United States District Court, S.D. Ohio, Western Division
DANIEL P. HARGROVE, Plaintiff,
CAPT. FRISBY, et al., Defendants.
J. Bowman, M.J.
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
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).
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
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).
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.
Standard of Review for Motion to Dismiss
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.
Defendants' Motion to Dismiss
Fourth Amendment Claim
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).
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).
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).
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. 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 ...