Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

LILIANA CUESTA,

CL >.
S.D.

•·. :; T.
.. - .. i:,HI

Plaintiff, vs.

CASE N99- 517

THE SCHOOL BOARD OF MIAMI DADE COUNTY; MICHAEL ALEXANDER, individually,and MIAMI DADE COUNTY,
_____D__e_f_e_n_d_a_n_ts_.__________________!

CIV-UNGARO-BENAGES.
MAGISTRATE JUDGE BANDSTRA

COMPLAINT FOR DECLARATORY RELIEF AND FOR DAMAGES

Plaintiff sues Defendants and avers as follows:

1. This is a civil rights lawsuit by a person who was

associated with the Killian 9's satirical, political, and creative

publication "The First Amendment," for which association she was

unconstitutionally arrested and strip searched.

2.

The arrest was made pursuant to official policy of the

Miami Dade County School Board and violated the rights of plaintiff

under the First, Fourth and Fourteenth amendments to the U.S.

Constitution. The strip search was made pursuant to official

policy of Miami Dade County• s Department of Corrections and

violated the Fourth Amendment.

Cause of Action and Jurisdiction

3 . This action arises under the First, Fourth, and Fourteenth Amendments to the United States Constitution and Title 42 U.S.C. §§ 1983 and 1988. Jurisdiction is conferred on this court by Title 28 U.S.C. §§ 1331 and 1343 (3) and (4).

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 2 of 10
Parties 4. Plaintiff Liliana Cuesta was a student at Killian Senior High School and a contributor to the "First Amendment" at the time she was unlawfully arrested by Defendant Alexander. 5. At the time of the actions that give rise to filing of this complaint, Defendant Michael Alexander was an officer of the Miami Dade County Schools Police Department. In that capacity, he arrested plaintiff and charged her with violating Fla. Stat. 836.11, a facially unconstitutional statute. At all material times, he was acting under color of state law and pursuant to the policies and practices of the Dade County School Board. 6. Defendant School Board of Miami Dade County, Florida is responsible for the management, control, operation, administration, and supervision of all public schools in Dade County, Florida including Killian High. Its official policy mandates or encourages referring a student for arrest whenever a crime is thought to have been committed on school property. Defendant Alexander arrested Plaintiff pursuant to such policy. 7. Defendant Miami Dade County is the municipal entity under Florida law that owns and/or operates the Dade County Department of Corrections [DOC] and its pretrial detention facilities, including Turner Guilford Knight [TGK] . Pursuant to official policy of the DOC, plaintiff Cuesta was strip searched upon booking into TGK Detention Center because she had been arrested for an alleged felony. There was no particularized suspicion that a search of her nude person and bodily cavities was required for purposes of jail
2

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 3 of 10

security.

Statement of Facts

8. In February of 1998, the Killian 9 wrote poems, sketches essays and cartoons, including satirical writings and lampoons of authority figures for inclusion in "The First Amendment." The pamphlet was published anonymously, without attribution of any item or entry to any individual.
9. On Friday, February 20, 1998, some of the Killian 9 distributed copies of that year•s edition of "The First Amendment" to other students at Killian Senior High School.
10. Principal Timothy Dawson also received a copy of the pamphlet and in the words of the police incident report "conducted an investigation." He set out to ascertain the identities of all student contributors to that year•s pamphlet.
11. Mr. Dawson, pursuant to Dade County School Board Rule 6Gx13-5D-1.08 at pp. 9-12, "refer[red] criminal acts to the Dade County Public Schools Police and the local police agency for appropriate legal action." He summoned both Dade County Schools Police and Miami Dade County police officers to his office.
12. He instructed Dade County Schools Police to remove the students, one by one, from their classrooms, and to bring them to his office. He confronted each with the pamphlet, demanded to know the extent of that student•s involvement in its publication, and threatened each with arrest by school police in the event the student failed to confess.
13. During interrogation, each of the Killian 9 wrote a

