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Allison v. GEO Group

March 24, 2009

PENNY ALLISON AND ZORAN HOCEVAR, INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE GEO GROUP, INC., IN ITS OFFICIAL AND INDIVIDUAL CAPACITIES, AND JOHN DOES 1 -- 100, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Jan E. Dubois, J.

DuBOIS, J.

TABLE OF CONTENTS

I. INTRODUCTION ...................................................... 2

II. BACKGROUND ....................................................... 4

A. Procedural History ................................................. 4

B. Factual Background ................................................ 5

1. Penny Allison ............................................... 6

2. Zoran Hocevar .............................................. 7

3. Plaintiff Class ............................................... 7

III. STANDARD OF REVIEW ............................................... 8

IV. DISCUSSION .......................................................... 9

A. Legal Standard for Assessing the Constitutionality of Custodial Strip Searches Under the Fourth Amendment ........................................ 9

1. Fourth Amendment Rights Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. Fourth Amendment Rights in Custodial Facilities . . . . . . . . . . . . . . . . . . 12

3. Bell Standard for Custodial Strip Searches . . . . . . . . . . . . . . . . . . . . . . . 13

B. Defendant's Arguments that Bell No Longer Applies . . . . . . . . . . . . . . . . . . . . . 14

1. Inmates' Fourth Amendment Rights in Custodial Facilities Under Hudson v. Palmer ................................................. 15

2. The Turner v. Safley Standard of Review for Prison Regulations . . . . . . 18

C. The Constitutionality of Suspicionless Arrestee Strip Searches in Custodial Facilities ........................................................ 22

1. The Constitutionality of Contact Visit Strip Searches Under Bell v. Wolfish ................................................... 23

2. Circuit Court Rulings on Arrestee Strip Searches in Custodial Facilities ......................................................... 26

a. The Invasion of Rights that the Search Entails . . . . . . . . . . . . . . 29

b. The Need for the Particular Search . . . . . . . . . . . . . . . . . . . . . . . 31

c. Reasonableness and Reasonable Suspicion Standard . . . . . . . . . 34

3. Powell v. Barrett and Defendant's Powell-Based Arguments . . . . . . . . 35

a. The Source of the Reasonable Suspicion Standard Identified by Powell ............................................. 38

b. Powell's Rejection of the Misdemeanor-Felony Distinction and the Distinction between Contact Visit Strip Searches and Arrestee Strip Searches ........................................ 41

c. Fourth Amendment Analysis Absent a Factual Record . . . . . . . . 44

D. Plaintiffs' Fourth Amendment Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

VI. CONCLUSION ....................................................... 48

MEMORANDUM

I. INTRODUCTION

In this litigation, plaintiffs, detained arrestees at custodial facilities operated by defendant The GEO Group, Inc. ("GEO"), challenge the legality of strip searches conducted by defendants, GEO and John Does 1 -- 100.*fn1 Plaintiffs allege that the searches were performed pursuant to a blanket policy of strip searching all arrestees and that such a policy violates the Fourth Amendment to the Constitution of the United States. This Memorandum addresses the issues presented by defendant GEO's Motion for Judgment on the Pleadings which seeks to dismiss Counts I, II, and III of plaintiffs' Amended Complaint, those that allege Fourth Amendment violations, for failure to state a claim upon which relief may be granted.*fn2

Plaintiffs' cause of action is based on Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court's seminal case on the rights of pretrial detainees. Among other rulings, Bell established the Fourth Amendment standard for determining the constitutionality of strip search policies in custodial facilities.*fn3 Applying that standard to a blanket policy which mandated strip searches for all inmates returning from contact visits, the Supreme Court upheld the policy as reasonable under the Fourth Amendment. Following Bell, other courts have used the Bell standard to assess the constitutionality of custodial strip search policies in various contexts. Plaintiffs' claims rely on those cases which, in assessing custodial strip searches in the arrestee context, strike down blanket polices and the suspicionless searches conducted under those blanket polices as unreasonable and, therefore, unconstitutional.

