Petition for Writ of Certiorari — Nassau County, New York v. Shain
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* 02 54107 - 42002
No. OFFICE OF THE CLERK
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Supreme Court of the United States
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THE COUNTY OF NASSAU and JOSEPH JABLONSKY,
Petitioners,
VS.
RAY E. SHAIN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
LORNA B. GOODMAN
County Attorney
County of Nassau
Aitorney for Petitioners
One West Street
LORNA B. GOODMAN* Mineola, New York 11501
DAVID B. GOLDIN (516) 571-3015
PETER J. CLINES
of Counsel.
* Counsel of Record
QUESTION PRESENTED FOR REVIEW
The Nassau County Correctional Center (“NCCC’’) insti-
tuted a policy to strip search all inmates admitted to the
facility, to prevent smuggling of weapons, drugs and other
contraband. Respondent brought a lawsuit challenging the
policy, after he was arrested for misdemeanor harassment and
strip-searched upon admission to the Correctional Center.
Applying the Second Circuit’s “reasonable suspicion” stan-
dard first articulated in Weber v. Dell, 804 F.2d 796, 802
(2d Cir. 1986), the Court of Appeals declared the policy
unconstitutional. In conflict with the Fourth, Seventh and
Ninth Circuits, and over the vigorous dissent of Circuit J udge
Cabranes, the Court of Appeals declined to apply the more
deferential “reasonably related to legitimate penological.
objectives” standard established by this Court in Turner v.
Safley, 482 U.S. 78, 87, 89-91 (1987). According to the Court
of Appeals, Turner’s holding is limited to cases involving
“prisons” and does not apply to “jails” such as NCCC.
The question presented is:
Whether this Court’s holding in Turner v. Safley, 482 U.S.
78, 89 (1987), that a prison regulation is constitutional if it
bears a reasonable relation to a legitimate penological ob-
jective, applies to any detention facility whether it is called
a jail, a prison or a correctional center?
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PARTIES TO PROCEEDING
The parties to the proceeding in the United States Court of
Appeals for the Second Circuit were Ray E. Shain, plaintiff-
appellee-cross-appellant, Peter Ellison, individually and as a
Nassau County police officer,’ John Doe, individually and as
an assistant district attorney of Nassau County, the County
of Nassau, Joseph Jablonsky, defendants-appellants-cross-
appellees, and James H. Madden, individually and as a Judge
of Nassau County, defendant-cross-appellee.
' Officer Ellison was incorrectly sued as John Ellison.
lil
TABLE OF CONTENTS
Page
Question Presented for Review ...............cccccccsscesseeeeee i
ee I hi casnnesshniasanensesenasinsvansaavaisnstwnnsiens il
iid linisianavihessabentebibiboneswnieebieennns li
Table of Authoritics....................s.sssscsssssscssessnsessneessoes IV
ida cakisiidhinchitedh Ltebaicudotinenanbennoidneraneaven 1
Statement of Basis of Supreme Court Jurisdiction....... l
Constitutional Provision Involved............:..:::seee0 l
I I as isnssnscrnssichesensnesenesonsnnsstensons 2
A. — Respondent’s Arrest And Incarceration
For Threatening His Spouse....................... 3
B. The Nassau County Correctional Center.... 4
C. NCCC’s Stttp Search Policy ...................... 6
D. The District Court’s Grant Of
SUMMMATY JUARMEM ............00scererosesceesscescesee 7
E. The Court of Appeals’ Divided Decision.... 8
Reasons for Granting the Petition .....................0000e00 10
A. There Is A Direct Conflict In The Circuits
On Whether Turner Applies To “Jails”
no cuplubenbaaue 11
B. The Substantive Standards In Turner And
Weber Are Also In Direct Conflict............. 13
C. The Issue Of Strip Searches Is A Recurring
Question Of Great Practical Importance To
Local Corrections Officials .....................06- 16
NS SETS Otic GPE a A 18
iV
TABLE OF AUTHORITIES
Page
Cases:
Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992)............ 8
Dodge v. County of Orange, 2002 U.S. Dist. LEXIS
13374, No. 02-Civ-769 (S.D.N.Y. July 24, 2002) ... 17
Friend v. Kolodzieczak, 923 F.2d 126
(9" Cir. 1990)............. RTE RIE eee eee 11
Hause v. Vaught, 993 F.2d 1079 (4" Cir. 1993),
cert. denied, 510 U.S. 1049 (1994) uo. eeeeeeeees 12
Mauro v. Araraio, 188 F.3d 1054 (9" Cir. 1999),
cert. denied, 529 U.S. 1081 (2000) ............0. eee 11
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...... 8, 11
Polk v. Parnell, 1997 U.S. App. LEXIS 34812,
No. 96-5711 (6 Cir. December 8, 1997) .........0.00-+- 13n6
Shain v. Ellison, 53 F. Supp. 2d 564
aa ae <A Sicanicaniabihiaceiaddaenciabacinaapaviidalbasiais passim
Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001)................ passim
Siddiqi v. Leak, 880 F.2d 904 (7" Cir. 1989) .........0000-. 11
Thomas v. Leslie, 1999 U.S. App LEXIS 7795, Nos.
97-3346, 97-3361 (10" Cir. April 29, 1999)............ 13n6
Thornburgh v. Abbott, 490 U.S. 401 (1989) ................ 12
Turner v. Safley, 482 U.S. 78 (1987)..........ccceceseeeeeeeees passim
Wachtler v. County of Herkimer, 35 F.3d 77
ey. PUI sitar scdinnctttncsissescetabsanbidapadisviiniensoemaiecctnese 8
Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988) .............. 8
Washington v. Harper, 494 U.S. 210 (1990)................ 8
Weber v. Dell, 804 F.2d 796 (2d Cir. 1986)................. passim
United States v. El-Hage, 213 F.3d 74
GE als NE seein hdenessabediincilioenrieaneaanamaaaaiin 13n7
Statutes:
TAUB. Seatlnns TIGIY sscciiisivniemtoliaccmea 1
Opinions Below
The opinion of the United States Court of Appeals for the
Second Circuit (App., 9') is reported at Shain v. Ellison, 273
F.3d 56 (2d Cir. 2001). The opinion and order of the United
States District Court for the Eastern District of New York
(App., 44) is reported at Shain v. Ellison, 53 F. Supp.2d 564
(E.D.N.Y. 1999).
Statement of Basis of
Supreme Court Jurisdiction
The judgment of the Circuit Court sought to be reviewed
was filed on October 19, 2001 and a timely petition for panel
rehearing with suggestion for rehearing en banc was denied
on May 7, 2002. App., 3. On June 28, 2002, Ruth Bader
Ginsburg, Associate Justice of this Court, granted petitioners
County of Nassau and Joseph Jablonsky an extension of
time until October 4, 2002 to file a petition for a writ of
certiorari. App., 1. Jurisdiction to review the judgment of the
Circuit Court is conferred by 28 U.S.C. Section 1254(1).
Federal jurisdiction in the court of first instance was based on
28 U.S.C. Sections 1331 and 1343.
Constitutional Provision Involved
This case involves the following constitutional provision:
U.S. Const. Amend. IV:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
' References to the Appendix are indicated by “App.”
Statement of the Case
.This petition seeks review of a Court of Appeals decision
that undermines the safety of corrections officers and inmates
of county jails, by unreasonably restricting the right to strip
search misdemeanor arrestees who may be carrying danger-
ous weapons and narcotics. At issue is whether constitutional
challenges to the policies and practices of local correctional
facilities are governed by this Court’s holding in Turner v.
Safley, 482 U.S. 78, 89-91 (1987). Review is sought to re-
solve a conflict among the circuits on this important question.
This case involves the strip search policy of the Nassau
County Correctional Center (“NCCC” or “Correctional
Center”) in Nassau County, New York. Respondent claimed
that NCCC’s policy violated his Fourth Amendment right
to be free from unreasonable search and seizure. Petitioner
submits that the relevant test for assessing such a claim was
set forth in Turner, which held that “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological in-
terests.” 482 U.S. at 89-90. Confronting the Court in Turner
were constitutional challenges to regulations of the Missouri
Division of Corrections. Those rules restricted correspon-
dence between inmates at different prisons and prohibited
inmates from marrying without the approval of the prison
superintendent. The Court rejected the assertion that the
regulations were subject to a heightened standard of scrutiny,
on the grounds that “[s]ubjecting the day-to-day judgments
of prison officials to an inflexible strict scrutiny analysis
would seriously hamper the ability to anticipate security
problems and to adopt innovative solutions to the intractable
problems of prison administration.” Jd. at 89. Instead, the
Court fashioned the “reasonably related” test quoted above,
in order to be “responsive both to the policy of judicial re-
straint regarding prisoner complaints and to the need to
as
protect constitutional rights.” /d. at 85 (internal quotation/
citation omitted).
In this case, the Court of Appeals rejected the application
of Turner in favor of its own standard,-first articulated in the
pre-7urner decision of Weber v. Dell, 804 F.2d 796, 802 (2d
Cir. 1986), cert. denied, 483 U.S. 1020 (1987). Weber holds
that penological objectives, no matter how compelling, cannot
justify strip searches of misdemeanor arrestees, absent reason-
able suspicion that they are concealing contraband. Based on
Weber, the Court of Appeals declared NCCC’s policy to be
contrary to law.
The Court of Appeals asserted that Turner applies ex-
clusively to “prisons” and not to “jails” such as NCCC —
“an artificial, untenable distinction,” in the view of dissenting
Judge Cabranes, which “creates a Circuit split where there
was none — a Circuit split that calls out for resolution by the
Supreme Court.” App., 32. The circuits are “split” because,
in contrast to the Second Circuit, the Fourth, Seventh and
Ninth Circuits have expressly applied Turner in the county
jail setting, with the Ninth Circuit squarely rejecting the jail/
prison distinction adopted by the Second Circuit here.
Like the dissent, the concurrence of Circuit Judge Katz-
mann also questioned the validity of the majority opinion.
Although he felt “compelled to follow Circuit precedent,”
Judge Katzmann acknowledged that the “Circuit’s choice to
distinguish ... between ... jails and prisons is not neces-
sarily persuasive to me... .” App., 31.
A. Respondent’s Arrest And Incarceration
For Threatening His Spouse
This case arose from the July 29, 1995 arrest of respondent
Ray E. Shain for allegedly threatening to rape his estranged
wife during a domestic dispute. App., 12. According to his
spouse, Mr. Shain had a history of abusive behavior toward
her. Mr. Shain was taken into custody by Nassau County
police officers and charged with first degree harassment under
N.Y. Penal Law Section 240.25 — a misdemeanor. A
pat-down search of Mr. Shain’s person turned up a pocket
knife, which he failed to surrender when specifically directed
to empty his pockets. After arraignment on a family offense
petition, Mr. Shain was remanded by the Court to NCCC,
where he was processed into the facility. App., 13. As part of
the intake procedure, Mr. Shain was instructed to disrobe and
a male corrections officer conducted a non-invasive, visual
body-cavity search, in order to detect weapons or contraband.
App., 13, 47. Pursuant to NCCC policy, such searches are
conducted in a private cubicle, and do not entail any physical
contact. App., 47. Typically, the searches last no more than
two minutes. App., 47.
The next morning, Mr. Shain was again strip-searched
prior to being transported to an appearance in Nassau County
Family Court. Eventually, various charges against Mr. Shain
were withdrawn or adjourned in contemplation of dismissal.
App., 13.
B. The Nassau County Correctional Center
The NCCC is located in Nassau County, Long Island, in
the densely populated New York City metropolitan region.
Adjacent to the Borough of Queens in the City of New York,
Nassau County is itself a substantially urbanized area with
a population of 1.3 million people. Given the community
it serves, NCCC faces demands and challenges common
to those faced by major metropolitan correctional facilities
across the country. It is operational 24 hours a day, 365 days
a year. In 1995, over 14,000 inmates were processed into the
facility and on any given day approximately 1,800 inmates
were housed there. App., 39. To operate the facility,” NCCC
had approximately 1,100 employees on staff in 1995, in-
? Under the Nassau County Charter, the Sheriff’s Department is vested
with authority to manage NCCC. Art. XX, Sec. 2003.
—————E————————“€-_ a
cluding 950 corrections officers responsible for maintaining
security, order and discipline. See App., 39, 51-52. For the
corrections officers, each day is divided into three tours. On
average, there were 125 corrections officers on duty during
each tour in 1995, resulting in an inmate to guard ratio of
approximately 14 to one.
The NCCC inmate population includes both pre-trial
detainees and convicted criminals. The convict population en-
compasses those serving terms of one year or less, and those
awaiting transfer to upstate prison facilities, usually for more
serious offenses. The inmate profile runs the gamut from
those charged with minor misdemeanors to those convicted
of the most serious violent crimes, such as rape and murder.
App., 52. As in any correctional facility, there is a potential
for explosive violence among the inmates. Of particular con-
cern is the growing problem of gang infiltration, including
the notorious “Crips” and “Bloods” street gangs. See App.,
52. The security threat posed by gang members was severe
enough to prompt the establishment of a special NCCC
gang identification unit, to monitor the movements of gang
members in an attempt to forestall conflict among the rival
factions.
A random examination of NCCC files for the years 1996
and 1997 revealed that on six occasions, inmates were dis-
covered to have either razor blades, a screw driver, a handcuff
key, or a metal “shank” during the strip search. See App.,
52. In addition, narcotics were found on eight occasions.
App., 52. The consequences of any penetration of weapons
into the facility are potentially lethal to guards and prisoners.
Indeed, NCCC corrections officers have been attacked
by inmates wielding razor blades, notwithstanding the strip
search policy. Moreover, the raw numbers do not reveal the
full extent of the need for strip searches. The existence of a
strip search policy is itself a deterrent to smuggling. Once
it becomes known that misdemeanor arrestees have an
opportunity to introduce contraband, attempts to smuggle
weapons and drugs are likely to increase. According to cor-
rections officials, this is especially true in the case of gang
members, who may well subject themselves to misdemeanor
arrest for the purpose of funneling weapons io their gang
associates.
C. NCCC’s Strip Search Policy
In order to promote the safety of officers and inmates,
NCCC instituted a strip search policy to prevent the influx of
weapons and contraband. The written policy is set forth, inter
alia, in the Nassau County Sheriff’s Department Policies and
Procedures:
All inmates admitted or discharged, while in civilian
Clothes, shall be segregated from other in-residence
inmates to prevent possible transfer of contraband.
(Rule 8.3)
* %* =*
The admitting process of new inmates shall include a
thorough search of each inmate, to include a strip search
and examination of all clothing for contraband, prior to
their arrival in the housing area. (Rule 8.4)
As reflected in the rule, a primary purpose of the search is
to facilitate examination of the inmate’s clothing. The body
search involves a strictly visual inspection of the hair, ears,
mouth, underarms and rectum. In addition, male prisoners
are directed to lift external genitalia for inspection. App., 13.
As noted above, the searches are carried out in partitioned
cubicles, do not entail physical contact and generally last
under two minutes. (According to the officer who searched
Mr. Shain, the search took approximately one minute. App.,
47.) Male prisoners are searched by male corrections officers
and female prisoners by female officers.
D. The District Court’s Grant Of
Summary Judgment
On July 29, 1996, Mr. Shain commenced an action in the
United States District Court for the Eastern District of New
York against various defendants including petitioners herein.
The suit was brought under 42 U.S.C. Sections 1983 and
1988, and claimed multiple civil rights violations arising
out of Mr. Shain’s arrest and incarceration. Among his
claims was a challenge to the constitutionality of NCCC’s
strip search policy. Mr. Shain sought both declaratory and in-
junctive relief, as well as unspecified monetary damages,
including punitive damages. See App., 14.
While the District Court was “sympathetic to the legitimate
security and safety needs expressed by the Nassau County
Sheriff” (App., 45), it nevertheless granted plaintiff summary
judgment on the unconstitutionality of the strip search policy,
based on Weber v. Dell and the cases applying it.’ Weber
held that:
[T]he Fourth Amendment precludes prison officials
from performing strip/body cavity searches of arrestees
charged with misdemeanors or other minor offenses
unless the officials have a reasonable suspicion that the
arrestee is concealing weapons or other contraband
> While acknowledging the evidence put forward by NCCC to justify
the policy, the District Court determined that “[g]iven the state of the law,
however, the Court could not properly consider this evidence.” App., 53.
See also id. at 50: “In light of this precedent [i.e., Weber v. Dell], this court
is precluded from considering the institutional concerns of the NCCC.”
However, the District Court noted that:
a full consideration of the facts surrounding the NCCC and its
particular concerns may have resulted in a finding that a one or two
minute strip search ... might well be warranted when balanced
against the concerns of this particular institution. App., 53.
based on the crime charged, the particular character-
istics of the arrestee and/or the circumstances of the
arrest.
804 F.2d at 802.
The District Court found that Nassau County and the
Nassau County Sheriff were subject to monetary liability
resulting from implementation of the policy.* App., 50.
E. The Court of Appeals’ Divided Decision
The Court of Appeals affirmed the District Court’s deter-
mination, also on the strength of the Weber-line of decisions.
See Shain, supra, 273 F.3d at 62-63 (citing Weber, Walsh v.
Franco, 849 F.2d 66 (2d Cir. 1988) and Wachtler v. County
of Herkimer, 35 F.3d 77 (2d Cir. 1994)); App., 18.
To reach that result, the Court was compelled to distinguish
several cases applying the Turner doctrine, including the
Second Circuit’s own decision in Covino v. Patrissi, 967
F.2d 73 (1992), which upheld a prison regulation permitting
random strip searches, as well as the decisions of this Court
in Washington v. Harper, 494 U.S. 210 (1990) and O’Lone v.