3

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 4 of 10
statement detailing his/her involvement in the pamphlet. Defendant Alexander, acting pursuant to the direction or encouragement of Mr. Dawson, arrested the students, read them Miranda rights, took further statements, and arranged for their transport to jail. The minor children were taken to Miami Dade County Juvenile Detention Center. The 18 year-olds were incarcerated at TGK jail.
14. Plaintiff and the other studentS were charged with a misdemeanor violation of Fla. Stat. 836.11, which prohibits anonymous publication if it 11 tends to expose any individual or religious group to hatred, contempt, ridicule or obloquy. 11 To elevate that alleged offense to a felony charge permitting warrantless arrest, Defendant Alexander enhanced each charge under Fla. Stat. 775.085, Florida's 11 hate crime" statute, which prohibits committing an offense in a manner evidencing racial or other prejudice. The Offense Incident Reports and Complaint/Arrest Affidavits filed by Defendant Alexander identify Timothy Dawson as the victim of the alleged offenses.
15. All criminal charges against Plaintiff and other members of the Killian 9 were dismissed by the Dade State Attorney's Office. In dismissing, the State Attorney's Office issued a public statement acknowledging that the statute under which the students were arrested is unconstitutional and unenforceable.
CLAIMS FOR RELIEF Count I: First Amendment Violations [Defendants: Alexander and the Dade County School Board]
4

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 5 of 10
16. Defendant Alexander violated Plaintiff's First Amendment rights of Free Speech and Free Press in arresting her under a facially invalid statute, Fla. Stat. 836 .11, that purports to prohibit contemptuous anonymous pamphleteering against individuals and religious organizations. Anonymous pamphleteering has a long and honorable tradition in America predating the founding of the Republic and is protected by the First Amendment.
17. WritiJig that "tends to expose any individual or religious group to hatred, contempt, ridicule or obloquy" is essential to political satire and other forms of criticism and lies at the core of what is protected by the First Amendment. A statute purporting to criminalize such writing is facially invalid for overbreadth.
18. That Fla. Stat. 836.11 violated the First Amendment was clearly established law of which a reasonable law enforcement officer would have known. Anonymous pamphlets were declared to be protected by the First Amendment in Mcintyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) and prior cases. Laws criminalizing abusive or contemptuous speech were stricken in Lewis v. City of New Orleans, 408 U.S. 913 (1972) and 415 U.S. 130 (1974) [Lewis II] and Houston v. Hill, 482 U.S. 451 (1987). Further, Fla. Stat. 836.11 was enacted in 1945; but not a single conviction appears in the Southern Reporter. Alexander's arrest of Plaintiff was objectively unreasonable.
19. In violating Plaintiff's rights under the First Amendment to the United States Constitution, Defendants directly and proximately caused Plaintiff to suffer unlawful arrest, detention,
5

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 6 of 10
search of her person, anguish, embarrassment and humiliation. Count II: Fourth Amendment Violations--Unlawful Arrest
[Defendants Alexander and Dade County School Board] 20. Plaintiff repeats the averments of ~~ 1-15 above. 21. Defendants violated the Fourth Amendment right of Plaintiff to be free of unlawful seizure of the person in arresting her without probable cause to believe that a valid complaint of crime had been lodged by Mr. Dawson. But for application of the facially invalid Fla. Stat. 836.11, Defendant could not have arrested Plaintiff. 22. That there can be no probable cause to arrest for a nonexistent crime was clearly established law of which a reasonable law enforcement officer would have known. That the reported crime was non-existent follows from the fact that Fla. Stat. 836.11 is unconstitutional for the reasons stated above in ~~16-18, which are here incorporated by reference. Alexander's arrest of Plaintiff was objectively unreasonable. 23. Irrespective of whether a reasonable law enforcement officer could have concluded that Fla. Stat. 836.11 was valid, Defendant Alexander still could not have arrested Plaintiff for a misdemeanor not committed in his presence without a warrant of arrest. He "produced" putative grounds for warrantless arrest by charging the hate crimes felony enhancement of Fla. Stat. 775.085. The resulting arrest for felony-level hate speech was also and independently objectively unreasonable, hate speech laws having been declared facially invalid in R.A.V. v. City of St. Paul, 505
6

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 7 of 10

u.s. 377 (1992).

24.

In violating Plaintiff 1 s rights under the Fourth

Amendment to the United States Constitution, Defendants Alexander

and Dade County School Board directly and proximately caused

Plaintiff to suffer unlawful arrest, detention, anguish,

embarrassment and humiliation.

