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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA,
NORTHERN DIVISION
FLOSSIE RUDOLPH, on behalf of the minor, LAKENDRICK WILLIAMS, et al.,
Plaintiffs,
v.
LOWNDES COUNTY BOARD OF EDUCATION, et al.,
Defendants.
CIVIL ACTION NO. 02-A-151-N
242 F. Supp. 2d 1107
January 15, 2003,
Decided
January 15, 2003, Filed,
Entered on Docket
I. INTRODUCTION
This matter is before the court on Defendants Sheriff Willie
Vaughner ("Vaughner") and Chris West's ("West")
(collectively "the Law Enforcement Defendants") Motion for Summary
Judgment (Doc. # 64) and on Defendants Lowndes County Board of Education,
Superintendent John W. Covington ("Covington"), and Principal Leola
Bell ("Bell") (collectively "the Education Defendants")
Motion for Summary Judgment (Doc. # 67).
This case initially came before the court on the Plaintiffs'
Motion for Temporary Restraining Order. A hearing was held on the motion on
February 19, 2002, at which time the court granted an oral motion to also
consider the request for a temporary restraining order as one for a preliminary
injunction. In its Memorandum Opinion and Order of February 22, 2002, the court
denied the Plaintiffs' request for preliminary injunctive relief. The court
determined that the Plaintiffs failed to demonstrate a likelihood of success on
the merits with respect to their claims arising from the events that led to
their expulsion from school.
The court subsequently granted in part and denied in part a
Motion to Dismiss the Amended Complaint filed by the Plaintiffs. The claims
still pending before this court are the claims of Lakendrick Williams, Damon
[*1112] Johnson, and Sammy Lewis for violations of their Fourth Amendment
rights under 42 U.S.C. § 1983, with respect to searches and seizures of their
persons.
For reasons to be discussed, the Motions for Summary Judgment
are due to be GRANTED.
II. SUMMARY JUDGMENT STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
The party asking for summary judgment "always bears the
initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the 'pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a genuine issue of material
fact." Id. at 323. The movant can meet this burden by presenting evidence
showing there is no dispute of material fact, or by showing, or pointing out to,
the district court that the nonmoving party has failed to present evidence in
support of some element of its case on which it bears the ultimate burden of
proof. Id. at 322-324.
Once the moving party has met its burden, Rule 56(e)
"requires the nonmoving party to go beyond the pleadings and by [its] own
affidavits, or by the 'depositions, answers to interrogatories, and admissions
on file,' designate 'specific facts showing that there is a genuine issue for
trial.'" Id. at 324. To avoid summary judgment, the nonmoving party
"must do more than show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). On the other hand, the
evidence of the nonmovant must be believed and all justifiable inferences must
be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 91 L.
Ed. 2d 202, 106 S. Ct. 2505 (1986).
After the nonmoving party has responded to the motion for
summary judgment, the court must grant summary judgment if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).
III. FACTS
The
submissions of the parties establish the following facts, viewed in a light
most favorable to the non-movants:
On January
9, 2002, members of the Lowndes County Sheriff's Department conducted a search
of the Central High School of Lowndes County, Alabama, with the assistance of
drug-sniffing dogs. The search was conducted at the request of the Defendant
Dr. J.W. Covington, Superintendent of Schools of the Lowndes County school
district.
The search
was begun inside the school, and drug-sniffing dogs were used to sweep the
premises. No dogs "alerted" on any of the Plaintiffs. A small package
of drugs was found under a table in the library at which Plaintiff
Lakendrick Williams
("Williams") and other students were sitting. Williams was patted
down by West of the Lowndes County Sheriff's Department, and asked to empty his
pockets. He was then strip-searched by two male law enforcement officials,
other than West, in the teachers' lounge. He has testified that no school
officials were present during the [*1113] strip-search, and argues that this
was in contravention of school board policy.
Sammy Lewis's
("Lewis") claim stems from being required to place the contents of
his pockets on a table, although he was not himself searched. The vocational
students had been led to the school cafeteria where they were all asked to
empty the contents of their pockets on the table and drug-sniffing dogs were
led through the cafeteria. The dogs did not alert on any of the students and no
further searches were conducted in the cafeteria.
Dramon Johnson
("Johnson") was called to the parking lot where the drug-sniffing
dogs had alerted on his car. Law enforcement officials asked him to open the
car door. He opened the passenger door and entered the car to open the driver's
door. Once inside the car, he was seen putting something in his mouth. He
states that he was choked by officers in an effort to make him spit out the
small package, but he had already swallowed it. He admitted to law enforcement
that the package contained marijuana seeds. Johnson states that he was required
to remove all of his clothes other than his underwear in the parking lot.
