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Doe v. Luzerne County

August 31, 2010


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendants' Motions for Summary Judgment. (Doc. 45.) For the reasons discussed more fully below, Defendants' motions will be granted.



A. September 27, 2007

Plaintiff, Jane Doe, was hired by Defendant Barry Stankus as a Luzerne County Deputy Sheriff in 2002.*fn1 (Doe Dep. 13:7-16, July 8, 2009). On September 27, 2007, Plaintiff was attempting to execute a bench warrant from a county judge. (Doe Dep. 24:19-25:25.) On that day, Plaintiff and Deputy Brian Szumski entered a residence that "was in total disarray" and discovered upon exiting the residence that they had been infested with fleas. (Doe Dep. 34:15-37:2.) Plaintiff and Szumski later contacted the sheriff's base and alerted the base that they had become contaminated with fleas. (Doe Dep. 38:25-39:1.)

Plaintiff and Szumski were told to go to the Luzerne County Correctional Facility. (Doe Dep. 42:13-15.) When they arrived at the Correctional Facility, Plaintiff and Szumski exited their police cruiser and took off their uniform shirts, bulletproof vests, and duty belts because it was a very hot day. (Doe Dep. 43:11-16.) Plaintiff and Szumski were contacted by Chief Deputy Arthur Bobbouine who told them to stay in the car until he could contact the jail to arrange decontamination; Bobbouine called them back shortly thereafter and informed them that the jail would not take Plaintiff and Szumski. (Doe Dep. 44:12-45:17.)

Plaintiff and Szumski were then directed to go to the emergency management building ("the EMA building") by Bobbouine. (Doe Dep. 46:5-13.) Bobbouine told them to stay in the car and the he would be arriving shortly; Bobbouine arrived approximately twenty minutes later with Defendant Deputy Chief Ryan Foy, Deputy Erin Joyce and Deputy Michael Patterson. (Doe Dep. 47:14-48:18.) When Foy and Bobbouine got out of the car they were laughing at Plaintiff, and Foy began videotaping Plaintiff and Szumski. (Doe Dep. 48-22-25.) Defendant Stankus testified that he ordered Foy to videotape the decontamination for training purposes. (Stankus Dep. 16:17-19, July 9, 2009.) Several people deposed, including Stankus and the Plaintiff, testified that this was the second time in recent memory that a deputy had become infested with fleas in the course of their duty. Bobbouine stated that he was not ordered by Stankus to videotape and was not aware if Stankus had ordered Foy to videotape; he further testified that he did not direct Foy to videotape. (Bobbouine Dep. 16:1-17:2, July 9, 2009.) Foy claims that Bobbouine told him to tape for training purposes. (Foy Dep. 9:12-15, July 9, 2009.) Plaintiff testified that she had no knowledge whether or not Foy had, in fact, been ordered to videotape for training purposes. (Doe Dep. 90:10-12.) Ultimately, no training video was ever made from this footage. (Stankus Dep. 16:13-16.)

Plaintiff and Szumski asked to exit the vehicle, but were told to stay in the car lest they infest the others with fleas as well. (Doe Dep. 50:3-5.) According to Plaintiff, it was Bobbouine and Foy who told her to stay in the vehicle, and Foy issued a direct order to her to stay in the car. (Doe Dep. 50:22-24.) As Plaintiff and Szumski sat in the police cruiser, EMA employees attempted to construct a decontamination shower out of PVC pipes outside the EMA building. (Doe Dep. 53:19-54:8.) The EMA employees' attempts to construct the shower were unsuccessful; Plaintiff and Szumski were waiting in the vehicle for between one and two hours while the decontamination shower was being unsuccessfully erected. (Doe Dep. 60:22-62:2.) Plaintiff testified that she became angry with the length of time she was in the car and asked to go home so that she could decontaminate herself, but was given a direct order by Foy and Bobbouine to stay in the car. (Doe Dep. 68:11-21.) While Plaintiff and Szumski were waiting for the shower to be put together at the EMA building, Bobbouine sent another deputy to purchase products to remove the fleas from the bodies and hair of Plaintiff and Szumski. (Doe Dep. 65:20-66:17.) During this time, Defendant Foy was intermittently taping the situation. (Doe Dep. 71:13-25.)

