# Petition for Writ of Certiorari — Nassau County, New York v. Shain > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0535%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 1083 ## Text -T: Sy 1 * 02 54107 - 42002 No. OFFICE OF THE CLERK Iu the | Supreme Court of the United States —-o @pe 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? il 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0535%3A1. Public record. Not legal advice.