Defendant's Motion for Judgment on the Pleadings advances three alternative grounds for dismissal. First, defendant argues that plaintiffs' Fourth Amendment claims must fail because, under Hudson v. Palmer, 468 U.S. 517 (1984), inmates in custodial facilities do not possess Fourth Amendment rights. Second, in the event that the Court rejects defendant's Hudson argument, defendant argues that the Court should adjudicate and dismiss plaintiffs' claims according to the standard of review articulated in Turner v. Safley, 482 U.S. 78 (1987), for prison regulations which impinge on inmates' constitutional rights, and not according to Bell's Fourth Amendment standard. Finally, defendant asserts that, even if the Court rejects both of the foregoing arguments and, instead, applies the Bell standard, the outcome in this case is governed by the outcome in Bell, in which the Supreme Court upheld the constitutionality of a blanket strip search policy. In arguing for this application of Bell, defendant relies almost exclusively on Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc), a recently issued en banc opinion by the Eleventh Circuit which runs directly counter to the holdings of nine other circuits on this issue.

Although the issues before the court have been addressed by many circuit courts, the Third Circuit has never ruled on the constitutionality of strip searches in detention facilities. This Court must, therefore, look to other circuits for persuasive authority. For the reasons stated in this Memorandum, the Court rejects defendant's Hudson and Turner arguments and declines to adopt the Eleventh Circuit's holding in Powell. This Court concludes that under the persuasive authority of nine courts of appeals, plaintiffs have stated a claim for relief. Accordingly, defendant's Motion for Judgment on the Pleadings must be denied.

II. BACKGROUND

A. Procedural History

Plaintiffs commenced this action by filing a Complaint against GEO and John Does 1 -- 100 in their official and individual capacities on January 30, 2008. On March 28, 2008, plaintiffs filed an Amended Complaint against the same defendants. The Amended Complaint asserts the following causes of action against all defendants:

Count I: Monetary damages for Fourth Amendment violations pursuant to 42 U.S.C. § 1983

Count II: Demand for declaratory judgment as to Fourth Amendment violations

Count III: Demand for preliminary and permanent injunction as to Fourth Amendment violations

Count IV: Battery

Count V: Negligence

Count VI: Intentional Infliction of Emotional Distress

Count VII: Negligent Infliction of Emotional Distress On May 2, 2008, GEO filed an unopposed Motion to Dismiss Counts IV, VI, and VII of Plaintiffs' Amended Complaint. By Order dated May 30, 2008, the Court dismissed those Counts with prejudice. Defendant's motion to dismiss did not challenge any of plaintiffs' federal claims (Counts I-III) or plaintiffs' state law negligence claim (Count V). On June 19, 2008, GEO filed an Answer to the remaining Counts of plaintiffs' Amended Complaint, and the parties proceeded to conduct discovery.

On September 18, 2008, soon after the issuance of Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc) on September 4, 2008, GEO filed the instant motion for judgment on the pleadings. In conjunction with the motion for judgment on the pleadings, defendant filed a Motion for a Protective Order and Stay of Discovery. By Order dated October 10, 2008, the Court granted in part and denied in part defendant's Motion for a Protective Order and Stay of Discovery, partially staying discovery pending the Court's ruling on the Motion for Judgment on the Pleadings.

B. Factual Background*fn4

GEO, a Florida corporation, manages numerous correctional, detention, mental health, and residential treatment facilities in the United States ("Facilities"), including the George W. Hill Correctional Facility in Thornton, Pennsylvania ("Hill Facility"). (Am. Compl. ¶¶ 15-16, 26, 36.) Plaintiffs aver that in operating its Facilities, defendant has a written or de facto policy of strip searching "all individuals placed into the custody of the Facilities" including recently arrested individuals and pretrial detainees. (Id. ¶ 22.) The searches are allegedly conducted regardless of the existence of reasonable suspicion or probable cause that any particular individual is carrying weapons or contraband on his person. (Id. ¶¶ 22-23.)

Plaintiffs Penny Allison ("Allison") and Zoran Hocevar ("Hocevar") each allege that they were subjected to strip searches that were not based on reasonable suspicion. Plaintiffs further allege that a class of similarly situated individuals were subjected to strip searches under similar circumstances, in accordance with the blanket policy and without reasonable suspicion. (Id. ΒΆΒΆ 23, ...


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