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Hargrove v. Frisby

United States District Court, S.D. Ohio, Western Division

June 12, 2018

DANIEL P. HARGROVE, Plaintiff,
v.
CAPT. FRISBY, et al., Defendants.

          Dlott, J. Bowman, M.J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE

         I. Background

         On November 7, 2017, while still incarcerated at the Lebanon Correctional Institution, Plaintiff filed this §1983 action against various LeCI officials and employees, including Defendants Capt. Frisby, Lt. Couch, Chaplin Taylor, and Chaplin Palmer, as well as the LeCI Warden and Correctional Officer Whitlow. On December 27, 2017, Plaintiff moved to amend his complaint to add, as an additional Defendant, Mr. Tom Schwietzer. (Doc. 7).

         On initial screening of both the complaint and the tendered amendment under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), this Court dismissed all claims against the Warden and C/O Whitlow, denied the proposed amendment to add Defendant Schwietzer, and dismissed multiple claims against the other Defendants. At the same time, the Court determined that the following claims could proceed: “[P]laintiff's Fourth Amendment individual capacity claim against defendants Frisby and Couch and plaintiff's First Amendment individual capacity Free Exercise claim and, to the extent it seeks injunctive relief, plaintiff's RLUIPA claim against defendants Chaplain Taylor and Chaplain Palmer.

         The remaining Defendants have filed a motion to dismiss the referenced claims for failure to state a claim, pursuant to Rule 12(b)(6). (Doc. 18). In addition, based upon Plaintiff's recent release from incarceration and change of address to a private residence, Defendants have moved to vacate this Court's prior order granting Plaintiff in forma pauperis status, pending a new determination of his pauper status. (Doc. 17). In addition to responding to Defendants' motions, Plaintiff has filed new motions to add at least one new claim and another Defendant, as well as two motions for monetary judgment. (Docs. 13, 14, 20).

         For the following reasons, the undersigned recommends that Defendants' motion to dismiss be granted, and that all other motions be denied as moot. Alternatively, should the recommendation that this case be dismissed be rejected by the presiding district judge, Defendants' motion to revoke Plaintiff's pauper status pending a new determination should be granted.

         II. Analysis

         A. Standard of Review for Motion to Dismiss

         Defendants' motion to dismiss has been filed under Rule 12(b)(6), prior to the commencement of any discovery. In considering the motion, the Court must “construe the complaint in the light most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). Based upon liberal pleading standards under Rule 8 and the standard of review, it is far more common for cases to be disposed of on motions for summary judgment, following a period of discovery, than on Rule 12(b)(6) motions to dismiss. Nevertheless, where a defendant has filed a well-supported and meritorious motion to dismiss that clearly illustrates that the plaintiff has failed to state a claim, the motion will be granted. Having considered Defendants' well-supported motion in this case, together with Plaintiff's response and Defendants' reply, the undersigned concludes that the motion should be granted.

         B. Defendants' Motion to Dismiss

         1. Fourth Amendment Claim

         Plaintiff brings a Fourth Amendment claim against Defendants Frisby and Couch based upon a “body cavity strip search” that he was subjected to on the evening of October 18, 2017:

[Plaintiff] was walking down the hallway coming from dinner and was subject to a body cavity strip search because a guy was talking too loud in the hallways when the guy told the Capt. it was him, I was still subject to and body cavity search which violated the 4th Amendment's illegal search rule… [Plaintiff] contends as he was trying to leave he was called back by Lt. Couch to be cavity searched after he was already searched and after the guy told the Capt[.] he[']s the one who was talking loud.
[Plaintiff] contends the cavity searches was unreasonable and was sexual harassment and was unreasonable suspicion and the male officers promote homosexual activity….

(Doc. 1 at 1).

         The Fourth Amendment to the United States Constitution protects individuals “against unreasonable searches and seizures.” U.S. Const. Amend. IV. However, what is “unreasonable” under the Fourth Amendment depends on context. Thus, normally invasive practices, like requiring inmates to expose their body cavities for visual inspection, are permissible when inside prison walls. Bell v. Wolfish, 441 U.S. 520, 537, 99 S.Ct. 1861, 1873 (1979) (finding searches reasonable under the Fourth Amendment).

         Defendants persuasively argue that Plaintiff's allegation that he was searched “because a guy was talking too loud in the hallway” gives rise to a reasonable inference that Plaintiff was targeted for the searches based on the Defendants' belief that Plaintiff was involved in some form of potential rule violation or loud disturbance. Indeed, it is clear that Plaintiff's primary complaint is that the Defendants should not have searched him at all, because the grounds for the search was a disturbance being caused by a different inmate in the same vicinity as Plaintiff. Plaintiff objects because the Defendants searched him even though the inmate who had committed the disturbance spoke up and told Defendant Captain Frisby that “it was him.” In his response in opposition to Defendants' motion, Plaintiff maintains that “strip searches on state detainees charged with minor offenses” are constitutionally prohibited “absent reasonable suspicion.” (Doc. 20 at 1). Thus, Plaintiff confirms that his claim is premised upon his being subjected to a strip search “absent reasonable suspicion.” Plaintiff also more generally argues that the prison's search policy was “an abuse of policy.” (Id.) Last, Plaintiff complains that the Defendants engage in “uncalled for illegal strip searches for minor infractions.” (Id. at 2).

         Unfortunately for Plaintiff, the case law on which he relies is not controlling, and is clearly distinguishable because it pertains to the rights of individuals who have not been convicted of any offense and/or those charged with misdemeanor offenses.[1] Plaintiff's privacy rights are more circumspect because he is not a pretrial detainee, but a convicted felon who was subjected to a search while incarcerated in a state prison. Within the latter classification, the Supreme Court has given correctional officers wide latitude “to devise reasonable search policies to detect and deter the possession of contraband in their facilities.” Florence v. Bd. of Chosen Freeholders of Cnty. Of Burlington, 132 S.Ct. 11510, 1517 (2012); see also Stoudemire v. Mich. Dept. of Corr., 705 F.3d 560, 573-74 (6th Cir. 2013) (applying principles of Florence to an individual search, and holding that “[a]bsent proof to the contrary, we must assume that a search of a prisoner is initiated in an effort to detect and deter contraband.”). Under Florence, reasonable suspicion is not required for visual body cavity searches of convicted felons. Cf. Stoudemire, 705 F.3d at 575 ...


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