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Baggett v. Ashe

United States District Court, D. Massachusetts

August 26, 2014

DEBRA BAGGETT, ET AL., Plaintiffs,
v.
MICHAEL J. ASHE, JR., ET AL., Defendants

For Debra Baggett, Plaintiff: David Milton, LEAD ATTORNEY, Howard Friedman, Law Offices of Howard Friedman, P.C., Boston, MA.

For Michael J. Ashe, Patricia Murphy, In their individual capacities, Defendants: Theresa M.S. Finnegan, Hampden County Sheriff's Department, Ludlow, MA; Thomas E. Day, Egan, Flanagan & Cohen PC, Springfield, MA.

For Department of Correction for the State of Massachusetts, Intervenor: C. Raye Poole, Department of Correction, Legal Division, Boston, MA.

Page 114

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT

(Dkt. Nos. 156 & 171)

MICHAEL A. PONSOR, U.S. District Judge.

I. INTRODUCTION

Plaintiff Debra Baggett represents a class of 178 former and current inmates of the Western Regional Women's Correctional Center, who have brought suit under 42 U.S.C. § 1983 against Defendants Michael Ashe, Jr., Hampden County Sheriff, and Patricia Murphy, Assistant Superintendent.[1] Plaintiff claims that Defendants' policy of permitting male officers to videotape female inmates being strip-searched upon transfer to the segregation unit violated the Fourth Amendment.

Defendants have moved for summary judgment, (Dkt. No. 156), and Plaintiff has cross-moved for summary judgment or, in the alternative, for partial summary judgment on the legal issue of whether any legitimate, penological interest justified assigning males officers to videotape the strip searches, (Dkt. No. 171). Plaintiff presents two theories in support of judgment in her favor. First, she contends that the policy of permitting male guards to be present to videotape the strip searches -- even if they somehow refrained from actually viewing the inmates while performing

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the videotaping -- violated the Constitution. The court agrees that this policy violated the class members' constitutional rights and that no legitimate, penological interest justified it. Moreover, Defendants are not entitled to the protection of qualified immunity for this violation.

Given this, it will be unnecessary for the court to address in detail Plaintiff's second contention, that the policy foreseeably resulted in male officers actually viewing strip searches of female inmates and that such viewing constituted a violation Plaintiff's constitutional rights under clearly established law. Plaintiff is correct that at the relevant time period, clear authority established that, if such viewing did occur in a manner that was more than incidental or inadvertent, it violated the Constitution and Defendants would not be shielded by qualified immunity. If the court needed to address this second theory of recovery, however, a trial would be necessary in order to determine whether actual viewing, as opposed to videotaping without looking, occurred. It would also be necessary to determine whether Defendants were legally responsible for the actual viewing.

In sum, because Plaintiff will prevail on her predominant claim, the court will deny Defendants' motion for summary judgment and allow Plaintiff's motion on the issue of liability. Further proceedings will be necessary to determine the appropriate potential equitable relief and monetary damages.

II. FACTUAL BACKGROUND[2]

Plaintiff, Debra Baggett, was a prisoner at the Western Massachusetts Regional Women's Correctional Center (" WCC" ) from September 5, 2008, through September 12, 2008, and again from October 2, 2008, through January 28, 2010. She represents a class of approximately 178 former and current inmates of the WCC who, upon transfer to the segregation unit, were subjected to a strip search videotaped by male correctional officers. As noted, Defendants are Michael J. Ashe, Jr., the Sheriff of Hampden County, and Patricia Murphy, Assistant Superintendent in charge of the WCC.

The WCC is an all-female facility that houses detainees and sentenced prisoners from the four western counties of Massachusetts. If a prisoner presented as a suicide risk, committed certain disciplinary infractions, or needed to be in protective custody, she was transferred to the segregation unit to separate her from the general population.

The WCC maintained a set of policies that governed the transfer of prisoners into that unit, specifically Policy and Procedure (" P& P" ) 3.1.7. A transition team headed by Defendant Murphy wrote the policies, though Defendants Ashe and Murphy discussed them while they were being drafted. There is no dispute that Ashe and Murphy were responsible for the policy. During the process, the team also relied on an expert consultant, John Milosovich. The policy was updated nearly every year, though its central tenants remained the same. (Murphy Aff. (Defs.' Ex. D), Dkt. No 164, Exs. 1-6.)

The policy adopted by Defendants required, at a minimum, four officers to move an inmate to segregation. The officers effectuated the move by cuffing the inmate's wrists, shackling her ankles, conducting

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a pat search, and leading her into the unit. If an inmate were not compliant, additional officers would assist. Any inmate transferred into the unit was subject to a strip and body cavity search. This required the inmate to run her fingers through her hair, remove dentures if she wore them, raise both arms, lift her breasts, lift her stomach for visual inspection if she had a large mid-section, and remove any tampon or pad if she were menstruating. She was then required to turn around, bend over, spread her buttocks, and cough.

The policy also specified the location of the strip searches. They would occur either in the individual segregation unit itself or in the segregation intake room. If the search occurred in the individual cell, at least two female officers would remain with the prisoner during the search. If the supervisor were female, she would also remain in the cell. However, if the supervisor were male, the policy dictated that he " remain[] in the cell but stand[] in the doorway." (Murphy Aff. (Defs.' Ex. D), Dkt. No 164, Ex. 1.) Alternatively, if the search occurred in the intake room, the entire transfer team would remain in the room.

