The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
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.
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 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 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 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.*fn1 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.
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 [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.
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 judgment 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 ...