After it became clear that the attempts to construct a decontamination shower at the EMA building were unsuccessful, Plaintiff and Szumski followed Patterson, Bobbouine, Foy, and Joyce to Mercy Hospital while Foy videotaped the ride.*fn2 (Doe Dep. 73:16-74:18.) Upon arriving at the hospital, Plaintiff and Szumski parked and Plaintiff was told to stay in the vehicle, which she did for forty-five minutes while Szumski was decontaminated. (Doe Dep. 75:22-76:10.) When Szumski finished showering, Plaintiff was directed to take off her boots, socks, and any items of clothing or jewelry that she did not need to bring into the hospital. (Doe Dep. 80:19-81:2.) As Plaintiff began walking toward the hospital entrance, she noticed Defendant Foy taping her and yelled for him to turn off the camera. (Doe Dep. 87:22-88:8.) Foy gestured at Plaintiff to be quiet, laughed at Plaintiff and told her that the video was for training purposes; this was the third time during the day that Foy told Plaintiff that he was videotaping for training purposes. (Doe Dep. 89:12-24.) Before Plaintiff entered the door to the hospital she was met by Deputy Joyce,*fn3 who gave Plaintiff a blanket and told her to wrap the blanket around her head so that no fleas would jump off her body and into the hospital. (Doe Dep. 92:12-18.)

Plaintiff then entered the hospital vestibule wearing the blanket, work pants, and a tee shirt. (Doe Dep. 98:4-12.) Plaintiff entered the decontamination shower wearing this clothing. (Doe Dep. 102:23-25.) Deputy Joyce stood with her foot in the doorjamb with the door open approximately two inches and read Plaintiff instructions from the products that had been procured to accomplish the decontamination. (Doe Dep. 103:2-104:25.) Plaintiff was still fully clothed while Joyce read the instructions and did not disrobe until she was alone in the shower room; the door to the decontamination shower was a "heavy wooden door." (Doe Dep. 102:15-16,109:13-19.)

After she had finished showering, Plaintiff asked, through the wooden shower door, if there were any towels and was informed that she would have to use the drying materials provided in the decontamination shower, which Plaintiff testified were "paper sheets, almost like when you're at a doctor's office and you sit on their bed, the paper that is down." (Doe Dep. 112:12-113:5.) Joyce then asked if Plaintiff had wrapped herself in the materials provided and was "decent" before telling her that she would have to come in to make sure that all of the fleas were out of Plaintiff's hair. (Doe Dep. 113:11-18.) Plaintiff then stepped away from the door and Joyce stepped completely into the shower room, closing the door behind her. (Doe Dep. 113:18-23.) While Joyce checked Plaintiff's hair to make sure that the fleas had been killed by the shampoo, Plaintiff stood with her back towards the door. (Doe Dep. 115:12-18.)

As she stood with her back towards the door in the shower area, she heard a male voice ask "what's that s - - t all over your back?" (Doe Dep. 115:18-20.) Plaintiff identified the voice as Bobbouine and, thinking that he was referring to fleas, brushed at her back, without turning around at any time. (Doe Dep. 116:4-9.) Foy then commented that the matter that caught Bobbouine's eye were tattoos on Plaintiff's back, and then Foy and Bobbouine commented on the tan lines on Plaintiff's back. (Doe Dep. 116:13-16.) Plaintiff yelled for Foy and Bobbouine to leave the shower area; Joyce also yelled at them, Plaintiff heard the door close, and Joyce assured Plaintiff that Foy and Bobbouine were gone. (Doe Dep. 116-18-117:21.) Plaintiff testified that during this time she never turned around, had her back facing Foy and Bobbouine the entire time, and she only saw them out of the corner of her eye as she tried to brush fleas off her back after Bobbouine commented on her tattoo. (Doe Dep. 116:19-22.) During the time Joyce was in the shower area with Plaintiff, Plaintiff was wrapped in the paper described above; the paper covered Plaintiff from the middle of her chest, past her genitals, to her thigh; a large portion of her back, legs and shoulders were left exposed. (Doe Dep. 122:22-124:7.) Plaintiff stated that, to the best of her knowledge, her "private areas" were covered by the paper wrap, but that she could not tell if it was see-through because her eyes were being affected by the flea shampoo. (Doe Dep. 123:1-124:23.)

