Mengert v. United States

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RHONDA MENGERT, )

)

Plaintiff, )

)

v. ) Case No. 21-CV-443-CVE-SH

)

UNITED STATES OF AMERICA, )

)

Defendant. )

OPINION AND ORDER

Now before the Court is Defendant’s Motion for Summary Judgment (Dkt. # 50). Defendant

United States of America seeks summary judgment on plaintiff Rhonda Mengert’s false

imprisonment claim. Defendant argues that a false imprisonment claim is not available under

Oklahoma law when a person is detained by a governmental employee acting within the scope of

their employment. Dkt. # 50, at 3. Defendant also argues that plaintiff cannot show that her

detention was unlawful or that Transportation Security Administration (TSA) employees acted with

the requisite intent to confine plaintiff. Id. at 4-5. Plaintiff responds that she may have mistakenly

alleged a false imprisonment instead of a false arrest claim, and she asks the Court to treat her claim

as a false arrest claim arising under Oklahoma law. Dkt. # 53, at 25-26. Plaintiff contends that she

was unlawfully confined when TSA agents subjected her to a “strip search” and she argues that the

search exceeded the scope of an administrative search under the Fourth Amendment. Id. at 20-24.

I.

On May 12, 2019, Mengert went through security at the Tulsa International Airport and she

passed through an advanced imaging technology scanner. Dkt. # 51-1, at 9; Dkt. # 51-2, at 2. The

scanner identified the presence of an object in Mengert’s groin area, and TSA employee Amy

Morroney conducted a targeted pat-down of Mengert pursuant to TSA policy. Dkt. # 51-2, at 2.

Morroney believed that she felt something during the pat-down and she was unable to clear Mengert

to pass through security, because she was unable to determine the nature of the item she felt near

plaintiff’s groin. Id. at 3-4. Mengert told Morroney that the object was a pad, but Morroney

determined that additional screening was required. Id. at 7. Morroney completed the pat-down

process by swabbing plaintiff’s hand with fabric and placing the fabric in an explosives trace

detection (ETD). Dkt. # 51-1, at 10. The ETD test was negative for the presence of explosives and

a male TSA employee told Mengert that she was cleared to pass through security. Id. at 11.

However, Morroney determined that it was necessary for Mengert to remove the item in

question from her groin for inspection, and Morroney took Mengert to a private screening room.1

Dkt. # 51-1, at 11. Mengert did not make any objection to the additional screening and the entire

process had taken about two minutes up to the time that Moronney determined that it was necessary

to move Mengert to a private screening room. Id. at 11-12, 14. Mengert walked into the private

screening room with Morroney and Whitney Brown, another TSA employee, and either Morroney

or Brown closed the door to the screening room. Dkt. # 51-2, at 9. Morroney handed Mengert a

paper privacy drape and directed Mengert to lower her shorts in order to remove the object. Dkt. #

51-1, at 19; Dkt. # 51-2, at 9-10. Mengert responded that the object was a feminine hygiene product

1 Defendant states as an undisputed fact that Morroney was required to have Mengert remove

the object for inspection by TSA’s standard operating procedure (SOP), and defendant cites

its response to an interrogatory as support for this proposition. However, the discovery

response does not include a written copy of the SOP or a citation to any relevant regulations

or statutes. Dkt. # 51-4. For the purpose of the Opinion and Order, the summary judgment

record does not contain sufficient evidence to support defendant’s assertion that Morroney

was required to ask Mengert to remove the item, but the Court will consider whether

Morroney could have reasonably been exercising her discretionary authority to conduct

additional screening of Mengert.

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and said something to the effect “you’ve got to be kidding me.” Dkt. # 51-1, at 20. Mengert did not

unfold the privacy drape, ask how the privacy drape should be used, or ask either of the TSA agents

to assist her with the use of the privacy drape. Id. at 21. Mengert asked for clarification as to what

the TSA agents wanted her to do, and she was told that the agents needed to “clear the area” before

Mengert could leave to board her flight. Id. at 23. Mengert testified in her deposition that she was

expressly directed to pull her pants and underwear down to her knees and remove the item for

inspection. Id. at 22. Mengert made no attempt to use the privacy drape, and she lowered her shorts

and removed the feminine hygiene product. Id. at 23-25. Morroney confirmed that the object was

a feminine hygiene product and that the object was not a prohibited item or a security threat. Dkt.

