of serious harm to an
inmate. Farmer v. Brennan, 511 U.S. 825, 834. Plaintiff must demonstrate a specific jail
employee was aware of a known or obvious risk of serious harm, and did not act to mitigate that
risk. Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Collective liability is insufficient—
one or more specific jail employee must have acted with deliberate indifference. Burke v.
Regalado, 2019 WL 3938633 at *30-31 (10th Cir. August 20, 2019).
Eastwood and Davis attempted to help her wash the gel off her face, provided her—at a
minimum—with a jug of water, and monitored her through the night; Davis checked on her before
his shift ended, asking her if she needed anything. However, based on the discrepancies between
Dodson’s and Nurse Welker’s testimony, the existence of three versions of Welker’s report, and
Goodman’s testimony that the report was not completed until eight months after the incident, the
Court concludes a material issue of fact exists about whether Nurse Welker acted with “deliberate
indifference” to the risk of harm to her.
Accordingly, Reed’s motion for summary judgment on Dodson’s claim for denial of
medical care is denied.
V. Conclusion
Reed’s Motion for Summary Judgment is granted with respect to Dodson’s claim that the
mandatory strip search was, per se, unconstitutional, and denied with respect to her claim that she
was denied proper medical care.
ENTERED this 13th day of September, 2021.