Count III: Fourth Amendment Violation- -Illegal Search of the Person

[Defendant: Miami Dade County]

25. Plaintiff repeats the averments of ~~ 1-15 above.

26. Upon being booked into the TGK detention facility,

Plaintiff Cuesta was ordered to remove her clothing in order to

permit jail personnel to examine her bodily orifices. This

intrusive search was not justified by the nature of the alleged

crime for which she was arrested and was not justified by probable

cause or particularized suspicion that she was concealing

contraband, weapons or anything threatening jail security.

27. The strip search of Plaintiff Cuesta was carried out

pursuant to the established policy and practice of Miami Dade

County in booking persons arrested for felonies, as stated in

Memorandum #11- 022, March 15, 1988, issued by Kevin S. Hickey,

Deputy Director, Dade County Corrections and Rehabilitation

Department, p. 3: 11 Newly arrested felons

will be completely

strip searched by a certified Correctional Officer as part of the

intake procedures

n [emphasis in the original] The written

policy was supported by customary practice at TGK.

28. In violating Plaintiff~ rights under the Fourth Amendment

7

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 8 of 10

to the United States Constitution, Defendant directly and proximately caused Plaintiff to suffer an unlawful search of the body, anguish, embarrassment and humiliation.
PRAYER FOR RELIEF
WHEREFORE, pursuant to the foregoing averments, Plaintiff requests the following relief:
a. Under Count I, a declaratory judgment under 28 USC §2201 that Fla. Stat. §836 .11 is unconstitutional on its face and a judgment for damages against Defendant Alexander and the Miami Dade County School Board;
b. Under Count II, a judgment for compensatory damages against Defendants Alexander and the Miami Dade County School Board for unreasonable seizure of the person of Plaintiff;
c. Under Count III, a judgment against Defendant Miami Dade County awarding her compensatory damages for the unreasonable search of her body at TGK;
d. Under all counts, an award of costs including reasonable attorneys• fees pursuant to 42 USC §1988 against each Defendant jointly and severally, or apportioned in the discretion of the court; and
e. such other relief as the Court deems proper and just.
;/air; Dated:

PLAINTIFF LILIANA CUESTA:

Respectfullly submitted,
8

Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 9 of 10

Of Counsel:
Andrew Kayton ACLU Legal Director 3000 Biscayne Blvd. Miami, Fl. 33137 305-576-2337

itimoo~tM~
3050 Jefferson St. Coconut Grove, Fl. 33133 Tel: 305-858-2436 Fax: 305-858-6336 Fla. Bar No. 130838
Ben Waxman 2250 S.W. 3rd Ave. Miami, FL. 33129 305-858-9550
Valerie Jonas 6400 Pinetree Dr. Circle Miami Bch, FL. 33141 305-864-8574
COOPERATING ATTORNEYS FOR THE AMERICAN CIVIL LIBERTIES
UNION OF FLORIDA, INC. GREATER MIAMI CHAPTER

9

02-18-1999 06:52PM FROM ACLU Of Florida

TO

3058586336 P.01

JS 44Case 1:99-cv-00517-UU Document 1 Entered on FLSD Docket 02/22/1999 Page 10 of 10
::.:::·:~,,_s_oM~o•rn-~~::~~~~~!!rv.~ ="0'«0-581N7A.G..E-s r.!O'NGA t( t by law. except as provided by local rules of court This form. approved by the Judicial Conference ofthe Un~ ~74 is ~ tcr the 1.11e
of the Cieri< of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVEnv

I. (a) PLAINTIFFS
I..II..IANA COESTA

DEFENDANTS
'IHE srncx:>L IDARD OF MIAMI-D.AD~~~RATE JUDGE
l-1..ICHAEL ALEXMIDER, · individualiy, arX:f'"DSTRA

MIAMI-DADE coum"Y

-[).;lde_.- • c;Q!J"'TY. OF RESIOCNCf 01- FIRST USTEO O)I;FC:!.i:)ANT_ l~i9III1-,

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(IN U S. PLAINnFF CASES ONLY)
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TI=IACT OF LAND INVOLVED.

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II. BASIS OF JURISDICTION

(!'lACE AN X IN ONE IIOX ON~Y)

o 1 U.S. Government
Plaintiff
o 2 U.S Govemmem
Defendant

~ 3 Federal Question (U.S. Government Not a Party)
o 4 Diversity (Indicate Citizenship of Parties in Item Ill)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES~ceAN-~r:-~ONEBOXFOR

(For Diversity Cases Only)

~.ONE 110)( Fciil>e

Citi:zen of This State

PTF DEF

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o 1 o 1 lncorporated"";rP'rinei~ o~

of Businag:WiJI:hi$ ~"e; .

