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DOE v. BERBERICH

December 9, 1988

JANE DOE, et al., Plaintiffs,
v.
HENRY BERBERICH, et al., Defendants


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE.

 This case is before the Court on the defendants' motion to dismiss, or in the alternative, for summary judgment.

 The plaintiffs, two females proceeding under pseudonyms, seek compensatory and punitive damages for violation of their constitutional rights, as well as under various theories of negligence, in connection with a strip search to which they were subjected subsequent to their arrest for possession of marijuana. The defendants are five members of the United States Park Police, sued in their official and individual capacities. The arrest occurred after two Park Police officers observed the plaintiffs to be smoking marijuana in a car parked on federal park land. A search of the car in which the plaintiffs were sitting disclosed an additional quantity of marijuana.

 After placing the plaintiffs under arrest, the two officers, both sergeants in the Park Police, called by radio for a vehicle to transport the plaintiffs to the Park Police Central District Substation for processing. A female officer responded and conducted a preliminary "pat-down" search of the plaintiffs before transporting them.

 Upon their arrival at the substation, the plaintiffs were moved to holding cells. The arresting officers' declarations say that it was at that time that the two sergeants decided that the plaintiffs should be strip searched. In their declarations, the sergeants say that this decision was made on the basis of evidence discovered in the car, the fact that plaintiff Roe was found holding a burning marijuana cigarette, the fact that plaintiff Doe bent over out of sight when the sergeants identified themselves as police officers, (a fact which is disputed by the plaintiffs, although it is not a material fact such as to alter the outcome of this case), and on the basis of their experience in drug-related investigations.

 The sergeants directed the female officer who had already performed the preliminary "pat-down" search of the plaintiffs to conduct a strip search. *fn1" The sergeants state in their declarations that they made this decision because they had reason to suspect that contraband or evidence was concealed on the person or in the clothing of the plaintiffs.

 No additional evidence was obtained from the search. The evidence discovered on the scene by the arresting officers was tested, with positive results. Processing completed, the plaintiffs were issued citations to appear before a magistrate. They did so, and were convicted as charged based on their pleas of guilty.

 Strip search procedure in the Park Police is governed by Park Police General Order Number 2103.05. Both of the arresting officers were personally familiar with the order. In pertinent part, the Order establishes the following criteria for strip searches:

 
a. The officer has reason to believe that weapons, contraband, or evidence are concealed on the arrestee's person or clothing.
 
b. Notification is made to the immediate supervisor.
 
c. The search will be conducted by an officer of the same sex as the arrestee, under secure conditions that afford privacy. Another officer shall be stationed outside the search area.

 There are additional criteria governing "body cavity" searches, which the Court need not consider. *fn2"

  The plaintiffs have sued the defendants in their official and in their individual capacities. The claims against the defendants in their official capacities are actually claims against the United States, which may be asserted only if expressly permitted by acts of Congress. United States v. Testan, 424 U.S. 392, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976). These claims would, if successful, involve relief that would effect the United States. See Dugan v. Rank, 372 U.S. 609, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963). The doctrine of sovereign immunity requires the Court to dismiss such claims unless the plaintiffs can demonstrate that immunity has been waived. The fact that plaintiffs have failed to file an administrative claim means that the Federal Tort Claims Act, 28 U.S.C. ยง 2675(a), does not provide such a waiver. Under the Federal Tort Claims Act, the filing of an administrative claim is a jurisdictional prerequisite to suit, and as such cannot be waived. House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.), cert. denied, 439 U.S. 862, 99 S. Ct. 182, 58 L. Ed. 2d 171 (1978). Since ...


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