IV. DISCUSSION
Although in analyzing the two motions for summary judgment the
court will separately address the claims brought by the various plaintiffs,
because the issue of the Fourth Amendment reasonableness standard to be applied
is one which applies to all three Plaintiffs' claims, the court first turns to
the issue of the applicable standard.
A. Applicable Standard
The parties point this court to the Supreme Court decision New
Jersey v. T.L.O., 469 U.S. 325, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) as
providing the applicable standard for analysis in this case. In T.L.O., the
court formulated a two part test by which to govern the reasonableness of
searches by school officials. The Court expressly noted, however, that it was
only considering searches carried out by school authorities acting alone and on
their own authority, because the case did not present the question of the
appropriate standard for assessing the legality of searches conducted by school
officials in conjunction with or at the behest of law enforcement
agencies. Id. at 341 n.7. The case
before this court, however, involves searches conducted by law enforcement
agents at the behest of school officials, as it is apparently undisputed by the
parties that Covington authorized the search of the school. In addition,
Williams has presented testimony from an administrative proceeding during which
West stated that Principal Bell authorized the strip search of Williams. The
significance of the question presented is that in T.L.O. the standard
established is one of reasonable suspicion, while the standard for Fourth
Amendment searches outside of the school context is probable cause.
The Eleventh Circuit has touched on this issue in two cases. In
Hearn v. Board of Public Educ., 191 F.3d 1329 (11th Cir. 1999), a law
enforcement agency conducted a search with drug-sniffing dogs, the results of
which were then relied upon by school
officials. The court applied traditional Fourth Amendment analysis, and
concluded that the alerting of a drug-sniffing dog to a person's property
supplies not only reasonable suspicion, but probable cause to search the
property, and that a search of an automobile is justified without a warrant by
the automobile exception to the warrant requirement. Id. at 1333. The Hearn case is distinct, therefore, in several
respects, but at least in the legally significant respect that the search at
issue in that case was not requested, nor participated in, by school officials.
[*1114]
In Thomas v. Roberts, 261 F.3d 1160 (11th Cir. 2001), the court
concluded that Fourth Amendment rights had been violated by strip searches of
students, but concluded that the defendants were entitled to qualified
immunity. The difficulty with relying on this opinion, however, is that it has
been vacated by the Supreme Court for consideration in light of the new
qualified immunity standard in Hope v. Pelzer, U.S. , 153 L. Ed. 2d
666, 122 S. Ct. 2508 (2002). See
Thomas v. Roberts, U.S. , 153 L. Ed. 2d 829, 122 S. Ct. 2653
(2002). To the extent that the now-vacated opinion in Thomas discusses the
presence of a constitutional violation, rather than entitlement to qualified
immunity, however, it is still useful to this court in analyzing the instant
case. n1
In Thomas, a school administrator authorized a search by a law
enforcement official. A teacher reasonably suspected a child in her class of
having taken an envelope of money and after having searched for the money,
received authorization to search individual children. She searched the female
children and a local law enforcement officer who was there to speak as part of
a drug awareness program searched the male children. In analyzing the searches,
the court applied the T.L.O. decision equally to the teacher and to the law
enforcement officer. See id. at 1167.
The Eleventh Circuit did not, however, explain the reason behind the
application of the standard set forth in T.L.O.
The Eighth Circuit has more directly discussed this issue.
See Shade v. City of Farmington,
Minn., 309 F.3d 1054 (8th Cir. 2002). In that case, the court found it
important that school officials initiated the investigation and search and
determined that a reasonableness, rather than a probable cause standard, would
apply. Id. One factor distinguishing this case from Shade, however, is that in
that decision, the officers were searching for a weapon which presented a
safety issue.
Taking Shade and Roberts as guidance, and because school
officials were more involved in the searches in this case than in Hearn, the
court concludes that the T.L.O. standard is applicable in this case.
B. Claims by Flossie Rudolph on behalf of Lakendrick Williams
As earlier
stated, Lakendrick Williams was seated in the library when a drug-sniffing dog
alerted on a package of marijuana underneath the table at which he was sitting.
The principal, Leola Bell, informed law enforcement that another student
attributed the drugs to Williams. West asked Williams to empty his pockets,
then patted him down, and finally turned Williams over to two other law
enforcement officials who strip searched him. With the basic facts underlying
this claim in mind, the court turns to the grounds for summary judgment
asserted by the two groups of defendants.