Citizen of Another State o 2 o 2

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Citizen or Subject of a o 3 03 Foreign ~ation

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IV. ORIGIN
)ll , Original Proceeding

o 2 Removed from
Stale Court

(PLACE AN -x- IN ONE BOX ONLY)

o 3 Remanded from Appellate Court

o 4 Reinstated or
Reopened

Transferred trom
CJ s another district (specify)

o 6 Multidistrict
l.i1igation

Appeal to OistrO
J~frr:m 07~
Judgment

V. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY)

A CONTRACT
0 110 ln$ut~nce

A TORT·S-

--

PEASONALINJURV

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VI. CAUSE OF ACTION 1CrTE ~E us CIVIL sTATUTe UNDCR WHICH vou AR!; F1uNG A~.:owi'<•TE SRJc:r s~ATfMENTOF Cl'u:>e:
DO NOT CfTE Alql$0rCTIO.'III'L STATIJTES UNLE:SS o:vERSITYI

Filed pursuant to 42 U.S.C. Sect. 1983; claims alleging violations of First,

LENG~OFTA1AL

Fourth and Fourteenth Aitlendnents of u.s. Constitution ·

•14-/=~'f" .,.limal.O (lor DQih sid~S 10 IIY entrr~ ase)

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION 0 UNDER ~.R.C.P 23

DEMAND $

CHECK YES only if demanded in complaint:

Unspecified---------J-UR-Y--D-EM-A-N-D-:---t-J -~s----§-{N-O---

VIII. RELATED CASE(S) (See rnstructions)

IF ANY

.JI.t;:JGE

DOCKET NUMBER

 
 Case 1:99-cv-00517-UU Document 48 Entered on FLSD Docket 06/29/1999 Page 1 of 2

LILIANA CUESTA,
Plaintiff,
vs.
THE MIAMI-DADE COUNTY SCHOOL BOARD, MICHAEL ALEXANDER, individually, and MIAMI-DADE COUNTY,
_____D_e_f_en_d_a_nt_s.________!

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 99-517-CIV-UNGARO-BENAGES

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ORDER ON MOTION TO DISMISS PLAINTIFF'S COMPLAINT AS TO THE MIAMIDADECOUNTYSCHOOLBOARD
TillS CAUSE came before the Court upon Motion to Dismiss Plaintiffs Complaint as to the Miami-Dade County School Board, filed March 17, 1999.
THE COURT has considered the above-referenced Motion and the pertinent portions ofthe record and is otherwise fully advised in the premises.
On a motion to dismiss the Court must view the complaint in the light most favorable to the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 ( 1969), and may grant the motion only when "it appears beyond doubt that the plaintiff can prove no set of facts in support ofhis claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41,45-46,78 S.Ct. 99, 102,2 L.Ed.2d 80 (1957); Bradberry v. Pinnellas County, 789 F.2d 1513, 1515 (11th Cir. 1986). Moreover, the Court must, "at this stage of the litigation, ... accept [the plaintiff's] allegations as true." Hishon v. King & Spalding, 467 U.S. 69, 73 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984); Stevens v. Dept. ofHealth and Human Services, 901 F.2d 1571, 1573 (II th~

Case 1:99-cv-00517-UU Document 48 Entered on FLSD Docket 06/29/1999 Page 2 of 2

1990). Thus, the inquiry focuses on whether the challenged pleadings "give the defendant fair notice ofwhat the plaintiffs claim is and the grounds upon which it rests." Conley, 355 U.S. at 47.
The Defendant moves to dismiss the Complaint on the ground that the "Complaint on its face shows that there is no policy or practice of the School Board to violate Plaintiffs First or Fourth Amendment rights." Viewing the Complaint in the light most favorable to the Plaintiff, as the Court must do at the motion to dismiss stage, the Court finds that the Complaint alleges a cause of action under 42 U.S.C. § 1983 including allegations that the Plaintiffs constitutional rights were violated pursuant to the School Board's policy. Moreover, at the motion to dismiss stage, it would be premature for the Court to determine whether the Plaintiffcan provide a factual basis to support the allegations relating to the Defendant's policy of "referring a student for arrest whenever a crime is thought to have been committed on school property." (Complaint at ,6).
Accordingly, it is hereby ORDERED AND ADJUDGED that the Defendants' Motion to Dismiss is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this #day of June, 1999.

