Johnson v. Government of the District of Columbia ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DIANNA JOHNSON, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 02-2364 (RMC)
)
GOVERNMENT OF THE DISTRICT )
OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
It is alleged that the United States Marshal for the Superior Court of the District of
Columbia directed a blanket policy and/or practice whereby all female arrestees—but not male
arrestees—were subjected to “drop, squat and cough” strip searches before presentment to a judicial
official. Approximately 16,000 women who were arrested for non-drug and non-violent offenses,
such as traffic stops and other minor offenses, between December 2, 1999, and April 25, 2003,
complain here that this blanket policy and/or practice violated their rights to be free from
unreasonable searches under the Fourth Amendment and their rights to equal protection under the
Fifth Amendment to the Constitution. Former Superior Court Marshal Todd Dillard, sued here in
his individual capacity, asserts that his official search policy for the D.C. Superior Court cellblock
was gender neutral; that he intended the policy to apply identically to both male and female arrestees;
that he was unaware if his policy were being contravened by those conducting the searches; and that,
in any event, he is entitled to qualified immunity.
In other litigation, the United States Marshals Service formally conceded that the
practice at the Superior Court cellblock in 2000 and 2001 was to subject all female arrestees to a
blanket drop, squat and cough search while male arrestees underwent the same search only upon
individualized suspicion. Former Marshal Dillard disputes the accuracy of this concession. The
search practices at the Superior Court during the class period are very much contested. However,
in light of the government’s past formal admissions and record evidence in Clifton v. U.S., No. 02-
0578 (D.D.C. filed Mar. 26, 2002) and Helton v. U.S., No. 01-0385 (D.D.C. filed Feb. 20, 2001),
which similarly involved strip searches at the D.C. Superior Court cellblock, and the record before
this Court, it is evident that during the class period female arrestees were subjected to a blanket
practice of strip searches while many, if not most, male arrestees were not. Nonetheless, it is now
clear that former Marshal Dillard is entitled to qualified immunity from the Fourth Amendment
claims. The Fifth Amendment claims similarly fail as Plaintiffs proffer no evidence that former
Marshal Dillard purposefully discriminated by intending a gender disparity in search procedures.
I. FACTS
A. The Searches
Plaintiffs complain of strip searches (“strip, visual body cavity and/or squat searches”)
to which they were subjected at the District of Columbia Superior Court cellblock while waiting for
presentment before a judge or other judicial officer. Second Am. Compl. [Dkt. # 117] ¶ 1. Similar
strip searches were complained of in Clifton v. U.S. and Helton v. U.S., both of which settled with
entry of a court order and injunction. Defendant Todd Dillard was the United States Marshal for the
Superior Court of the District of Columbia from approximately October 1990 to 2004, and,
accordingly, the Superior Court Marshal for the periods covered by both Clifton and Helton and the
entirety of the Fourth and Fifth Amendment class period, which runs from December 1999 to April
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2003.
As described by the United States Marshals Service (the “Service”), in 2001 all
prisoners brought to the Superior Court cellblock first passed through a magnetometer and then
underwent an “in-custody search,” whereby they removed the contents of their pockets, had their
outer clothing inspected, removed their shoes, and were thoroughly patted down. See Pls.’ Mem.
in Supp. of Mot. for Partial Summ. J. [Dkt. # 233], [Attach. 82] Marshal Service Interrog. Resp. in
Clifton v. U.S. ¶ 8. After the “in-custody search,” male detainees were then placed in a cell unless
a detainee presented individualized suspicion that he had contraband on his person or posed other
risk, in which event he was held aside to be subjected to “a more thorough search.” Id.
However, as the Service described the strip search practice that existed in 2001, it was
markedly different for female detainees:
After the in-custody search, female detainees are then moved to an
enclosed area separate and apart from male detainees. Only female
detainees or officers are allowed in this area; no male detainees or
officers may inadvertently or casually look into the area; and there are
no closed-circuit televisions or other video recording devices present.
One further step is required for female detainees since the pat-down
search cannot reasonably ascertain whether there are weapons or
contraband secreted in the brassiere or the vagina.
The female detainee herself is asked to grasp her brassiere through
her outer clothing and move it or shake it in a manner designed to
dislodge any weapon or contraband that may be hidden there. The
detainee is then asked to face a wall, lower her pants and underwear,
and “squat and cough”. The detainee squats by lowering her body
from an upright standing position until her upper legs are parallel to
the floor. A female [officer] observes this procedure, which lasts 2
to 3 seconds, from a distance of about 10 feet from the detainee. At
no time does the female [officer] closely view any detainee’s orifices.
Female detainees are subjected to this final step primarily because of
the history of discovery of contraband and weapons hidden in the
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vagina of women who arrive in the United States Marshals Service’s
cellblock from the District of Columbia jail or the District of
Columbia Metropolitan Police Department, and because of the
relative ease with which contraband or weapons can be secreted in the
vagina or sanitary napkins.
Id. (describing practice that existed on June 29, 2001); see also Pls.’ Mem., [Attach. 73] Marshal
Service Interrog. Resp. in Helton v. U.S. ¶ 8 (describing identical practice being in existence on
February 21, 2000); Second Am. Compl. ¶¶ 133–35 (detailing the complained of drop, squat and
cough searches). Thus, when sued in separate suits in 2001 and 2002, the Service formally admitted
through sworn interrogatory responses that the Superior Court Marshal had a blanket practice of
drop, squat and cough searches of all female prisoners, but not of male prisoners without
individualized suspicion.
This case did not proceed immediately because, on April 25, 2003, the parties agreed
to a temporary standstill to pursue settlement discussions and the Service vowed,
in response to the injunctive relief claims contained in the
complaint herein and plaintiffs’ motion for a preliminary
injunction, the Federal Defendants will have implemented
by Monday, April 28, 2003, new security policies and
practices that will (i) permit “drop, squat and cough”
searches or a strip search only, at the least, upon an
individualized finding of reasonable suspicion, if not
probable cause, and with the approval of a supervisor; and
(ii) insure that such searches will be applied even-handedly
to both men and women arrestees and detainees.
See Consent Mot. to Hold Mots. in Abeyance Pending Settlement Discussions [Dkt. # 24] at 2.
Despite Clifton and Helton, Marshal Dillard insists that he had a blanket policy at the Superior Court
throughout the class period of subjecting all arrestees, regardless of gender, to drop, squat and cough
searches. See Def.’s Notice of Dep. Excerpts [Dkt. # 240] (“Dep. Excerpts”), [Attach. 9] Todd
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Dillard Dep. (Nov. 20, 2009) at 92–93, 96–98; see also id., [Attach. 14] Thomas Hedgepeth Dep.