1. The Education Defendants
The Education Defendants assert that because no school official
was present during the time of Williams' alleged strip search, and because the
mere failure to have a school official present as required by school policy
does not constitute a violation, there is no constitutional violation. There is
evidence, however, that the law enforcement officials were instructed to search
Williams by Bell. See Plaintiffs' Exhibit 8, page 105:21-106:9. [*1115]
In arguing that the search of Williams was reasonable in this
case, the Education Defendants rely on Jenkins v. Talladega City Bd. of Educ.,
115 F.3d 821 (11th Cir. 1997). As the court in Thomas points out, however, the
Jenkins court only decided whether qualified immunity should be applied, rather
than determining whether a constitutional violation had occurred. See Thomas, 261 F.3d at 1167 n.7.
The two-part inquiry established in T.L.O. requires this court
to determine whether the search was justified at its inception, and then
whether the search was reasonably related in scope to the circumstances which
justified the interference in the first place.
T.L.O., 469 U.S. at 341. The Education Defendants argue that the search
of Williams was reasonable in its inception because the package of drugs was
found under the table at which he was seated and another student told Bell that
Williams had placed the drugs where they were found. They argue that the school
officials had a reason to suspect Williams and that the object of preventing
drug traffic and use was critically important. The Education Defendants finally
argue that as the search was conducted in a private restroom by officers of the
same sex, the search was not excessively intrusive.
Williams responds that there was no reason to believe that a
strip search would reveal any drugs as no dog had alerted on Williams, he had
already been searched two previous times, and other students were sitting at
the table at which the drugs were found.
Under the now-vacated Thomas decision, the standard applied in
determining whether there is a constitutional violation was individualized
suspicion. n2 Thomas, 261 F.3d at 1168. As the Eleventh Circuit explains it,
the Supreme Court has recognized a
limited exception to the requirement for individualized suspicion where the
privacy interests and the intrusion implicated are minimal and the school's
interest is important, if not compelling. See
Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639,
109 S. Ct. 1402 (1989).
The search of Williams in this case was certainly more than
minimally invasive. The court must conclude, therefore, that even assuming that
there is an important school interest, individualized suspicion was required
before the search could be conducted.
In this case, the presence of drugs at the table at which
Williams and other students were seated and information given to Bell by
another student formed the basis for individualized suspicion. "A number of courts have held that
information provided by an informant can serve as a basis for a reasonable
suspicion that a student may be engaged in illegal activity." Singleton v.
Board of Educ., 894 F. Supp. 386, 391 (D. Kan. 1995). In C.B. v. Driscoll, 82
F.3d 383 (11th Cir. 1996), a high school principal searched a student's coat
based on another student's tip that the student was going to make a drug sale.
The court applied the T.L.O. standard and determined that where there was a
reliable tip with some corroboration, there were reasonable grounds to
search. 82 F.3d at 38. In analyzing the claim, the court noted that
whether the facts construed in favor of the plaintiff showed that there were
reasonable grounds to suspect the presence of banned substances was a question
of law. 82 F.3d at 388. As to the
second T.L.O. prong, however, [*1116] unless "there was some factor which
made the search reasonable even under plaintiff's view of the circumstances,
the case presented questions for the trier of fact." Webb v. McCullough, 828
F.2d 1151, 1155 (6th Cir. 1987).
In the instant case, a student had identified Williams to Bell
and the drugs were found at a table at which Williams was seated. The court
concludes, therefore, that individualized suspicion was met, so the search was
justified at its inception. The remaining issue, therefore, is whether the
measures adopted were reasonably related to the objectives of the search and
not excessively intrusive given the age and sex of the student and the nature
of the infraction. T.L.O., 469 U.S. at 342.
First, the object of the search, to uncover drugs, has been
identified by courts as weighing more heavily in the T.L.O. balancing than
other interests, such as the recovery of stolen money to preserve order. See Bell v. Marseilles Elem. Sch., 160 F. Supp.
2d 883, 889 (N.D. Ill. 2001). Second, while strip searches are universally
considered to be the most intrusive form of a search, a grant of qualified
immunity has been affirmed by another circuit where the court determined that a
strip search was not unreasonable where the item sought was a small vial
containing a suspected narcotic. See Williams v. Ellington, 936 F.2d 881, 887
(6th Cir. 1991).
Although Williams has argued that it was a violation of school
policy for there to have been no school official present during the search,
such a violation of school policy does not necessarily render the search a
violation of federal constitutional
rights. Cf. Hale v. Pringle, 562 F.
Supp. 598 (M.D. Ala. 1983).
The search as described by one of the officers conducting it is
as follows:
So we brought him into
teachers' lounge. Had him strip his socks and shoes off. Turned them inside
out. I believe he had a t-shirt up under his top shirt, which he didn't take
off. His pants were taken all of the way off. His underwear was taken down to
his knees with his privates turned away from us.