copies provided: Counsel ofRecord

0-BENAGES DISTRICT JUDGE

 
 Case 1:99-cv-00517-UU Document 83 Entered on FLSD Docket 04/11/2000 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 99-517-CIV-UNGARO-BENAGES

LILIANA CUESTA, Plaintiff,
vs.
THE SCHOOL BOARD OF MIAMI DADE COUNTY, et al.,
Defendants.
------------------------~/

ORDER

•lli:.O by_~7.
APR 1 0 2000
ClMlENCE "'"DDOX C Lf RK U.S. OIST. CT. S.D. OF FL"•. J.II.-MI

THIS CAUSE is before the Court upon Defendant Michael Alexander's Motion to Dismiss

Plaintiffs Complaint, filed February 19, 1999.

THE COURT has considered the Motion, the pertinent portions of the record and is

otherwise fully advised in the premises. On February 19, 1999, Plaintiff filed the Complaint

alleging, inter alia, that Defendant Michael Alexander ("Alexander") violated her First and Fourth

Amendment rights by unlawfully arresting her on February 20, 1998 for her participation in the

distribution of anonymous, contemptuous pamphlets to other students at Killian Senior High

School. 1 Defendant Alexander files the instant Motion arguing that Plaintiffs claims against him

must be dismissed based on his entitlement to qualified immunity.

LEGAL STANDARD

On a motion to dismiss the Court must view the Complaint in the light most favorable to the

plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404

t-he{i]J~ 'The Complaint also contains claims against Defendants Miami Dade County and
Miami Dade County School Board.
~

Case 1:99-cv-00517-UU Document 83 Entered on FLSD Docket 04/11/2000 Page 2 of 9

(1969), and may grant the motion only when "it appears beyond doubt that the plaintiff can prove

no set offacts in support ofhis claim which could entitle him to relief." Conley v. Gibson, 355 U.S.

41,45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Bradberry v. Pinnel/as County, 789 F.2d 1513,

1515 (11th Cir. 1986). Moreover, the Court must, "at this stage of the litigation, ... accept [the

plaintiffs] allegations as true." Hishon v. King & Spalding, 467 U.S. 69, 73 104 S.Ct. 2229, 81

L.Ed.2d 59 (1984); Stevens v. Dept. ofHealth and Human Services, 901 F.2d 1571, 1573 (lith Cir.

1990). Thus, the inquiry focuses on whether the challenged pleadings"give the defendant fair notice

of what the plaintiffs claim is and the grounds upon which it rests." Conley, 355 U.S. at 47.

LEGAL ANALYSIS

Plaintiff alleges that Defendant Alexander violated her First and Fourth Amendment rights

by arresting Plaintiff for her participation in the anonymous publication "The First Amendment."

I

Alexander moves to dismiss the Complaint against him on the ground that he is protected by

qualified immunity because his arrest of Plaintiff was not objectively unreasonable under the

circumstances. Plaintiffcontends that the law was clearly established at the time Alexander arrested

her that such an arrest violated her First and Fourth Amendment rights and therefore Defendant

Alexander is not entitled to qualified immunity.

It is well settled that government officials performing discretionary functions are entitled to

qualified immunity and may not be held liable in their individual capacities if their conduct violates

no "clearly established statutory or constitutional right of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Siegert v. Gilley, 500 U.S. 226, 231-33

(1991). In Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983), the Eleventh Circuit established

a two-prong analysis to be used in applying the Harlow test. Under the first prong of the Zeigler