(July 17, 2007) at 220–23 (corroborating that official policy throughout class period was that all
prisoners were to be drop, squat and cough searched). Following voluminous discovery, the record
reveals that the practice employed by Superior Court employees in conducting strip searches was not
gender neutral.1 Were just the practice itself at issue, Marshal Dillard’s current testimony would
need to be evaluated by a jury, since it is irreconcilably at odds with the Service’s prior sworn
responses and the instant record. However, in light of recent D.C. Circuit case law, the Court must
conclude that Marshal Dillard enjoys qualified immunity from Plaintiffs’ Fourth Amendment claims
and that, without evidence that Marshal Dillard himself acted with discriminatory purpose by
subjecting male and female arrestees to different strip search procedures, the Fifth Amendment
claims must also be dismissed.
B. Procedural History
This lawsuit was initially brought against the District of Columbia, the United States
Marshals Service, former Superior Court Marshal Todd Dillard in his individual capacity, and
various John Doe deputy Marshals. The parties spent the time between April 2003 and April 2006
attempting to settle. When those efforts failed, Plaintiffs filed a First Amended Complaint on April
28, 2006. See First Am. Compl. [Dkt. # 58]. On November 14, 2006, the Court denied defense
motions to dismiss and found that Marshal Dillard was not entitled to qualified immunity on the
Fourth and Fifth Amendment constitutional claims. See Order Denying Defs.’ Mots. to Dismiss
1
Several Deputy Marshals testified that they did not consider a drop, squat and cough search
to be a “strip search” since the arrestee did not become completely nude in the search; a woman kept
her shirt on, albeit pulled up, and only had to drop her pants and underwear low enough to allow her
to squat and cough. In this Opinion, as in the briefs and prior cases, the terms “strip search” and
“drop, squat and cough search” are used interchangeably.
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[Dkt. # 81] at 3.
Plaintiffs filed a Second Amended Complaint on May 24, 2007. See Second Am.
Compl. Plaintiffs abandoned their claims against the various John Doe Deputy Marshals in the
Second Amended Complaint but added claims against Marshal Dillard in his official capacity. See
id. In 2008, the Court certified separate Fourth and Fifth Amendment classes and dismissed the
Service as a defendant, finding that Plaintiffs lacked standing to seek equitable relief from it. See
Mem. Op. & Order [Dkts. ## 158, 159]. The Court also denied Plaintiffs’ request to certify an
alternative Fourth Amendment class which would have included both male and female arrestees.
See id. In 2008, the Court dismissed the District of Columbia, finding that it could not be liable to
Plaintiffs under 42 U.S.C. §§ 1983 and 1988 because Marshal Dillard was a federal official acting
under the color of federal law. See Mem. Op. & Order [Dkts. ## 202, 203]. In 2010, the Court
denied Plaintiffs’ motion for leave to file a Third Amended Complaint. See Order [Dkt. # 226].
On April 5, 2010, following extensive discovery, Plaintiffs moved for partial
summary judgment, see Pls.’ Mot. [Dkt. # 233], and Marshal Dillard cross-moved for judgment on
the pleadings, or in the alternative, for summary judgment. See Def.’s Mot. for Summ. J. [Dkt.
# 232]. Oral argument was heard on September 24, 2010, and October 28, 2010. At oral argument
on September 24, 2010, the Court reaffirmed its finding that Marshal Dillard had acted under color
of federal law as the United States Marshal for the Superior Court of the District of Columbia for
the same reasons outlined in its prior Order, see Mem. Op. & Order [Dkts. ## 202, 203], and
dismissed all claims under 42 U.S.C. §§ 1983 and 1988 against Marshal Dillard. Thus, remaining
before the Court are claims against Marshal Dillard in his personal capacity alone for alleged
violations of Plaintiffs’ Fourth and Fifth Amendment rights.
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II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be
granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). “[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. Moreover, summary
judgment is properly granted against a party who “after adequate time for discovery and upon motion
. . . fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the nonmoving
party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50
(citations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (noting that when a movant has satisfied his burden under Rule 56, the “opponent must do
more than simply show that there is some metaphysical doubt as to the material facts”).
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III. ANALYSIS
A. Fourth Amendment Claims
The Fourth Amendment Class consists of :
Each woman who, during the Class Period (December 2,
1999, until April 25, 2003), was, (I) held in the Superior
Court Cell Block; (ii) awaiting presentment under a statute
of the District of Columbia on either (a) a non-drug, non-
violent traffic offense; (b) a non-drug, non-violent
misdemeanor; or © a non-drug, non-violent felony; and
(iii) subjected to a blanket strip, visual body cavity and/or
squat search; (iv) without any individualized finding of
reasonable suspicion or probable cause that she was
concealing drugs, weapons or other contraband.
See Order Certifying Class [Dkt. # 159] at 1. Following arrest, these women were brought to the
Superior Court cellblock from any of the seven Metropolitan Police Department (“MPD”) stations,
substations, traffic stations, or MPD’s central cellblock for presentment before a judicial officer. The
women were arrested by MPD, the Capitol Police, the Park Police, or any of the myriad of law
enforcement entities that have authority to arrest in the District of Columbia. Typically, if a person
were arrested before three p.m., she would be brought to the Superior Court cellblock the same day;
if she were arrested after three p.m., she would generally be taken to the MPD central cellblock to
spend the night and would be brought to the Superior Court cellblock early the following morning.
Arrestees were typically searched a few times before being brought to the Superior
Court—usually by the arresting officer/s at the scene of arrest, again at the MPD district station, and
then again before being placed on a van to be transported by MPD to the Superior Court cellblock.
These searches were generally pat-downs. Arrestees were brought to the Superior Court cellblock
where they would be held until their presentment to a judicial officer. Also temporarily in custody
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at the Superior Court cellblock awaiting a court hearing would have been convicted prisoners and
pre-trial criminal defendants transported from Lorton Correctional Center (which closed in 2001),
the D.C. Jail, or the Correctional Treatment Facility (collectively the “jail cases”). Female arrestees
and female jail cases were held in separate cells and were not co-mingled. Plaintiffs’ Fourth and
Fifth Amendment classes are made up exclusively of female arrestees, not female jail cases.
Arrestees in the Superior Court cellblock were searched primarily by Detention
Enforcement Officers (“DEOs”) and, to a slightly lesser extent, Deputy Marshals (“deputies”).
Supervisors would intermittently assist in the searches if necessary. Arrestees brought into the
cellblock would typically pass through a magnetometer and undergo a thorough pat-down search
before (or after) being placed in the search room designated for their gender. Although pat-downs
or lesser-degree searches could occur in the hallways or more public areas of the cellblock, female
arrestees were subjected to drop, squat and cough searches only in the female search room. There
is no allegation that a male was ever present during any of the female drop, squat and cough
searches.
