NICOLE A. CLAY, Plaintiff,
WOODBURY COUNTY, IOWA; GLENN J. PARRETT, individually and as Sheriff of Woodbury County, Iowa; and AMY STRIM, BRIGID DELANEY, JORMA SCWEDLER, and DUSTIN DeGROOT, individually and as Deputy Sheriffs/Jailers of Woodbury County, Iowa; and the CITY OF SIOUX CITY, IOWA, and BRAD ECHTER, individually and as a Police Officer for the City of Sioux City, Defendants.
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY AND REPORT OF DONALD LEACH, II, AND DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
MARK W. BENNETT, District Judge.
In this action pursuant to 42 U.S.C. § 1983, a female arrestee asserts that defendant jail officers "strip searched" her without reasonable suspicion and in an unconstitutional manner in front of male and female officers, and did so in retaliation for her vociferous complaints about her detention and a search of her purse and cell phone, all in violation of the United States and Iowa Constitutions. Thus, this case is similar in several respects to Peters v. Woodbury County, Iowa, No. C 12-4070-MWB (N.D. Iowa), another case that recently came before me on motions for summary judgment, in which the plaintiff and the defendants were represented by the same counsel who represent the plaintiff and some of the defendants here. The plaintiff here does not expressly assert a claim denominated as "excessive force" arising from the alleged "strip search, " as did the plaintiff in Peters, but she does assert a claim that a defendant city police officer searched her cell phone and purse in violation of her rights under the United States and Iowa Constitutions, which is different from any claim raised in Peters.
The "County Defendants" (jail officers, the former county sheriff, and the county) have moved for summary judgment on the plaintiff's "strip search" and "retaliation" claims on essentially the same grounds that the defendants raised in Peters, including "qualified immunity, " lack of a cause of action under the Iowa Constitution, and lack of any basis for " Monell liability" of the former sheriff and the county. See Peters v. Woodbury County, Iowa, ___ F.Supp.2d ___, 2013 WL 5775027 (N.D. Iowa Oct. 25, 2013). The "City Defendants" (the city police officer who arrested the plaintiff and the city) have moved for summary judgment on the "unconstitutional property search" claim against them, also on the basis of qualified immunity, invalidity of such a claim based on violation of the Iowa Constitution, and lack of any basis for " Monell liability." Also, as a preliminary matter, the plaintiff here seeks to exclude the testimony and report of the same defendants' expert on essentially the same grounds raised by the plaintiff in Peters, that is, that the expert has applied the wrong legal standard to her claims and has opined on legal conclusions that are within the province of the court.
A. Factual Background For Summary Judgment
As in Peters, my determination of what facts are actually disputed in this case- and then whether those disputes are genuine and material-has been complicated by the parties' submissions and, sometimes, by the lack thereof. In the first instance, the factual background stated here is drawn primarily from the County Defendants' and the City Defendants' separate Statements Of Undisputed Material Facts In Support Of [Their] Motion[s] For Summary Judgment (docket nos. 54-1 and 57-1) and the plaintiff's Response[s] to those Statements Of Undisputed Material Facts (docket nos. 61-2 and 64-1). The plaintiff did not submit a statement of additional material facts that she contends preclude summary judgment in response to either Motion For Summary Judgment, however, as required by N.D. IA. L.R. 56(b)(3). Even so, the parties apparently agree that the defendants' Statements Of Undisputed Material Facts and the plaintiff's Responses are not exhaustive of factual issues material to the defendants' Motions For Summary Judgment, because both the defendants and the plaintiff repeatedly recite and rely on additional facts in their briefs, both with and without adequate citations to the parties' appendices or other portions of the record. A further problem here is that the plaintiff has failed to cite any parts of the record to support what appear to be her partial admissions or qualifications of certain factual statements, contrary to the requirements of N.D. IA. L.R. 56(b). Thus, some of the facts are deemed undisputed because of the plaintiff's failure to respond appropriately to the defendants' pertinent statements of undisputed facts. See N.D. IA. L.R. 56(b).
Thus, unless otherwise indicated, the facts stated below are from the defendants' Statement[s] Of Undisputed Material Facts, and the plaintiff has expressly admitted them.
1. Clay's arrest
On August 13, 2011, defendant Sioux City Police Officer Brad Echter responded to a disturbance call at the Firehouse Bar in Sioux City at 12:36 a.m. After arrival at the Firehouse Bar, Officer Echter arrested plaintiff Nicole A. Clay for public intoxication. The City Defendants allege that Clay was "highly intoxicated" at the time, but Clay admits only that she was "intoxicated, " albeit with no citation to any part of the record to support her partial admission or qualification of the City Defendants' allegation. I do not find that the degree of Clay's intoxication is material to the disposition of any portion of the pending motions. After arresting Clay, Officer Echter transported her to the Woodbury County Jail.
2. Clay's booking
Officer Echter arrived at the jail with Clay at 12:43 a.m. and escorted Clay to the booking counter where Defendant County Officers Jeremy Stroman (since dismissed), Amy Strim, and Brigid Delaney were present. The City Defendants allege that, while at the booking counter, Officer Echter performed a brief search of Clay's purse lasting less than 90 seconds. Clay "admits" the rather different fact that Officer Echter took almost everything out of her purse, then put everything back, in a short period of time. Clay cites in support of this partial admission or qualification the County Defendants' Summary Judgment Appendix at 72, a page that does not, in fact, exist in either the County Defendants' Summary Judgment Appendix (which ends at page 71) or the City Defendants' Summary Judgment Appendix (which has no page numbers, but ends at docket page 7). Thus, Clay's partial admission or qualification must be disregarded, unless it is elsewhere supported by adequate citations to the record, and the City Defendants' allegation that Officer Echter performed a brief search of Clay's purse lasting less than 90 seconds must be deemed admitted. If necessary, I will consider in my legal analysis whether the scope or duration of Officer Echter's search of Clay's purse is material to my disposition of any part of any pending motion.
The County Defendants and Clay agree that Clay was visibly upset at the booking counter. Clay explains, without citation to any supporting parts of the record, that she was upset when Officer Echter started going through her purse and even more upset when he started going through her cell phone. The County Defendants and Clay agree that Clay voiced objections to her arrest and detention, the search of her purse, and the alleged search of her cell phone by Officer Echter. They also agree that Clay refused to answer standard booking questions posed to her by Officer Stroman, so the booking process was terminated. Female Officers Strim and Delaney then escorted Clay to a temporary holding cell.
3. Escalation of the incident in the holding cell
The County Defendants assert, and Clay admits, that Woodbury County Jail Standing Operating Guideline (Jail SOG) § 4.10.1(6)(a) requires an inmate to remove an under-wire (wire or plastic) bra, which is then inventoried with the inmate's personal property, so that inmate cannot use the under-wire to create a weapon or tool to escape. See County Defendants' Summary Judgment Appendix at 37 (Jail SOG § 4.10.1, requiring removal of under-wire bras); id. at 28 (Deposition of Officer Delaney at 93-94, explaining the reasons for removal of under-wire bras). After Clay entered the temporary holding cell, Officer Strim told Clay that she would have to remove her under-wire bra and change into a jail jumpsuit, which Strim had brought to the cell. Officer Strim then expressly directed Clay to remove her under-wire bra and to change into a jail jumpsuit, pursuant to jail policy, but Clay refused to do so. The County Defendants allege that Officer Delaney then stated, "We can do this the easy way or the hard way, " and that Clay responded, "Do it the hard way." Although Clay admits the factual allegation in the preceding sentence, she adds, without citation to any portion of the record, that she refused to take off her top and bra with officers in the room.
The County Defendants state that, according to Clay's testimony, the female officers present then paused, and Officer Delaney said, "Are you ready, one, two, three, " and Officers Strim and Delaney grabbed Clay and threw her onto the bunk, in the course of which they hit Clay's head against the wall, and Clay ended up on the bunk face down. Clay admits this statement of fact. The County Defendants then state that, also according to Clay's testimony, the female officers forcefully removed Clay's shirt and bra, and male officers, defendant Officers Schwedler and DeGroot, entered the cell to assist the female officers. Clay also admits this statement of fact. A party's allegation about what another party alleges in his or her deposition testimony does not actually allege any facts regarding the incident, but is apparently an invitation for me to take the facts alleged in the other party's testimony as true for purposes of summary judgment. The nature of the male officers' "assistance" is not stated in either of the defendants' Statements of Facts or Clay's Responses.
Video cameras in the jail record what occurred at the booking counter and show the hallway outside the temporary holding cell, but do not show what transpired in the temporary holding cell.
B. Factual Background For The Motion To Exclude Expert Evidence
As explained, below, Clay seeks to exclude expert testimony and to strike the expert report of the County Defendants' expert, Donald Leach II. As in Peters, Clay has failed to submit with her motion challenging the expert's evidence a copy of the challenged expert's report, even though she refers to it as her "Exhibit 1." Clay also cites to portions of the depositions of various parties and witnesses, but, like the plaintiff in Peters, she failed to attach any of those deposition excerpts to her motion, and I ordinarily would not have access to them. In response to Clay's motion challenging their expert, however, the County Defendants provided an appendix including the challenged expert's report, the plaintiff's expert's report, various deposition excerpts, and some other documents. For purposes of providing the factual background to Clay's challenge to the County Defendants' expert, it is sufficient to quote certain portions of Mr. Leach's expert report.
Although Clay does not expressly assert a separate "excessive force" claim, Mr. Leach nevertheless states the following concerning "use of force issues, " in Section X of his report, entitled "Comments And Basis For Opinion":
I relied on my training and knowledge as a correctional administrator regarding the use of force as presented by the U.S. Supreme Court in Hudson v. McMillian (1992) and further recently reinforced in Wilkins v. Gaddy (2010) in evaluating circumstances involving the use of force. The attempt is to determine whether the use of force was "wanton and unnecessary" or "applied in good faith effort" to enforce facility rules and regulations. The five elements I use to make this determination, and as described by Mr. Collins in his Guide [are]:
1. What was the need for the use of force?
2. What was the threat reasonably perceived by the officers?
3. How much force was used in relation to the need?
4. What efforts were made to temper the use of force?
5. What injuries did the inmate sustain?
This "need" includes a legitimate governmental interest in compelling the inmate to follow rules, regulations and reasonable officer directives. The failure to comply with an officer['s] directives can reasonably form the basis for the escalation in the use of force from officer directives to some form of physical control. County Defendants' Appendix In Support Of Their Resistance To Plaintiff's Motion To Exclude Expert Testimony And Strike Expert Report Of Donald Leach II (Defendants' Appendix Regarding Expert) (docket no. 56-2), 73 (Leach Expert Report, unnumbered page 14) (footnotes omitted).
Although Mr. Leach referred to a "wanton and unnecessary" standard as the basis for his opinion on "use of force" issues, he summarized his opinion on the "use of force" issue in the following terms:
2. The force used in conducting the search of Ms. Clay was reasonable and necessary given Ms. Clay's refusal to comply with the Deputies' directives, and the legitimate governmental interest in removing her clothing for her protection from potential self harming behaviors. Such force is a routine and acceptable correctional practice in jails.
County Defendants' Appendix Regarding Expert at 70 (Leach Expert Report at unnumbered page 11).
In Section XI ("Analysis"), subsection B ("Use of Force on Ms. Clay") of his report, Mr. Leach offered various more specific opinions, none of which refer to a "wanton and unnecessary" standard. First, he opined that "Ms. Clay's refusal to comply with officer directives coupled with her defiant and challenging behaviors resulted in the officers needing to use of [sic] force to effect compliance with following their directive." Id. at 80 (Leach Expert Report at unnumbered page 21). Next, he opined that "[i]t was reasonable given Ms. Clay's prior behaviors for Officer Strim and Officer Delaney to perceive Ms. Clay as refusing to follow their directives." Id. at 81 (Leach Expert Report at unnumbered page 22). He also opined,
The female officers (Strim and Delaney) used a reasonable amount of force in placing Ms. Clay on the bunk. The male officers (DeGroot and Schwedler) initially responded but other than removing her handcuffs did not use force on Ms. Clay. Upon Ms. Clay apparently realizing that the staff was going to use the force necessary to effect her compliance with their directives, she voiced a willingness to comply. The staff, both male and female officers[, ] discontinued their use of force and Ms. Clay was permitted the opportunity to comply. The male officers left the cell but remained in the area should their assistance be needed again. Ms. Clay complied with the directive to exchange clothing without further use of force.
County Defendants' Appendix Regarding Expert at 81 (Leach Expert Report at unnumbered page 22). Mr. Leach also opined, "The officers had a legitimate government[al] interest in enforcing their directives when threatened by Ms. Clay's continued noncompliance and challenging behaviors." County Defendants' Appendix Regarding Expert at 82 (Leach Expert Report at unnumbered page 23). After concluding that there was no indication that Clay sustained injuries requiring medical care, id. at 82-83 (Leach Expert Report at unnumbered pages 23-24), Mr. Leach offered the following conclusion:
The use of force was reasonable and acceptable in light of Ms. Clay's refusal to follow the officers' directives, which were delivered several times. Once Ms. Clay voiced her willingness to comply with the directives, the officers' use of force ceased and she was given the opportunity to comply.
County Defendants' Appendix Regarding Expert at 83 (Leach Expert Report at unnumbered page 24).
Finally, in Section XII ("Report Conclusion"), Mr. Leach opined, in pertinent part, as follows:
The Woodbury County Sheriff's Office has a legitimate governmental interest in the prevention of the introduction or possession of contraband. The definition of what constitutes contraband is within the discretion of the Woodbury County Jail administrators. Thereby, the designation of specific articles of clothing as contraband, and prohibited, is within the purview of the jail administration along with the enforcement of that prohibition. Ms. Clay's refusal to follow the directives of the staff in removing her clothing and donning jail attire, coupled with her belligerent, oppositional and defiant behavior, developed the exigent circumstances that resulted in the reasonable and acceptable use of force in enforcing facility rules, regulations and officer directives. The search of Ms. Clay's personal property upon booking intake is a routine and acceptable correctional practice.
The actions of the Woodbury County Jail staff in the management of Ms. Nicole A. Clay during her incarceration on August 31, 2011 were reasonable and acceptable correctional practices.
County Defendants' Appendix Regarding Expert at 86 (Leach Expert Report at unnumbered page 27).
C. Procedural Background
1. Clay's claims
Clay initiated this lawsuit by filing her Class Action Complaint (docket no. 2) on April 27, 2012. The current version of her claims, however, is in her Third Amended And Substituted Class Action Complaint (Third Amended Complaint) (docket no. 37), filed January 2, 2013. In her Third Amended Complaint, Clay names as defendants Woodbury County, Iowa; Glenn J. Parrett, individually and as Sheriff of Woodbury County, Iowa; Amy Strim, Brigid Delaney, Jorma Schwedler, Dustin DeGroot, and Jeremy Stroman, individually and as Deputy Sheriffs/Jailers of Woodbury County, Iowa; the City of Sioux City, Iowa; and Brad Echter, individually and as a Police Officer for the City of Sioux City.
In Count I of her Third Amended Complaint, Clay asserts a claim of "unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution and Article I, § 8 of the Iowa Constitution as to plaintiff Clay against all defendants." This "unconstitutional property search" claim is premised on the search of her purse and cell phone. See Third Amended Complaint, Count I, ¶¶ 48, 54-55.
In Count II, Clay asserts a claim of "unreasonable search and seizure of person [sic] in violation of the Fourth Amendment to the United States Constitution and Article I, § 8 of the Iowa Constitution as to the class against defendants Woodbury County, Parrett and Sioux City, " but this count actually alleges an "unconstitutional property search" claim on behalf of a class. This claim is premised on the search of "purses, satchels, cases and other closed containers, and/or cell phones, or other electronic devices, of all pre-arraignment detainees without a warrant or other legitimate basis for doing so." See id. at Count II, ¶¶ 61, 68-69.
In Count III, Clay asserts a claim "for declaratory and injunctive relief against defendants Woodbury County, Sioux City and Parrett." This "declaratory and injunctive relief" claim is also directed at the allegedly unconstitutional searches of "purses, satchels, cases and other closed containers, and/or cell phones, or other electronic devices, brought into the Woodbury County jail by pre-arraignment detainees without a warrant or other legitimate reason for such searches." See id. at Count III, ¶ 75.
In Count IV, Clay asserts a claim of "unreasonable strip search in violation of the Fourth Amendment to the United States Constitution and Article I, § 8 of the Iowa Constitution as to plaintiff Clay against defendants Woodbury County, Parrett, Strim, Delaney, Schwedler, DeGroot and Stroman, " whom Clay identifies as the "County Defendants." This "strip search" claim is premised on the "strip search of Clay, without regard to the scope of the particular intrusion and the manner in which the strip search was conducted." See id. at Count IV, ¶ 83. More specifically, Clay alleges that "[n]one of the County Defendants needed to be present in the holding cell while Clay changed into the prison issue jumpsuit and observing her while she t[oo]k her clothes off constitute[d] a strip search." See id. In this claim, Clay also alleges that "she was unreasonably and violently strip searched while being touched in otherwise clothed areas and having her unclothed breasts exposed to two female, and three male, Deputy Jailers." Id. at ¶ 87.
Finally, in Count V, Clay asserts a claim of "violation of freedom of speech guaranteed by the First Amendment to the United States Constitution and Article I, § 7 of the Iowa Constitution as to plaintiff Clay against [the County Defendants]." In this "free speech retaliation" claim, Clay alleges that "[t]he County Defendants strip searched Clay in violation of both the Constitutions of the United States and the State of Iowa, as set out in Count IV above, and in violation of Iowa law, I.C.A. 804.30, in retaliation for her loudly and vociferously protesting both her detention and the unlawful and unconstitutional search of her purse and cell phone." Id. at Count V, ¶ 94; see also id. at ¶ 98.
The County Defendants filed an Answer and Affirmative Defenses (docket no. 38) to Clay's Third Amended Complaint on January 4, 2013. Among other affirmative defenses, the County Defendants assert "qualified immunity, " Answer, Affirmative Defenses, ¶¶ 4-5; lack of a basis for " Monell liability" of the County and Sheriff Parrett, id. at ¶ 9; and failure to state a claim for violation of the Iowa Constitution upon which relief can be granted, id. at ¶ 11. The City Defendants filed an Answer (docket no. 40) to Clay's Third Amended Complaint on May 28, 2013. The City Defendants also assert various affirmative defenses, including "absolute" or "qualified" immunity and lack of a basis for " Monell liability" of the City. On May 28, 2013, the parties filed a Stipulation For Partial Dismissal Of [County] Defendant Jeremy Stroman And Count II (Class Action) (docket no. 39). On July 9, 2013, the parties filed a Stipulation For Partial Dismissal - Dismissing Count III Against All Defendants And Dismissing Count I Against [The County Defendants] (docket no. 52). In this second Stipulation, the parties clarified that the part of Count I relating to the wrongful search of Clay's cell phone was also dismissed as to the City Defendants, but that the part of Count I relating to the wrongful search of Clay's purse was not dismissed against the City ...