2

Case 1:99-cv-00517-UU Document 83 Entered on FLSD Docket 04/11/2000 Page 3 of 9
test, a government official must allege and prove that he acted within his discretionary authority by showing "objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance ofhis duties and within the scope ofhis authority." Zeigler, 716 F.2d at 849; see also Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988). Once this requirement is met, the burden shifts to the plaintiff to show that the defendant violated "clearly established" law. Zeigler, 716 F.2d at 849; Rich, 841 F.2d 1558.
"Clearly established" for purposes of qualified immunity means that "the contours of the right must be sufficiently clear that a reasonable government official would understand that his conduct violates that right." Wilson v. Layne, 119 S.Ct. 1692, 1699 (1999); citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)("This is not to say that an official is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light ofpre-existing law the unlawfulness must be apparent."). Thus, a plaintiff must point to case law which "pre-dates the official's alleged improper conduct, involves materially similar facts, and 'truly compels' the conclusion that the plaintiff had a right [clearly established] under federal law." Lassiter v. Alabama A & M University, Board ofTrustees, 28 F.3d 1146, 1150 (11th Cir. 1994). For the law to be deemed "clearly established" such that qualified immunity no longer protects the government official, the law must have been developed in such a concrete and factuallydefined context to make it obvious to all reasonable government actors in the defendant's place that what he is doing violates federal law. Anderson, 483 U.S. at 640.
In the instant case, it is undisputed that Defendant Alexander was acting within the scope ofhis discretionary authority when he arrested Plaintiff. See Plaintiff's Response at 2. The burden therefore shifts to the Plaintiff to show that Defendant Alexander violated a clearly established
3

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statutory or constitutional right when arresting Plaintiff.
Pursuant to the second prong of the Zeigler test, the Court must consider whether, from an
objective perspective, a reasonable police officer could have believed that arresting a student for her
alleged participation in anonymous pamphleteering that contained contemptuous speech was lawful
in light ofclearly established First Amendment law and the information the officer possessed at the
time ofthe arrest. Swint v. City of Wadley, 51 F.3d 988, 995 (11th Cir. 1995). For the reasons
explained below, the Court finds that as a matter of law it was not objectively unreasonable for a
police officer to arrest a student for her participation in anonymous, contemptuous pamphleteering
because there was no clear statutory or constitutional violation.
Plaintiff contends that Defendant Alexander violated her First Amendment and Fourth
Amendm~t rights by arresting her pursuant to Fla. Stats. §836.11 2 and §775.0853, both of which
I
2 Fla. Stat. §836.11 entitled Publications which tend to expose persons to hatred, contempt, or ridicule prohibited.--and states in pertinent part: It shall be unlawful to print, publish, distribute or cause to be printed, published or distributed...any publication...which tends to expose any individual or any religious group to hatred, contempt, ridicule or obloquy unless the following is clearly printed or written thereon: (a) the true name and post-office address of the person, firm, partnership, corporation or organization causing the same to be printed, published or distributed; ...
3 Fla. Stat. §775.085 entitled Evidencing prejudice while committing offense; enhanced penalties.--and states in pertinent part: (1) The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim: (b) A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree. (3) It shall be an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that
4

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Plaintiff contends are facially invalid and objectively unreasonable laws. However, Plaintiffs arguments that Fla. Stat. §836.11 and §775.085 are unconstitutional and violate "clearly established" First Amendment law of which a reasonable police officer should have known, are plainly without merit. First, in State v. Stalder, 630 So.2d 1072, 1077 (Fla. 1994), the Florida Supreme Court held that Fla. Stat. §775.085 is constitutional in that it punishes criminal conduct rather than expression. See id. With respect to §836.11, the statute was enacted in 1971, remained valid at the time of Plaintiffs arrest and has never been declared unconstitutional.
The continued validity of §836.11 is dispositive of Defendant Alexander's entitlement to
qualified immunity. See Robinson v. City ofSavannah, 1987 U.S. Dist. LEXIS 6859, *17 (S.D. Ga.
1987)(noting the impropriety of expecting a police officer to predict a court's determination regarding the constitutionality of a statute when the issue has not yet been resolved by a court of law). Nonetheless, Court will next address Plaintiffs remaining argument that pursuant to Supreme Court precedent extant at the time of her arrest, the police officer's decision to arrest her was objectively unreasonable.
Plaintiffargues that in 1995 the Supreme Court specifically held that anonymous pamphlets are protected by the First Amendment. See Mcintyre v. Ohio Elections Commission, 514 U.S. 334 (1995). A careful analysis of Mcintyre reveals that the Supreme Court held invalid a statute prohibiting the distribution of anonymous political campaign pamphlets which discussed governmental issues. See id. at 357. In contrast, the instant case does not involve mere political pamphleteering or discussion ofgovernmental issues. See id. at 345-46 (noting the exacting scrutiny
the victim was within the class delineated in this section. 5