The Superior Court cellblock was for temporary custody only; if arrestees were not
released by a judicial officer directly from the courtroom after presentment, they would be
transferred to the D.C. Jail, where further body searches would occur. Jail cases stayed in the
cellblock only as needed for their court hearings and were transferred back from whence they came
by day’s end. No arrestee or jail case remained in the Superior Court cellblock overnight. While
the exact statistics over the entirety of the class period were not maintained and are contested by
Marshal Dillard, it appears that a significant portion, if not the majority, of female arrestees were
typically released from custody immediately from the courtroom in which they were arraigned,
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without having to return to the cellblock.
During the entirety of the class period, the standard under which body searches were
to be conducted was officially governed by U.S. Marshals Service Policy Directive 99-25. Policy
Directive 99-25 was issued Service-wide to “All U.S. Marshals Employees,” with a cover memo
dated July 15, 1999. See Def.’s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 232], [Attach. 2] Policy
Directive 99-25. The purpose of the directive was to provide “specific instructions to U.S. Marshals
Service (USMS) employees for determining if, and under what conditions, body searches are legally
permissible and how they will be conducted.” Id. at I. Policy Directive 99-25 was gender neutral
and laid out various factors an officer could consider in determining whether reasonable suspicion
existed that a prisoner were carrying contraband or presented other risk (i.e. security, escape, suicide)
to justify a strip search. Id. at IV(C)(1). Among the factors to be considered were the history of
discovery of contraband on an individual prisoner or in a particular institution, and the type and
security level of the particular institution in which the prisoner was held. See id. Policy Directive
99-25 was in effect from July 15, 1999 to October 6, 2003.
Marshal Dillard asserts that the Superior Court search policy in place throughout the
class period was that every prisoner, both male and female, arrestee and jail case, was to be subjected
to a blanket strip search. See Dillard Dep. at 92–93, 96–98. The record reveals that during the class
period the day-to-day practice at the cellblock mirrored Marshal Dillard’s asserted policy only as to
female arrestees, who were, in fact, all subjected to drop, squat and cough searches.2
2
Approximately fourteen female DEOs and deputies who conducted strip searches of female
arrestees at the Superior Court cellblock were deposed and uniformly testified that during the class
period the practice was to subject every female arrestee to a drop, squat and cough search. See e,g.,
Pls.’ Mem., [Attach. 29] Michelle Alexander Dep. (Aug. 28, 2007) at 35–38, 45–46 (searches from
approximately February 2002 to March 2003); id., [Attach. 70] Jacqueline Hargrove Dep. from
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Plaintiffs first allege that the blanket drop, squat and cough searches were
unreasonable for women arrested for non-drug and non-violent offenses and, therefore, violative of
the Fourth Amendment.3 Plaintiffs sue Marshal Dillard in his personal capacity for these alleged
violations. A plaintiff may bring a claim for money damages against a federal official in his
individual capacity for a violation of the plaintiff’s constitutional rights. Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). A federal agency is not
a proper defendant under Bivens. See FDIC v. Meyer, 510 U.S. 471, 484–86 (1994); Gabriel v.
Corrections Corp. of America, 211 F. Supp. 2d 132, 137 n.7 (D.D.C. 2003). Marshal Dillard moves
for summary judgment that the blanket policy of conducting drop, squat and cough searches on
arrestees entering the Superior Court cellblock did not violate the Fourth Amendment and that, in
any event, he is entitled to qualified immunity.4
Clifton v. U.S. (Sept. 18, 2002) at 8–9 (approximately 1995 to September 2002); id., [Attach. 49]
Penelope Knox Dep. (Oct. 5, 2009) at 22–26 (approximately October 2000 to 2004); id., [Attach.
58] Debora Seifert Dep. (Aug. 28, 2009) at 67–69 (approximately August 1998 to August 2001); but
see Dep. Excerpts, [Attach. 5] Tracy Bryce Dep. (Aug. 16, 2007) at 75–77 (testifying that she
believed the blanket drop, squat and cough searches of female arrestees ended around 2000).
Marshal Dillard concedes this point, but points to a Fourth Amendment class representative who
could not recall whether she received a drop, squat and cough search for both of her arrests, rather
than for just one. See Def.’s Mem. at 29. The class representative did not testify affirmatively that
she was not strip searched both times, and it is unclear whether both of her arrests occurred during
the class period. See Pls.’ Reply [Dkt. # 251] at 2. This possible incident does not negate the
consistent practice revealed by the overwhelming testimony.
3
Plaintiffs moved to amend their Complaint to add a claim that the non-private setting in
which the female arrestees were made to drop, squat and cough—in a female search room in front
of other female arrestees—was an unreasonable time, place, and/or manner in which to conduct the
searches under the Fourth Amendment. The Court denied Plaintiffs’ request. See Order [Dkt.
# 226].
4
Marshal Dillard also moves for dismissal of all claims by Plaintiff Donna Curtis for failure
to prosecute, as she failed to attend a scheduled deposition, and to dismiss Plaintiffs Dianna Johnson
and Carolyn Montgomery, for whom a suggestion of death has been filed. See Def.’s Mem. at
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On November 14, 2006, in denying the various defendants’ motions to dismiss, this
Court agreed with Plaintiffs that, if the facts proved to be as alleged, a violation of the Fourth and
Fifth Amendments would be shown and Marshal Dillard was not entitled to qualified immunity.
Here, the First Amended Complaint alleges that U.S.
Marshals – at the direction of and pursuant to a policy
developed by former Marshal Dillard – subjected [female
arrestees] to blanket strip searches and visual cavity searches
without a reasonable individualized suspicion that [they]
were concealing weapons or contraband. . . . [and that] all
female arrestees at the D.C. Superior Court were subjected
to blanket strip searches, but similarly situated male
arrestees were not strip searched. These allegations, if true,
adequately allege violations of the Fourth and Fifth
Amendments.
Order Denying Defs.’ Mots. to Dismiss [Dkt. # 81] at 2–3.
In 2006, when the Court decided that Plaintiffs had adequately alleged unreasonable
40–42; see also Suggestion of Death [Dkt. # 215]. Plaintiffs do not oppose dismissal if it is without
prejudice. See Pls.’ Supplemental Opp’n [Dkt. # 244] at 2. Accordingly, Plaintiffs Donna Curtis,
Dianna Johnson, and Carolyn Montgomery will be dismissed without prejudice.
In addition, Marshal Dillard moves to dismiss Plaintiff Rabbiyah Muhammad for failure to
prosecute because of her failure to submit timely sworn interrogatory responses, or as a sanction for
the same. It is alleged that Ms. Muhammad submitted unsigned interrogatory responses and at her
deposition denied that she had ever seen the unsworn responses attributed to her. Def.’s Mem. at
42. Her sworn responses were not received until after her deposition. Marshal Dillard argues
prejudice because he “was unable to fully address the inconsistencies between the interrogatory
responses and Ms. Muhammad’s testimony during her deposition, and thus was deprived of the
opportunity to impeach Ms. Muhammad with contradictory sworn testimony.” Def.’s Reply [Dkt.