Estate of Shabazz, 482 U.S. 342 (1987), both of which were
prisoner’s rights cases reaffirming the Turner analysis. The
Court of Appeals determined that:
Turner, Washington, O’Lone and Covino each approved
a regulation of a state correctional facility or prison, but
NCCC is a local correctional facility or jail... . Neither
Turner nor Covino purports to address any issue other
than prison regulations. Thus these cases can be read
* The District Court granted defendants’ motion to dismiss Shain’s false
arrest, malicious prosecution and abuse of process claims. App., 15. Sub-
sequently, a jury found for defendants on respondent’s excessive force
claim and awarded no damages for the strip search. The District Court
thereafter entered judgment granting Shain nominal damages of one
dollar. App., 43a.
consistently with Weber and its progeny by confining
them to their facts and actual holdings.
App. 22-23.
Citing Black’s Law Dictionary, the majority emphasized
the supposed difference in the inmate populations of jails and
prisons, declaring that “a prison is ‘a state or federal facility
of confinement of convicted criminals, especially felons.
A jail, on the other hand, is ‘a place where persons awaiting
trial or those convicted of misdemeanors are: confined.’”
App., 22. Therefore, the majority reasoned, Turner was not
controlling. The majority did not acknowledge that NCCC
actually houses felons convicted of the major offenses, in-
cluding crimes of violence, as well as pre-trial detainees and
misdemeanants.°
Judge Cabranes dissented, based on his belief that the
majority opinion “unnecessarily limits the reach of Supreme
Court cases in this area” and “requires that correctional fa-
cilities such as NCCC be run in a manner that defies common
sense.” App., 32. He also observed that “our sister Circuits
routinely apply Turner’s ‘reasonably related’ standard to
cases involving jails.” App., 35.
Judge Cabranes would have applied the Turner standard to
NCCC because it “envisions a flexible multi-factor inquiry
... [which] would permit administrators to craft body cavity
search policies” based on the actual conditions prevailing at
the Nassau facility. App.; 43. “By contrast,” Judge Cabranes
noted, the Weber standard requires prison administrators to
ignore these conditions and “focus on only one set of vari-
ables — those related to reasonable suspicion itself.” App.,
43.
* The Court of Appeals remanded the case to the District Court for
findings and conclusions regarding plaintiff’s request for an injunction
against future enforcement of the strip search policy. App., 25.
5 apace
10
Circuit Judge Katzmann concurred in the majority opinion,
but he too expressed serious reservations about its reasoning.
Judge Katzmann believed himself bound by Second Circuit
precedent to invalidate NCCC’s policy. App., 31. However,
with respect to the majority’s distinction between jails and
prisons and misdemeanors and felonies, Judge Katzmann
doubted whether “either is a distinction I would make were I
considering the question in the first instance.” App., 31.
Reasons for Granting the Petition
Certiorari should be granted to resolve a split in the circuits
and settle the important federal question raised in this peti-
tion. See “Considerations Governing Review on Certiorari,”
Sup. Ct. R. 10(a) and (c). The simple fact is that the Second
Circuit ruling makes jails more dangerous, by making it more
difficult for corrections personnel to intercept weapons and
drugs. Certiorari is wairanted to determine whether the Court
of Appeals applied the correct standard when it superseded
the professional judgment of corrections officials and struck
down NCCC’s strip search policy.
Strip searches are a highly sensitive matter. They are un- ‘
deniably unpleasant for all concerned. Nevertheless, these
searches are intended to prevent much graver violations
of personal integrity, i.e., violent assault by inmates armed
with smuggled weapons or intoxicated with contraband nar-
cotics. Strip searches are not a punishment. They are, in the
judgment of professionals responsible for maintaining jail
security, an unpleasant necessity, as are jails themselves.
Understandably, inmates would generally prefer to avoid
strip searches. Yet, inmates are the ultimate beneficiaries
of strip search policies, inasmuch as they create a safer cus-
todial environment.
11
A. There Is A Direct Conflict In The Circuits On
Whether Turner Applies To “Jails” As Well As
“Prisons”
The split in the circuit on this important federal question is
clear and irreconcilable. As acknowledged in Judge Cabranes’
dissent (but ignored by the majority), other circuits routinely
employ the Turner test to resolve constitutional disputes
involving “jails” (as defined by the Second Circuit) as well as
“prisons.”
Thus, in Siddigi v. Leak, 880 F.2d 904 (7" Cir. 1989), the
Seventh Circuit expressly held that Turner “set out the stan-
dard” for evaluating the constitutional claims of an inmate of
the Cook County Jail. 880 F.2d at 909 (citing, inter alia,
Turner, 482 U.S. at 89 and O’Lone, supra, 482 U.S. at 349).
No distinction was drawn between jails and prisons.
Likewise, Ninth Circuit decisions consistently apply Turner
when scrutinizing policies and practices of county jails. For
example, Friend v. Kolodzieczak, 923 F.2d 126 (9" Cir.
1990) involved a challenge to a policy of the Alameda North
County Jail. Implicitly rejecting the semantic distinction
embraced by the Second Circuit, the Ninth Circuit charac-
terized the claim as a challenge to “prison regulations” and
analyzed it under the Turner and O’Lone tests. Jd. at 127.
This implicit rejection was made explicit in the subsequent
decision in Mauro v. Arapaio, 188 F.3d 1054, 1058-62 (9"
Cir. 1999) (en banc), cert. denied, 529 U.S. 1018 (2000),
where the Court applied Turner to a claim involving the
Maricopa County jail system. In his vigorous dissent, Circuit
Judge Kleinfeld squarely confronted the Mauro Court with
the alleged dichotomy between jails and prisons. “ ‘Prisons’
and ‘jails’ are not the same thing,” argued Judge Kleinfeld,
anticipating the position of the Second Circuit here. Jd. at
i... = See
12
1067. “Jails hold people pending trial, and for short punitive
sentences after conviction. Prisons hold people convicted and
sentenced to substantial incarceration, ordinarily for felonies.
The case before us is a jail case, not a prison case.” Jd.( citing
Black’s Law Dictionary 834, 1194 (6™" ed. 1990)). Therefore,
he concluded, Turner “is the wrong case,” because it ex-
clusively “applies to prisons. . . .” Jd. Exactly like the Second
Circuit here, Judge Kleinfeld cited Black’s Law Dictionary
to support an asserted Constitutional differentiation between
jails and prisons. By rejecting Judge Kleinfeld’s position, the
Ninth Circuit set the stage for the clean circuit split created
by Shain.
In addition to the Seventh and Ninth Circuit decisions
cited by Judge Cabranes, the Fourth Circuit has also applied
Turner to local detention facilities. In Hause v. Vaught, 993
F.2d 1079 (4" Cir. 1993), cert. denied, 510 U.S. 1049 (1994),
which involved the constitutional claims of a pre-trial de-
tainee at the Horry County Detention Center in South Carolina,
the Fourth Circuit expressly relied on Turner as well as
Thornburgh v. Abbott, 490 U.S. 401 (1989), a subsequent
decision applying the Turner standard. While acknowledging
that these cases “did not involve pretrial detainees . . .,” the
court reasoned that “the concern for security is the same for
pretrial detainees as for convicted inmates.” 993 F.2d at
1082. “Accordingly,” the Fourth Circuit held, “we shall apply
the Turner standard to determine the constitutionality of the
Detention Center’s restrictions. . . .” Id.
In short, the Second Circuit says that Turner does not
apply to jails, while the Fourth, Seventh and Ninth Circuits
13
say that it does.° This Court’s intervention is needed to
resolve this conflict among the Circuit Courts.’
B. The Substantive Standards In Turner And Weber.
Are Also In Direct Conflict.
The substantive standards at work in Weber and Turner
conflict on several levels. First, these cases reflect funda-
mentally opposing views on the proper role of the courts
in setting penal policy. ZJurner’s “relatively deferential
‘reasonably related’” test recognizes the judiciary’s limited
institutional competence in the field of prison administration.
App., 38. Without abandoning the judicial duty to safeguard
individual rights, the Turner decision acknowledges that the
“complex and intractable” problems which beset American
correctional facilities are “‘not readily susceptible of reso-
lution by judicial decree.’” App., 38 (quoting Turner, 482
U.S. at 85). In the words of Turner:
Running a prison is an inordinately difficult undertaking
that requires expertise, planning and the commitment
of resources, all of which are peculiarly within the
province of the legislative and executive branches of
government. Prison administration is, moreover, a task
° The Sixth and Tenth Circuits too have applied Turner to claims in-
volving county correctional facilities, albeit in nonbinding, unpublished
opinions. See Polk v. Parnell, 1997 U.S. App. LEXIS 34812,*6, No. 96-
5711 (6" Cir. December 8, 1997)(involving constitutional claims against
officials of the county jail of Fulton Courty, Kentucky); Thomas vy.
Leslie, 1999 U.S. App. LEXIS 7795, *15-*19 (10" Cir. April 29, 1999)
(relying on Turner to resolve challenge to regulation of Reno County
Detention Center). These opinions are reproduced in the appendix at
A-71 and A-54.
. Indeed, the Second Circuit’s own jurisprudence remains internally con-
flicted in this area, despite the efforts of the Court below to bring harmony
to the case law. As Judge Cabranes pointed out, the majority’s holding
fails to account for the fact that the Second Circuit has previously applied
“Turner in a jail setting.” App., 37 (citing United States v. El-Hage, 213
F.3d 74, 81-82 (2d Cir. 2000)).
14
that has been committed to the responsibility of those
branches, and separation of powers concerns counsel
a policy of judicial restraint. /d. at 84-85.
In addition, when a dispute concerns a state or local
facility, principles of federalism also come into play. See id.:
“Where a state penal system is involved, federal courts have
... additional reason to accord deference to the appropriate
prison authorities.”
As summed up by Judge Cabranes’ dissent, “a basic pur-
pose of the ‘reasonably related’ standard is to prevent the
federal courts from becoming overly involved in the admin-
istration of corrections-related facilities that have chronic
problems that the judiciary is, comparatively speaking,
poorly-positioned to solve.” App., 38-39.
In contrast, the Second Circuit endorses a more intrusive
judicial role in the affairs of correctional institutions. Rather
than defer to the judgment of state corrections officials,
the Weber standard dictates a bright-line rule which these
officials must follow, regardless of the conditions which
prevail at their detention facilities. Under no circumstances
may local correctional facilities strip-search misdemeanor
arrestees without reasonable suspicion. Weber thus seeks to
impose solutions to perceived correctional problems through
judicial decree, the very approach cautioned against in
Turner.
In comparison to Turner, the Second Circuit’s approach
accords much less weight to the administrative priorities set
by those who manage detention facilities. This is demon-
strated by the Circuit Court’s willingness to discount the
security concerns raised by NCCC officials in the case at bar.
See, e.g., the Circuit Court’s determination that, despite the
policy judgment of NCCC officials that a strip search is
a necessary precaution for virtually all inmates, “[i]t is far
less obvious that misdemeanor arrestees frequently or even
RE natn ne rer
15
occasionally hide contraband in their bodily orifices.” App..
20. See also App., 20-22 (rejecting NCCC’s conclusion that
“arraignment represents a crucial step in the criminal pro-
ceedings that justifies heightened security measures.”) This
inclination to second-guess the judgments and contradict
the conclusions of professional penologists is inconsistent
with the spirit of Turner.
Moreover, the differences between Turner and Weber are
not merely philosophical. The specific legal standards in
Weber and Turner are also not susceptible of reconciliation
and the differences in the way they are applied must have a
profound impact on prison administration. Turner sets forth a
flexible balancing test that requires the reviewing court to
consider a broad range of factors in assessing the lawfulness
of a practice such as the NCCC’s strip search policy. It
thereby mirrors the decision-making process engaged in by
the administrators themselves.
Under Turner, prison officials and reviewing courts are
_ free to recognize that institutional conditions may justify a
blanket strip search policy, even where individualized sus-
picion may be absent. The detainee’s right to be free from
unreasonable search is balanced against the safety and security
needs at the particular facility in question. Again as noted by
the dissent:
In determining how this balance should be struck in the
context of any particular facility, common sense dictates
that a number of factors are relevant, including whether
the facility is overcrowded; whether it is equipped with
drug-sniffing dogs and metal detectors; whether it has
been infiltrated by gangs; and whether prisoners have
attempted previously to secrete contraband in a manner
detectable only by cavity searches.
App., 43. “By contrast,” Judge Cabranes further noted, “the
‘reasonable suspicion’ standard requires prison administrators
16
to focus on only one set of variables — those related to rea-
sonable suspicion itself.” App., 43. Corrections officials are
constitutionally prohibited from considering any of the factors
enumerated above — factors which the Turner test would
leave them free to take into account. Clearly, then, there is
a basic discrepancy between the flexible standard in Turner
and the more rigid Weber approach. Because there is a clear
split among the Courts of Appeals on this question of consi-
derable importance, this is a fitting case for granting the wnt.
C. The Issue of Strip Searches Is A Recurring
Question Of Great Practical Importance To
Local Corrections Officials
The Court of Appeals decision is of great practical sig-
nificance to corrections officials because it hampers their
ability to maximize safety and security at detention facilities.
It rests on the dubious assumption that persons arrested for
misdemeanors are unlikely to conceal weapons or narcotics,
and that prison authorities are wrong to believe otherwise.
It fails to consider that misdemeanor arrestees frequently
have a history of more serious criminal violations, including
felony convictions. It opens the door for inmates to coerce
or cajole others, especially fellow gang members, into smug-
gling contraband. It does not account for the fact that in the
typical jail, there are numerous opportunities for inmates to
arrange to receive illicit material, for example, through un-
monitored mail and telephone communications, or frequent
contact visits. It gives insufficient weight to the fact that strip
searches remain the most effective method for detecting
contraband. While magnetometers and similar electronic de-
vices are helpful, the technology is not infallible, and is
not designed to detect narcotics. Strip searches are therefore
an indispensable tool for maintaining a secure prison
environment. Exempting an entire class of misdemeanor
arrestees from these searches, as the Second Circuit does,
compromises their effectiveness and makes jails less safe.
“Ss Sa ee eee oe eee ae
17
The “difficulty with the majority’s holding is that it interprets
the Constitution as requiring large, complex facilities such
as the NCCC to be run less intelligently — and less safely —
than ought to be the case.” App., 42 (Cabranes, J., dissenting).
The Second Circuit rule and its unfortunate effects are not
restricted to NCCC. Strip search policies have been curtailed
at penal institutions throughout the Second Circuit, including
the New York City Department of Corrections, the largest
municipal detention system in the nation. The strip-search
issue, moreover, is a recurring one for local detention fa-
cilities. Most recently, the issue surfaced in an July 24, 2002
federal district court opinion, which relied on the Court of
Appeals decision to condemmthe-strip search policy at the
Orange County Jail in Orange County, New York. See Dodge
v. County of Orange, 2002 U.S. Dist. Lexis 13374, No. 02
Civ. 769 (S.D.N.Y. July 24, 2002).
Any weapon that passes into the prison population puts
both officers and inmates at risk. Slashings and stabbings are
a constant threat. By making the walls of detention facilities
more porous for weapons and drugs, the Court of Appeal’s
decision below has increased these risks.
18 '
Conclusion
The petition should be granted.
Respectfully submitted,
- LORNA B. GOODMAN
County Attorney
County of Nassau
Attorney for Petitioners
One West Street
LORNA B. GOODMAN* Mineola, New York 11501
DAVID B. GOLDIN (516) 571-3015
PETER J. CLINES
of Counsel.
* Counsel of Record
APPENDIX
TABLE OF CONTENTS
Page
Letter dated June 28, 2002, Ruth Jones, Assistant
Clerk, United States Supreme Court, to Paul F.
Millus, extending time to file petition for a writ
of certiorari to and including October 4, 2002........A-1
Order of the United States Court of Appeals for the
Second Circuit, filed May 7, 2002, denying petition
ei tececsesceusysscoseesecsacseoseaceese A-3
Order and Judgment of the United States Court of
Appeals for the Second Circuit, filed
IWovemer 9, 2001...................0ccc..cccccccceccocsscecocsceee A-6
Opinion of the United States Court of Appeals for
the Second Circuit, dated October 19, 2001........... A-9
United States District Court, Eastern District
of New York, Judgment, dated
ee A-43a
Memorandum and Order, dated June 1, 1999, of
Hon. Leonard D. Wexler, U.S.D.J., Eastern
gC A-44
Unpublished Opinion of the United States Court of
A ppeals forthe Tenth C ircuit, Thomas v. Leslie,
Nos. 97-3346, 97-3361, filed April 21, 1999......... A-54
Unpublished Opinion of the United States Court of
Appeals for the Sixth Circuit, Polk v. Parnell,
No. 96-5711, filed December 8, 1997...............00.... A-71
A-1 1015-30
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543-0001
WILLIAM K.SUTER AREA CODE 202
CLERK OF THE COURT 479-3011
Mr. Paul F. Millus
Snitow Kanfer Holtzer & Millus
575 Lexington Avenue
New York, NY 10022-6102
Re: Nassau County, et al.
v. Ray E. Shain, et al.
_ Application No. 01A1004
Dear Mr. Millus:
The application for an extension of time within
which to file a petition for a writ of certiorari in the
above-entitled case has been presented to JusticeG Insbuy,
w ho on June 28, 2002, extended the time to and inclid-
ing O ctober4, 2002.
This Letter has been sent tp those designated on
the attached notification list.
Sincerey,
WILLIAM K.SUTER,Clexk
By /s/ Ruth Jones
Ruth Jones
Assistant Clerk
eoeret ee.
