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MURCIA v. COUNTY OF ORANGE

October 4, 2002

JAIME MURCIA, PLAINTIFF,
V.
COUNTY OF ORANGE, CITY OF NEWBURGH, POLICE OFFICER JOHN PEREZ, POLICE OFFICERS CURRENTLY UNKNOWN, AND SHERIFF FRANK BIGGER DEFENDANTS.



The opinion of the court was delivered by: Colleen Mcmahon, United States District Judge.

MEMORANDUM DECISION AND ORDER DISPOSING OF CROSS-MOTIONS FOR SUMMARY JUDGEMENT

Plaintiff Jamie Murcia was involved in an automobile accident in the City of Newburgh. When Newburgh Police Officer John Perez arrived at the scene of the accident, he arrested plaintiff because a Federal arrest warrant for a person with the same name was outstanding. Plaintiff was unable to convince either Newburgh police officers or their counterparts at the Orange County jail that he was not the man named in the arrest warrant. According to plaintiff, as a result, he was subjected to four separate strip searches — one in Newburgh and three at the Orange County Correctional Facility ("OCCF") — before he was turned over to the Federal authorities, who recognized the error and released plaintiff

Plaintiff brought this action in June of 2000 for violation of his civil rights, pursuant to 42 U.S.C. § 1983, and for negligence. In November, 2001, Plaintiff sought leave of the Court to amend his complaint to include Defendant H. Frank Bigger, the Sheriff of Orange County. The Court granted this request. Plaintiff served an Amended Complaint in January, 2002.

Plaintiff now moves for partial summary judgment against defendants County of Orange and Sheriff Frank Bigger ("defendants," for the purpose of this motion)*fn1 pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that the OCCF violated plaintiff's constitutional rights by strip searching him pursuant to an unconstitutional policy of strip searching all detainees upon arrival at the facility. Plaintiff also moves to strike certain affirmative defenses raised by defendants pursuant to Rule 12(f). Defendants oppose plaintiff's motion for summary judgment and cross-move for summary judgment on the claims alleging that the OCCF maintained an unconstitutional policy of strip searching all inmates upon arrival at the facility.*fn2

FACTS

Plaintiff was involved in a traffic accident in the City of Newburgh, New York. (Rule 56.1 Statement at ¶ 15, 16.) A New York State DMV check of plaintiff's driver's license revealed that there was an outstanding warrant for his arrest from the State of Florida, for a federal charge of Bond Jumping. (Id. at ¶ 17; Perez Dep. at 42, Exh. H to Gersowitz Aff; Cert. of Lt. DiMarco.) Plaintiff was arrested and booked by City of Newburgh Police Officers. (Rule 56.1 Statement at ¶ 17.) On February 19, 1999, after arraignment before a Newburgh City Court Judge, plaintiff was remanded to the custody of the OCCF. (Id. at ¶ 19.)

Corrections Officers at the OCCF conducted a visual body search (or "hygiene check" as Sergeant Zappolo referred to it) of plaintiff upon his admission. (Id. at ¶ 26.) Sergeant Zappolo stated that the hygiene check was the routine procedure at the OCCF. (Zappolo Dep. at 11-12, Exh. I to Gersowitz Aff.) According to Sergeant Zappolo, hygiene checks of inmates include "a check of their personal artifacts, their clothing, jewelry, and a check of their body." (Id. at 13.) "Body searches" consists of:

The lifting of their arms, checking under their arms. Opening their mouth, lifting up their tongue. Turning their head from side to side, looking in the inside of their ears. Bending their ears forward, looking behind their ears. Running their fingers through their hair. Lifting up their genitals. Turning around. Picking up both feet, to check the bottoms of their feet. Bending over and a visual check of the rectum.

(Id. at 13-14.) Sergeant Zappolo testified that this procedure was performed on every new inmate at the OCCF: "if they come into the facility, they're searched." (Id., at 14.)

On February 22, the U.S. Marshals came to pick up plaintiff. Plaintiff was strip searched again on this day. (Rule 56.1 Statement at ¶ 30.) Defendants claim that the U.S. Marshals conducted this third strip search of plaintiff. Plaintiff was released from the custody of the U.S. Marshals later that day after they discovered that he was not the Jamie Murcia who was wanted for Bond Jumping.

STANDARDS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56(c), the court will grant summary judgment if the evidence offered shows that there is no genuine issue as to any material fact and that the movants are entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Furthermore, where a plaintiff cannot establish an essential element of his claim, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-33. On a motion for summary judgment, the court views the record in the light most favorable to the non-movants and resolves all ambiguities and draws all reasonable inferences against the movants. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir. 1987).

DISCUSSION

I. The First Strip Search of Mr. Murcia Upon Arrival at the OCCF

A. At all relevant times, the OCCF had a policy of strip searching all new arrivals at the jail.

Plaintiff claims that the OCCF had an unconstitutional policy of strip searching every inmate who arrived at the facility. Plaintiff seeks summary judgment on his § 1983 claim relating to the first strip search he was subjected to at the OCCF.

Defendants respond that plaintiff offers no evidence to support his claim that the OCCF had a policy of strip searching all arriving inmates, noting that plaintiff did not depose Sheriff Bigger. Defendants acknowledge, however, that plaintiff has submitted the testimony of Sergeant Michael Zappolo in support of his claim that the OCCF had a blanket strip search policy in force at the time that plaintiff was admitted to the facility. Sergeant Zappolo stated that it was the Sheriff's Department's policy to conduct visual body cavity searches of each and every person who entered the OCCF: "if they come into the facility, they're searched." (Zappolo Dep. at 14, Exh. I to Gersowitz Aff.) Defendants offer no contradictory evidence.

It is hard to read Defendants' arguments with a straight face, given their history in front of this Court on this issue. See Dodge v. County of Orange, 208 F.R.D. 79 (S.D.N.Y. 2002); Lee v. Perez, 175 F. Supp.2d 673, 681 (S.D.N.Y. 2001). However, limiting myself to the record before me, I conclude that no reasonable trier of fact could reach the conclusion sought by defendants because no evidence supports it. The only evidence in the record on the subject is Sergeant Zappolo's testimony that every inmate who arrived at the OCCF was subjected to the same "hygiene check" (read — strip search) that Mr. Murcia endured. Defendants offer no evidence whatever that raises a genuine issue of fact on the point.

I therefore conclude that defendants maintained a blanket strip search policy for arriving inmates as a matter of undisputed fact.

B. Despite the existence of this policy, defendants are entitled to summary judgment dismissing plaintiff's claim under 42 U.S.C. ยง 1983. ________ ________ Despite the existence of this policy, Sheriff Bigger asserts that he is not liable to plaintiff. He first asserts that the search of Murcia was not constitutional, even if the policy was not, because Murcia was arrested for a felony. Second, he argues that he is entitled to qualified immunity because the constitutionality of strip searching newly-arrested felons without ...


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