One officer was responsible for videotaping the transfer from the beginning of the move through, and including, the strip search. The filming officer was expected to stand just outside of the cell and point the camera in the direction of the inmate. From 2007 to 2010, the policy stated that if a male officer held the camera, he was to " stand[] outside the cell facing the Dayroom [away from the cell] with the camera pointing inside the cell and record[ing] the prisoner from the neck up." (Murphy Aff. (Defs.' Ex. D), Dkt. No 164, Exs. 1 & 2.) From 2010 to 2012, the policy required " the officer operating the video camera, if male, [to] stand[] outside the cell with the camera pointing inside the cell and record[ing] the prisoner." (Murphy Aff. (Defs.' Ex. D), Dkt. No 164, Exs. 3-4.) Since March 2012, the policy mandated that male officers operating the camera stand " outside the cell and position[] the camera on the prisoner from the neck up . . . then turn[] his head to the side to afford the prisoner as much privacy as possible." (Murphy Aff. (Defs.' Ex. D), Dkt. No 164, Ex. 5.)

In other words, male officers filming the strip search were required under the policy to conduct the filming while attempting to avoid looking at the subject being filmed and, at the same time, taking care to film the unseen inmate only from the neck up. According to Plaintiff, when this section of the policy was being drafted, Mr. Milosovich questioned the need for the videotaping at all and expressed doubts that male guards, as a practical matter, could consistently follow the very awkward procedure as it was prescribed. (Dkt. No. 175, Ex. 28 at 15 (stating " how can you be sure that [the camera] will stay from the neck up . . . Suggest someone check to make sure a strip search can be video taped at all" ).)

Since September 15, 2008, a male guard has held the camera during 274 strip searches. For 90% of these searches, two or more female guards were in the cell, and during 58%, three or more females were present. During that period, Defendants employed on the security staff roughly 31 female officers and 49 to 54 male officers. According to Plaintiff, several women complained to WCC staff about the cross-sex videotaping policy.

In May 2010, Plaintiff's counsel sent a letter to Defendants, informing them that he believed this policy was unconstitutional. Around the same time, Defendants altered P& P 3.1.7 to restrict the circumstances under which male officers could operate the camera. Female officers were

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required to do the videotaping unless " impracticable." (Murphy Aff. ¶ 110 (Defs.' Ex. D), Dkt. No. 164, Ex. 3.) Between May 2010 and September 2011, male officers held the camera 26% of the time. Since September 2011, when this suit was filed, males have held the camera only 2.5% of the time. From January 1, 2013 to July 31, 2013, a male held the camera only one time out of 96 total transfers.

Though it is undisputed that male officers operated the cameras, the parties vigorously dispute whether males actually viewed the female inmates during the searches and, if they did, whether such viewing was more than incidental or inadvertent. Plaintiff relies on the testimony of five members of the class who discussed their experiences. They described their observations of male officers viewing them during strip searches. As Plaintiff herself testified, " Sometimes I could see their eyes and . . . sometimes the camera was obscuring the face but I almost always could see their face." (Baggett Dep. 279:13-19, Dkt. No. 175, Ex. 13 at 2.) She further said, " They were looking at me, at my direction, their faces were pointed and their postures and everything were pointed directly at me." (Id. 281:17-22.) Plaintiff also provides testimony from a former WCC corrections officer who claimed that male officers would simply " stand off to the side and just watch the viewfinder." (Matlasz Dep. 53:11-15, Dkt. No. 175, Ex. 5 at 4.)

Moreover, Plaintiff points to the videos themselves, 68% of which show some or all of the women's genitals, buttocks, or breasts, and 82% of which show some portion of the women below the neck. Based upon the steadiness of the camera and the footage of the inmates' bodies, she believes that a male officer had to be facing the inmates (or watching through the viewfinder) to keep the camera as still as it was and trained on the correct area in the cell.

Defendants, meanwhile, provide testimony from 11 former and current officers who state that they never witnessed a camera operator actually viewing a search. More broadly, Defendants believe that Plaintiff's evidence is insufficient to establish anything more than incidental viewing.

On September 15, 2011, Plaintiff filed this one-count complaint against Defendants alleging a violation of 42 U.S.C. § 1983. This court, on May 23, 2013, certified a class of " approximately 178 former and current WCC inmates who were videotaped by male correctional officers during strip searches." (Dkt. No. 86.)

On February 21, 2014, Defendants filed their Motion for Summary Judgment (Dkt. No. 156), and Plaintiff cross-filed on March 19, 2014 (Dkt. No. 171). As noted, Plaintiff also moved, in the alternative, for partial summary judgment on the issue of whether any true emergency or other legitimate, penological interest justified assigning male officers to videotape the strip searches. On April 22, 2014, the court heard argument on the motions and took the matter under advisement.

III. DISCUSSION

On summary judgment, the facts and all reasonable inferences that might be drawn from them are viewed in the light most favorable to the non-moving party. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir. 2004). When addressing cross-motions for summary judgment, " the court must consider each motion separately, drawing inferences against each movant in turn." Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997). Summary judgment is appropriate if no genuine dispute of fact exists and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.

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Plaintiff only offers one count in this lawsuit --a violation of § 1983. To succeed on this claim, " the challenged conduct must be attributable to a person acting under color of state law . . . [and] the conduct must have worked a denial of rights secured by the Constitution or by federal law." Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997). The law also " requires the plaintiff to prove not only a deprivation of federal right, but ...


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