A-2
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543-0001
WILLIAM K. SUTER Area Code 202
Clerk of the Court 479-3011
NOTIFICATION LIST
Mr. Paul F. Millus
Snitow Kanfer Holtzer & Millus
575 Lexington Avenue
New York, ny 10022-6102
Clerk
United States Court of Appeals for
the Second Circuit
1702 US Courthouse, Foley Sq.
New York, NY 10007
A-3 1015-30
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES COURT HOUSE
40 FOLEY SQUARE
NEW YORK 10007
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house, Foley Square, in the City of New York, on the 7th
day of May two thousand two.
RAY E. SHAIN,
Plaintiff - Appellee - Appellant,
V. 00 - 7061
JOHN ELLISON, (Shield No. 761), individually and as
Nassau County police officer; JOHN DOE, Individually
and as an Assiatant District Attorney of Nassau County;
THE COUNTY OF NASSAU, a Municipal Corporation;
JOSEPH JABLONSKI,
Defendants - Appellant - Cross-Appellees.
JAMES H. MADDEN, individually and as a Judge of
Nassau County,
Defendant-Cross-A ppellee.
UNITED STATES COURT OF APPEALS
FILED
NOV. 9, 2001
Roseann B. Mackechnie,
Clerk
SECOND CIRCUIT
A petition for panel rehearing and a petition for rehear-
a a banc having been filed herein by the appellant
John Ellison, et al.
Upon consideration by the panel that decided the
appeal, it is
Ordered that said petition for rehearing is DE-
NIED.
A-4
It is further noted that the petition for rehearing en banc
has been transmitted to the judges for the court in regular
active service and to any other judge that heard the appeal
_ that no such judge has requested that a vote be taken
ereon.
FOR THE COURT
ROSEANN B. MACKECHNIE, CLERK
By: /s/ AUTHUR M. HELLER
Arthur M. Heller,
Administrative Attorney
Mr. Paul F. Millus
Snitow Kanfer Holtzer & Millus
575 Lexington Avenue
New York, ny 10022-6102
A-6
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Ata stated Term of the United States Court of —, for
the Second Circuit, held at theUnited States Courthouse,
Foley Square, in the City of New York, on the 19th day
of October, two thousand and one.
BEFORE: Hon. Jose A. Cabranes,
Hon. Rosemary S. Pooler,
Hon. Robert A. Katzmann,
Circuit Judges.
Docket Nos. 00-706(L), 007069(XAP)
RAY E. SHAIN,
V. Plaintiff-Appellee-Cross-Appellant,
JOHN ELLISON, (Shield No. 761), individually and as
a Nassau County police officer; JOHN DOE, individu-
ally and as an Assistant District Attorney of Nassau
County; THE COUNTY OF NASSAU, a Municipal
Corporation; JOSEPH JABLONSKY,
Defendants-Appellants-Cross-Appellees.
JAMES H. MADDEN, individually and as a Judge of
Nassau County,
Defendant-Cross-Appellees.
UNITED STATES COURT OF APPEALS
FILED
NOV. 9, 2001
Roseann B. Mackechnie,
Clerk
SECOND CIRCUIT
_ ee ee ee =
A-7
Appeal from the United States District Court for
the Eastern District of New York.
This cause came on to be heard on the transcript
of record from the United States District Court for the
— District of New York and was argued by coun-
sel.
ON CONSIDERATION WHEREOF, it is hereby
ORDERED, ADJUDGED and DECREED that the
Judgment of said district court be and it hereby is AF-
FI D in part and REMANDED to the district court
for further proceedings in accordance with the opinion
of this Court.
A TRUE COPY
Roseann B. MacKechnie, CLERK
by:/s/
Deputy Clerk
FOR THE COURT:
ROSEANN B. MACKECHNIE, Clerk
by
/s/ ARTHUR M. HELLER
Arthur M. Heller, Administrative Attorney
ISSUED AS MANDATE: 5/7/02
A-8
— fer... 7
Mr. Paul F. Millus
Snitow Kanfer Holtzer & Millus
575 Lexington Avenue
New York, ny 10022-6102
ee
A-9
RAY E. SHAIN, Plaintiff-Appellee-Cross-Appellant, -v-
JOHN ELLISON, (Shield No. 761), individually and as
a Nassau County police officer; JOHN DOE, individu-
ally and as an Assistant District Attorney of Nassau
County; THE COUNTY OF NASSAU, a Municipal
Corporation; JOSEPH JABLONSKY, Defendants-
Appellants-Cross-Appellees, JAMES H. MADDEN,
individually and as a Judge of Nassau County, Defen-
dant-Cross-Appellee.
Docket Nos. 00-7061 (L), 00-7069 (XAP)
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
October 19, 2000, Argued
October 19, 2001, Decided
COUNSEL:
ROBERT L. HERB3sT, Herbst & Greenwald, LLP (Gayle
Pollack, on the brief), New York, NY; RAY E. SHAIN,
Pro se, Williston Park, NY, for Plaintiff-Appellee-Cross-
Appellant.
PAUL F. MILLUS, Snitow & Cunningham, LLP (Robert
P. Devlin, on the brief), New York, NY, for Defendants-
Appellants-Cross-Appellees County of Nassau and Joseph
Jablonsky.
A-10
CAROL FISCHER, Assistant Solicitor General (Eliot
Spitzer, Attorney General of the State of New York, Rob-
ert E. Forte, Deputy Solicitor General, and Michael S.
Belohlavek, Assistant Solicitor General, on the brief), New
York, NY, for Cross-Appellee [**2] Judge James H. Mad-
den.
Herbst & Greenwald, LLP (Robert L. Herbst and Gayle
Pollack of counsel), New York, NY, for Amici Curiae Pu-
tative Class Members in Augustin v. Jablonsky.
Emery Cuti Brinckerhoff & Abady PC (Richard D. Em-
ery, Matthew D. Bnnckerhoff, John R. Cuti, and Nina
Morrison, of counsel), New York, NY for Amici Curiae
65,000 Class Members in Tyson v. City of New York and
Plaintiffs in O’ Day v. Nassau County.
Daniel L. Greenberg, Sarah Kerr, John Boston, Laura
Johnson, New York, NY, for Amicus Curiae Legal Aid
Society.
Michael D. Hess, Corporation Counsel of the City of New
York (Larry A. Sonnenshein and Kathleen Alberton of
counsel), New York, NY, for Amicus Curiae New York
City Department of Correction.
JUDGES:
Before: CABRANES, POOLER, KATZMANN, Circuit
Judges. Judge Katzmann concurs in a separate opinion;
Judge Cabranes dissents in part in a separate opinion.
A-11
OPINION BY: .
POOLER
OPINION:
POOLER, Circuit Judge:
This appeal requires us to determine Whether it was
clearly established in July 1995 that corrections officers in
a local correctional facility could not perform a strip search
including a non-intrusive examination of body cavities on
an individual] arraigned on misdemeanor charges unless
the officers had reasonable suspicion that the individual
possessed contraband or weapons. We hold that after this
court’s decisions in Wachtler v. County of Herkimer, 35
F.3d 77 (2d Cir. 1994), Walsh v. Franco, 849 F.2d 66 (2d
Cir. 1988), and Weber v. Dell, 804 F.2d 796 (2d Cir. 1986),
no law enforcement officer reasonably could have believed
that it was permissible to perform such a search absent
individualized reasonable suspicion.
BACKGROUND
I. Shain’s Arrest and Strip Search
On July 29, 1995, Nassau County police officers
including Peter Ellison nl responded to a 911 call from
Dr. Donna Denier, who was then married to plaintiff Ray
Shain, at the couple’s residence. Denier showed Ellison a
recently expired order of protection that required Shain to
stay out of her bedroom. When Ellison realized that he
could not arrest Shain for violation of the order of protec-
tion, he interviewed Denier because
[He] wanted to get a clearer picture of exactly what [Shain]
did, to see if [he] could arrest him, if there was another
charge that [he] could arrest him on besides the order of
protection [and after the interview, he] determined that [he]
A-12
could arrest him minus the order of protection, without it.
Ellison testified that Denier told him Shain entered her
room and threatened to rape her and that Ellison then be-
lieved he had probable cause to arrest Shain. In his police
report, Ellison said:
COMP REPORTS AT TIME AND PLACE OF OCCUR-
RENCE LAYING IN HER BED READING WHEN HER
HUSBAND ENTERED ROOM. SHE TOLD HIM SEV-
ERAL TIMES TO LEAVE AND HE STATED AGAIN,
“l’M GOING TO FUCK YOU”. SHE TOLD HIM TO
LEAVE AGAIN AND FEARING FOR HER SAFETY
SHE LEFT THE ROOM AND CALLED THE POLICE
Denier gave a more expansive account of her conversa-
tion with Ellison, claiming that she also told him that Shain
previously had threatened her and been out of control and
that he had thrown a table at her and swung a lamp at her
on prior occasions.
nl Shain wrongly sued Officer Ellison as John Ellison.
Ellison testified that when he arrested Shain for first
degree harassment, a Class B misdemeanor, Shain acted
in an agitated manner. Shain himself admitted that he did
not turn over a pocket knife when he was asked to empty
his pockets. After retrieving the pocket knife, Ellison trans-
ported Shain to the police station and “rear-cuffed” him to
a manacle in a holding cell. Despite Shain’s complaints
that he had undergone a spinal fusion as an adolescent and
was in severe pain, Ellison refused to take the cuffs off or
to front cuff Shain. Ultimately, Ellison and another officer
took Shain to the Nassau County Medical Center where a
doctor who examined him reported that Shain was experi-
A-13
encing muscle spasms and lumbar sprain and ordered that
he not be cuffed behind his back. Ellison spent the balance
of the night at the central police station.
The next day, Shain appeared before Judge James
H. Madden, a District Court judge sitting as a Family Court
judge, who arraigned Shain on Denier’s family offense
petition. Without holding a hearing, Judge Madden re-
manded Shain to Nassau County Correctional Center
(“NCCC”) without bond.
Upon Shain’s arrival at NCCC, Officer James
Dantunono directed him to remove all his clothes and sub-
mit to a visual body cavity search. Dantunono looked in
Shain’s ears, his mouth, his hair and under his arms, and
then made him turn around, bend over and spread his but-
tocks apart with his hands to facilitate a visual inspection
of his rectum. Dantunono also directed Shain to hold up
his external genitalia for inspection. Shain was again strip
searched the next morning before he left to appear in Fam-
ily Court. When Shain appeared in court, Family Court
Judge Norman Feiden released him and allowed him to
return to his home. Denier withdrew the Family Court pe-
tition on August 7, 1995. However, on or about August
28, 1995, the Nassau County District Attorney’s Office
filed harassment charges against Shain pursuant to N.Y.
Penal Law § 240.26. Subsequently, these charges were
dismissed pursuant to an adjournment in contemplation of
dismissal.
II. NCCC’s Strip Search Policy
Although NCCC claims that it does not subject in-
dividuals charged with misdemeanors and minor offenses
to a strip search unless it has reasonable suspicion that the
arrestees are concealing contraband or they have been re-
manded to NCCC’s custody by a court, the written poli-
cies governing strip searches require corrections officers
A-14
to strip search each newly admitted inmate. In addition, all
of the corrections officials who testified conceded that all
newly admitted inmates were strip searched regardless of
whether they were judicially remanded. Thus, while
arrestees held briefly in holding cells may not have been
strip-searched, all arrestees admitted to the jail were.
Ill. District Court Proceedings
Shain filed his lawsuit in the Eastern District of New
York on July 29, 1996. In a second amended complaint
dated July 7, 1997, Shain named Ellison; Judge Madden;
“John Doe,” an assistant district attorney; Joseph Jablonsky,
the Sheriff of Nassau County; the County of Nassau and
various anonymous corrections officers as defendants and
requested damages for false arrest and imprisonment, ma-
licious prosecution, abuse of process, the unconstitutional
search of his person, assault and battery, and negligent and
intentional infliction of emotional distress. He also sought
a declaration that New York State Family Court Act §
155(2), which allowed his overnight incarceration with-
out bail, and NCCC’s strip search policy were unconstitu-
tional and an injunction against their enforcement.
On April 16, 1997, by stipulation and order, the dis-
trict court dismissed all claims against Judge Madden,
leaving him as a defendant in name only to permit Shain
to continue his challenge to Section 155(2). On January 9,
1998, the district court sua sponte dismissed Judge Mad-
den as a defendant, finding that “plaintiff may not discon-
tinue all claims against Judge Madden yet proceed to use
him as a straw man to secure what is, in essence, an advi-
sory opinion as to the constitutionality of § 155(2) of the
Act.”
On December 31, 1998, defendants moved for sum-
mary judgment on all of Shain’s claims. Shain cross-moved
for partial summary judgment establishing the unconstitu-
A-15
tionality of NCCC’s strip search policy. In an oral deci-
sion, Judge Wexler granted defendants’ motion to dismiss
Shain’s false arrest, malicious prosecution, and abuse of
process claims but reserved the excessive force and strip
search claims for trial. In a published opinion dated June
1, 1999, Judge Wexler granted Shain partial summary judg-
ment establishing that the strip search policy was uncon-
stitutional and that Jablonsky was not entitled to qualified
immunity. See Shain v. Ellison, 53 F. Supp. 2d 564
(E.D.N.Y. 1999). More specifically, the court stated:
The policy of strip searching all misdemeanor and minor
offense arrestees remanded to the NCCC, without requir-
ing any suspicion that the remanded individual is conceal-
ing weapons or other contraband, violates the Fourth
Amendment to the United States Constitution.
Id. at 568. The court noted that NCCC presented evidence
of security problems that might be triggered by an order
prohibiting it from strip searching all arrestees entering
the facility but believed itself prohibited from considering
this evidence by Weber v. Dell, 804 F.2d 796 (2d Cir. 1986)
and Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988). See 53 F.
Supp. 2d at 567-68.
A jury heard Shain’s excessive force claim and evi-
dence related to damages on the strip search claim. It re-
jected the excessive force claim and awarded Shain no dam-
ages for the strip search. Shain then moved to set aside the
verdict and, in the alternative, for a new trial. The court
denied Shain’s motion and entered a judgment granting
Shain $ 1.00 in nominal damages, declaring the strip search
policy to be unconstitutional, and dismissing the action on
the merits.
Defendants County of Nassau and Jablonsky ap-
pealed, arguing principally that (1) the district court erred
A-16
by failing to give proper deference to NCCC’s security
concerns; (2) Weber and Walsh do not govern this case
because NCCC’s policy was limited to arrestees who had
been judicially remanded; (3) defendants had reasonable
suspicion that Shain might be concealing a weapon and
thus Shain lacked standing to challenge NCCC’s general
policy; and (4) Jablonsky was entitled to qualified immu-
nity because the law concerning strip searches of misde-
meanor pre-trial detainees was unsettled. Shain, who is an
attorney, has submitted two briefs on his cross-appeal. In
his counseled brief, Shain defends the district court’s strip
search holding while arguing that the district court should
have granted injunctive relief and a new trial on damages.
In his pro se brief, Shain contends that the district court
erred by failing to grant him summary judgment on his
false arrest claim; dismissing the malicious prosecution,
abuse of process, and false arrest claims; dismissing his
claims against Judge Madden and failing to reach the is-
sue of the constitutionality of Section 155(2); and declin-
ing to grant a new trial on the excessive force claim.
Several Amici Curiae have submitted briefs on the
strip search issue. The New York City Department of Cor-
rection, which has a strip search policy similar to NCCC’s,
seeks reversal of the district court’s decision. Class coun-
sel for the plaintiffs in Tyson v. City of New York, No. 97
Civ. 3762 (S.D.N.Y.) (JSM), and O’Day v. Nassau County,
99-CV-2844 (E.D.N.Y.) (DRH) (ARL) primarily request
that the court not retreat from Weber and Walsh insofar as
these decisions apply to pre-arraignment detainees who are
the plaintiffs in these two lawsuits. Plaintiff's own coun-
sel, who is also the attorney for the putative class mem-
bers in Augustin v. Jablonsky, 2001 U.S. Dist. LEXIS
10276, CV-00-3126 (E.D.N.Y.) (DRH) (ARL) has submit-
ted a brief on their behalf in opposition to the strip search
policy. Finally, the Legal Aid Society, which represents
A
&
3
A-17
incarcerated individuals in New York, also has submitted
a brief in opposition to NCCC’s policy.
DISCUSSION
I. Strip Search Policy
A. Legality and Qualified Immunity
Although it appears likely that NCCC’s strip search
policy applied to all persons actually admitted to the jail
whether they had been arraigned or not, we consider the
legality of that policy as it applies to post-arraignment
admittees to the jail because Shain himself was a post-
arraignment admittee.
Before Officer Dantunono searched Shain in July
1995, we had decided three cases relevant to the issue be-
fore us. In Weber, we considered a Monroe County Jail
policy “calling for strip/body cavity searches of all arrested
persons other than those placed in ‘holding cells,’ which
are the cells in which arrestees are sometimes placed when
their release on bail is imminent.” Weber, 804 F.2d at 799.
The police arrested plaintiff Ann Weber on misdemeanor
charges of making a false complaint and resisting arrest.
See id. After jail officials booked Weber, they required her
to remove her clothing and “expose her body cavities for
visual inspection.” Jd. We held “that the Fourth Amend-
ment precludes prison officials from performing strip/body
cavity searches of arrestees charged with misdemeanors
or other minor offenses unless the officials have a reason-
able suspicion that the arrestee is concealing weapons or
other contraband based on the crime charged, the particu-
lar characteristics of the arrestee, and/or the circumstances
of the arrest.” 804 F.2d at 802. Although the defendants
argued that their policy applied only to arrestees who could
not make bail and thus were to be admitted to the general
prison population, we found it unnecessary to remand for
factual findings because “even the more narrowly drawn
A-18
policy would be unconstitutional.” Jd. We also rejected
defendants’ request for qualified immunity because all the
circuits that had addressed similar policies had found them
to be unconstitutional and because we long had stressed
the intrusive nature of body cavity searches. See 804 F.2d
at 803.