Plaintiffs' Exhibit 8; page
109:4-10. The search is also described as having lasted two to three minutes.
Id. at page 114:1-2. The court is aware of no sworn testimony which conflicts
with this description. Based on this evidence, the court cannot conclude that
the search conducted was a violation of the constitution. The search was
apparently conducted by male law enforcement officers in a private room and
there was no touching of Williams's person. See Justice v. City of Peachtree
City, 961 F.2d 188, 193 (11th Cir.1992)(strip search of juvenile arrestee based
on reasonable suspicion was reasonable where the officers limited the search in
the following manner: (1) having members of the same sex perform the search,
(2) using a room where only the participants were present to conduct the
search, and (3) limited the search to exclude body cavities); Singleton, 894 F.
Supp. at 391 (search for stolen money reasonable in its scope where conducted
in the privacy of the principal's office with only two male administrators
present, plaintiff was not required to remove underwear, and was not touched
inappropriately); Widener v. Frye, 809 F. Supp. 35 (S.D. Ohio 1992), aff'd, 12
F.3d 215 (6th Cir. 1991)(search for drugs where student was removed from the
presence of his classmates, conducted by two security guards, where student was
made to remove socks and shoes and pants but not underwear, to lift shirt, and
where crotch area was visibly inspected, and student was not touched was
reasonable).
Alternatively, even if there were a constitutional violation,
the court would conclude that the Education Defendants [*1117] are entitled to
qualified immunity on this claim because there is little guidance in the
Eleventh Circuit as to when a strip search for drugs based on individualized
suspicion is reasonable. Qualified
immunity is a protection designed to allow government officials to avoid the
expense and disruption of trial. Ansley
v. Heinrich, 925 F.2d 1339, 1345 (11th Cir.1991). As a preliminary matter, the
court must determine whether the public official was acting within the scope of
his discretionary authority at the time the allegedly wrongful acts occurred. See Rich v. Dollar, 841 F.2d 1558, 1563 (11th
Cir. 1988). Once it is established that a defendant was acting within his
discretionary authority, the court must determine whether "taken in a
light most favorable to the party asserting the injury, do the facts alleged
show the officer's conduct violated a constitutional right?" Saucier v.
Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001). "If a
constitutional right would have been violated under the plaintiff's version of
the facts, the court must then determine 'whether the right was clearly
established.'" Id.; see also
Wilson v. Layne, 526 U.S. 603, 609, 143 L. Ed. 2d 818, 119 S. Ct. 1692
(1999).
Requiring that a constitutional right be clearly established
means that liability only attaches if "the contours of the right [violated
are] sufficiently clear that a reasonable official would understand that what
he is doing violates that right." United States v. Lanier, 520 U.S. 259,
270, 137 L. Ed. 2d 432, 117 S. Ct. 1219 (1997). In other words, a defendant is
entitled to "fair warning"
that his conduct deprived his victim of a constitutional right. Hope v.
Pelzer, U.S. , 122 S. Ct. 2508 (2002). Officials can be
on notice that their conduct violates established law even in novel factual
circumstances, although in some cases, a very high degree of prior factual
particularity may be necessary, such as when an earlier case expressly leaves
open whether a general rule applies to the particular type of conduct at issue.
Id. at 2516.
The applicable case law established that searches in situations
such as presented here had to be based upon individualized suspicion, with
limited exception, and that reasonableness of searches depended on the age and
genders of students and the nature of the suspected infraction. Where, as here,
individualized suspicion existed, there is no clear standard as to what
constitutes a reasonable search for drugs when that search is conducted in
private by persons of the same gender as the student. The court recognizes that
the Eleventh Circuit's qualified immunity analysis in Thomas has been vacated.
The court must conclude, however, that under the standard established in Hope,
the individual Defendants did not have fair warning that their search of
Williams, which was reasonable in its inception, violated the constitution and
that on this alternative ground, summary judgment is due to be GRANTED as to
the Education Defendants.
2. The Law Enforcement Defendants
The Law
Enforcement Defendants contend that as neither West nor Sheriff Vaughner
conducted the strip search of Williams, they cannot be held liable for that
search. The Law Enforcement Defendants contend, therefore, that the only search
at issue as to them is the search which consisted of Williams emptying his
pockets and being patted down.
To the extent that Williams's
claim is based on his being required to empty his pockets and his being patted
down, the court must conclude that the presence of individualized suspicion and
the minimal nature of the search renders those searches reasonable. See Skinner, 489 U.S. at 624; Thomas, 261 F.3d
at 1170. [*1118]
To the
extent that the claim is based on the strip search by law enforcement officials
who are not defendants, because there is evidence that West authorized the
search, there is a possible basis for liability against him. See Cales v. Howell Public Schools, 635 F.
