[defendant] ordered [plaintiff] to be strip-searched." Bradshaw v. Oberg, 257 U.S. App. D.C. 242, 808 F.2d 137 (1987). While the Court of Appeals affirmed this Court's order denying defendant's summary judgment motion on the fourth amendment claim, it also held that "[defendant was] free to renew its motion for summary judgment if relevant facts are discovered, by [plaintiff's] deposition or otherwise, which establish that [defendant] was not responsible for the alleged fourth amendment violations." Id.
Moreover, the Court of Appeals affirmed this Court's order "rejecting [defendant's] claim of qualified immunity because if [defendant] ordered [plaintiff] to be strip-searched, then he should have known that this conduct violated [plaintiff's] clearly established fourth amendment right to be free of unreasonable search." Id. at 2. Finally, the Court of Appeals ordered this Court "to examine, for the first time, plaintiff's fifth amendment claim stemming from [defendant's] memorandum barring [plaintiff] from the National Archives building." Id.
In light of the Court of Appeals decision and after an extensive period of discovery, defendant has again moved for summary judgment on plaintiff's fourth amendment claim relating to her strip search and plaintiff's fifth amendment claim relating to the memorandum barring her from the National Archives. In the alternative, defendant claims that he is entitled to qualified immunity as to both constitutional tort claims should he be found to have violated plaintiff's constitutional rights.
II. Conclusions of Law
A. Fourth Amendment Claim
The plaintiff alleges that defendant Oberg violated her fourth amendment rights when he allegedly ordered FPS to strip search her after her arrest at the Archives. Defendant had denied steadfastly that he ever ordered a strip search of plaintiff. He claims instead that Sergeant Leonard M. McDonald of the FPS ordered the strip search of plaintiff. After a careful examination of the entire record in this case, the Court finds that defendant Oberg has established through additional discovery that he did not order the strip search of plaintiff.
Defendant Oberg submitted several depositions, declarations, and affidavits of persons present at the time of the arrest and/or strip search of plaintiff in support of his contention. All of these persons stated that defendant Oberg did not order the strip search of the plaintiff, see Declaration of Thomas Hall para. 3, Defendant's Memorandum, Exhibit 3; Declaration of Peggy Dolford paras. 5, 7, Defendant's Memorandum, Exhibit 4, or that they did not hear him order the strip search. Barthol Deposition at 30, lines 9-10; Deposition of Jean Jenkins filed on July 17, 1987 at 17-18, and Deposition of Donald Collier filed on August 3, 1987 at 26-27.
The most persuasive evidence submitted by defendant, however, includes the deposition testimony of plaintiff and the declaration of Sergeant Leonard M. McDonald. During her deposition, plaintiff admits readily that she did not know whether defendant Oberg ordered her strip searched. Bradshaw Deposition at 31-32, lines 11-25 and line 1; 33-34, line 25 and lines 1-7. The declaration of Sergeant McDonald presents direct evidence that defendant Oberg did not order the strip search of plaintiff. In his declaration, Sergeant McDonald states that he "asked Ms. Dolford, a contract guard at the Archives, to search Ms. Bradshaw for weapons" before she was transported to another location for processing. Declaration of Leonard M. McDonald, Sr. filed on January 26, 1988 para. 5. Sergeant McDonald further states that "Mr. Oberg did not order [him] to arrest Ms. Bradshaw or to have her searched." Id. para. 9.
The above-stated admission by plaintiff and the declaration of Sergeant McDonald, as well as the other depositions, affidavits, and declarations of persons present at the time of plaintiff's arrest and search support overwhelmingly defendant's claim that he did not order Plaintiff to be strip searched. Accordingly, the Court finds that since there no longer remains a genuine issue as to this material fact, defendant is entitled to summary judgment as to plaintiff's fourth amendment claims.
B. Fifth Amendment Claim
Plaintiff claims that defendant Oberg violated her liberty and property interests under the Fifth Amendment of the Constitution when he issued the memorandum barring her from the Archives. She further claims that this memorandum was issued without any due process and as a result of it, she lost her job as a maintenance worker. Assuming arguendo that plaintiff states a valid constitutional violation under the fifth amendment, the Court finds that the only remedy available to her is a due process hearing where she could be afforded an opportunity to be heard in a meaningful manner. This remedy, however, lies against an agency and not an individual employee of an agency. See Holland v. Atterbury, 1987 U.S. Dist. LEXIS 14929, No. 86-3303, slip op. at 5 (D.D.C. May 22, 1987). Since the defendant is being sued in his individual capacity
and the Archives is not a party to this action, the defendant is entitled to summary judgment as to plaintiff's fifth amendment claim.
In light of the foregoing, the Court finds that defendant is entitled to summary judgment as to plaintiff's fourth and fifth amendment claims and grants defendant's motion. An appropriate order is attached.
ORDER - June 23, 1988, Filed
Upon consideration of defendant's motion for summary judgment ("Defendant's Motion"); plaintiff's opposition thereto; defendant's reply brief; supplemental memoranda submitted by both parties; the entire record herein, and for the reasons given in the accompanying memorandum, it is by the Court this 23rd day of June 1988,
ORDERED that defendant's motion is granted; and it is further
ORDERED that this case is dismissed.