Deputy Joyce then left the shower and tried to find Plaintiff some clothes to wear. (Doe Dep. 119:1-3.) When Joyce came back, she asked Plaintiff what size she would take in hospital scrubs, and Plaintiff answered that she would need a medium; after Joyce exited the shower, Plaintiff overheard Foy and Bobbouine comment that "[Joyce] better ger [Plaintiff] a 3X because [Plaintiff] is a little heavy in the rear." (Doe Dep. 119:5-25.) When Joyce came back with the scrubs, Plaintiff stepped off to the side of the door, opened it slightly, stuck her wrist out, and was handed the scrubs by Joyce. (Doe Dep. 120:6-121:9.) Plaintiff then got dressed in the scrubs and exited the shower when she was fully clothed. (Doe Dep. 126:5-6; 135:14.)

Plaintiff and Szumski then rode back to sheriff's office; because their cruiser had to be fumigated to kill any fleas, they were forced to ride in the tailgate of the SUV with Joyce, Patterson, Foy and Bobbouine. (Doe Dep. 147:11-23.) Foy videotaped Plaintiff and Szumski getting out of the vehicle and said something to the effect of "here come the fleabags." (Doe Dep. 147:19-25.) As Plaintiff was in the parking lot to the sheriff's office, she encountered Stankus, who had been laughing with Bobbouine and Foy and, according to Plaintiff, walked by Plaintiff and Szumski without acknowledging them. (Doe Dep. 148:12-17.) Plaintiff was met in the parking lot by Mary Jean Farrell, who had brought clothes for Plaintiff to wear. (Doe Dep. 149:8-10.) Foy and Bobbouine told Plaintiff that she should just go home; Plaintiff went into the sheriff's office bathroom, changed clothes and went home for the day. (Doe Dep. 149:19-150:1.)

B. The Video/Photographs

At some point after these events, Defendant Foy played the videotape he made for other employees of the Luzerne County Sheriff's Office. (Doe Dep. 138:16-18.) In April 2008, Plaintiff learned from Deputy Mandy Leandri that there was a videotape and screen-shot photographs of Plaintiff on Foy's old computer. (Doe Dep. 140:7-10.) After Foy left office, Leandri was given Foy's old computer; as Leandri was exploring the files on the computer to delete any files she might not need, she came across the video and screen captures of the September 27, 2007 incident. (Doe Dep. 140:14-141:1.) Leandri contacted the new sheriff, Michael Savokinas, who then contacted Plaintiff so that she could see what was on the computer. (Doe Dep. 141:1-24.) Plaintiff testified that there were five or six still photographs and a video clip on the computer. (Doe Dep. 142:4-7.) The video clip showed Plaintiff's bare back; the photos were of Szumski naked from the back, Szumski wrapped in a light cloth that was see-through, Plaintiff and Szumski in the tailgate of the SUV, Plaintiff's bare back, and one of Deputy Joyce combing Plaintiff's hair with Plaintiff's back turned to the camera. (Doe Dep. 142-4-143:24.) None of these photographs or video showed images of Plaintiff with her buttocks, breasts, or vaginal region exposed. (Doe Dep. 144:1-13.) Plaintiff states that the video and images were place on a county-wide server, thereby making them available to any county employee,*fn4 but she is not sure to whom the files were actually distributed. (Doe Dep. 136:24-137:11.)

Leandri testified that shortly after the September 27, 2007 incident, Foy invited several employees into his office to view the tape. (Leandri Dep. 16:8-11, Sept. 7, 2009.) Leandri claims that she went into Foy's office, saw a video clip containing Szumski's naked buttocks, and then walked out, but never saw a video of the Plaintiff. (Leandri Dep. 17:14-16, 19:17.) When Leandri later saw the still photographs on Foy's old computer, the picture she saw of ...

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