Case 1:99-cv-00517-UU Document 83 Entered on FLSD Docket 04/11/2000 Page 6 of 9
to which limitations on political speech must be subjected). Consequently, Mcintyre does not provide the "bright line" necessary to establish that Defendant's arrest of Plaintiff was objectively unreasonable.
Plaintiff also points to Talley v. California, 362 U.S. 60 (1960), Lewis v. City of New Orleans, 415 U.S. 130 (1974), R.A. V. v. City ofSt. Paul. 505 U.S. 377 (1992) and Houston v. Hill, 482 U.S. 451 (1987), all of which held that laws criminalizing abusive language were unconstitutional. However, these cases are all distinguishable from the instant case in that none of them deals directly with ordinances proscribing hateful and contemptuous speech contained in an anonymous pamphlet distributed in a public school.
First, Talley involved the Supreme Court's striking down as overbroad an ordinance which barred the distribution of all anonymous handbills in any place under all circumstances. See 362 U.S. at 63-64. In holding that the ordinance was unconstitutional, the Court noted that the ordinance did not limit its application to handbills that were obscene, promoted unlawful conduct or in any other respect. In contrast, §836.11 does not prohibit all anonymous handbills in any place under all circumstances but rather limits its application to those which expose individuals or religious groups to contempt or hatred.
Second, both Lewis and Houston involved ordinances prohibiting abusive language, including curse words, toward police officers during performance oftheir official duties. See Lewis, 415 U.S. at 132; Houston, 482 U.S. at 455. In holding the ordinances overbroad, and thus unconstitutional, the Court reasoned that the ordinances could be applied to more than just "fighting words, which are not protected under the cloak of the First Amendment, but also to a substantial amount ofprotected speech. See Lewis, 415 U.S. at (defining "fighting words" as those which inflict
6

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injury or incite a breach of the peace); Houston, 482 U.S. at 462, 466-67 (noting that arrests under the ordinance will be typically made in one-on-one situations where the only witnesses are the officer and the person arrested and convictions will occur solely on the officer's testimony). In contrast, §836.11 does not broadly proscribe speech but rather is specifically limited in its application to anonymous pamphleteering tending to expose any individual or religious group "to hatred, contempt ridicule or obloquy."
Finally, R.A. V. involved a St. Paul, Minnesota ordinance which made it a criminal offense
to place on private or public property a symbol which aroused anger or alarm on the basis ofrace,
color, creed or religion. See 505 U.S. at 380. The Court recognized that it was bound by the
Minnesota Supreme Court's holding that in proscribing speech that aroused anger or alarm the
ordinance reached only speech that constituted "fighting words." See id. at 381. However, the Court
reasoned that such a limitation did not save the ordinance because the ordinance proscribed only certain types of"fighting words," specifically those that aroused anger or alarm on the basis ofrace,
color creed, religion or gender. See id. at 391. In striking down the ordinance, the Supreme Court
.
stated that laws regulating "fighting words" must operate across the board and may not classify and ban only certain types of "fighting words," for instance only those directed against others on a
discriminatory basis. See 505 U.S. at 381,391. In contrast, §836.11 is not limited in its application
to a certain subclass ofspeech that exposes one to hatred or riducule but by its express terms applies to any such speech directed to any person or religious group regardless ofits discriminatory nature.4
4As discussed above, to the extent Plaintiff points to R.A. V. to argue that Defendant
Alexander should have known his arrest of Plaintiff under §775.085, Florida's hate crime statute,
was objectively unreasonable because the statute was unconstitutional, the Court disagrees. See Stalder 630 So.2d at 1075 (discussing R.A. V and upholding the constitutionality of §775.085).
7

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In short, a careful analysis ofthe case law relied upon by Plaintiffdoes not establish any type of"bright line" law regarding anonymous distribution of pamphlets containing contemptuous and hateful speech directed toward any individual or religious group. See Anderson, 483 U.S. at 640 (requiring the law to develop in such a concrete and factually similar context to make it obvious to a reasonable government actor that his actions violate the law). Moreover, those authorities make clear that the contours of the First Amendment right that Plaintiff alleges Defendant Alexander violated were not sufficiently clear when Plaintiff was arrested, and thus the alleged unlawfulness ofDefendant Alexander's actions is not apparent. See Post v. City ofFort Lauderdale. 7 F.3d 1552, 1557 (11th Cir. 1993), modified 14 F.3d 583 (11th Cir. l994)("The line between lawful and unlawful conduct is often vague. Harlow's 'clearly establish' standard demands that a bright line be crossed. The line is not found in abstractions-to act reasonably, ..., and so on-but in studying how these abstractions have been applied in concrete circumstances.").
Accordingly, viewing the Complaint in the light most favorable to Plaintiff, Defendant Alexander is entitled to the protection of qualified immunity, and Defendant Alexander's Motion to Dismiss is granted. Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that Defendant Alexander's Motion to Dismiss is GRANTED and the Complaint is DISMISSED WITH PREJUDICE as to Defendant Alexander.
DONE AND ORDERED in Chambers at Miami, Florida, this / {) day of April, 2000.