Supp. 454, 456 (E.D. Mich. 1985). As the court discussed above, however,
Williams has not established that a constitutional violation occurred and,
alternatively, has not demonstrated that the law in this area was sufficiently
clearly established so as to deprive individual defendants of qualified
immunity.
As to Vaughner, Williams has
argued that the Law Enforcement Defendants can be held liable for the strip
search because they knew that unlawful searches would occur and failed to
adequately train and supervise those who engaged in the search. Although
Vaughner cannot be held liable under § 1983 on the basis of respondeat superior,
Williams argues that because the search was a planned event, Vaughner knew that
training and supervision would be needed.
Supervisor
liability under § 1983 occurs either when the supervisor personally
participates in the alleged constitutional violation, or when there is a causal
connection between actions of the supervising official and the alleged constitutional deprivation. Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir.1990). The causal connection can be established when a history of widespread
abuse puts the responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so. Id. No such showing has been made
in this case. Therefore, even if there were a clearly established violation of
constitutional law, the court concludes that summary judgment is due to
be GRANTED on this
alternative ground.
C. Alfonia Maull on behalf of Sammy Lewis
As the movants have pointed out, Plaintiff Alfonia Maull, Sr.
("Maull") is Sammy Lewis's stepfather. Sammy Lewis has not been
adopted by Maull and parental rights over Sammy Lewis have been retained by his
natural parents. The Defendants argue, therefore, that Plaintiff Maull is not a
proper party in this case and, consequently, any claims asserted on Sammy
Lewis's behalf are due to be dismissed. The Federal Rules of Civil Procedure
allow for suits to be brought by persons serving as next friends. n3
The movants cite to this court's decision in Bradley v.
Harrelson, 151 F.R.D. 422 (M.D. Ala. 1992), which stands for the unremarkable
proposition that a parent can sue as a child's next friend. That case does not,
however, stand for the proposition for which the Defendants have apparently
cited it; namely, that a next friend must be a parent.
In Developmental Disabilities Advocacy Center, Inc. v. Melton,
689 F.2d 281, 286 (1st Cir. 1982), the court addressed a similar question and
determined that a named plaintiff who was not related to the injured party was
not a proper next friend where there was evidence that the family member
[*1119] had expressed opposition to the suit, and therefore, the injured party
was represented by a family member. In this case, there apparently is a
relationship between the plaintiff and injured party, and there is no evidence
of opposition to representation. There also is no evidence that there is a
conflict between the interests of Lewis and the next friend. Therefore, the
court concludes that this case is not due to be dismissed on this ground.
The basis of Lewis's claim is that he, along with the other
students in his class, was led to the cafeteria and instructed to empty his
pockets while drug-sniffing dogs were led through the cafeteria.
1. Education Defendants
The Education Defendants argue that the extent of the search of
Lewis was so minimal so as to be considered reasonable under applicable Fourth
Amendment standards. The Education Defendants argue that allowing law
enforcement officials to search the contents of Lewis' pockets without
individualized suspicion does not constitute a constitutional violation. They
further contend that as the search was conducted by law enforcement officials,
they bear no liability.
Lewis argues that there was no nexus between the searches done
and there was no individualized suspicion for the items being searched for,
since no dog had alerted on Lewis. Lewis contends that there was a less
intrusive means to combat illegal drug use in the school and that the search
was not reasonable at its inception because the school did not have a drug
problem and there was no justification for bringing all of the students from the
vocational school and requiring them to empty their pockets.
As earlier stated, a search may be conducted without
individualized suspicion when the privacy interests implicated are minimal and
an important governmental interest furthered by the intrusion would be placed
in jeopardy by a requirement of individualized suspicion. Skinner, 489 U.S. at
624. Schoolchildren have lesser expectations of privacy, although they do
retain a legitimate expectation of privacy in their persons. See Veronia Sch. Dist. v. Acton, 515 U.S. 646,
132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995). The facts of this case do not fit
neatly into the exception to individualized suspicion recognized in Veronia, as
there is no record evidence of a widespread drug abuse problem in the school at
issue in this case. There is, however, evidence that Covington contacted law
enforcement officials with a concern about drug use in the schools. See
Plaintiffs' Exhibit 7 at P 3. n4
The limited intrusive nature of the search of Lewis, when
weighed against the interest of combating drug abuse and sales indicates that
the search of Lewis was justified at its inception without individualized
suspicion. The search of Lewis was not unlike the search of a student in the
now-vacated Thomas decision, which was determined to be reasonable, wherein a
student was required to pull out his pants pockets and to allow law enforcement
to shakes his pants. See Thomas, 261 F.3d at 1170. The next issue, therefore,
is whether the measures adopted were reasonably related to the objectives of
the search and not excessively intrusive in light of the age and sex of the
student and the nature of the infraction.
T.L.O., 469 U.S. 342. The court concludes that the search conducted was
reasonably related to the objective of finding [*1120] illegal drugs and was
not excessively intrusive, as there was no touching of the student or his
belongings. Accordingly, summary judgment is due to be GRANTED as to the
Education Defendants on the claim asserted on Lewis's behalf.
2. Law Enforcement Defendants
The Law
Enforcement Defendants state that as West was not involved in the search of
Lewis, Lewis' claim is that Vaughner asked him to empty his pockets and stand
by his seat. Clearly, the activity of
the drug-sniffing dog walking up and down the aisles sniffing for contraband is
not a Fourth Amendment search. See
Hearn v. Board of Public Educ., 191 F.3d 1329 (11th Cir. 1999). The Law
Enforcement Defendants argue, therefore, that requiring the students to allow
the contents of their pockets to be searched did not constitute a Fourth
Amendment search.
Had the dogs merely walked by
the students, the court would see some merit in the Law Enforcement Defendants'
argument. As the students were asked to empty their pockets, however, it would
appear that more than a mere sniffing by drug dogs occurred. The court must
conclude, however, that because law enforcement did not physically search the
contents of Lewis's pockets, the search was so minimal as to be reasonable,
and, therefore, the court need not reach the question of whether requiring a
person to empty his or her pockets is not considered a search within the
context of drug-sniffing dogs. Summary judgment is, therefore, due to be
GRANTED on Lewis's claims as to these Defendants as well.
D. Janet Johnson on behalf of Dramon Johnson
Drug-sniffing
dogs alerted on Johnson's car and he was asked by a law enforcement official to
open his vehicle. As earlier stated, he climbed into his vehicle and swallowed
a small package of marijuana seeds which was contained in the car. Johnson
claims that law enforcement officers choked him in an attempt to force him to
turn over marijuana seeds he had swallowed, and that they subsequently made him
remove his shirt, pants, and shoes in the parking lot while they searched him
for illegal narcotics. The search was apparently conducted by law enforcement
officials who have not been named defendants in this case.
There is
evidence in this case to support a finding of individualized suspicion as drug
dogs had alerted on Johnson's car and he admitted to swallowing a package of
marijuana seeds. The remaining question, therefore, is whether the measures
adopted were reasonably related to the objectives of the search and not
excessively intrusive given the age and sex of the student and the nature of
the infraction. T.L.O., 469 U.S. at
342.
The
argument has been advanced that the immediate search of Johnson in the parking
lot was justified to determine whether the substance Johnson had swallowed was
dangerous to his health. The court cannot conclude that the search, as
presented in the evidence viewed in a light most favorable to the non-movant,
was reasonably related to the objectives of the search and not excessively
intrusive, however. Under the theory advanced in defense, the search was not
conducted to find illegal contraband in order to combat drug use, but to ensure
that Johnson was not harmed by the substance he swallowed. Since Johnson
identified the substance and retrieved it from his car, not his person, the
court must conclude that requiring him to strip to his underwear in a public
parking lot was excessively intrusive. The next issue, therefore, is whether
there are named Defendants in this case who can be held liable for this
constitutional infringement, [*1121] since none of the persons who actually conducted the search of Johnson
have been named as Defendants.
1. Education Defendants
The Education Defendants argue that they cannot be held
accountable for the actions of the law enforcement officials. Covington
contacted law enforcement and requested that a search of a school be conducted,
although there is no evidence that he requested or authorized the strip search
of Johnson. There also is no evidence before the court that Bell authorized any
search of Johnson at the car. Without evidence that Covington or Bell
individually participated in the search, the court cannot conclude that they
participated in any constitutional violation.
The only analogous case of which the court is aware is from a
district court in another circuit. See
Philadelphia Federation of Teachers v. School District of Philadelphia,
1998 U.S. Dist. Lexis 5592, No. Civ. A. 97-4168, 1998 WL 196403 (E.D. Pa.
1998). In that case, a school principal authorized searches, but did not
authorize the particular actions taken by law enforcement in conducting
searches. Id. at *7. The court concluded that there was a sufficient question
of fact to preclude summary judgment as there was evidence that the principal
was deliberately indifferent to the fact that the scope of the searches she had
authorized was being exceeded. Id. at *8. Assuming that under appropriate
facts, deliberate indifference could extend liability, there is no evidence
sufficient to support a finding of deliberate indifference in this case.
Alternatively, the court is aware of no relevant case law which
would have given Covington or Bell fair warning that they could be held liable
for the actions of the Law Enforcement Defendants. To the contrary, the law is clear that even if the law
enforcement officers were acting as agents of Covington once he authorized the
search of the school, there is no respondeat superior liability under § 1983.
See Harvey v. Harvey, 949 F.2d 1127,
1130 (11th Cir.1992).
Johnson appears to be arguing that it is the violation of school
policy itself, that no school officials were present during the search, which
gives rise to liability against Covington and/ or Bell. To rise to the level of
a violation of a federal right, however, the Defendants' actions must have
violated the constitution, not merely school policy. The contours of federal
law are not defined by state school district policies. See Hale v. Pringle, 562 F. Supp. 598, 601
(M.D. Ala. 1983). Further, as the Eleventh Circuit pointed out in Thomas, a
school official who acts contrary to school policy does not establish policy
for the school district. Thomas, 261
F.3d at 1173.
The next issue, therefore, is whether the Board of Education can
be held liable based on the actions of the law enforcement officers. Even though
law enforcement officials were acting at the request of the school system, § 1983 liability cannot be predicated on
respondeat superior liability. Harvey,
949 F.2d at 1130. Instead, there must be a policy or custom which is the moving
force behind the constitutional violation. Although the Plaintiffs have
advanced an argument that there was a failure to train, as the Education
Defendants point out, there has been no showing that the Board of Education had
the authority or ability to train the law enforcement officers.
The Plaintiffs have also argued that the Board of Education
ratified the actions of the officers under St. Louis v. Praprotnik, 485 U.S.
112, 99 L. Ed. 2d 107, 108 S. Ct. 915
(1988). In the Thomas decision, vacated for reconsideration of its
determination of qualified immunity, the Eleventh Circuit addressed a similar
argument. The court rejected an argument based on Praprotnik, [*1122] reasoning
that where the school district had no opportunity to measure decisions to
search students against the school's policy until after the search had taken
place, the district could not have ratified the decision to search the children
prior to the decision becoming final.
261 F.3d at 1174. The Thomas decision is an indication of the way in which
the Eleventh Circuit would apply Praprotnik in this case. The court concludes,
therefore, that summary judgment is due to be GRANTED as to the Education
Defendants on Johnson's claims.
2. Law Enforcement Defendants
The Law
Enforcement Defendants argue that they cannot be held liable for a search
conducted by officers who are not defendants in this case. They argue that the
only basis for liability alleged against Vaughner is that he did not intervene
in the search by other officers. Johnson has stated that Vaughner was the
"overseer" of the search of him. There is apparently no contention
that West should be held responsible for the search of Johnson.
Johnson's
argument with respect to Vaughner is that Vaughner did nothing to assist him
when "deadly force" was used to search the contents of Johnson's
mouth. Johnson does not appear to argue that Vaughner should be held liable for
the subsequent strip search. n5 Johnson describes the alleged choking as a use
of "deadly force," and therefore apparently contends that there is an
excessive force claim in this case. The Complaint originally alleged that
Johnson was choked and wrestled to the ground, causing physical injury.
Complaint at P 18. No evidence of any physical injury has been produced, however.
n6 The Law Enforcement Defendants did not originally respond to this claim
other than to state that there was no excessive force claim asserted against
any Defendant in this case, and to argue that there is no duty to intervene in
an illegal search. The court agrees that there is apparently no
authority recognizing a duty to intervene in an illegal search and that
Vaughner is at least entitled to qualified immunity on a failure to intervene
in a search claim, as there is no case law which would have given him fair
warning under Hope that a failure to intervene in an illegal search violates
the constitution. Cf. Wilson v.
Strong, 156 F.3d 1131, 1135 (11th Cir. 1998)(qualified immunity where there was
no relevant law holding that a private party's failure to intervene in an
illegal arrest violated the constitution). As to the duty to intervene in a use
of excessive force, however, this court has concluded that such a claim had
been asserted in this case and has given the Defendants additional time in which
to respond to that claim.
The
Eleventh Circuit has held that an officer who fails to take reasonable steps to
protect a person from another officer's use of excessive force can be held
liable for his failure to act. Riley v.
Newton, 94 F.3d 632, 635 (11th Cir.1996). Johnson's argument is that even if
the Law Enforcement Defendants can establish that the search was reasonable at
its [*1123]inception, the use of deadly force was unreasonable in its scope.
Vaughner's
testimony on this issue as stated in his affidavit is that he heard the
officers tell Johnson to spit out what was in his mouth. Vaughner Affidavit at
P 21. He further states that there is a concern when someone puts something in
his or her mouth during the course of a drug sweep because swallowing a
narcotic can be harmful to the individual. Id. Vaughner further states that the
officers attempted to get Johnson to spit out whatever was in his mouth and
that they acted reasonably given that Johnson may have swallowed a harmful
substance. Id. at P 22.