# 250] at 44. Based on counsels’ arguments, it appears that any untimeliness on Ms. Muhammad’s
part was mere inadvertence, and not sufficiently delayed or negligent as to warrant dismissal for
failure to prosecute. Adjudication of claims on the merits is preferable and “‘dismissal is a sanction
of last resort to be applied only after less dire alternatives have been explored without success’ or
would obviously prove futile.” Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986)
(quoting Trakas v. Quality Brands, Inc., 759 F.2d 185, 186–87 (D.C. Cir. 1985)). Marshal Dillard
has not been prejudiced “so severely” as to warrant the drastic sanction of dismissing Ms.
Muhammad. See Shea, 795 F.2d at 1074. The motion to dismiss Rabbiyah Muhammad will be
denied.
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searches under the Fourth Amendment, ten of twelve U.S. Courts of Appeals5 had ruled, with only
insignificant differences, that the blanket strip search of pretrial detainees, arrested for minor
offenses and lacking any individualized suspicion, violated the Fourth Amendment.6 In 2006,
however, the D.C. Circuit had not yet spoken to the question. The ten circuits that had found such
searches to violate the Fourth Amendment were interpreting and applying Bell v. Wolfish, 441 U.S.
520 (1979), which established a balancing test to determine when a strip search in the context of
detention is valid under the Fourth Amendment. Bell considered a challenge to a Bureau of Prisons’
policy at the Metropolitan Correctional Center in New York City, whereby every federal detainee
was required to undergo a visual body-cavity strip search following any contact visit with an
outsider. Bell, 441 U.S. at 558. After acknowledging a body cavity search “instinctively gives us
the most pause,” id. at 558, the Supreme Court explained, “we deal here with the question whether
visual body-cavity inspections as contemplated by the [Metropolitan Correctional Center] rules can
ever be conducted on less than probable cause. Balancing the significant and legitimate security
interests of the institution against the privacy interests of the inmates, we conclude that they can.”
Id. at 560.
Since this Court’s ruling in 2006, two circuits have re-visited their prior
5
Excluding the U.S. Court of Appeals for the Federal Circuit.
6
See, e.g., Roberts v. Rhode Island, 239 F.3d 107, 110 (1st Cir. 2001); Weber v. Dell, 804
F.2d 796, 802 (2d Cir. 1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Stewart v.
Lubbock County, 767 F.2d 153, 156–57 (5th Cir. 1985); Masters v. Crouch, 872 F.2d 1248, 1255
(6th Cir. 1989); Mary Beth G. v. Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983); Jones v. Edwards,
770 F.2d 739, 741–42 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984),
overruled on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1 (9th Cir.
1999); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Wilson v. Jones, 251 F.3d 1340, 1343
(11th Cir. 2001).
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interpretations of Bell v. Wolfish. Marshal Dillard holds up Powell v. Barrett, 541 F.3d 1298 (11th
Cir. 2008) (en banc) and Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en
banc). In Powell, the Eleventh Circuit reversed course and determined that the Fourth Amendment,
under its revised interpretation of Bell, does not preclude a policy or practice “of strip searching all
arrestees as part of the process of booking them into the general population of a detention facility,
even without reasonable suspicion.” Powell, 541 F.3d at 1300. Likewise, the Ninth Circuit reversed
its earlier interpretation of Bell and held that a policy “requiring strip searches of all arrestees
classified for custodial housing in the general population was facially reasonable under the Fourth
Amendment, notwithstanding the lack of individualized suspicion as to the individuals searched.”
Bull, 595 F.3d at 982. After the parties filed briefs in this matter, the Third Circuit weighed in for
the first time and similarly found the blanket strip search of arrestees prior to introduction into a
general jail population did not violate the Fourth Amendment. See Florence v. Bd. of Chosen
Freeholders, 621 F.3d 296 (3d. Cir. 2010).7
Marshal Dillard argues that these new decisions illustrate that the challenged search
practice at the Superior Court perfectly accorded with Bell v. Wolfish and did not violate the Fourth
Amendment, and/or that he reasonably could not have known that such searches violated the
Constitution. For reasons described below, the Court bypasses the question of whether Marshal
7
But see Jimenez v. Wood County, 621 F.3d 372, 375 (5th Cir. 2010) (rejecting request that
the circuit revisit its earlier interpretation of Bell v. Wolfish in light of Bull and Powell and
reaffirming Fifth Circuit precedent that “a strip search of an individual arrested for a minor offense
must be premised on reasonable suspicion that the detainee is carrying weapons or contraband”);
Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010) (finding official not entitled to qualified
immunity because under Tenth Circuit precedent “it is also clearly established that ‘a detainee who
is not placed in the general prison population cannot be strip searched if the searching officer does
not at least have reasonable suspicion that the detainee possesses concealed weapons, drugs, or
contraband’”) (quoting Archuleta v. Wagner, 523 F.3d 1278, 1286 (10th Cir. 2008)).
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Dillard violated Plaintiffs’ Fourth Amendment rights, addressing instead his right to qualified
immunity, even assuming all of Plaintiffs’ allegations are true.
Qualified immunity is “a defense that shields officials from suit if their conduct ‘d[id]
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “In developing the doctrine of qualified immunity, the Supreme Court has sought
to strike a balance ‘between the interests in vindication of citizens’ constitutional rights and in public
officials’ effective performance of their duties.’” Int’l Action Ctr. v. United States, 365 F.3d 20, 24
(D.C. Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). A federal official can
be liable individually but “that official must have violated a constitutional right, and that right must
have been ‘clearly established’ – ‘the contours of the right must be sufficiently clear that a reasonable
official would understand what he is doing violates that right.’” Id. (quoting Anderson, 483 U.S. at
640).
Traditionally, looking at the facts alleged in a light most favorable to the plaintiff, a
court would first decide whether “the facts alleged show the officer’s conduct violated a
constitutional right,” and, only if so, “whether that right was clearly established” at the time of the
violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme Court has since instructed that
a court can employ its discretion to decide in which sequence to address these two inquiries.
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). Because the D.C. Circuit has very recently made
“plain that a constitutional right” as alleged by Plaintiffs “is not clearly established,” id., it is prudent
for this Court to proceed directly to qualified immunity.