# 51-2, at 13. Mengert said something to the effect of “are you satisfied,” replaced the pad, and

pulled up her clothes. Dkt. # 51-1, at 26. Neither Morroney or Brown immediately responded to

Mengert, and Mengert asked to leave three more times before one of the TSA employees opened the

door without saying anything. Id. at 25-26. Mengert took her luggage and left the room. The parties

agree that Mengert spent less than three minutes in the private screening room and the entire

encounter lasted approximately seven minutes. Dkt. # 51, at 12; Dkt. # 53, at 9.

Mengert filed this case alleging claims of false imprisonment and intentional infliction of

emotional distress against the United States under the Federal Tort Claims Act, 28 U.S.C. §§

1346(b), 2671-2680 (FTCA). In a prior opinion and order (Dkt. # 18), the Court dismissed

Mengert’s intentional infliction of emotional distress claim, but the Court rejected defendant’s

request to dismiss Mengert’s false imprisonment claim for lack of subject matter jurisdiction. The

case was set for trial on September 18, 2023, but all remaining deadlines in the scheduling order

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(Dkt. # 38) have been stayed pending a ruling on defendant’s motion for summary judgment. Dkt.

# 58.

II.

Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored

procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed

‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.

“When the moving party has carried its burden under Rule 56(c), its opponent must do more

than simply show that there is some metaphysical doubt as to the material facts. . . . Where the

record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there

is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could

reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court

is “whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,

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the Court construes the record in the light most favorable to the party opposing summary judgment.

Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

III.

Defendant argues that plaintiff’s false imprisonment claim fails for a purely legal reason,

because a false imprisonment claim may be alleged against a private person only, not the state or

federal government. Dkt. # 51, at 13. Defendant also argues that any confinement of plaintiff was

lawful pursuant to TSA’s authority to conduct administrative searches under the Fourth Amendment,

and the brief confinement for the purpose of ensuring aviation security was lawful. Dkt. # 14-16.

Plaintiff responds that defendant is “technically correct” that she should have alleged a false arrest

claim, instead of a false imprisonment claim, but she asserts that there is no substantial distinction

between these claims under Oklahoma law and this is not a sufficient reason to enter summary

judgment in favor of defendant. Dkt. # 53, at 26. Plaintiff argues that her detention for any amount

of time based on Morroney’s demand that plaintiff remove a feminine hygiene product was unlawful,

and she claims that she was “strip searched” in violation of her rights under the Fourth Amendment.

Id. at 12-24.

Plaintiff has alleged a tort claim against the federal government under the FTCA. According

to the Supreme Court “[t]he FTCA was designed primarily to remove the sovereign immunity of the

United States from suits in tort.” Millbrook v. United States, 569 U.S. 50, 52 (2013) (internal

quotations omitted). “The Act gives federal district courts exclusive jurisdiction over claims against

the United States for injury or loss of property, or personal injury or death caused by the negligent

or wrongful act or omission of a federal employee acting within the scope of his office or

employment.” Id. (citing 28 U.S.C. § 1346(b)(1)) (internal quotations omitted). Plaintiff’s false

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imprisonment claim against defendant is brought pursuant to the FTCA, and the Court must apply

state substantive law to determine whether defendant can be held liable. Hill v. SmithKline

Beecham Corp., 393 F.3d 111, 1117 (10th Cir. 2004).

Under Oklahoma law, “[f]alse imprisonment is a common-law wilful tort.” Walters v. J. C.

Penney Co., 82 P.3d 578, 583 (Okla. 2003) (citing Restatement (Second) of Torts § 35 (Am. Law

Inst. 1965)). Section 35 of the Restatement (Second) of Torts identifies three essential elements to

establish an actor’s liability to another for false imprisonment: 1) “he intends to confine the other

or a third person within boundaries fixed by the actor;” 2) “his act directly or indirectly results in

such a confinement of the other;” and 3) “the other is conscious of the confinement or is harmed by

it.” Restatement (Second) of Torts § 35. Accordingly, the Oklahoma Supreme Court has found that

“[a] person is not liable for false imprisonment unless his act is done for the purpose of imposing

a confinement, or with knowledge that such confinement will, to a substantial certainty, result from

it.” Swafford v. Vermillion, 261 P.2d 187, 191 (Okla. 1953) (internal quotations omitted and

emphasis in Swafford). A claim of false imprisonment is distinguishable from a claim of false arrest

under Oklahoma law, but both claims share an important similarity in that they concern the

confinement or detention of the plaintiff. “In a false imprisonment, the detention is purely a matter

between private persons for a private end, and there is no intention of bringing the person detained

before a court, or otherwise securing the administration of the law.” Guthrie v. Gragg, 2016 WL

3746566, *10 (E.D. Okla. July 8, 2016) (quoting Alsup v. Skaggs Drug Center, 223 P.2d 530, 526-

27 (Okla. 1949)). In contrast, an imprisonment occurs as part of a false arrest claim, “but detention

is by reason of an asserted legal authority to enforce the processes of the law.” Id. Under Oklahoma

law, a false arrest is defined as “an unlawful restraint of an individual’s personal liberty or freedom

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of locomotion.” Roberts v. Goodner’s Wholesale Foods, Inc., 50 P.3d 1149, 1151 (Okla. Civ. App.

