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Clay v. Woodbury County

United States District Court, Eighth Circuit

November 6, 2013

NICOLE A. CLAY, Plaintiff,
v.
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 U.S. DISTRICT COURT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 4
A. Factual Background For Summary Judgment ................................ 4
1. Clay’s arrest ................................................................. 5
2. Clay’s booking .............................................................. 6
3. Escalation of the incident in the holding cell ......................... 7
B. Factual Background For The Motion To Exclude Expert Evidence .............................................................. 8
C. Procedural Background ......................................................... 12
1. Clay’s claims .............................................................. 12
2. The pending motions .................................................... 15
II. CLAY’S MOTION TO EXCLUDE EXPERT EVIDENCE ....................... 16
III. THE SUMMARY JUDGMENT MOTIONS ......................................... 20
A. Standards For Summary Judgment ........................................... 20
B. The City Defendants’ Motion For Summary Judgment ................... 21
1. “Qualified immunity” ................................................... 22
a. Arguments of the parties ....................................... 22
b. “Qualified immunity” standards .............................. 23
c. Application of the standards ................................... 24
2. “Monell liability” ......................................................... 25
3. Immunity pursuant to Iowa Code § 670.4(3) ...................... 25
4. Claim based on the Iowa Constitution ............................... 26
5. Summary ................................................................... 26
C. The County Defendants’ Motion For Summary Judgment ............... 27
1. The nature and scope of Clay’s claims in Count
IV ............... 27
2. “Qualified immunity” ................................................... 33
a. Clay’s “violation of privacy rights” claim ................... 33
i. Arguments of the parties ............................... 33
ii. Analysis .................................................... 34
b. Clay’s “excessive force” claim ................................ 38
i. Arguments of the parties ............................... 38
ii. Analysis .................................................... 39
c. Clay’s “free speech retaliation” claim ....................... 42
i. Arguments of the parties ............................... 42
ii. Analysis .................................................... 43
3. Other grounds for summary judgment ............................... 46
4. Summary ................................................................... 47
IV. CONCLUSION ............................................................................ 48

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.

I. INTRODUCTION

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).[1]

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)[2]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.[3]

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 ...


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