On March 25, 2011, the District of Columbia Circuit issued a decision directly on
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point. See Bame v. Dillard, No. 9-5330, 2011 U.S. App. LEXIS 6207 (D.C. Cir. Mar. 25, 2011 as
amended Mar. 31, 2011). The Bame plaintiffs, all males, had filed a class action against Marshal
Dillard for strip searches, including drop, squat and cough searches, conducted in 2002 following
mass arrests of peaceful protesters. Plaintiffs argued they were unconstitutionally searched and that
Marshal Dillard was not entitled to qualified immunity as the unanimity in the circuits in 2002 made
clear that the Fourth Amendment “prohibited strip searching a person arrested for a non-violent, non-
drug-related misdemeanor absent a particularized reason to suspect the arrestee was concealing
contraband or weapons about his person.” Id. at *1–2. Under the principle of constitutional
avoidance, the D.C. Circuit proceeded directly to the question of whether the constitutional right
invoked by the plaintiffs was clearly established at the time of the searches. The Circuit noted:
“‘There are cases in which it is plain that a constitutional right is not clearly established but far from
obvious whether in fact there is such a right.’ This is such a case.” Id. at *8 (quoting Pearson, 129
S. Ct. at 818).
The D.C. Circuit concluded that Marshal Dillard was entitled to qualified immunity
in Bame because “the law in 2002 did not clearly establish that strip searching all male arrestees prior
to placement in holding cells at the Superior Court violated the Fourth Amendment.” Id. at *13.
“The governing precedent was then, as it is now, Bell v. Wolfish, and nothing in Bell requires
individualized, reasonable suspicion before strip searching a person entering a detention facility.”
Id. “To the contrary, as the Eleventh Circuit would later point out, ‘The Bell decision means that the
Fourth Amendment does not require reasonable suspicion for this type of strip search in detention
facilities.’” Id. (quoting Powell, 541 F.3d at 1308).
The facts alleged by Plaintiffs are not sufficiently distinguishable from Bame to allow
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a different result. The Bame plaintiffs contested blanket strip searches of non-violent, non-drug
related misdemeanor arrestees absent any individualized suspicion at the D.C. Superior Court
cellblock, see id. at *2–3, as do Plaintiffs here.8 The D.C. Circuit explicitly dispatched with the
appellees’ arguments—which Plaintiffs repeat here—that: (1) the law was clear in 2002 that this type
of search was unconstitutional because ten circuits had spoken unanimously to that effect; and (2)
Marshal Dillard should not be able to rely upon Powell or Bull or other circuit decisions not decided
until 2008 as evidence that the law was insufficiently clear in 2002. See id. at *10–13. “That Powell
and Bull came down after 2002 is of no moment; those opinions simply accord with our
understanding that Bell did not establish the unconstitutionality of a strip search under conditions
like those present here.” Id. at *14.9
Plaintiffs’ additional arguments fare no better. It is arguable that Powell, Bull, and
Florence are distinguishable from cases involving Superior Court arrestees, because the prisoners
before those circuits were about to be entered into, or co-mingled with, a general jail or detention
facility population and most Plaintiffs here were only held temporarily at the D.C. Superior Court
and then either released from the courtroom the same day or transferred to the D.C. Jail, a true
8
The Fourth Amendment class here includes women arrested for non-drug, non-violent
traffic offenses, misdemeanors, and/or felonies, and while the Bame decision spoke of those arrested
for non-violent, non-drug related misdemeanor offenses, its holding did not hinge on the type of
violation or crime for which a plaintiff was arrested, but extended to all persons being introduced
into the D.C. Superior Court cellblock, found by the D.C. Circuit to constitute a “detention facility.”
See id. at *13.
9
But see id. at *42 (Rogers, J., dissenting) (“Marshal Dillard’s reliance on post-2002
decisions is doubly flawed. Under Supreme Court qualified immunity precedent, circuit court of
appeals decisions since the strip searches at issue in 2002 have no bearing on whether he is entitled
to qualified immunity on the ground that there was no clearly established law to be followed in 2002.
But taken on their own merit the post-2002 cases are distinguishable on their facts and do not
demonstrate that the law was unsettled in 2002, much less after.”) (citations omitted).
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“detention” facility in Plaintiffs’ rubric. This very argument was rejected in Bame. The D.C. Circuit
found the “Court’s rationale in Bell applies equally to any detention facility that is ‘fraught with
serious security dangers,’ as was the cellblock at the Superior Court, where often hundreds of
arrestees were processed in a single day.” Id. at *17 (quoting Bell, 441 U.S. at 559). “Contrary to
the plaintiffs’ contention, nothing whatsoever in Bell suggests its holding is limited to overnight
detention facilities. . . . [n]or . . . did the Court in Bell anywhere mention, let alone rely upon, such
intermingling as a reason for upholding the strip searches.” Id. “In any event, arrestees held at the
Superior Court were in fact commingled with other arrestees in holding cells; no one suggests each
arrestee was put in a separate cell.” Id. at *17–18.
The D.C. Circuit has spoken unequivocally. Even assuming all facts alleged by the
Fourth Amendment class as true, the claims addressed in Bame and the instant case cannot be
distinguished in any meaningful way. Obviously, the Court must reconsider and modify its prior
ruling that Marshal Dillard is not entitled to qualified immunity on Plaintiffs’ Fourth Amendment
claims, see Order Denying Defs.’ Mots. to Dismiss [Dkt. # 81], in light of the D.C. Circuit’s
decision. Marshal Dillard is entitled to qualified immunity against the claims that he violated
Plaintiffs’ Fourth Amendment rights. Accordingly, Plaintiffs’ motion for summary judgment, which
spoke solely to the Fourth Amendment claims, will be denied, and summary judgment will be
entered for Marshal Dillard.
B. Fifth Amendment Claims
The Fifth Amendment Class consists of:
Each woman who, during the Class Period (December 2,
1999, until April 25, 2003), was, (I) held in the Superior
Court Cell Block; (ii) awaiting presentment under a statute
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of the District of Columbia; (iii) subjected to a blanket strip,
visual body cavity and/or squat search; (iv) under similar
circumstances for which male arrestees were not subjected
to a blanket strip, visual body cavity and/or squat search.
See Order Certifying Class at 1. Plaintiffs argue that by no later than January 1999, “defendant
Dillard had a policy and practice in place of requiring all female prisoners but not male prisoners to
be subjected to blanket drop, squat, and cough searches.” Pls.’ Reply [Dkt. # 251] at 10. This
gender-based practice is alleged to have violated Plaintiffs’ rights to equal protection.10 As noted
above, significant evidence exists that both the policy and practice at the Superior Court cellblock
during the class period was that every female arrestee was subjected to a blanket drop, squat and
cough search. See supra note 2.
In contrast, ample evidence exists that, at least in practice, many DEOs and deputies
did not subject male arrestees to a blanket drop, squat and cough search unless there were reasonable,
individualized suspicion that the male arrestee was harboring contraband or presented other risk.
See, e.g., Pls.’ Mem., [Attach. 57] Mark Shealey Dep. (May 8, 2007) at 157, 166–67 (testifying as
to practice between January 1999 to summer of 2002 as the a.m. cellblock supervisor); id., [Attach.
10
The Fifth Amendment provides that “[no] person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. CONST . amend. X. The equal protection clause of the
Fourteenth Amendment does not apply to the District of Columbia, which is a political entity created
by the federal government, but the due process clause of the Fifth Amendment has been held to
impose the same equal protection restrictions on the federal government and D.C. as the Fourteenth
Amendment does on the States. Propert v. District of Columbia, 948 F.2d 1327, 1330 n.5 (D.C. Cir.
1991) (citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)); Davis v. Passman, 442 U.S. 228, 234
(1979). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due
Process Clause, ‘classifications by gender must serve important governmental objectives and must
be substantially related to achievement of those objectives.’” Davis, 442 U.S. at 234–35 (quoting
Califano v. Webster, 430 U.S. 313, 316–317 (1977)). “The equal protection component of the Due
Process Clause thus confers on petitioner a federal constitutional right to be free from gender
discrimination which cannot meet these requirements.” Id. at 235–36.
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41] Edward Eversman Dep. (Sept. 14, 2009) at 52–54, 72, 77–79, 82 (testifying that between
February 1997 to June 2000, he never witnessed a blanket practice of strip searching male arrestees
nor was he ever instructed by any superior to conduct such strip searches); id., [Attach. 30] Michael
Artis Dep. (Aug. 16, 2007) at 97–102, 110–12 (explaining that during the class period male arrestees
were only strip searched upon individualized suspicion and that out of thousands of male arrestees
he had patted down, with the exception of a male juvenile, he could not recall one instance of strip
searching a male arrestee); id., [Attach. 33] Robert Brandt Dep. (Jan. 6, 2009) at 53–54, 56, 73
(stating that from 1996 to 2004, he never saw a male arrestee strip searched without individualized
suspicion nor did any supervisor ever tell him to strip search all male arrestees as a blanket policy);
id., [Attach. 40] Mark Anthony Edge Dep. (Oct. 20, 2008) at 44–46 (same practice from 1989 to
2008); id., [Attach. 32] Ronald Erwin Bolls Dep. (Jan. 21, 2009) at 25–28, 30–31, 33–34, 37
(testifying as p.m. cellblock supervisor from September 2000 to January 2002 that male arrestees
were not subject to a blanket practice of drop, squat and cough searches).
Just to confuse things, the record also contains vague and contradictory testimony that
the standard under which a male arrestee might have been subjected to a drop, squat and cough
search, i.e., blanket protocol or individualized suspicion, changed once or more during the class
period. See Pls.’ Mem., [Attach. 54] Gregory Petchel Dep. (Jan. 6, 2009) at 62–73 (testifying that,
as supervisory deputy from 1996 to 2004, the initial practice was to strip search male arrestees only
upon individualized suspicion; around 2001, the practice changed to strip searches of all male
arrestees; that practice was stopped again, resumed again, and finally ended when the Office of
General Counsel told the Marshal to cease around 2003); id., [Attach. 59] Jonathan Stover Dep. (Oct.
21, 2008) at 53–62 (testifying that he was not instructed to subject male arrestees to a blanket
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practice of drop, squat and cough searches until around 2000, but the practice did not last long before
it stopped again);11 id., [Attach. 27] Clyde Afman Dep. (Nov. 10, 2009) at 26, 33–34, 45–49, 82
(explaining that from his start date in 1996 blanket strip searches were performed on every male
arrestee but the practice was discontinued sometime between 1999 to 2001).
Without a fact-finder to make credibility determinations, it can only be said that there
appear to have been great differences in search practices of male arrestees at the Superior Court
cellblock under Marshal Dillard, an observation that stands in stark contrast to the uniformity with
which female DEOs and deputies testified that all female arrestees were subjected to drop, squat and
cough searches. Even if some DEOs or deputies conducted strip searches on male arrestees on
occasion, it cannot be said that the record supports Marshal Dillard’s testimony of a blanket practice
at the Superior Court cellblock of drop, squat and cough strip searches of male arrestees.12
11
Plaintiffs filed a Motion for Leave to Address Jonathan Stover’s Testimony Offered in
Defendant’s Reply to Plaintiffs’ Motion for Summary Judgment, see [Dkt. # 262], which in essence
is a motion for leave to file a surreply. The Court allowed Defendant an opportunity to file a
response to arguments raised in this motion. See Def.’s Consolidated Response [Dkts. ## 269, 270].
The motion [Dkt. # 262] will be granted.
12
It would take a fact-finder to decipher the differences in testimony between Marshal
Dillard—who says that he merely continued a pre-existing search policy when he became U.S.
Marshal for the Superior Court; that his policy was consistent throughout the class period; that the
managers and supervisors in the chain of command were to enforce his policies; that he discussed
inconsistencies and problems arising at the Superior Court with his supervisors at a weekly meeting;
and that he personally visited the male search rooms unannounced and at random times to ensure
compliance with his policies and observed male arrestees subjected to drop, squat and cough
searches, see, e.g., Dillard Dep. at 50, 52–57, 72, 75–76, 90–92, 95–96, 98, 228; see also id. at 56
(“My instructions were that every supervisor was to constantly be aware of what is going on in the
area that they were responsible for supervising. And the only way you could possibly do that is to
eyeball it yourself periodically. I mean, you didn’t have to stand there all day, of course, we had
other duties. But you had to know – to know what was going on, you had to see what was going
on.”), and the sworn answers of the Service in Clifton and Helton, as well as the testimony of
supervisory deputies, deputies, and DEOs that male arrestees were not subjected to a blanket practice
of strip searches.
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Marshal Dillard counters that “the evidence that Plaintiffs cite indicates that the
search practice may have varied among male and female deputies and DEOs,” Def.’s Reply [Dkt.
# 250] at 25, but that his policy was clear and gender neutral. See, e.g., Dillard Dep. 63–69, 92–93,
96–98. Marshal Dillard argues there is no evidence that he intentionally discriminated against
Plaintiffs in violation of their constitutional rights and that he cannot be held liable under a theory
of respondeat superior, even if any of his subordinates violated their rights. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1948 (2009); Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369 (D.C. Cir.
1997). As to this, he is clearly correct.
Although there is abundant evidence that similarly situated male and female arrestees
were searched differently at the D.C. Superior Court cellblock during the class period, the inquiry
does not end there. “[A] plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. “Where
the claim is invidious discrimination in contravention of the First and Fifth Amendments, our
decisions make clear that the plaintiff must plead and prove that the defendant acted with
discriminatory purpose.” Id. (citations omitted).
Under extant precedent purposeful discrimination requires
more than “intent as volition or intent as awareness of
consequences.” Personnel Administrator of Mass. v.
Feeney, 442 U.S. 256, 279 (1979). It instead involves a
decisionmaker’s undertaking a course of action “‘because
of,’ not merely ‘in spite of,’ [the action’s] adverse effects
upon an identifiable group.” Ibid. It follows that, to state a
claim based on a violation of a clearly established right,
respondent must plead sufficient factual matter to show that
petitioners adopted and implemented the detention policies
at issue not for a neutral, investigative reason but for the
purpose of discriminating on account of [sex].
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Id. at 1948–49. Thus, the “complaint must at least allege that the defendant federal official was
personally involved in the illegal conduct.” Simpkins, 108 F.3d at 369.13
It is on this point that Plaintiffs’ claims cannot succeed. There is no allegation or
evidence that Marshal Dillard personally conducted any of the challenged strip searches. Further,
notwithstanding the plethora of evidence that male and female arrestees were searched according to
differing protocols, Plaintiffs fail to point to any colorable evidence that Marshal Dillard
purposefully intended this disparity to exist as a way to discriminate against women. Plaintiffs argue
that a jury could infer from all the evidence that Marshal Dillard changed the policy during his tenure
specifically to require that all female arrestees undergo a strip search while male arrestees were only
to be similarly searched upon individualized suspicion; or that even if the official policy were gender
neutral, that Marshal Dillard directed—or, at a minimum, was aware of—the unequal search
practices. Neither argument is supported by the record and Marshal Dillard’s mere knowledge of
a disparity in search protocols, even if shown, would not suffice to impose personal liability.
1. No Evidence That Marshal Dillard Intended a Discriminatory Policy
No evidence exists that Marshal Dillard implemented a policy which directed a
blanket practice of strip searching female arrestees but subjected male arrestees to strip searches only
on individualized suspicion. Plaintiffs allege that testimony about meetings between Marshal Dillard
and his supervisors to discuss implementing a customized Superior Court search policy could
reasonably create an impression with a jury that Marshal Dillard specifically instituted a gendered
13
To the extent Plaintiffs attempted to proceed against Marshal Dillard on a theory of
deliberate indifference, see Second Am. ¶ 232, the theory must fail. See Iqbal, 129 S. Ct. at 1948(“purposeful discrimination requires more than ‘intent as volition or intent as awareness of
consequences’”) (citation omitted). It appears Plaintiffs have abandoned any deliberate indifference
theory of liability. See Def.’s Reply at 42 n.16.
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policy; Plaintiffs also cite the Clifton and Helton interrogatory responses as support that such a
policy—and not merely an irregular practice—existed.
The meetings in question are brought to light by Michael Mitchell, who worked at
the Superior Court from 1998 to 2003 in various capacities, but who admittedly was confused as to
the dates of these meetings.14 Mr. Mitchell mentioned a 1999 meeting with Marshal Dillard and
Chief Deputy Charles Rowe, second in command, sometime after issuance of Policy Directive 99-25
by the Service in July 1999. Mr. Mitchell remembers that Marshal Dillard said he wanted every
arrestee to be subject to a drop, squat and cough search until a “more customized” approach for the
Superior Court—being developed by Chief Rowe—could be implemented in the wake of Policy
Directive 99-25. Pls.’ Mem., [Attach. 51] Michael Mitchell Dep. (Oct. 7, 2009) at 119–22. At a
second meeting, after Mr. Mitchell had become an Assistant Deputy Chief in 2000, Mr. Mitchell
remembered that Chief Rowe was about to “put the district policy out” that would prohibit strip
searches without individualized suspicion. Id. at 123–24, 132–33. Later in his deposition, Mr.
Mitchell acknowledged that he was unsure of the dates of the meetings and indicated that the first
meeting could have occurred as late as 2003. Id. at 128–29, 156–57.
Plaintiffs pounce on the lack of certainty of such dates, and the evidence that men and
women arrestees were treated differently, to argue that a jury could find that Marshal Dillard
implemented a policy in 1999 or 2000 that prohibited blanket strip searches of male arrestees while
requiring it of all female arrestees. However, at no point did Mr. Mitchell testify that the new
14
Mr. Mitchell came to the Superior Court as the a.m. cellblock supervisor in January 1998,
continued in that position until January 1999, was then promoted to Assistant Chief Deputy in 2000,
and became a Chief Deputy in September 2003, when he left the Superior Court. For his first year
as cellblock supervisor, he testified that the practice was to strip search every male arrestee. Pls.’
Mem., [Attach. 51] Michael Mitchell Dep. (Oct. 7, 2009) at 18, 83–86.
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Superior Court policy would call for male and female arrestees to be treated differently or that
Marshal Dillard ordered, or ever mentioned, such a difference in treatment. No matter how confused
the testimony about dates, there is no testimony that Marshal Dillard contemplated a policy of gender
discrimination against women by search practices.15
Similarly, while the sworn answers to interrogatories in Clifton and Helton, signed
by supervisory Deputy Mark Shealey, indicate a clear differentiation in treatment of male and female
arrestees, there is no evidence tying Marshal Dillard to this difference, much less that he ordered it.
In fact, Marshal Dillard testified that he neither read nor wrote the interrogatory responses. Dillard
Dep. at 119, 144. Further, Mr. Shealey, in the sworn answers, identified Policy Directive 99-25 as
the governing policy in 2000 and 2001, thus refuting Plaintiffs’ argument that some unaccounted for,
discriminatory policy had been put in place. While still agreeing with the factual premise of the
interrogatory responses that only female arrestees were subject to a blanket practice of drop, squat
and cough searches, Mr. Shealey testified at deposition in this case that he did not know why the
practice was to strip search female arrestees, but not male arrestees, and that he just assumed it was
because females could hide contraband in their vaginas. Shealey Dep. at 158–162. Further, he
testified that no one had ever directed him to treat the genders differently. Id. at 160, 163–68.
Neither of these bits of evidence carries Plaintiffs’ burden to show that Marshal Dillard purposefully
discriminated against women arrestees through a Superior Court policy.
15
Plaintiffs express great skepticism that the search practices could be as disparate as the
interrogatory answers and discovery indicate without the intention and/or knowledge of Marshal
Dillard. The Marshal’s testimony about his and his supervisors’ attention to cellblock issues
supports such skepticism, especially when contrasted with Marshal Dillard’s frequent memory lapses
at deposition. However, the beginning of the time period in question is more than a decade ago and
Marshal Dillard has long since retired. Given the legal standards applicable to Plaintiffs’ claims,
their skepticism is insufficient to push this matter to a jury.