2002).

Defendant argues that plaintiff has asserted a claim for false imprisonment, and such claims

are permitted only in disputes between private parties. Plaintiff concedes that defendant is

“technically correct” that she should have alleged a false arrest claim, rather than a false

imprisonment claim, but she argues that Oklahoma courts treat false imprisonment claims against

government officials as false arrest claims. Dkt. # 53, at 25-26. The Court declines to grant

summary judgment solely on the ground that plaintiff alleged a false imprisonment claim when she

should have alleged a false arrest claim. Lawfulness or privilege is a valid defense to claims of false

arrest and false imprisonment, and this issue has been fully briefed by the parties. The Court will

treat plaintiff’s false imprisonment claim as a false arrest claim, and the Court declines to grant

summary judgment in favor of defendant merely because plaintiff alleged the wrong tort claim under

Oklahoma law.

The parties’ briefing addresses numerous issues concerning the reasonableness of the search

procedures utilized by the TSA screeners, but most of these issues are outside of the scope of

plaintiff’s false arrest claim. Plaintiff has not alleged a Bivens2 claim challenging the

constitutionality of the screening procedures, and she is not seeking to hold the individual TSA

employees liable for violating her constitutional rights. TSA employees undoubtedly detained or

confined plaintiff for a limited period of time, and defendant does not contest that a search or

detention occurred. Plaintiff does not dispute that pre-flight screenings at airports are permissible

2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

(recognizing a claim against federal officers for money damages for the alleged violation of

a person’s federal constitutional rights).

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under the Fourth Amendment, and plaintiff is not generally challenging the regulatory scheme

concerning airport security. Instead, plaintiff’s tort claim is essentially a challenge to the screening

procedures utilized by Moronney, and she repeatedly argues that she was subjected to an illegal

“strip search.” Dkt. # 53, at 20. The sole claim before the Court is a false arrest claim under

Oklahoma law, and the primary issue is whether there was an “unlawful restraint of [plaintiff’s]

liberty or freedom.” Roberts, 50 P.3d at 1151. Even if the Court were to assume TSA employees

used improper screening procedures, plaintiff must show that Morroney’s decision to require a brief

detention of plaintiff for additional screening was itself unlawful, and the focus will be on whether

plaintiff’s detention was unlawful or unprivileged under the circumstances.

Defendant argues that TSA screeners are permitted to detain passengers at security

checkpoints until the screening process is complete, and defendant claims that pre-flight

suspicionless searches of passengers are lawful under the Fourth Amendment. The Fourth

Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. CONST. amend.

IV. Pre-flight searches as passengers proceed through airport security have been deemed valid under

the administrative search exception to the warrant requirement:

Blanket suspicionless searches “calibrated to [a] risk may rank as ‘reasonable.’”

[United States v. Aukai, 497 F.3d 955, 958 (9th Cir. 2007)] (quoting Chandler v.

Miller, 520 U.S. 305, 323 (1997)). For example, if properly limited, “searches now

routine at airports and at entrances to courts,” are reasonable because they respond

to a “‘risk to public safety [that] is substantial and real.’” Id. (quoting Chandler, 520

U.S. at 323). Generally, “airport screening searches . . . are constitutionally

reasonable administrative searches because they are ‘conducted as part of a general

regulatory scheme in furtherance of an administrative purpose, namely, to prevent the

carrying of weapons or explosives aboard aircraft, and thereby to prevent hijacking.’”

Id. at 960 (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973).

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United States v. McCarty, 648 F.3d 820, 830-31 (9th Cir. 2011). TSA screeners also have the

statutory authority to conduct “screening[s] of all passengers and property,” and this includes the

authority to conduct “physical searches” of persons seeking to pass through airport security.

Pellegrino v. United States of America Transportation Security Administration, 937 F.3d 164, 172

(3d Cir. 2019). “Those presenting themselves at a[n] [airport] security checkpoint thereby consent

to a search, and may not revoke that consent if the authorities elect to conduct a search.” Corbett v.

Transp. Sec. Admin., 568 F. App’x 690, 697 (11th Cir. June 4, 2014) (quoting United States v.

Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984)).