copies provided: counsel of record

-BEN AGES UNITED STAT DISTRICT JUDGE
8

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 Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 1 of 16

LILIANA CUESTA, Plaintiff,
vs.
THE MIAMI-DADE COUNTY SCHOOL BOARD, et al.,
______D_e_fe_n_d_an_t_s.__________/

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 99-517-CIV-UNGARO-BENAGES
FILED by ~ D.C. 1
APR 1 7 2000
CLARENC£ M.lDDOX CLEIIK U.S. DIST. CT. S.D. Of fL.l. · MIAMI

OMNIBUS ORDER THIS CAUSE is before the Court upon Miami Dade County's Motion to Dismiss and for Final Summary Judgment, filed April6, 2000, Plaintiffs Cross Motion for Summary Judgment, filed April 19, 1999, Plaintiffs Motion for Leave to File Plaintiffs Supplemental Affidavit Nunc Pro Tunc to May 25, 1999, or, in the Alternative, to Rule that the Supplemental Affidavit was Authorized to be Filed, filed June 16, 1999 and Defendant's Motion to Accept Supplemental Affidavit, filed July 2, 1999. THE COURT has considered the Motions, the pertinent portions of the record and is othetwise fully advised in the premises. On February 19, 1999, Plaintiff filed the three count Complaint alleging that Defendants Michael Alexander ("Alexander"), Miami Dade County (the "County") and the Miami Dade County School Board violated her First and Fourth Amendment rights pursuant to 42 U.S.C. §§ 1983 and 1988 in arresting and strip searching her and seeking a declaration that the Florida statute under which she was arrested is unconstitutional. Plaintiff and the County have filed cross Motions for Summary Judgment as to the constitutionality of the County's policy concerning strip searches and thus the constitutionality of the strip search conducted upon Plaintiff pursuant to said policy.

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 2 of 16
FACTS The undisputed, material facts are as follows: On February 23, 1998, Plaintiff, an adult female student at Killian High School in Miami, Florida, was arrested for violation of Fla. Stat. §§ 836.11 and 775.085 1 for her participation in the creation and distribution of an anonymous pamphlet entitled "First Amendment" (the "Pamphlet"). County's Concise Statement of Undisputed Material Facts in Support of Motion for Final Summary Judgment ("Statement") at~ 1; Complaint/Arrest Affidavit. The Pamphlet contains sketches, including a picture ofKillian's principal, Mr. Dawson, with a dart drawn through his head and essays, including one in which the author wonders what would happen if he shot certain fellow students, as well as Mr. Dawson. See Pamphlet; Deposition of John Galardi at p. 8, 10. Upon her arrest, Plaintiff was transported to the Turner Guilford Knight Correctional Facility ("TGK") where she was booked and strip searched pursuant to the County's Departmental Standard Operating Procedure ("DSOP") 11-022. In pertinent part, DSOP 11-022 provides that "newly arrested felons ... will be completely strip searched by a correctional officer as part of the intake procedures prior to being assigned to any general population
1Section 836.11 provides, in pertinent part, that it shall be a misdemeanor of the first degree "to print, publish, distribute or cause to be printed, published or distributed by any means, or in any manner whatsoever, any publication, ...pamphlet, ...or other printed material which tends to expose any individual ... to hatred, contempt, ridicule or obloquy unless clearly printed thereon [is]. .. the true name and post office address of the person, ... or organization causing the same to be printed, published or distributed." Fla. Stat. § 836.11(1)(a), (2). Section 775.085 reclassifies a misdemeanor of the first degree to a felony if the commission of the misdemeanor evidences prejudice based on, inter alia, race, color, ancestry or ethnicity. