The opinion of the court was delivered by: Colleen Mcmahon, United States District Judge.
MEMORANDUM DECISION AND ORDER DISPOSING OF CROSS-MOTIONS FOR SUMMARY
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 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
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
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"
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.
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.
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. § 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 ...