Jones v. McLerran

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NORTHEASTERN DIVISION

BRANDON L JONES, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00009

)

SAMANTHA MCLERRAN, et al . )

)

Defendants. )

MEMORANDUM OPINION

Pending before the Court are Motions to Dismiss filed by Samantha McLerran, M.D. (Doc.

No. 29), Daniel Trivette (Doc. No. 41), and the Cookeville Regional Medical Center (“CRMC”)

(Doc. No. 46). Those Motions have been fully briefed by the parties. (Doc. Nos. 24, 42, 47, 37, 45,

51). For the reasons that follow, the Motion to Dismiss filed by CRMC will be granted, while the

other two motions will be denied.

I. Background

This is a civil rights action under 42 U.S.C. § 1983. Plaintiff asserts that Defendants violated

his Fourth and Fourteenth Amendment rights based upon the following allegations:

On July 29, 2019, Plaintiff was pulled over by Cookeville Police Officer Trivette for a burnt-

out license plate light. During a search of the vehicle, Trivette found a meth pipe. He then detained

Plaintiff and called for backup. One of the responding officers patted Plaintiff down, and stated that

he felt something in Plaintiff’s buttocks area. Officer Trivette then looked inside the back of

Plaintiff’s pants and saw nothing, but informed Plaintiff that there were active warrants for his

arrest. Officer Trivette arrested Plaintiff and placed him in the back of a patrol car.

Plaintiff was transported to the Putnam County Jail and, once there, was subjected to a pat-

down and strip search. During the strip search, Plaintiff was repeatedly told to “squat” and “cough.”

Although these searches produced no contraband, Officer Trivette informed Plaintiff that he was

going to secure a search warrant that would allow for the search of Plaintiff’s rectal cavity.

Approximately two hours later, Officer Trivette returned to the jail with a search warrant.

He then transported Plaintiff to CRMC. Plaintiff was taken to a room, handcuffed to a hospital bed,

and guarded by a Cookeville police officer and a hospital security guard (identified only as “John

Doe 1”). Shortly thereafter, Dr. McLerran entered the room with a nurse. After his vitals were

taken, Plaintiff was told to take his pants off, and he complied. He was then ordered to lie on a table

and roll over on his left side. Dr. McLerran spread Plaintiff’s butt cheeks, and found two small

plastic packages of a white powder, which turned out to be illegal drugs.

Upon the discovery of the white powder, Plaintiff claims the following occurred:

Defendant McLerran said, “Hold him down!” At that point, the hospital security

guard, John Doe #1, grabbed Plaintiffs right arm and wrist firmly. Defendant Trivette

quickly grabbed Plaintiffs right leg and pinned it down. Plaintiff saw Defendant

McLerran putting a lubricant on her gloved hand. At that point, Plaintiff pleaded

with the Defendants not to digitally penetrate his rectum. He repeatedly requested

Defendant McLerran to give him an X-ray instead of digital penetration of his

rectum. Defendant McLerran refused. He stated to Defendant McLerran and the

other Defendants present, that he didn’t have any drugs inside his rectal canal.

Defendant McLerran stated, “Like we can trust you!” Plaintiff again requested

Defendant McLerran to give him an X-ray to prove that he didn’t have any drugs or

contraband inside his rectum. Defendant McLerran refused again, and then thrust her

gloved fingers inside Plaintiffs rectum, in rough manner that caused Plaintiff

considerable physical pain, and emotional pain and suffering. Defendant McLerran

found no drugs or any other foreign objects in Plaintiff’s rectum. Then Defendant

McLerran refused to clean Plaintiff s rectum area before she left the room. Plaintiff

was left soiled with lubricant jelly and fecal matter in his rectal area.

(Doc. No. 28 at 9-10)

As a result of Defendants’ conduct, Plaintiff claims that he suffered both emotional and

physical pain. He seeks $500,000 in compensatory and $1 million in punitive damages from each

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Defendant.

The foregoing allegations come from Plaintiff’s Amended Complaint. However, they are

substantially similar to the allegations made in the original Complaint, which the Court found to

state a plausible claim, and sufficient to meet the initial screening requirements of the Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) and 1915A. (Doc. No. 7). At the time,

the Court did not have before it the search warrant that Defendants have now filed in this case.1

The search warrant issued by Judge Wesley Bray of the Putnam County Criminal Court

provided in relevant part:

YOU ARE THEREFORE COMMANDED to make an immediate search of the body

and body cavities, not excluding the mouth, genitals, or anal cavity of Brandon Luke

Jones, more particularly described as follows: * * * The structure in which the

search will be conducted is located at 1 Medical Center Blvd in the emergency room

sector of Cookeville Regional Medical Center. * * * This search will be conducted

and under the supervision of medical professionals who are employed by the

Cookeville Regional Medical Center, and under the supervision of Cookeville Police

Department sworn officers.

(Doc. No. 16-1 at 3) (ellipses in original).

II. Motions to Dismiss by Dr. McLerran and Officer Trivette

Section 1983 confers a private right of action against any person who, acting under color

of state law, deprives an individual of any right, privilege or immunity secured by the Constitution

or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). To state

a § 1983 claim, therefore, a plaintiff must allege two elements: (1) a deprivation of rights secured

by the Constitution and laws of the United States, and (2) that “the deprivation was caused by a

1 “[I]f a plaintiff references or quotes certain documents, or if public records refute a plaintiff’s claim,

a defendant may attach those documents to its motion to dismiss, and a court can then consider them in

resolving the Rule 12(b)(6) motion without converting the motion to dismiss into a Rule 56 motion for

summary judgment.” In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014) (citing Weiner v.

Klais & Co., Inc., 108 F.3d 86, 88–89 (6th Cir.1997)). “Fairness and efficiency require this practice.” Id.

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person acting under color of state law.” Tahfs v. Proctor, 316 F. 3d 584, 590 (6th Cir. 2003).

Turning to the second element first, Officer Trivette, a Cookeville police officer, was acting

under state law for obvious reason. Dr. McLerran was also acting under color of state law when she

performed the body cavity search, even though she is a private citizen. Booker v. LaPaglia, 617 F.

App’x 520, 524 (6th Cir. 2015) (holding that doctor who performed rectal search on suspect was a

state actor). In fact, as this Court noted in the initial screening order, the sole reason for Dr.

McLerran’s examination of Plaintiff was to “exercise[] the power of search traditionally reserved

exclusively to the State,” and her “role in the search was purely that of an auxiliary to normal police

search procedures.” Rodriques v. Furtado, 950 F.2d 805, 814 (1st Cir. 1991). She does not argue

otherwise now.

As for the first element, and based primarily on the search warrant, Dr. McLerran and Officer

Trivette argue that they did not deprive Plaintiff of a constitutional right. At a minimum, they assert

that they are entitled to qualified immunity.2 In support, they cite a number of cases where courts

have found cavity searches to be lawful, and dismissed claims for violations of constitutional rights

under Section 1983 arising from those searches.

Leaving aside that some of those cases were decided in the context of summary judgment

and not on a motion to dismiss (e.g. Charlot v. City of Houston, 757 F. App’x 310 (5th Cir. 2018)

and Rodriques), they may fairly be said to stand for the noncontroversial proposition that “physical

rectal examinations of prisoners, when carried out by trained medical staff under sanitary conditions,

are at times ‘a necessary and reasonable concomitance of . . . imprisonment’” and constitutional.

2 Officer Trivette even goes so far as to proclaim that “no case has ever held that a cavity search

authorized by a warrant violated the Fourth Amendment.” (Doc.. No. 42 at 8). How Officer Trivette would

know that no case has ever so held is a mystery. It may be that there are no such cases reported in the

Westlaw and Lexis data banks, but those resources to not cover the entire body of case law.

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Sanchez v. Pereira-Castillo, 590 F.3d 31, 43 (1st Cir. 2009). Additionally, where, as here, “the

alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that

a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an

objectively reasonable manner[.]” Messerschmidt v. Millender, 565 U.S. 535, 546—47 (2012) (citing

United States v. Leon, 468 U.S. 897, 922-923 (1984)).

Still, the “Fourth Amendment ‘reasonableness’ inquiry is largely fact-driven[.]” Scott v.

Clay Cty., 205 F.3d 867, 877 (6th Cir. 2000). “‘[T]he highly intrusive nature of strip searches and

body cavity searches is widely recognized, fraught as they are with the inherent potential to degrade,

demean, dehumanize, and humiliate.’” Reppert v. Marino, 259 F. App’x 481, 492 (3d Cir. 2007)

(quoting Evans v. City of Zebulon, 351 F.3d 485, 492 (11th Cir. 2003)). To pass constitutional

muster, body cavity searches “must be conducted in a reasonable manner’— searches conducted “in

an abusive fashion .. . cannot be condoned[.]” Bell v. Wolfish, 441 U.S. 520, 560 (1979).

It may be, as Defendants maintain, that the search was clinical and pristine. If so, the Court

would not hesitate to rule in Defendants’ favor. However, the case is before the Court on a motion

to dismiss and Plaintiff is proceeding pro se.

Pleadings drafted by pro se litigants are held to less stringent standards than those drafted

by lawyers and should be liberally construed. Martin v, Overton, 391 F.3d 710, 712 (6th Cir. 2004),

Even so, pro se litigants are not exempt from the requirements of the Federal Rules of Civil

Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

In order to state a claim upon which relief may be granted, a complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The complaint must plead “enough facts to state a claim to relief that is plausible on its

face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and this occurs “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In the Amended Complaint Plaintiff alleges that Dr. McLerran “thrust her gloved hand inside

his rectum, in a rough manner that caused Plaintiff considerable physical pain, and emotional pain

and suffering.” (Doc. No. 28 at 10). No doubt, “[s]ome degree of force must necessarily be

employed in any body cavity search,” Sanchez v. Bauer, 2015 WL 5026195, at *8 (D. Colo. 2015),

and what Plaintiff is attempting to describe may be no more than that. On the other hand, he may

be trying to say that Dr. McLerran’s actions were more sinister and were intended to inflict

gratuitous pain. On this score, the Court would be remiss in failing to observe that, in his original

Complaint, Plaintiff alleged that Dr. McLerran “vigorously thrusted [sic] her fingers in my rectum

and in a motion like she was washing a cup in the sink spun her hand and wrist in that kind of

motion and then pulled her hand out of my body.” (Doc. No. 1 at 10). Even though the Amended

Complaint became the operative pleading and supplanted the original, the Court is not required to

ignore the initial Complaint. See Glover v. Bostrom, No. CV 18-285 (NEB/BRT), 2018 WL

7572496, at *2 (D. Minn. Oct. 18, 2018) (“In the context of pro se litigation, . . . courts have allowed

an amended complaint to supplement the original.”); Williams v. Aldridge, Civil No. 6:13-cv-6004,

2014 WL 504874, at *2 (W.D. Ark. Feb. 7, 2014) (“[P]ro se documents are to be liberally construed.

For purposes of this motion, I will assume that Plaintiff meant the amended complaint to supplement

the original complaint.”); Ford v. Donovan, 891 F. Supp.2d 60, 62 (D.D.C. 2012) (“Instead of

superceding his original Complaint, as a typical Amended Complaint does, this later pleading

supplements it. Given his pro se status, the Court will treat the combined pleadings as one joint

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Complaint”).3

That said, Officer Trivette’s potential liability regarding the rectal search seems remote at

best. As he points out, the “only thing [he] is alleged to have done throughout this entire process

is instruct Plaintiff to remove his pants and hold Plaintiff’s right leg down to the examination table

at Dr. McLerran’s direction.” (Doc. No. 42 at 4). However, Plaintiff also alleges that Officer

Trivette arrested him without probable cause, with the implication being that he would not have been

subjected to the cavity search but-for an unlawful arrest. It may be that any probable cause/unlawful

arrest claim would be barred by Heck v. Humphrey, 512 U.S. 477 (1994), but that is not argued by

Officer Trivette and is something that can be addressed at summary judgment. Moreover, to the

extent that Officer Trivette argues about the existence of probable cause in his reply brief, Plaintiff

was not given an opportunity to respond to those arguments, and those arguments were not even

alluded to in Officer Trivette’s initial briefing. Rather, the sole focus of his Motion to Dismiss and

accompanying Memorandum (Doc. Nos. 41, 42) was on the propriety of the cavity search.

As to both Defendants’ claim for qualified immunity, that, too, is premature. While a

defendant’s “entitle[ment] to qualified immunity is a threshold question to be resolved at the earliest

possible point,” Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003), “that point is usually summary

judgment and not dismissal under Rule 12,” Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir.

2015). See also, Buddenberg v. Weisdack, 939 F.3d 732, 738–39 (6th Cir. 2019) (noting that Sixth

Circuit “ha[s] cautioned that ‘it is generally inappropriate for a district court to grant a 12(b)(6)

motion to dismiss on the basis of qualified immunity’”). That is clearly the prudent approach here.

Although the right to be subjected to only reasonable and non-abusive cavity searches has been

2 Plaintiff characterizes his pleading as a “First Amended and Supplemental Complaint.” (Doc No.

28 at 1).

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established since at least Bell, and “[t]he constitutional right to ‘freedom from arrest in the absence

of probable cause’ is clearly established within our circuit,” Courtright v. City of Battle Creek, 839

F.3d 513, 520 (6th Cir. 2016), the question of whether either Dr. McLerran or Officer Trivette

violated Plaintiff’s constitutional rights is not resolvable on this sparse record.

In sum, the complaint against Dr. McLerran and Officer Trivette survives on the thinnest of

reeds, and those Defendants may be entitled to summary judgment once the record has been

developed. However, because Plaintiff is proceeding pro se, his pleadings are to be given some

leniency, and he has stated a plausible claim, their Motions to Dismiss will be denied.

III. Motion to Dismiss filed by CRMC

CRMC has filed a Motion to Dismiss on behalf of itself and the unnamed, “John Doe,”

security guard. CRMC raises a number of grounds for dismissal,4 two of which the Court finds

meritorious.

John Doe 1 is entitled to dismissal on statute of limitations grounds. The statute of

limitations for Section 1983 claims in Tennessee is one year, as provided for personal injury actions

under Tenn. Code Ann. § 28–3–104(a)(3). Berndt v. Tennessee, 769 F.2d 879, 883 (6th Cir. 1986).

The period “begins to run when the plaintiff knows or has reason to know that the act providing the

basis of his or her injury has occurred.” Collyer v. Darling 98 F.3d 211, 220 (6th Cir. 1996).

3 For example, CRMC argues that dismissal is appropriate because Plaintiff did not exhaust

his administrative remedies under the PLRA. True, Plaintiff is now a state inmate and was

previously an inmate in the Putnam County jail, and it is his burden to establish exhaustion. Brown

v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998). By statute, however, he is only required to exhaust

“administrative remedies as are available,” and as they pertain to “prison conditions,” 42 U.S.C. §

1997e. Even accepting that the cavity search related to “prison conditions” as CRMC claims, it is

unclear what available remedies Plaintiff could pursue. He is not suing the jail or his jailers, but is

rather suing a city police officer, a doctor, and a security guard for a search that occurred at a

hospital.

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“Sixth Circuit precedent clearly holds that new parties may not be added after the statute of

limitations has run,” and “[t]he naming of ‘unknown police officers’ in the original complaint does

not save the pleading.” Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). In other words, “‘John

Doe’ pleadings cannot be used to circumvent statutes of limitations.” Id.; see also Cantino v. Roe,

No. 3:17-0499, 2019 WL 1282960, at *2 (M.D. Tenn. Mar. 20, 2019) (refusing to allow amendment

identifying John Doe defendant in Section 1983 action because “Sixth Circuit precedent clearly

holds that ‘replacing a John Doe with a named party in effect constitutes a change in the party sued,’

. . . which cannot be done after the statute of limitations has run”); Krinks v. Haslam, No.

3:12-CV-01095, 2017 WL 1857352, at *4 (M.D. Tenn. May 9, 2017) (stating that “amendment to

identify John Doe officers did not relate back where statute of limitations had run”).

Plaintiff’s cause of action accrued on July 29, 2019, when he was arrested and searched. To

date, “John Doe 1” has not been identified or served with process. This is true even though, in the

screening Order, Plaintiff was specifically “warned that process cannot be served upon an

unidentified defendant,” and was “put on notice of his obligation to conduct a reasonable

investigation or, if necessary, to conduct discovery to promptly determine the full name of the

unidentified defendant, [and] to seek and effect timely service of process upon him as required by

Fed. R. Civ. P. 4(m)[.]” (Doc. No. 7 at 7-8). Any claim against John Doe is now time-barred.

CRMC is entitled to dismissal because the only conceivable basis for holding it liable is that

it employed “John Doe 1,” and a physician (who may or may not have been an employee) performed

the search in a room at the hospital. However, there is no respondeat superior liability under

Section 1983. Iqbal, 556 U.S. at 676. That is, employers and/or supervisors “are responsible only

for ‘their own illegal acts.’ . . . They are not vicariously liable under § 1983 for their employees’

actions.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting Pembaur v. Cincinnati, 475

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U.S. 469, 479 (1986)). Therefore, liability for supervisors or employers attaches “only if the

challenged conduct occurs pursuant to [an] ‘official policy’ [or custom], such that the...

promulgation or adoption of the policy can be said to have ‘cause[d]’ one of its employees to violate

the plaintiff's constitutional rights.” Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014)

(quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978).

Plaintiff does not allege the existence of an “official policy” relating to cavity searches, a

persistent and widespread policy of CRMC condoning improper searches, inadequate training that

led to his alleged deprivation, or the “existence of a custom of tolerance [of] or acquiescence [to]

federal rights violations” by CRMC. Without any such allegations, the complaint must be dismissed

as to CRMC. See Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013); Boulton v. Swanson, 795

F.3d 526, 531 (6th Cir. 2015).

IV. Conclusion

On the basis of the foregoing, the Motions to Dismiss filed by Dr. McLerran and Officer

Trivette will be denied. The Motion to Dismiss filed by CRMC will be granted.

An appropriate Order will enter.

(she.

CHIEF UNITED STATES DISTRICT JUDGE

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