The parties do not dispute that plaintiff was detained for approximately seven minutes before

she was permitted to pass through airport security, but they dispute whether the encounter became

unlawful under the Fourth Amendment when Morroney directed plaintiff to lower her clothing and

remove her feminine hygiene product. The Court finds that it is unnecessary to resolve the issue of

whether the search procedures were unlawful, because this is well outside the scope of plaintiff’s tort

claim of false arrest. The sole issue before the Court is whether defendant’s actions constituted an

“unlawful restraint on [plaintiff’s] liberty or freedom of locomotion.” Shaw v. City of Oklahoma

City, 380 P.3d 894, 899 (Okla. Civ. App. 2016). The undisputed facts establish that plaintiff

presented herself for pre-flight screening at the Tulsa International Airport, and the initial screening

of plaintiff detected an unidentified object in plaintiff’s groin area. Morroney conducted a patdown

of plaintiff’s person and was unable to clear plaintiff to proceed through security due to the presence

of an object in plaintiff’s groin area that was “bulkier” than a typical feminine hygiene product. Dkt.

# 51-2, at 4. Morroney moved plaintiff to a private screening room for additional screening, and

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there is no dispute that plaintiff was asked to remove the object from her groin area for inspection.

There is also no dispute that the entire encounter lasted approximately seven minutes.

Plaintiff has not shown that the pre-flight security procedures constituted an unlawful

restraint of her freedom or liberty. The facts unequivocally show that plaintiff was briefly detained,

and it is not necessary for the Court to provide a lengthy analysis of the parties’ arguments

concerning whether plaintiff was confined.3 The more relevant issue is whether plaintiff’s liberty

was unlawfully restrained, and this is a relatively narrow issue that does not require consideration

of whether the alleged “strip search” was lawful under the Fourth Amendment.4 Viewing the facts

in a light most favorable to plaintiff, there is no way to view the actual detention or confinement of

plaintiff as unlawful. The TSA screener, Morroney, testified in her deposition that she felt an object

in plaintiff’s groin area and she could not positively clear to leave the security checkpoint without

identifying the object. Dkt. # 51-2, at 4. Morroney detained plaintiff for a total of seven minutes

to determine the nature of the suspicious object, and the length of the detention was not excessive

3 The parties dispute whether plaintiff was free to leave or whether plaintiff was confined for

the purpose of her tort claim. Defendant simultaneously argues that plaintiff was free to

leave, but it cites cases supporting the proposition that an airline passenger may not leave a

security checkpoint after being held for additional screening. Dkt. # 51, at 15, 21-27. For

the purpose of this Opinion and Order, the Court will assume that plaintiff was confined and

that her liberty was restrained by the security screening.

4 Plaintiff argues that “three minutes of confinement for an unlawful strip search is an injury

of a completely different magnitude than three minutes for a merely technical violation of

the officer’s authority . . . .” Dkt. # 53, at 20 n.6. Plaintiff cites no Oklahoma authority

suggesting that the nature of the confinement is a factor in determining whether the

confinement itself is unlawful. This appears to be plaintiff’s way of making her allegations

concerning the “strip search” relevant to her false arrest claim. The Court will consider the

totality of the circumstances to determine whether plaintiff’s detention was lawful or

privileged, but the Court finds that plaintiff’s arguments concerning the screening procedures

fall outside of the scope of her false arrest claim.

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considering the nature and purpose of the detention. Defendant has a strong interest in ensuring that

passengers do not pass through airport security with prohibited items, and courts have consistently

held that the federal government is permitted to engage in suspicionless searches or detentions at

airport security checkpoints. It is possible that the detention of a passenger at an airport security

checkpoint could become unlawful if it is “prolonged beyond the time reasonably required to

complete [its] lawful mission.” Corbett, 568 F. App’x at 698. However, the detention was not

prolonged or excessive in this case, and it is clear that the length of the detention is not the basis for

plaintiffs tort claim. Instead, plaintiff repeatedly challenges what occurred during her brief pre-

flight detention, and she is not arguing that TSA generally lack the authority to conduct limited

searches or detentions. Plaintiff's false arrest claim is not the proper vehicle to raise arguments

concerning the manner of plaintiff's detention, and she has failed to show that she was unlawfully

detained by TSA employees prior to boarding her flight. The Court concludes that plaintiff was

lawfully detained as she passed through airport security and the detention was not prolonged or

excessive, and defendant is entitled to summary judgment on plaintiffs false arrest claim.

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Dkt.

# 50) is granted. A separate judgment is entered herewith.

DATED this 31st day of August, 2023.

Cheine ¥ Coble —

CLAIRE V.EAGAN

UNITED STATES DISTRICT JUDGE

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