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2. No Evidence Marshal Dillard Directed a Discriminatory Practice
There is no colorable evidence in the record that Marshal Dillard knew of the practice
of searching the sexes differently, let alone that such a practice was directed by him. Plaintiffs argue
it is incredible to believe Marshal Dillard did not know of the disparate search practices given the
prolific nature of these practices—which may have existed for years—and that Marshal Dillard had
supervisors who were supposed to be reporting to him on failures of Superior Court personnel to
follow his policies. The argument fails to carry the point. Marshal Dillard’s mere knowledge of, or
acquiescence in, his subordinates’ potentially discriminatory practices would not constitute
purposeful discrimination on his part. See Iqbal, 129 S. Ct. at 1949 (rejecting argument that
superiors may be liable for their “knowledge and acquiescence in their subordinates’ use of
discriminatory criteria to make classification decisions among detainees”).
Marshal Dillard’s recollection was hazy but he testified to observing male arrestees
being strip searched on those occasions that he inspected male search rooms. Dillard Dep. at 76.
Plaintiffs contend that Marshal Dillard must have observed and implicitly approved a different
search policy for male arrestees than for women since he says he observed strip searches in the male
search room but other deposition testimony indicates a lack of a blanket policy on strip searching
male arrestees. According to Plaintiffs, this varying testimony “creates an inference that defendant
Dillard knew about the search practices and approved them.” Pls.’ Opp’n [Dkt. # 243] at 15.
However, both deputies and DEOs testified that they rarely, if ever, saw Marshal Dillard in the
cellblock or had any contact with him, see, e.g., Def.’s Mem., [Attach. 6] Suppl. Interrogatory
Responses, Answers to Question # 5; Shealey Dep. at 284 (testifying that he only recalled seeing
Marshal Dillard in the cellblock on September 11, 2001); Stover Dep. at 61, 91 (“I can’t recall
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[whether Marshal Dillard ever observed any strip searches]. Marshal [Dillard] hardly ever came to
the cell block”), and the Marshal’s testimony alone does not carry the inference Plaintiffs seek, even
if an inference alone satisfied Plaintiffs’ burden.
To be sure, Marshal Dillard proclaimed that it was his job as a supervisor to ensure
his policies were being followed, that his supervisors should have known if there were any deviation
from these policies, and that any such deviation would have been discussed at weekly supervisors’
meetings. See Dillard Dep. at 68, 73. Marshal Dillard insists that he would have “relieved [a
supervisory deputy] immediately, if not sooner,” id. at 197, if he had heard that he told a cellblock
DEO or deputy not to subject male prisoners to a blanket drop, squat and cough search. These
protestations notwithstanding, Plaintiffs have no evidence that Marshal Dillard actually knew that
his alleged search policy was not being evenly enforced, let alone any evidence that Marshal Dillard
intended or directed such disparity as a way to purposefully discriminate against women arrestees.16
16
The record suggests many reasons why practices may have varied, not least of which
appears to have been a singular lack of direction or oversight by those in command. See, e.g.,
Mitchell Dep. at 71–74, 87–88 (explaining that when he began at the Superior Court he was never
instructed by Marshal Dillard or Chief Rowe how searches were to be conducted, but simply copied
the practices of those around him); Bolls Dep. at 32, 39–42, 60, 62–63 (testifying that as cellblock
supervisor he never had any conversations or instructions, nor was aware of written policies, on how
to search arrestees, nor was this topic broached at any supervisors’ meetings he attended); Pls.’
Mem., [Attach. 20] Thomas Hedgepeth Dep. (July 18, 2007) at 82 (expressing that Marshal Dillard
was a hands-off manager); Hedgepeth Dep. (7/17/07) at 225–27 (acknowledging that cellblock
personnel did not like strip searching male arrestees and avoided doing so); Stover Dep. at 58 (noting
that when supervisors were not around, he and other DEOs or deputies would often stop blanket strip
searches of male arrestees because of their dislike of the practice); id. at 99 (“It’s not something that,
you know, I wanted to do. I didn’t think it made any sense, personally.”); Brandt Dep. at 69
(explaining that neither he nor his fellow DEOs or deputies would conduct blanket strip searches of
male arrestees because “I expressed my opinion that it wasn’t an appropriate search and they did not
do the searches when I was there. . . I didn’t say, ‘Don’t you do it’ [to the other men]. I said, ‘I don’t
think it’s a good practice,’ and my recollection is people that were there with me agreed and
performed regular in-custody searches.”); Def.’s Dep. Excerpts II [Dkt. # 248], [Attach. 20] Carl
Eugene Teeter Dep. (July 23, 2008) at 87–88, 124 (noting that male arrestees not all strip searched
-27-
Plaintiffs argue that all the contested evidence makes it totally incredible that Marshal
Dillard did not at least know of the disparities in search practices, and that credibility is an issue for
a jury to decide. See Jones v. Bernanke, 557 F.3d 670, 681 (D.C. Cir. 2009). Marshal Dillard
defends on the basis that “no one has testified that Marshal Dillard instructed them to search males
and females differently, and no one who admits [to strip searching women but not men] . . . claims
to have even informed Marshal Dillard of that practice.” Def.’s Reply [Dkt. # 250] at 16. The
defense amounts to “ignorance is bliss,” which is usually insufficient to avoid a jury trial. But when
it comes to holding a federal employee, acting within the scope of his employment, personally liable
for a violation of the Fifth Amendment’s right to equal protection, a plaintiff must show purposeful
and personal action to discriminate (in this case on gender). As a result, it would not be dispositive
even if Marshal Dillard knew of the discriminatory search practices (which is not shown). Mere
knowledge of or deliberate indifference to unequal treatment is not enough and despite the
voluminous record created in this litigation, there is no circumstantial or direct evidence that Marshal
Dillard purposefully directed that women and men be searched differently at the Superior Court
cellblock.
Summary judgment is properly granted against a party who “after adequate time for
discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. Marshal Dillard is entitled to summary judgment on Plaintiffs’ Fifth
because of sheer numbers involved); Shealey Dep. at 166–67 (explaining that the ratio of men to
women processed into the cellblock was approximately 4 to 1, so it was impractical to strip search
every male arrestee: “If the numbers [of DEOs/deputies to arrestees] were equal, and the manpower
and the time restraints were enough where we could strip everybody, we’d strip everybody”).
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Amendment claims.
IV. CONCLUSION
For the reasons stated above, Plaintiffs Donna Curtis, Dianne Johnson, and Carolyn
Montgomery will be dismissed without prejudice. Summary judgment will be denied to Plaintiffs
on their Fourth Amendment claims and granted to Marshal Dillard on the Fourth and Fifth
Amendment claims. Marshal Dillard’s Motion for Order to Decertify Class, see [Dkt. # 258], will
be denied as moot. Accordingly, this case will be dismissed. A memorializing Order accompanies
this Memorandum Opinion.
Dated: April 21, 2011 /s/
ROSEMARY M. COLLYER
United States District Judge
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