Johnson's testimony is that
one officer choked him under his neck and one grabbed him from the back of his
neck. Plaintiffs' Exhibit 4 at page 34:12-14. It is apparently undisputed that
Johnson was attempting to dispose of evidence which was the subject of the
search of his vehicle. Johnson has not
pointed this court to evidence of any injury he sustained as a result of the
alleged excessive force.
The Law Enforcement
Defendants have taken the position that there is no excessive force claim in
this case, but that, even if there is, Vaughner cannot be held liable for
failure to intervene. According to the Law Enforcement Defendants, there is no
evidence to establish that Vaughner was in a position to intervene in the use
of force, or that any excessive force was used.
The Fifth Circuit has
addressed an excessive force claim based on choking which occurred during the
search of a detainee's mouth. See
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). In that case, the
court concluded that the injury alleged--dizziness, temporary loss of breath
and coughing--did not rise to the level of a constitutional violation since
whenever a detainee is physically searched by an officer, a physical
confrontation inevitably results. Id. at 704. In this case, there is no
evidence of any alleged injury, but even assuming that at least the injury
asserted in Williams was present in this case, taking into account that the
officers were attempting to prevent Johnson from destroying evidence and/ or
swallowing a potentially harmful substance, the court cannot conclude that
Johnson has established an unconstitutional use of force. Alternatively, the
court cannot conclude that, under these facts, Vaughner would have had fair
warning that his failure to intervene was a constitutional violation. The court
must conclude, therefore, that summary judgment is due to be GRANTED to the
extent that the Plaintiffs intended to assert a separate excessive force claim
against Vaughner based on a failure to intervene in the use of force by law
enforcement officers.
V. CONCLUSION AND ORDER
For the reasons discussed, the court concludes that the Motions
for Summary Judgment (Doc. #'s 64, 67) are due to be and are hereby ORDERED
GRANTED. A separate Judgment will be entered in accordance with this Memorandum
Opinion and Order.
Done this 15th day of
January, 2003.
W. HAROLD ALBRITTON
CHIEF UNITED STATES DISTRICT JUDGE
JUDGMENT
In accordance with the Memorandum Opinion and Order entered on
this date, judgment is hereby entered in favor of the Defendants Lowndes County
Board of Education, Superintendent Dr. J.W. Covington, Principal Leola Bell,
Sheriff Willie Vaughner, and Chris West and against the Plaintiffs, Flossie
Rudolph on behalf of Lakendrick Williams, Alfornia Maul on behalf of Sammy
Lewis, and Janet Johnson on behalf of Dramon Johnson.
Costs are taxed against the Plaintiffs.
Done this 15th day of January, 2003.
W. HAROLD ALBRITTON
CHIEF UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 The
court notes that the Plaintiffs characterize this opinion as determining that
the county could be held liable for actions of the law enforcement officer. The
case affirmed summary judgment in favor of the county, however. Thomas, 261 F.3d at 1177. In any event, the
Plaintiffs' argument is unavailing here as any claims against the county were
previously dismissed by Order of this court. See Mem. Op. and Order, July 12,
2002.
n2 The court looks to this standard since it
was derived from the Eleventh Circuit's interpretation of Supreme Court
precedent, and since the case was vacated for consideration of the application
of qualified immunity principles, not based on the finding of a constitutional
violation.
n3
Federal Rule of Civil Procedure 17 (c) provides as follows:
Infants
or Incompetent Persons. Whenever an infant or incompetent person has a
representative, such as a general guardian, committee, conservator, or other
like fiduciary, the representative may sue or defend on behalf of the infant or
incompetent person. An infant or incompetent person who does not have a duly
appointed representative may sue by a next friend or by a guardian ad litem.
The court shall appoint a guardian ad litem for an infant or incompetent person
not otherwise represented in an action or shall make such other order as it
deems proper for the protection of the infant or incompetent person.
n4
Although the Plaintiffs contend that Bell testified that there was no drug
problem at the school, the Plaintiffs do not cite to any record evidence in
support of this proposition.
n5 If
Johnson does so contend, he has failed to demonstrate any basis for liability
against Vaughner as Vaughner did not personally participate in the search and
Johnson has not adequately established a causal connection. See Brown, 906 F.2d
at 671.
n6 In their response, the Education
Defendants refer to a medical report apparently submitted as a trial exhibit to
which they have filed an objection. As the Plaintiffs have not pointed to this
record in support of their opposition to summary judgment, it is not properly
considered by this court in ruling on the Motion for Summary Judgment.