Walsh reaffirmed the Weber holding, see Walsh, 849
F.2d at 68-69, and Wachtler assumed Weber's applicabil-
ity to the post-arraignment strip search of a person charged
only with a misdemeanor. Wachtler, 35 F.3d at 81-82. We
also found in Wachtler that the individual defendants were
entitled to qualified immunity because the law did not
clearly establish whether Wachiler s conduct was sufficient
to trigger a reasonable suspicion. 35 F.3d at 81-82. How-
ever, we reinstated Wachtler’s claims against the County
of Herkimer pending a fuller development of the record.
See 35 F.3d at 82. We said with respect to the County:
If the standard procedure included routine strip-searches
of misdemeanor arrestees, absent reasonable suspicion of
weapons or contraband, and if no reasonable suspicion
concerning Wachtler’s possession of such items existed,
then Wachtler would prevail.
Id. (citing Weber, 804 F.2d at 802-03).
Defendants contend that Wachtler does not indicate
clearly that post-arraignment strip searches of persons
charged with a misdemeanor are unconstitutional because
the parties did not necessarily argue a distinction between
pre- and post-arraignment searches. Be that as it may, we
recognized that Wachtler had been arraigned and remanded
to custody and nevertheless found that a policy that sub-
jected him to a strip search without individualized reason-
able suspicion would be unconstitutional. See 35 F.3d at
79, 82. Because the unconstitutionality of a post-arraign-
SNA O e
A-19
ment strip search absent reasonable cause was necessary
to the court’s holding in Wachtler, we reject defendants’
argument. Ho.
Defendants next argue that we must not read Wachtler to
prohibit strip searches of persons arrested for a misde-
meanor after they have been arraigned because this read-
ing would conflict with two Supreme Court decisions, Bell
v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861
(1979), and Block v. Rutherford, 468 U.S. 576, 82 L. Ed.
2d 438, 104S. Ct. 3227 (1984). In Bell, the Supreme Court
considered the constitutionality of a policy that subjected
pre-trial detainees to strip searches after a contact visit. It
reasoned that “maintaining institutional security and pre-
serving internal order and discipline are essential goals that
may require limitation or retraction of the retained consti-
tutional rights of both convicted prisoners and pretrial de-
tainees.” Bell, 441 U.S. at 546. Quoting Pell v. Procunier,
417 U.S. 817, 827, 41 L. Ed. 2d 495, 94S. Ct. 2800
(1974), the Court held that “in the absence of substantial
evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such
matters.” 441 U.S. at 548. Applying these principles, the
Court upheld a visual, no-contact body cavity search of
detainees after contact visits with persons from outside the
institution. It said, “assuming for present purposes that ...
pretrial detainees ... retain some Fourth Amendment rights
upon commitment to a corrections facility, we nonetheless
conclude that these searches do not violate that Amend-
ment. The Fourth Amendment prohibits only unreason-
able searches, and under the circumstances, we do not be-
lieve that these searches were unreasonable.” 441 US. at
558 (internal citations omitted).
In Block, the Supreme Court upheld jail policies
prohibiting contact visits by pre-trial detainees and per-
A-20
mitting jail authorities to conduct random searches of cells
in the absence of their pre-trial detainee occupants. How-
ever, its holding rests on a due process analysis and thus
adds little to the holding of Bell. See Block, 468 U.S. at
590; see also Weber, 804 F.2d at 800.
In Weber, we said that Bell did not “read out of the
Constitution the provision of general application that a
search be justified as reasonable under the circumstances.”
Weber, 804 F.2d at 800. We also described three factors
potentially supporting the determination that the Bell plain-
tiffs had no right to be free of a strip search: they already
had been arraigned; they had failed to make bail; and they
“had presumably chosen to receive visitors and to enjoy
physical contact with them.” Jd. In Wachtler, we implicitly
held that the mere fact of arraignment did not remove a
misdemeanor arrestee from the purview of Weber and place
him within the ambit of Bell. See Wachtler, 35 F.3d at 79,
82. The Wachtler result is not at odds with Bell. First, the
Bell court did not address the issue of whether persons
charged only with misdemeanors must be treated differ-
ently from persons charged with felonies. n2 Second, and
more important, Bell authorized strip searches after con-
tact visits, where contraband often is passed. See Block,
468 U.S. at 586. It is far less obvious that misdemeanor
arrestees frequently or even occasionally hide contraband
in their bodily orifices. Unlike persons already in jail who
receive contact visits, arrestees do not ordinarily have no-
tice that they are about to be arrested and thus an opportu-
nity to hide something. For the exceptions - for example, a
person who is allowed to visit the bathroom unescorted
before an arrest - reasonable suspicion may well exist.
n2 In fact, the Court saw no basis for distinguishing between
pretrial detainees and convicted inmates because there is no
basis for concluding that pretrial detainees pose any lesser
security risk than convicted inmates. Indeed, it may be that
A-21
in certain circumstances they present a greater risk to jail
security and order. In the federal system, a detainee is com
mitted to the detention facility only because no other less
drastic means can reasonably assure his presence at trial. As
a result, those who are detained prior to trial may in many
cases be individuals who are charged with serious crimes or
who have prior records. They also may pose a greater risk of
escape than convicted inmates. This may be particularly true
at facilities like the MCC, where the resident convicted in
mates have been sentenced to only short terms of incarcera
tion and many of the detainees face the possibility of lengthy
imprisonment if convicted.
Bell, 441 U.S. at 546 n.28 (internal citations omitted).
Finally, defendants argue that arraignment repre-
sents a crucial step in criminal proceedings that justifies
heightened security measures. In Block, the Supreme Court
said that “the very fact of nonrelease pending trial ... is a
significant factor bearing on the security measures that are
imperative to proper administration of a detention facil-
ity” because of the ease of obtaining bail or release on
one’s own recognizance. Block, 468 U.S. at 583. The same
cannot be said of a misdemeanor arrestee in New York
because he must be released on his own recognizance or
granted bail. See N.Y. Crim. Proc. L. § 170.10(7). It is
only because Denier proceeded civilly against Shain in
Family Court that the judge could hold him without bail
and without considering the statutory factors relevant to
criminal detainees despite the fact that he was charged only
with a misdemeanor. Compare N.Y. Fam. Ct. Act § 155(2)
with N.Y. Crim. Proc. L. § 510.30(2)(a). Although a New
York felony defendant’s post-arraignment detention may
well be an indicator of an increased security risk, a person
charged with a misdemeanor who remains in jail in New
York after arraignment probably does so because (a) he
A-22
cannot afford the bail set; (b) he refuses to post bail; or (c)
he was arraigned on a Family Court matter, see N.Y. Fam.
Ct. Act. § 155, Douglas J. Besharov, Practice Commen-
tary (discussing abuse of Section 155). None of these sce-
narios creates a reasonable suspicion that the alleged of-
fender has secreted contraband or a weapon.
The dissent, albeit not the defendants or the amicus
who supports defendants’ position, argues that a separate
line of Supreme Court cases employing a different ana-
lytical model controls the outcome of this appeal. These
cases hold that a reasonable relation to a legitimate peno-
logical interest suffices to establish the constitutionality
of a prison regulation. Washington v. Harper, 494 U.S. 210,
223, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990); O’Lone v.
Estate of Shabazz, 482 U.S. 342, 349, 96 L. Ed. 2d 282,
107 S. Ct. 2400 (1987); Turner v. Safley, 482 U.S. 78, 87,
96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). Between Walsh
and Wachtler, we employed the Turner model to uphold
the legality of a strip search that took place in a prison.
Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992). Covino,
who had been charged with kidnapping a child under the
age of sixteen, id. at 74 n.1, was housed in a state correc-
tional facility where he was commingled with sentenced
inmates. Jd. at 75. We upheld the pertinent regulation, which
allowed random strip searches of inmates, despite Covino’s
pretrial detainee status because the regulation was “rea-
sonably related to legitimate penological interests.” Jd. at
78 and n.4. Turner, Washington, O’Lone and Covino each
approved a regulation of a state correctional facility or
prison, but NCCC is a local correctional facility or jail. A
prison is”[a] state or federal facility of confinement for
convicted criminals, especially felons.” BLACK’S LAW
DICTIONARY 1213 (7th ed. 1999). A jail, on the other
hand, is “[a] place where persons awaiting trial or those
convicted of misdemeanors are confined.” Id. at 838. This
A-23
distinction is reflected in New York where state correc-
tional facilities, commonly referred to as prisons, house
those convicted of the most serious crimes and local cor-
rectional facilities or jails house persons convicted of mi-
nor crimes and pre-trial detainees. See N.Y. Crim. Proc. L.
§ 430.20(2),(3); N.Y. Penal L. § § 70.00(1), 70.15.
Despite the limitation of Turner, Washington,
O’Lone, and Covino to prison regulations and the substan-
tial difference between jail and prison populations, the dis-
sent contends that Turner implicitly overruled Weber. We
disagree. We start with the proposition that we have “no
authority to depart from Second Circuit precedent, unless
it has been overruled in banc or by the Supreme Court.”
Leecan v. Lopes, 893 F.2d 1434, 1443 (2d Cir. 1990). Ad-
ditionally, we should not lightly assume that two prior cases
of this court are inconsistent, and we must accept a plau-
sible reading of a case that renders it consistent with other
Second Circuit precedent even where an alternative read-
ing exists. See, e.g., Rocket Jewelry Box v. Noble Gift Pack-
aging, 157 F.3d 174, 176 (2d Cir. 1998). Neither Turner
nor Covino purports to address any issue other than prison
regulations. Thus, these cases can be read consistently with
Weber and its progeny by confining them to their facts and
actual holdings. n3 The dissent’s arguments for “assum-
ing that when the Turner Court developed the ‘reasonably
related’ standard, it intended for it to apply to facilities
like NCCC” may be relevant to whether the Turner line of
cases should be extended to jails by the Supreme Court,
but they are not relevant to the question of whether Turner
overruled Weber. [Dissent, infra, at 8]
n3 A panel of this court recently stated in dicta that “peno
logical interests are ... arguably not an appropriate guide for
the pretrial detention of accused persons” because penologi-
A-24
cal interests relate to convicted persons. Benjamin v. Fraser,
2001 U.S. App. LEXIS 19666, No. 00-9093, 00-9095, 2001
WL 1012247, * 9 n.10 (2d Cir. Sept. 5, 2001). Because we
applied Turner to the rights of a pretrial detainee who had
been charged with a serious crime and who was commingled
with sentenced inmates in a state prison in Covino, we do
not rely solely on Shain’s status as a pretrial detainee.
The district court therefore correctly held that be-
cause it was clearly established in 1995 that persons
charged with a misdemeanor and remanded to a local cor-
rectional facility like NCCC have a right to be free of a
strip search absent reasonable suspicion that they are car-
rying contraband or weapons, Jablonsky was not entitled
to qualified immunity. The illegality of the sheriff's policy
also provides the necessary basis for affirming the County’s
liability. See Weber, 804 F.2d at 803 (holding Monroe
County liable for strip search policy implemented by its
sheriff).
B. Standing
Even assuming the illegality of NCCC’s policy, de-
fendants argue that Shain cannot complain because NCCC
had reasonable suspicion conceming him based on the court
remand and on facts known by law enforcement personnel
other than Dantunono, the officer who actually performed
the strip search. We disagree. Although searching officers
may rely on information provided to them by their col-
leagues, see Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir.
1994), there is no evidence that Ellison, who was employed
by the Nassau County Police Department, or the officers
who accompanied Shain to and from court, communicated
any information to Dantunono. Thus, the only informa-
tion Dantunono knew and the only fact NCCC required
for a strip search was the fact of the remand. n4 This re-
mand merely required NCCC to receive and detain Shain
A-25
until his Family Court appearance and indicated that Shain
~ had been charged under Article 8 of the Family Court Act.
Because Article 8 covers offenses ranging from disorderly
conduct to assault, the remand itself could not provide rea-
sonable and individualized suspicion. In fact, Lieutenant
John Considine, commanding officer of NCCC’s opera-
tions unit, conceded that the information in Shain’s file
would not have provided reasonable suspicion that he pos-
sessed contraband.
n4 As noted previously, we accept for the sake of argument
that NCCC did require a judicial remand, although the evi
dence appears to establish that it did not.
C. The Injunction
Although plaintiff requested an injunction against
future enforcement of the blanket strip search policy, the
district court judgment neither explicitly granted nor de-
nied this request. Plaintiff's attorney objected to the pro-
posed judgment, in part, on the basis that it did not address
the injunction. Plaintiff now claims that the district court
- erred by failing to grant an injunction once the illegality of
the strip search procedure was established. Defendants re-
spond that the district court did not err because NCCC
voluntarily suspended its policy pending appeal. However,
the record before us is not adequate to determine whether
injunctive relief is necessary, and the district court did not
make findings of fact or conclusions of law relevant to the
grant or denial of injunctive relief. Therefore, we remand
to allow the district court to make the necessary findings
and conclusions. See Fed. R. Civ. P. 52(a).
D. Refusal of New Trial on Damages
In his charge, the district judge instructed the jury
A-26
that if it found defendants had violated Shain’s constitu-
tional rights but he had not suffered a compensable injury,
it should award nominal damages not to exceed one dol-
lar. The judge also instructed the jury that he previously
had found defendants’ strip search policy to be unconsti-
tutional. When the jury retumed its verdict, the court asked
what compensatory and punitive damages the jury had
awarded on the strip search claim and the foreman re-
sponded “Zero.” The judge did not ask what nominal dam-
ages the jury had awarded. Plaintiff then moved to set aside
the verdict and for a new trial, and the court denied both
motions. However, the court did enter a nominal damages
judgment of one dollar. On appeal, Shain argues only that
the court should have granted him a new tnal on damages.
We review a district court’s decision not to grant a
new trial on damages solely for abuse of discretion. See
Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d
Cir. 1999). The district court should not grant such a mo-
tion “unless [it] is convinced that the jury has reached a
seriously erroneous result or that the verdict is a miscar-
riage of justice.” Jd. (internal quotation marks omitted).
Shain cannot meet this high standard. He produced no ob-
jective medical or psychological testimony linking a psy-
chological or physical injury to the strip search, and al-
though he and his former girl friend testified that he was
emotionally traumatized by the search, the jury was not
required to credit this testimony. See id. at 314-15. Nor
was it error for the court to correct the jury’s verdict by
entering a nominal damages award of one dollar since
nominal damages are appropriate for the violation of a con-
stitutional right. See Dawes v. Walker, 239 F.3d 489, 497
(2d Cir. 2001) (collecting cases holding that it is error not
to award nominal damages where a constitutional viola-
tion is established).
A-27
II. False Arrest
In order to make out a New York common law or
Section 1983 claim for false arrest or imprisonment, plain-
tiff must demonstrate that defendant intended to confine
him, he was conscious of the confinement, he did not con-
sent to the confinement, and the confinement was not oth-
erwise privileged. See Singer v. Fulton County Sheriff, 63
F.3d 110, 118 (2d Cir. 1995). An arrest made on probable
cause is privileged, and probable cause exists “when the
arresting officer has knowledge or reasonably trustwor-
thy information sufficient to warrant a person of reason-
able caution in the belief that an offense has been commit-
ted by the person to be arrested.” Jd. at 119 (internal quo-
tation marks omitted). The officer may rely on the victim’s
allegations. See Martinez v. Simonetti, 202 F.3d 625, 634
(2d Cir. 2000).
New York Penal Law § 240.25, which defines first
degree harassment, states in relevant part:
A person is guilty of harassment in the first degree when
he or she intentionally and repeatedly harasses another
person by following such person in or about a public place
or places or by engaging in a course of conduct or by re-
peatedly committing acts which places such person in rea-
sonable fear of physical injury.
Ellison’s report of the incident stated that Denier
told him Shain entered her bedroom, refused several re-
quests to leave, and threatened to rape her. n5 Wefind that
Shain’s alleged refusal to leave the room after repeated
requests coupled with his alleged threat to rape Dénier
constituted a course of conduct that could reasonably have
caused Denier to fear for her safety. See People v. Murray,
167 Misc. 2d 857, 861, 635 N.Y.S.2d 928 (N.Y. Crim. Ct.
A-28
1995) (finding course of conduct within the meaning of
the harassment statute where “defendant walked along side
the complainant to her office, barred her way when she
sought to escape inside [and] continued to stalk her as she
retreated up the street [and] forcibly prevented her from
obtaining assistance from [a] parked van” although the
conduct only lasted five to eight minutes). Therefore, we
affirm the district court’s dismissal of Shain’s false arrest
claim.
n5 We adopt Ellison’s account rather than Denier’s more
expansive description because the false arrest claim was
dismissed on a motion for summary judgment.
Ill. Malicious Prosecution
In order to sustain a claim for malicious prosecu-
tion, Shain must demonstrate, among other things, that the
prosecution terminated in his favor. See, e.g., Murphy v.
Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Because an ad-
journment in contemplation of dismissal is not considered
to be a favorable termination, Shain cannot sustain his
malicious prosecution claim based on the criminal proceed-
ing. See id. at 949. Nor can Shain rely on Denier’s with-
drawal of her Family Court petition because Denier is not
a defendant in this lawsuit. We therefore affirm the district
court.
IV. Abuse of Process
“[A] malicious abuse of process claim lies against
a defendant who (1) employs regularly issued legal pro-
cess to compel performance or forbearance of some act
(2) with intent to do harm without excuse or justification,
and (3) in order to obtain a collateral objective that is out-
side the legitimate ends of the process.” Cook v. Sheldon,
Leciiypbas
A-29
41 F.3d 73, 80 (2d Cir. 1994). Bringing a defendant before
a judge for arraignment satisfies the first element. See id.
To show improper motive, Shain relies on Ellison’s testi-
mony that he knew Denier from the hospital and that after
he found the order of protection had expired, he interviewed
her further to determine whether there was another basis
to arrest Shain. These allegations do not show intent to do
harm without excuse or justification. Ellison’s superficial
acquaintance with Denier hardly suggests improper mo-
tive, and his continuance of the investigation when he found
the order of protection had expired was merely good po-
lice work. The district court properly dismissed this claim.
V. Excessive Force
Shain contends that he aiso is entitled to a new trial
on his excessive force claim principally because the court
instructed the jury that Ellison could use sufficient force
to arrest Shain. As we have found that Ellison did have
probable cause to arrest Shain, the charge was not errone-
ous. See Calamia v. City of New York, 879 F.2d 1025, 1034-
35 (2d Cir. 1989). Shain also argues that the court abused
its discretion by admitting Denier’s testimony concerning
his past abuse and her account of this abuse to Ellison.
However, what Denier told Ellison was relevant to the
jury’s determination of whether Ellison used excessive
force by rear cuffing Shain. Therefore, the district court
did not abuse its discretion.
VI. Judge Madden and Section 155(2) Claim
The parties stipulated to dismiss all claims against
Judge Madden but to keep him as a nominal defendant for
the purpose of testing the constitutionality of Family Court
Act § 155(2). The district court initially “so ordered”’ this
stipulation but later dismissed the claims against Judge
Madden in their entirety without directly ruling on
A-30
plaintiff's claim that Section 155(2) is unconstitutional.
The district court did not err because (1) at the time the
court issued its sua sponte order (1) there was no realistic
danger that Shain would face the same harm again and (2)
there was no defendant against whom Shain could have
recovered damages. Denier withdrew her Family Court
petition on August 7, 1995, and there is no allegation that
she ever filed another one. By the time Judge Wexler is-
sued his order, the parties had been divorced for over a
year. Because Shain could not show “that these same par-
ties are reasonably likely to find themselves again in dis-
pute over the issues raised in this appeal,” he lacked a le-
gally cognizable stake in seeking an injunction or a de-
claratory judgment. Muhammad v. City of New York Dept
of Corrections, 126 F.3d 119, 124 (2d Cir. 1997) (internal
quotation marks omitted). Nor could Shain have obtained
damages from any of the defendants because Judge Mad-
den is protected by judicial immunity, see Stump v.
Sparkman, 435 U.S. 349, 364, 55 L. Ed. 2d 331, 98 S. Ct.
1099 (1978), and the remaining defendants bore no respon-
sibility for Shain’s continued incarceration after the judi-
cial remand.
CONCLUSION
We affirm the district court’s judgment except as to
the failure to rule explicitly on Shain’s request for injunc-
tive relief against NCCC’s strip search policy. With re-
spect to that policy, we remand to the district court for
further proceedings in accord with this opinion.
CONCUR BY:
ROBERT A. KATZMANN
CONCUR:
ROBERT A. KATZMANN, concurring:
A-31
I join in Judge Pooler’s opinion in this challenging
case. Unlike Judge Cabranes in his thoughtful dissent, I
believe it reaches the result required by the precedent of
this Circuit with respect to the standard to be applied to
cavity searches in cases such as this one. In short, Turner
v. Safley, 482 U.S. 78, 89-90, 96 L. Ed. 2d 64, 107 S. Ct.
2254 (1987), and its progeny deal with prison regulations
as they are applied to individuals charged with or convicted
of felonies, while Weber v. Dell, 804 F.2d 796 (2d Cir.
1986), Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988), and
Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir. 1994),
concern the treatment of misdemeanor arrestees being held
in jails. Because there has been no explicit indication from
the Supreme Court that it would apply its “reasonably re-
lated to penological interests” standard (rather than a “rea-
sonable suspicion” standard) to cases involving misde-
meanor arrestees being held in jail, I believe we are com-
pelled to follow Circuit precedent, which distinguishes
between these two types of cases. As Wachtler was de-
cided well after Turner, it appears to me that this Circuit’s
approach to such cases is unchanged after Turner. I write
separately to emphasize that while this Circuit’s choice to
distinguish for these purposes either between misdemean-
ors and felonies or between jails and prisons is not neces-
sarily persuasive to me - and in fact I am not sure either is
a distinction I would make if I were considering the ques-
tion in the first instance - I do think that these distinctions
are required by our earlier precedents. Because these pre-
cedents have not, in my view, been squarely overruled, I
believe we have no choice but to apply the “reasonable
suspicion” standard to the facts of this case.
DISSENT BY:
JOSE A. CABRANES (In Part)
A-32 ”
DISSENT:
JOSE A. CABRANES, Circuit Judge, dissenting in part:
I respectfully dissent from the majority’s decision
to evaluate the constitutionality of the cavity search at is-
sue here under the “reasonable suspicion” standard we
developed in Weber v. Dell, 804 F.2d at 802 (2d Cir. 1986),
rather than under the “reasonably related to legitimate pe-
nological objectives” standard subsequently articulated by
the Supreme Court in Turner v. Safley, 482 U.S. 78, 89-90,
96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987).
In reaching this decision, the majority subjects
Nassau County to liability for having an assertedly uncon-
stitutional cavity-search policy, and subjects an individual
defendant to liability for implementing it. Moreover, the
majority remands the cause for a determination as to
whether the District Court should enjoin the Nassau County
Correctional Center (“NCCC”) from continuing to con-
duct a cavity search of all people admitted to the facility.
The majority’s decision is based on an artificial, un-
tenable distinction between “prisons” and “jails,” and cre-
ates a Circuit split where there was none—a Circuit split
that calls out for resolution by the Supreme Court. In my
view, the majority’s decision finds no warrant in the Su-
preme-Court’s jurisprudence and, indeed, substantially and
unnecessarily limits the reach of the leading Supreme Court
cases in this area. In resolving the cavity-search issue as it
does, the majority also requires, by what the majority holds
are the dictates of the Constitution, that correctional fa-
cilities such as the NCCC be run in a manner that defies
common sense.
Accordingly, I dissent from the holding that the ap-
plicable standard to evaluate the constitutionality of a cav-
ity search in a jail is “reasonable suspicion” rather than
A-33
“reasonably related to a legitimate penological interest.”
nl I write briefly to explain why.
nl I agree with the majority as to its disposition of plaintiff-
appellee-cross-appellant Ray E. Shain’s false arrest, mali-
cious prosecution, abuse of process, and excessive force
claims, as well as with its disposition of his challenge to the
constitutionality of the Family Court Act § 155(2). As to
these issues, I concur in the reasoning and result of the ma-
jority opinion.
As the majority notes, in Weber v. Dell, 804 F.2d
796 (2d Cir. 1986), we developed a standard for assessing
the constitutionality of cavity searches of arrestees: The
Constitution, we held, “precludes prison officials from
performing ... cavity searches of arrestees charged with
misdemeanors or other minor offenses unless the officials
have a reasonable suspicion that the arrestee is concealing
weapons or other contraband based on the crime charged,
the particular characteristics of the arrestee, and/or the cir-
cumstances of the arrest.” 804 F.2d at 802 (emphasis
added). In Walsh v. Franco, 849 F.2d at 68-69 (2d Cir.
1988), and Wachiler v. Herkimer County, 35 F.3d at 81 (2d
Cir. 1994), we evaluated the constitutionality of cavity
searches under Weber's “reasonable suspicion” standard.
Nearly one year after our decision in Weber, the Su-
preme Court held that “when a prison regulation impinges ©
on inmates’ constitutional rights, the regulation is valid if
it is reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U.S. at 89-90, 96 L. Ed. 2d 64, 107 S.
Ct. 2254 (1987); see also Washington v. Harper, 494 U.S.
at 224, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990) (hold-
ing, inter alia, that “Turner applies to all circumstances in
which the needs of prison administration implicate con-
stitutional rights”); O’Lone v. Estate of Shabazz, 482 U.S.
342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) (apply-
A-34
ing Turner and noting that “legitimate penological inter-
ests” include “deterrence of crime, rehabilitation of pris-
oners, and institutional security”). In Covino v. Patrissi,
967 F.2d 73 (2d Cir. 1992), we evaluated a cavity search
under Turner's “reasonably related” standard, and held that
an arrestee may, in some circumstances, be subjected to a
cavity search “in the absence of an ... individualized sus-
picion justifying the search,” 967 F.2d at 77-78—that is,
even when there is no “reasonable suspicion” of the kind
required by Weber.
The question here is this: Should we assess the con-
stitutionality of the NCCC’s cavity search policy (“policy”)
under Weber's “reasonable suspicion” standard (a standard
we set forth) or under Turner's “reasonably related” stan-
dard (a standard the Supreme Court set forth)?
The answer to this question, thus posed, seems obvious
enough—Turner, as a case decided by the Supreme Court,
must prevail. But resolving the question is complicated
by the fact that, regrettably, our cases decided after Turner
pull in different directions: Walsh and Wachtler suggest
that Weber's “reasonable suspicion” standard is control-
ling here, and Covino suggests that Turner's “reasonably
related” standard is governing.
The majority sidesteps this difficulty by holding that
the “reasonably related” standard is controlling where the
relevant correctional facility is a “prison” (as was assertedly
the case in Covino), and that we must apply the “reason-
able suspicion” standard that we enunciated in Weber and
its progeny where the relevant correctional facility is a “jail”
(as was assertedly the case in Weber, Walsh, Wachtler, and,
as the majority states, here). See MAJORITY OPINION,
ante, at 14.
At first glance, ordering our cases in this manner is
appealing: As a general matter, it is the duty of panels rea-
sonably to harmonize our precedents, see, e.g., Rocket Jew-
A-35
elry Box, Inc. v. Noble Gift Packaging, Inc., 157 F.3d at
-176 (2d Cir. 1998) (“Every panel of this court is bound by
the decisions of earlier panels ....””), and the jail/prison dis-
tinction renders our caselaw internally coherent by shoe-
horning all-but-contradictory lines of precedent into ap-
parently distinct doctrinal categories.
However, the distinction between these categories
is illusory, and I believe that organizing our caselaw along
the jail/prison axis is error.
As an initial matter, the distinction drawn by the
majority between jails and prisons is wholly unprecedented.
The majority points to no cases that differentiate between
jails and prisons in the manner that it suggests, and our
sister Circuits routinely apply Turner's “reasonably related”
standard to cases involving jails. n2
n2 See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1058-
63 (9th Cir. 1999); Friend v. Kolodzieczak, 923 F.2d 126,
127-28 (9th Cir. 1991); Siddiqi v. Leak, 880 F.2d 904, 908-
10 (7th Cir. 1989); see also, e.g., Rogers v. Arbisi, 1996 U.S.
Dist. LEXIS 2278, No. 93 C 20237, 1996 WL 89346, at *5
(N.D. Ill. Feb. 28, 1996); Muhammad v. City of N.Y. Dept.
of Corrections, 904 F. Supp. 161, 197 (S.D.N-Y. 1995);
Shaheed v. Winston, 885 F. Supp. 861, 867-68 (E.D. Va 1995),
aff ‘d on other grounds 161 F.3d 3 (4th Cir. 1998) (table);
Pippins v. Adams County Jail, 851 F. Supp. 1228,
1234 (C.D. Ill. 1994).
They do so with good reason: There is no basis in
the Supreme Court’s jurisprudence for limiting Turner's
“reasonably related” standard to cases involving correc-
tional institutions denominated “prisons.” It is true, of
course, that the “reasonably related” standard nominally
applies to “prison regulations.” See Turner, 482 U.S. at 89
A-36
(emphasis added). But the term “prison” is most frequently
used generically to describe any government facility—in-
cluding a “jail” —that function primarily as a place for the
confinement of people involved in the criminal justice sys-
tem. See BLACK’S LAW DICTIONARY 1194 (6th ed.
1990) (“prison,” first definition: “A public building or other
place for the confinement of persons, whether as a punish-
ment imposed by the law or otherwise in the course of the
administration of justice”) (emphasis added). n3
n3 To be sure, “prison” is sometimes used in a manner that
suggests a contrast with a “jail.” See BLACK’S LAW DIC
TIONARY 1194 (6th ed. 1990) (“prison,” third definition:
“institutions ... distinguished from ... jails”). But that is rela-
tively rare. It is more common to treat “jail” and “prison” —
both of which are non-technical terms to everyone other than
students of penology—as virtual synonyms. See id. (defin-
ing “prison” in a manner that encompasses “‘jail’’); id. at 834
(“jail,” first non-"obsolete” definition: “prison’’). Consider,
for example, Weber. In the majority’s typology, Weber con-
cerns jails, not prisons. But we held there that “prison offi-
cials” may not take certain actions. Weber, 804 F.2d at 802
(emphasis added); see also 804 F.2d at 804 (describing the
need “to defer to the judgment of prison officials”) (empha-
sis added). Any possible distinction between prisons and lo-
cal jails apparently did not make an impression on the We-
ber panel, and, as the definitions quoted above suggest, the
Weber panel’s conflation of jail and prison is not merely a
matter of linguistic imprecision. Rather, “jail” and “prison”
are all-but interchangeable.
This said, to the extent that there is a sharp, com-
monly agreed upon distinction between the terms, it is that
prisons hold people convicted of crimes, and jails hold
people merely charged with crimes. See BLACK’S LAW
DICTIONARY at 834 (defining “jail”). But here, prisons
and jails cannot be differentiated on this basis. The major-
ity distinguishes Covino, in which we applied Turner's “rea-
sonably related” standard, as a case that involved a prison,
A-37
not a jail. See MAJORITY OPINION, ante, at 14-15. But
the plaintiff in-that case had not been convicted of a crime
when he was searched—he had merely been charged with
a crime. See Covino, 967 F.2d at 78 n.4. Accordingly, if
“prison” means a correctional facility that houses those
convicted of crimes,as the majority suggests, Covino would
have been a “jail” case, not a “prison” case, and we would
have applied Weber ’s “reasonable suspicion” standard. But
we did not do so; instead, we applied Turner's “reasonably
related” standard. See Covino, 967 F.2d at 77-78; accord
United States v. El-Hage, 213 F.3d 74, 81-82 (2d Cir. 2000)
(applying the Turner standard in a “jail” setting—that is,
to assess a pre-trial detainee’s constitutional claim).
There is no indication that the Turner Court intended
to depart from this well-settled, non-technical meaning of
the word “prison.”
First, Turner Ss “reasonably related” standard, which,
as noted, concerns “prison regulations,” was itself based
on four cases that concerned “prisoners’ rights,” see Turner,
482 US. at 86: (1) Pell v. Procunier, 417 U.S. 817, 41 L.
Ed. 2d 495, 94 S. Ct. 2800 (1974), (2) Jones v. North Caro-
lina Prisoners’ Union, 433 U.S. 119, 53 L. Ed. 2d 629, 97
S. Ct. 2532 (1977), (3) Bell v. Wolfish, 441 U.S. 520, 60 L.
Ed. 2d 447, 99 S. Ct. 1861 (1979), and (4) Block v. Ruther-
ford, 468 U.S. 576, 82 L. Ed. 2d 438, 104 S. Ct. 3227
(1984). See Turner, 482 U.S. at 86-89 (discussing these
cases). Of these “prisoner’s rights” cases, one case—
Procunier—concerned what the majority would call a
“prison”; but another—Jones— involved both a prison and
a jail, see Jones, 433 U.S. at 122, and two of them—Block
and Bell—exclusively concerned jails, see Block, 468 U.S.
at 578-79, Bell, 441 U.S. at 524. This suggests that there is
no distinction of constitutional magnitude between jails
and prisons. If there were such a distinction, the Turner
A-38
Court would not have elided the difference between “jail”
cases and “prison” case by characterizing certain “jail”
cases (Block, Bell, and perhaps Jones) as “prisoners’ rights”
case. See Turner, 482 U.S. at 86. And similarly, the Turner
Court would not have—indeed, could not have—derived
from “jails” cases (Block, Bell, and perhaps Jones) a stan-
dard that does not apply to them, but that applies only to
what the majority would term a “prison” case. |
Second, it is clear from Turner's rationale that the
“reasonably related” standard was not intended to apply
only to those institutions encompassed in the majority’s
narrow definition of “prison.” The Turner Court adopted
the relatively deferential “reasonably related” standard as
a means of accommodating two distinct imperatives—first,
protecting individual rights; and second, recognizing that
“the problems of prisons in America are complex and in-
tractable, and ... are not readily susceptible of resolution
by [judicial] decree.” 482 U.S. at 85. As the Turner Court
explained:
Running a prison is an inordinately difficult undertaking
that requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province
of the legislative and executive branches of government.
Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and sepa-
ration of powers concerns counsel a policy of judicial re-
straint. Where a state penal system is involved, federal
courts have ... additional reason to accord deference to the
appropriate prison authorities.
Id. at 84-85. In other words, a basic purpose of the “rea-
sonably related” standard is to prevent the federal courts
from becoming overly involved in the administration of
A-39
corrections-related facilities that have chronic problems
that the judiciary is, comparatively speaking, poorly-posi-
tioned to solve. n4
n4 See Washington, 494 U.S. at 223-24 (stating that adop-
tion of the “reasonably related” standard in Turner “was based
upon the need to reconcile our longstanding adherence to
the principle that inmates retain at least some constitutional
rights despite incarceration with the recognition that prison
authorities are best equipped to make difficult decisions re-
garding prison administration”); cf Turner, 482 U.S. at 89
(“Subjecting the day-to-day judgments of prison officials to
an inflexible strict scrutiny analysis would seriously hamper
their ability to anticipate security problems and to adopt in-
novative solutions to the intractable problems of prison ad-
ministration. The rule would also distort the decision mak
ing process, for every administrative judgment would be
subject to the possibility that some court somewhere would
conclude that it had a less restrictive way of solving the prob-
lem at hand. Courts inevitably would become the primary
arbiters of what constitutes the best solution to every admin-
istrative problem, thereby unnecessarily perpetuating the in-
volvement of the federal courts in affairs of prison adminis-
tration.”) (internal citations and quotation marks omitted).
But facilities that fit this description are as likely to
be denominated “jails” as “prisons.” The NCCC is an apt
example. It operates 365 days a year and 24 hours a day.
When Mr. Shain was subjected to a cavity search there,
the NCCC employed 950 corrections officers and housed,
on an average day, 1,800 inmates. Every year, more than
14,000 people are introduced into the NCCC population.
Of those who are housed at the NCCE, some have been
sentenced to terms of one year or less; some have been
sentenced to longer terms of imprisonment and are await-
ing transfer to state-run correctional facilities in upstate
New York; and others have been charged with a range of
crimes, including violent felonies.
A-40
In short, the NCCC is a large, complex facility.
Running it undoubtedly “requires expertise, planning, and
the commitment of resources, all of which are peculiarly
within the province of the legislative and executive
branches of government,” and it is therefore reasonable to
assume that its problems, whatever they might be, are not
“readily susceptible of resolution by [judicial] decree.”
Turner, 482 U.S. at 84-85.
Accordingly, the rationale for the “reasonably re-
lated” standard applies as forcefully to the NCCC as it
would to a facility formally called a prison, and we must
therefore assume that when the Turner Court developed
the “reasonably related” standard, it intended for it to ap-
ply to facilities like the NCCC. But by introducing an arti-
ficial distinction between prisons and jails, the majority
substantially limits Turner's reach—and removes institu-
tions like the NCCC from the ambit of the “reasonably
related” standard. n5
n5 As noted, by distinguishing our cases along a jail/prison
axis, the majority hopes to reconcile our precedents with one
another. See ante at [3]. In this case, however, we need not
attempt to do so. As a matter of logic, our application of
Weber's “reasonable suspicion” standard in Waish and
Wachtler necessarily rested on a sub silentio holding that
our decision in Weber survived the Supreme Court’s subse-
quent decision in Turner. (I characterize this holding as sub-
silentio because neither Walsh nor Wachtler mention Turner,
and there is no indication that the parties brought Turner to
the attention of the Walsh or Wachtler panels.) But sub si-
lentio holdings do not bind subsequent panels. See, e.g.,
Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49 (2d Cir.
2000); Getty Petroleum Corp. v. Bartco Petroleum Corp.,
858 F.2d 103, 113 (2d Cir. 1988). See generally Webster v.
Fall, 266 U.S. 507, 511, 69 L. Ed. 411, 45 S. Ct. 148 (1925)
(“Questions which merely lurk in the record, neither brought
to the attention of the court nor ruled upon, are not to be
A-41
considered as having been so decided as to constitute prece-
dents.”). Moreover, when a panel bases a decision entirely
on Circuit precedent that has been implicitly overruled by
the Supreme Court—as I believe Weber was by Turner—
panels of our Court need not hew to the panel decision. See,
e.g., Zervos v. Verizon, 252 F.3d 163, 167 (2d Cir. 2001)
(collecting cases).
The majority justifies its formalistic cabining of
Turner—and its concomitant holding that it is Weber ’s “rea-
sonable suspicion” standard that applies in jails—by ref-
erence to the “substantial difference between jail and prison
populations.” MAJORITY OPINION, ante, at 14. How-
ever, factors such as the composition of a facility’s popu-
lation—or, indeed, the composition of the portion of a
facility’s population subjected to a particular regulation—
are fully amenable to analysis under the Turner standard.
See, e.g., Covino, 967 F.2d at 79 (stating that “the nature
of [the facility’s] inmate population” supported the find-
ing that there was “a legitimate and rational connection
between the challenged searches ... and [the facility’s] se-
curity interests”); Michenfelder v. Sumner, 860 F.2d 328,
332-33 (9th Cir. 1988) (noting, while upholding visual
body-cavity searches of inmates housed ina facility’s maxi-
mum security unit each time a prisoner entered or left his
cell, that “the searches are conducted on convicted prison-
ers in [the facility’s] most restrictive unit” and “elevated
security precautions are justified for prisoners placed in
maximum security settings ... “). Indeed, because Turner
requires that the interest identified by the government be
“legitimate” and that there be a nexus between the restric-
tion of a prisoner’s constitutional rights and the interest,
see 482 U.S. at 89-90, facility regulations justified by pe-
nological goals applicable only to persons convicted of
crimes—such as punishment—could not be imposed on
pretrial detainees. In this case, however, the NCCC’s as-
A-42
serted interest is facility security, which is a legitimate con-
cern regardless of the status of the facility’s population.
See Mauro v. Arpaio, 188 F.3d at 1059 & n.1 (9th Cir.
1999) (en banc). n6
n6 Jn expressing “doubt” in dicta over whether the use in
Turner of the phrase “penological interests” limits
its applicability to “persons convicted of crimes,” the panel
in Benjamin v. Fraser, 2001 U.S. App. LEXIS 19666, No.
00-9093, 2001 WL 1012247 (2d Cir. Sept. 5, 2001), cited
Judge Kleinfeld’s dissent from the en banc decision in Mauro.
188 F.3d 1054, 2001 WL 1012247, at *9 n.10. Judge
Kleinfeld, in tum, relied on a narrow definition of “peno-
logical” as “relating to the ‘theory and practice of prison
management and criminal rehabilitation’” and meaning,
“roughly,” “penalty or punishment.” 188 F.3d at 1068. Judge
Kleinfeld found support for his belief that the Supreme Court
used “penological” in this narrow sense in its recognition in
Turner that rehabilitation is a legitimate penological inter-
est. Id. at 1068 & n.8 (citing Turner, 482 U.S. at 97-99).
Judge Kleinfeld’s analysis, however, fails to accoynt for the
reliance in Turner of facility security as the “penological
interest” justifying aprohibition on inmate correspondence
between institutions, see Turner, 482 U.S. at
91-92, which reliance is inconsistent with his theory that “pe-
nological interests” are interests applicable only to prison
ers convicted of crimes—after all, facilities housing prison
ers may have legitimate security concerns regardless of
whether those prisoners have yet been convicted of a
crime. Indeed, the majority opinion in Mauro, in which the
Ninth Circuit distinguished between penological interests that
may be legitimately applied to pretrial detainees from those
that may be legitimately applied only tothose convicted of
crimes, see 188 F.3d at 1059 & n.1, demonstrates the appro-
priate use of the Turner multi-factor framework to a regula-
tion affecting pretrial detainees. See 188 F.3d at 1058-63.
Another difficulty with the majority’s holding is that
it interprets the Constitution as requiring large, complex
facilities such as the NCCC to be run less intelligently —
A-43
and less safely—than ought to be the case. In deciding
whether and under what circumstances to permit cavity
searches, responsible correctional officials would presum-
ably balance the rights of prisoners (which are impinged
on by cavity searches) and the safety of staff and other
prisoners (which is enhanced—at least somewhat—by cav-
ity searches). In determining how this balance should be
struck in the context of any particular facility, cominon
sense dictates that a number of factors are relevant, in-
cluding whether the facility is overcrowded; whether it is
equipped with drug-sniffing dogs and metal detectors;
whether it has been infiltrated by gangs; and whether pris-
oners have attempted previously to secrete contraband in
a manner detectable only by cavity searches. Because the
“reasonably related” standard envisions a flexible, multi-
factor inquiry, see Turner, 482 U.S. at 89-91, it would per-
mit administrators to craft cavity search policies with an
eye to each of these concerns.
By contrast, the “reasonable suspicion” standard
requires prison administrators to focus on only one set of
variables—those related to reasonable suspicion itself.
Accordingly, the majority’s application of the “reason-
able suspicion” standard to jails means that administrators
who manage facilities such as the NCCC will not be al-
lowed to take into account any of the factors noted above.
That makes no sense and, as I have argued, is not required
by the Constitution.
The majority holds that we must assess the consti-
tutionality of the cavity search at issue here under Weber's
“reasonable suspicion” standard, not Turner's “reasonably
related” standard. For the reasons stated above, I dissent.
A-43a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Xx
RAY E. SHAIN, 96 Civ. 3774 (LDW)
Plaintiff,
-against-
JOHN ELLISON, (shield No. 761), JUDGMENT
individually and as Nassau County
Police Officer, JOHN DOE,
individually and as an Assistant
District Attorney of Nassau County,
Joseph Jablonsky, individually and
as the Nassau County Sheriff,
Richard Roe, individually and as
Nassau County Corrections Officers
and County of Nassau, a Municipal
Corporation,
Defendants.
x
This action came on for motions before the Court and
trial before the Court and a jury, Hon. Leonard D.Wexler
presiding, the motions having been decided and the
issues having been duly tried, and the jury having duly
rendered its verdict, it is
A-43b
ORDERED AND ADJUDGED,
1. That defendants’ motion for summary
judgment seeking dismissal of false arrest, abuse of
process and malicious prosecution claim is granted;
and
2. Plaintiff's motion for summary judgment
seeking to have the strip search policy in effect
at the Nassau County Correctional Center declared
unconstitutional is granted; and
3. That plaintiff take nothing of defendants
other than nominal damages in the amount of $1.00
and that the action is dismissed on the merits.
Dated: At Hauppauge, New York
This 12" day of November, 1999
/s/ Leonard D. Wexler
Clerk of the Court
A-44
RAY E. SHAIN, Plaintiff, -against- “J OHN” ELLISON
(Shield No. 761), et al., Defendants.
CV 96-3774
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
June 1, 1999, Decided
June 1, 1999, Filed
COUNSEL:
For Plaintiff: ROBERT L. HERBST, ESQ., HERBST &
GREENWALD LLP, New York, New York.
For Defendants: PAUL F. MILLUS, ESQ., SNITOW &
CUNNINGHAM, LLP, New York, New York.
JUDGES:
LEONARD D. WEXLER, UNITED STATES DISTRICT
JUDGE.
OPINION BY:
LEONARD D. WEXLER
OPINION:
MEMORANDUM AND ORDER
WEXLER, District Judge
This is a civil nghts case brought by an individual who
was arrested by Nassau County Police Officers and there-
A-45
after spent a night in the Nassau County Correctional Cen-
ter (“NCCC”). Plaintiff states that he was the victim of the
use of excessive force and that he was subject to an un-
constitutional strip search. nl The excessive force issue is
presently pending before the court and is scheduled for
trial. The court rules herein on plaintiff's motion for sum-
mary judgment regarding the constitutionality of Nassau
County’s strip search policy.
nl Plaintiff's complaint also contained allegations of false
arrest, abuse of process and malicious prosecution. These
claims have been previously dismissed by prior order of this
court.
For the reasons set forth below, the court holds that
plaintiff is entitled to summary judgment on the claim that
the Nassau County strip search policy, which requires a
strip/visual body cavity search of all prisoners remanded
to custody of the NCCC, is unconstitutional. While the
court is mindful and, indeed, sympathetic, to the legiti-
mate security and safety needs expressed by the Nassau
County Sheriff, the court is constrained by clear precedent
holding that a blanket strip search policy, such as that prac-
ticed by Nassau County, violates the Constitution.
BACKGROUND
I. Plaintiff's Arrest
Plaintiff was arrested by Nassau County police of-
ficers responding to a call placed by plaintiff's wife con-
cerning a domestic dispute. While some facts are contested,
it is clear that at the time of the call plaintiff and his wife
were embroiled in divorce proceedings. Although plain-
tiff was living in the same house as his wife, an order of
protection, which had expired the day before the police
were called to the residence, required, inter alia, plaintiff
A-46
and his wife to occupy separate portions of the home.
Among the police officers responding to the do-
mestic dispute call was defendant police officer Ellison.
Because it is unnecessary, for the purposes of this ruling,
to discuss the specific facts surrounding Plaintiff's arrest,
the court will state here only that plaintiff was arrested
and subsequently remanded by a Nassau County District
Court Judge to the custody of the Nassau County Sheriff
at the NCCC.
II. Plaintiff's Search at the NCCC
Upon arrival at the NCCC plaintiff was subject to
that facility’s procedures regarding all newly admitted pris-
oners. There are no questions of material fact regarding
the policy for admission of new inmates to the NCCC.
The Sheriff of Nassau County was deposed and testified
that all individuals entering the NCCC are strip searched.
n2 Additionally, the court has been provided with copies
of the written procedure and has considered briefs, argu-
ments of counsel and has heard testimony regarding the
procedure. The procedure at issue is as follows.
n2 The court herein uses the term “strip search” interchange
ably with “strip/visual body cavity search.” Both terms refer
to searches involving the removal of all clothes and a visual
inspection of body cavities. Neither term refers to a search
involving any touching of the person being stripped. The
searches discussed in the Second Circuit cases referred to
herein appear to have been the same type of search at issue
here.
All prisoners remanded to the NCCC are subject to
a strip/visual body cavity search. The procedure makes no
distinctions based upon the nature of the crime charged or
the circumstances surrounding the particular arrest. It mat-
ters not whether a newly admitted prisoner has been re-
manded after a misdemeanor charge or a violent felony or
A-47
drug charge. Indeed, while the NCCC is provided with
papers indicating the crime with which the inmate has been
charged, the officer performing the search has no informa-
tion regarding the circumstances surrounding the inmate’s
remand to the NCCC. Nor are officers at the NCCC pro-
vided with information indicating whether there is a rea-
sonable suspicion as to whether a particular inmate may
be concealing contraband. The provision of such informa-
tion is immaterial, however, since all inmates are subject
to the search.
While plaintiff takes issue with the privacy with
which the search is carried out, there is little question as to
the actual procedures followed. All prisoners are told to
disrobe completely. They are told to run their fingers
through their hair. A police officer inspects under the
prisoner’s arms, behind the prisoner’s ears and in the
prisoner’s mouth. The prisoner is told to squat to facilitate
a visual inspection of his buttocks. Male inmates are in-
structed to lift their genitals for a further visual inspection.
At no time during this inspection are the prisoners touched
— the body cavity search is strictly visual.
The police officer performing the search of plain-
tiff testified that the search took approximately one minute.
Affidavit testimony attached to defendants’ papers indi-
cate that the search takes approximately two minutes, Plain-
tiff states that the search took approximately fifteen min-
utes. The court is confident that the actual inspection time
lies somewhere in between these three estimates — any
factual dispute concerning this issue, however is not ma-
terial to the present motion.
DISCUSSION
I. Summary Judgment Standards
A motion for summary judgment may not be granted
unless the court determines that no genuine issue of mate-
A-48
rial fact exists and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct.
2548 (1986); Anderson v. Liberty Lobby, Inc., 477 US.
242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986);
Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d
54, 57 (2d Cir. 1987). Because there is no factual dispute
as to the strip search procedure, this case is properly re-
solved in the context of a motion for summary judgment. n3
n3 Defendant’s brief argued that there was reasonable suspi
cion to carry out a strip search of plaintiff based upon the
nature of the crime charged and the fact that plaintiff was
found carrying a small knife. Defendant’s conceded, how
ever, that when plaintiff was strip searched at the NCCC, the
officers at that facility had no information whatever regard
ing the nature of plaintiff's arrest or the crime with which he
was charged.
II. The Constitutionality of Strip Searches
Thirteen years before this opinion and eleven years
before plaintiff was arrested, the Second Circuit held clearly
and unequivocally that the Fourth Amendment precludes
prison officials from performing strip searches of arrestees
charged with misdemeanor or minor offenses absent a rea-
sonable suspicion that the person being searched is con-
cealing weapons or other contraband. The suspicion can
be based upon the crime charged or the circumstances sur-
rounding the particular arrest. See Weber v. Dell, 804 F.2d
796, 802 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987).
Any policy authorizing blanket strip searching of arrestees,
without the required reasonable suspicion, is unconstitu-
tional. /d. at 802.
Not only did the Second Circuit hold such blanket
search policies unconstitutional in 1986, but the court fur-
ther held that the constitutional right to be free from such
A-49
searches was so clearly established, even in 1986, so as to
preclude the Sheriff who established the county jail policy
from invoking the defense of qualified immunity. Weber,
804 F.2d at 803.
The unconstitutionality of a blanket strip search
policy was again made clear in 1988 when the Second Cir-
cuit decided Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988).
In Walsh, the Second Circuit affirmed the district court’s
denial of a qualified immunity defense in a case involving
the policy of the Chittendon County jail in Vermont. Walsh
reiterated the holding of Weber and held, again, that the
Fourth Amendment prohibits a blanket policy calling for
strip searches of all misdemeanor or minor offense arrestees
admitted to jail.
Relying on the fact that the unconstitutionality of a
blanket strip search policy was sufficiently established in
Weber so as to preclude a qualified immunity defense, the
Second Circuit in Walsh had no trouble holding again in
1988 that defendants were not entitled to claim qualified
immunity. Walsh, 849 F.2d at 69-70.
Ill. The Nassau County Policy
It is against this backdrop of clear appellate author-
ity that this court has been asked to consider the constitu-
tionality of the Nassau County policy of strip searching all
individuals remanded to the custody of the Nassau County
Correctional Center. While the Nassau County defendants
have come forward with much evidence they wish this court
to consider with regard to security concerns allegedly par-
ticular to the Nassau County facility, they do not deny that
the strip searching policy is applied without regard to the
circumstances surrounding particular arrests or the crime
with which the arrestee has been charged.
In Weber and Walsh, the Second Circuit made clear
that strip searches may be justified only by focusing on the
A-50
particular arrest — whether it be the nature the crime
charged or the circumstances surrounding the arrest — and
not on factors relating to the correctional facility. The Sec-
ond Circuit has specifically rejected the argument that the
mixing of arrestees along with the general jail population
justifies a blanket strip search policy. Unwilling to con-
sider generalized security concerns as justification for a
blanket policy, the Second Circuit held that “the risk of a
misdemeanor arrestee’s introducing contraband into the
general jail population simply did not warrant a strip search
of all arrestees ....” Walsh, 849 F.2d at 69. In light of this
precedent, this court is precluded from considering the in-
stitutional concerns of the NCCC. This precedent further
requires that this court find that the Nassau County strip
search policy, which exists without the requirement of any
suspicion, is unconstitutional.
IV. County Liability
Nassau County may be liable for civil rights viola-
tions if the unconstitutional act resulting in plaintiffs in-
juries is, “the execution of a government’s policy or cus-
tom, whether made by its lawmakers or by those whose
edicts and acts may fairly be said to represent official policy
.... Monell v. Dept of Social Serv., 436 U.S. 658, 694, 56
L. Ed. 2d 611, 98 S. Ct. 2018 (1979); Weber, 804 F.2d at
803; Scott v. County of Nassau, 1998 U.S. Dist. LEXIS
19680, 1998 WL 874840 (E.D.N.Y. 1998).
Here, as in Weber, there is no question but that the
act of the Nassau County Sheriff, in establishing and main-
taining policies regarding the searching of individuals at
the NCCC, amounts to the official policy of Nassau County.
Accordingly, the county may be liable for injuries result-
ing from the execution of this policy.
V. Qualified Immunity
A-51
Defendants seek to invoke the defense of qualified immu-
nity on behalf of the Nassau County Sheriff. As noted
above, the Second Circuit held, as early as 1986, that the
defense of qualified immunity was not available in cases
involving blanket strip search policies. See Weber, 804 F.2d
at 803. The unconstitutionality of a policy such as that in
effect at the NCCC was clearly established at the time of
plaintiff's arrest. Officials such as the Sheriff, are held to
have “constructive knowledge of established law.” Walsh,
849 F.2d at 69 (quoting Salahuddin v. Coughlin, 781 F.2d
24, 27 (2d Cir. 1986)). Under the circumstances present
here, it cannot be established that it was objectively rea-
sonable to believe that a strip search of plaintiff was war-
ranted. Accordingly, the Nassau County Sheriff is not en-
titled to the defense of qualified immunity.
VI. Institutional Concerns At The NCCC
The court would be remiss if summary judgment
were granted and the challenged practice condemned, with-
out setting forth certain facts concerning the NCCC which
gave this court great pause in striking down that facility’s
procedures. Had this court the latitude to consider these
concerns, the outcome of this motion may well have been
different.
Approximately 1,100 individuals are employed at
the NCCC, 950 of whom are corrections officers. The fa-
cility houses approximately 1,800 inmates on any given
day. These inmates arrive at the NCCC, in their street
clothes, from a variety of places througiiovt Nassau County.
Each year, approximately 14,000 inmates are processed
for introduction to the NCCC. Upon arrival at the NCCC,
the corrections officer has available the history of the
inmate’s offenses (if any) as well as a notation explaining
the reason the inmate is being held and commitment pa-
pers noting the remand from a judge.
A-52
Inmates at the NCCC are either awaiting trial or have been
sentenced. They include those charged and/or convicted
of crimes ranging from murder and rape to non-violent
offenders. According to defendants, the NCCC also houses
members of identifiable gangs.
The court has reviewed defendants’ submissions re-
garding security concerns and notes the difficulty in main-
taining a safe facility. According to defendant’s submis-
sions (which the court recognizes have not been subject to
cross-examination), a random search of inmate files re-
vealed that in the past two years there have been six occa-
sions when an inmate was found to have various weapons
during a strip search and eight occasions when the initial
strip search revealed concealed drugs. While these num-
bers are not very high, when compared to the number of
inmates coming through the facility, the dangers posed by
concealed weapons in a facility such as the NCCC are in-
deed great.
Corrections officers at the NCCC are concerned not only
with protecting themselves and other employees, but with
protecting the safety of other inmates. Indeed, a failure to
properly protect inmates may well result in the imposition
of civil liability.
While the court is clear that the precedent estab-
lished by Weber, and reiterated in Walsh, precludes this
court from upholding a blanket strip search policy in the
absence of reasonable suspicion regarding the arrest, the
court notes that the prison facilities at issue in both Weber
and Walsh were undoubtably different, in many important
respects, from the facility at issue here. While the court
does not profess to have an intimate knowledge of the in-
ner workings of the Monroe County, Rochester jail (at is-
sue in Weber) or the Chittenden County, Vermont jail (at
issue in Walsh), or even of the size of those facilities, the
court questions whether the institutional concerns present
A-53
at the NCCC can be fairly compared to these facilities.
In sum, a full consideration of the facts surrounding the
NCCC and its particular concerns may have resulted in a
finding that a one or two minute strip search conducted in
privacy might well be warranted when balanced against
the concerns of this particular institution. The court makes
no finding as to the proper outcome of this balance. Cer-
tainly, it would have been necessary to take additional tes-
timony and have each party present their side of the story.
Given the state of the law, however, the court could not
properly consider this evidence.
CONCLUSION
The policy of strip searching all misdemeanor and minor
offense arrestees remanded to NCCC, without requiring
any suspicion that the remanded individual is concealing
weapons or other contraband, violates the Fourth Amend-
ment to the United States Constitution. Plaintiff's motion
for summary judgment with regard to the strip searching
policy in effect at the Nassau County Correctional Center
is granted. ‘
SO ORDERED.
s/
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
June 1, 1999
A-54
MITCHELL WAYNE THOMAS, Plaintiff-Appel-
lant-Cross-Appellee, v. LARRY LESLIE, Reno
County Sheriff, Defendant-Appellee-Cross-Appel-
lant.
Nos. 97-3346, 97-3361
UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT
April 21, 1999, Filed
NOTICE: ,
RULES OF THE TENTH CIRCUIT COURT OF AP-
PEALS MAY LIMIT CITATION TO UNPUBLISHED
OPINIONS. PLEASE REFER TO THE RULES OF THE
UNITED STATES COURT OF APPEALS FOR THIS.
CIRCUIT.
COUNSEL:
For MITCHELL WAYNE THOMAS, Plaintiff-Appellant:
Mitchell Wayne Thomas, Huntsville, TX.
For LARRY LESLIE, Defendant - Appellee: Michael Jilka,
Wendell F. Cowan, Jr., Shook, Hardy & Bacon, Overland
Park, KS.
JUDGES:
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
A-55
OPINION BY:
ROBERT H. HENRY
OPINION:
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, ex-
cept under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this
panel has determined unanimously that oral argument
would not materially assist the determination of these ap-
peals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The cases are therefore ordered submitted without oral ar-
gument.
This appeal (No. 97-3346) and cross appeal (No.
97-3361) are taken from decisions granting summary judg-
ment to Sheriff Leslie in No. 97-3346 and to Mr. Thomas
in No. 97-3361. They arise from an action filed by Mr.
Thomas pursuant to 42 U.S.C. § 1983, in which he claimed
his constitutional rights were violated while he was incar-
cerated at the Reno County Detention Center (RCDC) from
December of 1992 through May of 1994. We exercise ju-
risdiction pursuant to 28 U.S.C. § 1291 and affirm in part
and reverse in part.
Mr. Thomas raised three claims in his verified com-
plaint. See Thomas App. at 1-6. Judgment on the first claim,
alleged denial of access to the courts, has not been ap-
A-56
pealed, nor has the denial of declaratory and injunctive
relief. For his second claim, Mr. Thomas alleged that the
absolute ban on newspapers at the jail violated his First
Amendment rights. In his third claim, Mr. Thomas con-
tended that he was denied an hour of exercise per day out-
side his cell in violation of his Eighth and Fourteenth
Amendment rights. Mr. Thomas sought $ 15,000 in com-
pensatory damages. See id. at 5. The parties filed cross
motions for summary judgment with supporting documen-
tation and affidavits. Sheriff Leslie also filed a Martinez
nl report and a supplemental report.
nl See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.
1978) (per curiam) (approving district court’s use of report
filed by prison officials as administrative record).
Background
Mr. Thomas was incarcerated at the RCDC, after being
extradited from a facility in Texas, pending disposition of
state charges against him in Kansas. During his stay at the
RCDC, he was briefly transferred on several occasions to
a mental health center, the state hospital, and the county
jail. Following his conviction in Kansas, he was transferred
back to Texas.
No. 97-3346
In his complaint, Mr. Thomas claimed the failure to pro-
vide him with “one hour of recreation outside [his] cell
per day violated his constitutional rights under the 8th &
14th Amendments.” Thomas App. at 4. In subsequent
pleadings, he alleged that because he was under a doctor’s
care for stomach pains and depression, “it may certainly
be argued that the lack of exercise contributed greatly to
A-57
[plaintiff's] medical problems ....” R. Doc. 24, Plaintiff's
Response to Defendant’s Motion for Summary Judgment,
at 13.
In his initial Memorandum and Order, the district court
found that there were sometimes delays of over a week
between inmate visits to the exercise area in the basement
of RCDC, see Thomas App. at 48, that Mr. Thomas had
access to the day room n2 adjoining his cell for at least
seventeen hours daily and was permitted to exercise there,
and that RCDC intended to provide each inmate with an
opportunity for out-of-cell exercise at least weekly, but was
not always able to achieve the goal. See id. at 49. The court
further found that Mr. Thomas filed a grievance with Sheriff
Leslie, who admitted telling Mr. Thomas that the exercise
area was not available on a daily basis. See id. at 48.
n2 Apparently the day rooms were used for multiple activi-
ties, including eating, watching television, and showering.
The court held that under Wilson v. Seiter, 501 U.S.
294, 298-303, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991),
the Supreme Court noted that an Eighth Amendment claim
has two components—a subjective component (did jail
officials act with a sufficiently culpable state of mind, i.e.,
deliberate indifference?) and an objective one (was the
deprivation serious?). See Thomas App. at 62; see also
Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 81 l,
114 S. Ct. 1970 (1994) (“In prison-conditions cases that
[sufficiently culpable] state of mind is one of ‘deliberate
indifference’ to inmate health or safety”) (further citations
omitted). The court ruled that because the right to a mini-
mal amount of out-of-cell exercise was clearly established
at the time of Mr. Thomas’s incarceration, the subjective
component requiring deliberate indifference had been sat-
isfied. See id. at 62-63. We assume that the district court
A-58
recognized that the subjective component of deliberate
indifference would be satisfied by a showing that Sheriff
Leslie was aware of an exercise requirement, given the
policy, and knowingly failed to implement it. See Allen v.
Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994). “This is not a
case where defendants claim that they were unaware of
either the circumstances resulting in the alleged depriva-
tion or the likelihood that the deprivation would occur.”
Id.
As to the objective component, the court noted this
court’s decision in Housley v. Dodson, 41 F.3d 597, 599
(10th Cir. 1994), as recognizing that the “failure to pro-
vide inmates confined for more than a short period of time
with the opportunity for at least five hours a week of exer-
cise outside the cell raises serious constitutional questions.”
See Thomas App. at 63.
Because of the parties’ disputes as to the real con-
ditions at the jail (e.g., crowded day rooms, Thomas’s length
of confinement, unsanitary nature of day room as an exer-
cise area), and any damages Mr. Thomas may have incurred
to his physical or mental health, the court found that issues
of fact existed as to the conditions of Mr. Thomas’s con-
finement with regard to adequate opportunity for exercise.
The court then ordered a supplementa! Martinez report,
directing Sheriff Leslie to include Mr. Thomas’s medical
records and to “fully address the factors announced in
Housley which a district court is to consider when evalu-
ating a claim that a prisoner was denied an adequate op-
portunity for out-of-cell exercise.” See id. at 65-66.
Sheriff Leslie filed a supplemental Martinez report,
which included an affidavit of the captain of the RCDC,
Mr. Thomas’s medical records, some of the records (gym
logs) of those inmates who had signed up to attend the
exercise area, a description of the exercise area and its
equipment, a description of the jail (cell and day room fa-
A-59
cilities), the inmate rule book, information on the average
stay of inmates at the RCDC, a gym request slip indicating
Mr. Thomas’s refusal to attend an exercise session, and
other miscellaneous documents. See R. Doc. 44 and Tho-
mas App. at 67-106. Mr. Thomas filed a lengthy and de-
tailed response specifically disputing both factual state-
ments and conclusions presented in the Supplemental
Martinez report. See Thomas App. at 107-139.
In his second Memorandum and Order, the district
court found that the RCDC inmates were given the oppor-
tunity for out-of-cell exercise once a week, that the goal
was to provide each inmate with an hour of exercise a week,
but that the sessions usually lasted only twenty to forty
minutes, that the sessions were frequently canceled, and
that for approximately six months toward the end of Mr.
Thomas’s incarceration no opportunity for out-of-cell ex-
ercise was provided because of an escape from the exer-
cise room. See id. at 141.
The court further found that an inmate wishing to
participate in attending the exercise area was required to
submit a request form before 7:00 a.m. on the day sched-
uled for exercise and that Mr. Thomas had submitted only
one such request to participate in the exercise sessions (and
had refused to go when the time came). The court deter-
mined that Mr. Thomas admitted “he did not take advan-
tage of the out-of-cell opportunities that were made avail-
able to him.” See id. at 141-142. The court also ruled that
the exercise sessions lasted at least twenty minutes, and
that Mr. Thomas “certainly could have received some ben-
efit from participating on a weekly basis.” See id. at 142.
In granting summary judgment to Sheriff Leslie, the court
concluded that because Mr. Thomas had refused to par-
ticipate in the exercise opportunities made available to him,
Mr. Thomas could not “show that his mental or physical
health deteriorated because [Sheriff] Leslie failed to pro-
A-60
vide additional opportunities for out-of-cell recreation.”
See id. at 143.
Summary Judgment
We review the district court’s grant of summary judgment
de novo, applying the same legal standard used by the dis-
trict court. Summary judgment is appropriate “if the plead-
ings, depositions, answers to interrogatories, and admis-
sions 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). “““When applying this standard,
we examine the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing
summary judgment.’” Kaul v. Stephan, 83 F.3d 1208, 1212
(10th Cir. 1996) (quoting Wolf v. Prudential Ins. Co. of
Am., 50 F.3d 793, 796 (10th Cir. 1995)). “The relevant
inquiry is whether the evidence presents a sufficient dis-
agreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Bingaman v. Kansas City Power & Light Co., 1 F.3d
976, 980 (10th Cir. 1993) (quotation omitted). “Facts must
be identified by reference to affidavits ... or specific ex-
hibits incorporated therein.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 671 (10th Cir. 1998).
Martinez Reports
We have long permitted use of a court-authorized
[Martinez] report by prison officials as part of the deter-
mination as to “whether a pro se prisoner’s allegations have
any factual or legal basis.” See Northington v. Jackson,
973 F.2d 1518, 1521 (10th Cir. 1992). “On summary judg-
ment, a Martinez report is treated like an affidavit, and the
A-61
court is not authorized to accept its fact findings if the
prisoner has presented conflicting evidence.” Jd. (further
citation omitted). In addition, a plaintiff's complaint may
be treated as an affidavit where, as here, it “alleges facts
based on the plaintiff's personal knowledge and has been
sworn under penalty of perjury.” Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir. 1991). However, a court may not
resolve material disputed issues of fact by accepting the
Martinez report’s factual findings when they are in con- ,
flict with pleadings or affidavits. See id. at 1109. “A bona
fide factual dispute exists even when the plaintiff's fac-
tual allegations that conflict with the Martinez report are
less specific or well-documented than those contained in
the report.” Jd.
Here, the district court found that inmates were
given the “opportunity to exercise out of their cells once a
week.” Thomas App. at 141. The Supplemental Martinez
Report attached an affidavit of a captain at the RCDC stat-
ing that Mr. Thomas “was afforded the opportunity to ex-
ercise at least once a week in the Exercise Area between
December 11, 1992 to December 3, 1993, if he filled out a
Request Slip for that activity.” Id. at 80. The district court
also found, however, that exercise sessions usually lasted
only twenty to forty minutes, and that the sessions were
frequently canceled. See id. at 141.
On appeal, Mr. Thomas argues that material ques-
tions of fact exist with respect to his opportunity for ad-
equate exercise outside of his cell. Mr. Thomas relies on
our decision in Housley, 41 F.3d at 599 (10th Cir. 1994),
for his claim that he was entitled to five hours a week of
exercise out of his cell. n3 He contends that Sheriff Leslie’s
Supplemental Martinez Report, see Thomas App. at 67, et
seq., was also inadequate because the records supplied,
i.e., the gym “logs,” were incomplete. Specifically, Mr.
Thomas claims that the gym logs, which list the names of
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inmates who had signed up for the exercise area, exclude
the first seven months of Mr. Thomas’s incarceration at
RCDC and include a six-month period after he had returned
to Texas. See id. at 84-106. From this “omission of records,”
he concludes that “the records themselves raise material
issues of fact.” Thomas Br. at 12. He argues that had the
records been complete as ordered by the district court, “the
court would have been fully aware of all the cancellations,
and the court’s ruling then should have been different and
in favor of ... Thomas.” /d. at 13. He further explained that
the gym logs attached to the supplemental Martinez report
actually demonstrate that even inmates who did sign up
for the exercise period were not necessarily afforded the
opportunity because there was an insufficient amount of
time available to accommodate all the inmates desiring to
participate. He also points out the numerous cancellations
of exercise periods and the total lack of exercise opportu-
nity for six months between December of 1992 and June
of 1994. See Thomas App. at 121-25, 80; 133-37. These
material disputed issues of fact undercut the court’s find-
ing that Mr. Thomas was provided the opportunity for
weekly exercise.
n3 In Housley, 41 F.3d at 599 (10th Cir. 1994), we held that
an inmate who claimed he received only thirty minutes of
out-of-cell exercise in three months had stated a claim that
his constitutional rights were violated. We also held that “the
right to some exercise was clearly established at the time of
Mr. Housley’s confinement,” which appears to have been
prior to 1993. See id. We relied in part on Bailey v. Shillinger,
828 F.2d 651, 653 (10th Cir, 1987), in which we had recog-
nized that “some form of regular outdoor exercise is ex-
tremely important to the psychological and physical well -
being of inmates.” We have recently affirmed the principles
expressed in Housley and Bailey. See Perkins v. Kansas Dept
of Corrections, 165 F.3d 803, 810 (10th Cir. 1999); see also
A-63
Williams v. Greifinger, 97 F.3d 699, 704-705 (2d Cir. 1996) ~
(discussing prisoners’ rights to some opportunity for exer-
cise); Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir. 1992)
(generally prisoner “should be permitted some regular out-
of-cell exercise”); Davenport v. DeRobertis, 844 F.2d 1310,
1315 (7th Cir. 1988) (recognizing number of decisions hold
ing that failure to provide inmates confined for more than a
short period with opportunity for at least five hours’ weekly
exercise outside cell raises serious constitutional questions).
Although we have referenced five hours of exercise per week,
we have declined to adopt a set weekly total for regular or
daily exercise. See Housley, 41 F.3d at 599.
The district court erred in accepting the facts as set
forth in the Martinez reports, where, as here, Mr. Thomas
presented conflicting evidence. See Northington, 973 F.2d
at 1521. See also Craig v. Eberly, 164 F.3d 490, 496 (10th
Cir. 1998) (noting factual dispute where inmate alleged he
was allowed only two one-hour exercise periods during
total confinement and jailors claimed he received one hour
per week, weather permitting). Thus, the court’s conclu-
sion that Mr. Thomas “could have received some benefit
from participating [in the exercise period] on a weekly
basis” (see Thomas App. at 142) is also flawed, because
of the factual dispute as to how much exercise time was
really afforded inmates at RCDC.
Accordingly, we vacate the district court’s judgment
as to the exercise claim and remand the matter for further
proceedings.
No. 97-3361
The district court also held that the absolute ban n4 on
newspapers violated Mr. Thomas’s First Amendment nights.
The court granted summary judgment to Mr. Thomas on
this claim, awarding nominal damages in the amount of
$ 1.00.
n4 There is no factual dispute that newspapers are not per-
mitted at the RCDC. Thomas Appendix at 13.
The district court analyzed the RCDC rule forbid-
ding newspapers under the balancing test set forth in Turner
v. Safley, 482 U.S. 78, 89-90, 96 L. Ed. 2d 64, 107 S. Ct.
2254 (1987). We have described this analysis as follows:
To determine whether the prison action is “reason-
ably related to legitimate penological interests,” Turner
erects a balancing test, and it directs lower courts to weigh
the following factors. First, the lower court should inquire
into whether there is a “valid, rational connection” between
the prison action and the “legitimate government interest
put forward to justify it.” Second, the lower court should
determine whether “there are alternative means of exer-
cising the right that remain open to prison inmates.” Third,
the court should evaluate “the impact [that] accommoda-
tion of the asserted constitutional right will have on guards.
and other inmates, and on the allocation of prison resources
generally.” And finally, the court should look for the pres-
ence of “obvious, easy alternatives” to the disputed prison
activity. Of course, in conducting this analysis, the Supreme
Court advises repeatedly that substantial deference is to
be accorded to the prison authorities.
Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1990) (in-
_ temal citations and footnote omitted).
Sheriff Leslie argued that the ban on newspapers
was rationally related to concerns that newspapers could
be used to start fires nS or as weapons and that the accu-
mulation of papers constituted a health hazard. The sheriff
admitted that inmates were permitted a soft-back Bible and
A-65
that they “have access to puzzle books and paperback books
via the commissary.” Thomas App. at 13. As to the first
Turner factor, the court determined that because other
materials presenting the same security and safety concerns
were not restricted, the newspaper ban was not rationally
related to the sheriff's stated objective. n6 Jd. at 57.
n5 In his initial Martinez report, the sheriff acknowledged
that RCDC “is smoke-free and matches and lighters were
not permitted.” Thomas App. at 15.
n6 No argument.was advanced that the content of the news
papers posed a security risk. See Thornburgh v. Abbott, 490
USS. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989) (up
holding regulations allowing exclusion of certain publica
tions found on individualized basis to be potentially detri
mental to order and security). by
Sheriff Leslie also claimed that access to television,
which included local and cable news channels, constituted
an alternate means of exercising the right to remain in-
formed about community and national news. He cites no
authority for this proposition, nor did he dispute Mr.
Thomas’s claim (also repeated in an affidavit) that because
a majority vote of the inmates in each cell governs what
programs are in fact watched, Mr. Thomas was not able to
view the news programs he wanted to.
The court found that the alternative means test
would allow Sheriff Leslie to prohibit all reading material
under the theory that television provides an adequate sub-
stitute for all written communications and that this second
Turner factor also weighed against upholding the rule. See
id. at 58.
The court found that as to the third Turner factor, the im-
pact of accommodating the right, any such impact of al-
A-66
lowing newspapers would be minimal in view of the per-
mitted access to paperback and puzzle books and soft back
Bibles. See id.
Finally the court determined that an obvious and easy al-
ternative existed to the sheriff's expressed concerns un-
derlying the rule and was thus evidence that the rule was
not reasonable but rather an “‘exaggerated response’ to
prison concerns.” See Turner, 482 U.S. at 90. The alterna-
tive identified by the district court was a policy approved
for use at another county jail which required inmates to
turn in one publication before receiving another, thus re-
ducing the amount of combustible material in the jail. See
Thomas App. at 58-59. Concluding that the blanket prohi-
bition on newspapers violated Mr. Thomas’s First Amend-
ment rights, the court granted him summary judgment on
this claim and awarded nominal damages of $ 1.00. Fa
On appeal, Sheriff Leslie claims that the district
court failed to properly balance the newspaper ban as a
proper penological interest against Mr. Thomas’s right to
read newspapers. See Turner, 482 U.S. at 89 (“when a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests.”). The sheriff also con-
tends that he is entitled to qualified immunity on this claim
because the right to access newspapers was not clearly es-
tablished.
Qualified Immunity
Once a defendant claims he is qualifiedly immune, the
burden is on the plaintiff to establish both that defendant’s
actions violated a constitutional or statutory right and that
the right allegedly violated was clearly established at the
time of the conduct at issue. See Albright v. Rodriquez, 51
F.3d 1531, 1534 (10th Cir. 1995). In order to be clearly
a
A-67
established, “the contours of the right must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.’” Jd. at 1535 (quoting Ander-
son v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107
S. Ct. 3034 (1987)). Generally, for a right to be clearly
established, “there must be a Supreme Court or Tenth Cir-
cuit decision on point, or the clearly established weight of
authority from other courts must have found the law to be
as the plaintiff maintains.” Trigalet v. Young, 54 F.3d 645,
648 (10th Cir. 1995) (further quotation omitted). However,
this test is not rigid, and a plaintiff is not required to cite a
factually identical case to demonstrate that the law was
clearly established. See Baptiste v. J.C. Perney Co., 147
F.3d 1252, 1257-58 n.9 (10th Cir. 1998), citing Clanton v.
Cooper, 129 F.3d 1147, 1156 (10th Cir. 1997). Instead we
have adopted the approach of “requiring some but not pre-
cise factual correspondence in demanding that officials
apply general, well-developed legal principles ....”” Clanton,
129 F.3d at 1157 (quoting Lawmaster v. Ward, 125 F.3d
1341, 1351 (10th Cir. 1997)). Accordingly, we must as-
certain whether as of December of 1992 it was clearly es-
tablished that a blanket prohibition of newspapers was
unconstitutional. See Trigalet, 54 F.3d at 648.
Right to Read Newspapers
“[A] prison inmate retains those First Amendment rights
that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the correc-
tions system.” Pell v. Procunier, 417 U.S. 817, 822, 41 L.
Ed. 2d 495, 94S. Ct. 2800 (1974). See also Bell v. Wolfish,
441 U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)
(“our cases have held that sentenced prisoners enjoy free-
dom of speech and religion under the First and Fourteenth
Amendments’’); Kleindienst v. Mandel, 408 U.S. 753, 762,
a
A-68
33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972) (“The Constitu-
tion protects the rights to receive information and ideas.”’)
(further citations omitted).
Although neither the Supreme Court nor this court
have specifically held that a prisoner is entitled to read
newspapers, other courts have addressed the issue. See,
e.g., Van Cleave v. United States, 854 F.2d 82, 84 (Sth Cir.
1988) (plaintiff stated claim for relief where complaint al-
leged his request for newspaper denied); Green v. Ferrell,
801 F.2d 765, 772 (Sth Cir. 1986) (jail’s prohibition on
newspapers violates First Amendment); Mann v. Smith, 796
F.2d 79, 82 (Sth Cir. 1986) (ban on newspapers and maga-
zines represents exaggerated response to legitimate need
to preserve discipline and maintain security); Sizemore v.
Williford, 829 F.2d 608, 610 (7th Cir. 1987) (absent re-
strictions based on legitimate goals of confinement, prison
inmates retain First Amendment right to receive and read
newspapers); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir.
1982) (total ban on newspapers unjustifiable when haz-
ards of newspaper possession could as well be caused by
reading material detainees were permitted to have).
A number of district courts have also recognized
prisoners’ rights to read newspapers. See, e.g., Parnell v.
Waldrep, 511 F. Supp. 764, 767-68 (W.D.N.C. 1981) (re-
fusal to allow jail inmates to receive newspapers is uncon-
stitutional); Hutchings v. Corum, 501 F. Supp. 1276, 1299 :
(W.D. Mo. 1980) (absolute denial of access to newspapers :
violates inmates’ First Amendment guarantees); Mitchell 4
v. Untreiner, 421 F. Supp. 886, 895 (N.D. Fla. 1976) (fail-
ure to permit inmates to read daily newspaper denied First ;
Amendment freedom of speech, association, and right to a
be informed citizens in democratic society); Payne v. :
Whitmore, 325 F. Supp. 1191, 1193 (N.D. Cal. 1971) (that
right to receive newspapers and magazines is part of First
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Amendment is beyond question).
We agree with the district court that the absolute
ban on newspapers does not constitute a “valid, rational
connection’ between the prison regulation and the legiti-
mate governmental interest put forth to justify it,” Turner,
482 U.S. at 89 (further quotation omitted), particularly
where the hazards concerning Sheriff Leslie could as well
be caused by the permitted reading materials. See Kincaid,
670 F.2d at 744; Mann, 796 F.2d at 82 (because jail has no
smoking rule and inmates are permitted to have other forms
of paper, official rationale for banning newspapers seems
tenuous at best). :
Nor are we persuaded by Sheriff Leslie’s argument
that access to television provides an adequate alternative
to newspapers. Television cannot supply the depth and di-
versity of coverage that newspapers can provide. Mr.
Barnett’s affidavit] states he was unable to watch news
programs because of the majority vote rule controlling what
programs were watched. Sheriff Leslie has not disputed
this statement. Moreover,
‘ it is not up to the [county sheriff] or this court to decide
that television can adequately service the first amendment
right to receive protected materials. Rather, we must apply
the principle that a prison inmate retains those First Amend-
ment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of
the corrections system.
See Mann, 796 F.2d at 83 (footnote and citation omitted).
We therefore conclude that the contours of an
inmate’s right to access to newspapers was “sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.” See Anderson, 483 U.S. at
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640; cf. Housley, 41 F.3d at 600 (“[a] reasonable sheriff
and jailer must remain apprized of major constitutional de-
veloyments concerning inmates’ rights.”’). The district court
correctly held that Sheriff Leslie was not entitled to quali-
fied immunity on this claim, and judgment as to this claim
is affirmed.
Accordingly, in appeal No. 97-3346, the district
court’s judgment is REVERSED, and the matter is RE-
MANDED for further proceedings. In appeal No. 97-3361,
the district court’s judgment is AFFIRMED. The mandates
shall issue forthwith.
Entered for the Court
Robert H. Henry
i
e
E
5
A-71
Circuit Judge
ROBERT L. POLK, Plaintiff-Appellant, v. RICKY
PARNELL, Head Jailer; HAROLD GARRISON,
Fulton County Judge Executive; FULTON COUNTY
FISCAL COURT; CITY OF HICKMAN, Defen-
dants-Appellees.
No. 96-5711
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
December 8, 1997, Filed
NOTICE:
[*1] NOT RECOMMENDED FOR FULL-TEXT PUB-
LICATION. SIXTH CIRCUIT RULE 24 LIMITS CITA-
TION TO SPECIFIC SITUATIONS. PLEASE SEE RULE
24 BEFORE CITING IN A PROCEEDING IN A COURT
IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST
BE SERVED ON OTHER PARTIES AND THE COURT.
THIS NOTICE IS TO BE PROMINENTLY DISPLAYED
IF THIS DECISION IS REPRODUCED.
ROBERT L. POLK, Plaintiff - Appellant, Pro se, Eddyville,
KY.
For RICKY PARNELL, HAROLD GARRISON, Defen-
dants - Appellees: W. Kenneth Nevitt, R. Thaddeus Keal,
A-72
Sun S. Choy, Williams & Wagoner, Louisville, KY.
JUDGES:
Before: MERRITT, BATCHELDER, and FARRIS, * Cir-
cuit Judges.
* The Honorable Jerome Farris, United States Circuit Judge
for the Ninth Circuit, sitting by designation.
OPINION:
ORDER
Robert L. Polk appeals a district court order granting sum-
mary judgment for the defendants in his civil rights action
filed pursuant to 42 U.S.C. § 1983. The case has been
referred to a panel of the court pursuant to Rule 9(a), Rules
of the Sixth Circuit. Upon examination, this panel unani-
mously agrees that oral argument is not needed. Fed. R.
App. P. 34(a).
Seeking monetary, declaratory, and injunctive re-
lief, Polk sued the jailer of the Fulton County (Kentucky)
Jail, the Fulton County Judge Executive, the Fulton County
Fiscal Court, and the City of Hickman. Polk sued the jailer
and the judge executive in their individual capacities, as
well as suing the jailer in his official capacity. Polk al-
leged that the defendants: 1) subjected him to numerous
conditions of confinement that violated the Eighth Amend-
ment; 2) were deliberately indifferent to his serious medi-
cal needs; 3) improperly placed him in security lock down;
4) improperly restricted his visitation and religion privi-
leges; 5) discriminated against him because of his race;
and 6) attempted to entrap him into committing a crime.
The district court concluded that Polk’s allegations were
without merit and granted summary judgment for the de-
fendants. Polk has filed a timely appeal.
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We initially note that in this appeal Polk argues only that
the defendants: 1) subjected him to conditions of confine-
ment violating his Eighth Amendment rights by confining
him in an overcrowded cell, providing insufficient razors
for shaving, and providing only plastic utensils for eating;
2) were deliberately indifferent to his back, foot, and stom-
ach problems; 3) improperly placed him in security lock
down; and 4) improperly restricted his visitation and reli-
gion privileges. Consequently, Polk’s remaining claims are
considered abandoned and not reviewable. Boyd v. Ford
Motor Co., 948 F.2d 283, 284 (6th Cir. 1991), cert. de-
nied, 503 U.S. 939, 117 L. Ed. 2d 624, 112 S. Ct. 1481
(1992).
Upon review, we conclude that the district court
properly granted summary judgment for the defendants.
This court renders de novo review of a district court order
granting summary judgment. Terry Barr Sales Agency, Inc.
v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996). Sum-
mary judgment is proper if no genuine issue exists as to
any material fact and the moving party is entitled to judg-
ment as a matter of law. Id. The moving party must show
an absence of evidence to support the non-moving party’s
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.
Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party
has met this burden, the non-moving party must designate
specific facts showing that a genuine issue exists for trial.
Id. at 324.
The district court properly granted summary judg-
ment on Polk’s claims that the defendants subjected him
to unconstitutional conditions of confinement because his
allegations fail even to state a claim. During his incarcera-
tion at the Fulton County Jail, Polk was a pretrial detainee.
The Eighth Amendment’s protection against cruel and un-
usual punishment extends to pretrial detainees through the
Fourteenth Amendment’s Due Process Clause, see Whit-
——————————EE eae
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ley v. Albers, 475 U.S. 312, 327, 89 L. Ed. 2d 251. 106 S.
Ct. 1078 (1986), and thus claims by pretrial detainees chal-
lenging conditions of confinement are analyzed under the
Eighth Amendment. See Thompson v. County of Medina,
29 F.3d 238, 242 (6th Cir. 1994). To establish a violation
of the Eighth Amendment, the offending conduct must
reflect an unnecessary and wanton infliction of pain. Whit-
ley, 475 U.S. at 319. A viable Eighth Amendment claim
has an objective and subjective component. Farmer v.
Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114S. Ct.
1970 (1994). The objective component requires that the
pain be serious, Hudson v. McMillian, 503 U.S. 1, 8-9,
117 L. Ed. 2d 156, 112 S. Ct. 995 (1992), and the subjec-
tive component requires that the defendant act with delib-
erate indifference to an inmate’s health or safety. Wilson
v. Seiter, 501 U.S. 294, 302-03, 115 L. Ed. 2d 271, 111 S.
Ct. 2321 (1991). Polk’s allegations that the defendants
improperly confined him in an overcrowded cell, provided
insufficient razors for shaving, and provided only plastic
utensils for eating fail even to state a claim for an Eighth
Amendment violation.
Polk’s allegation that he was not provided with
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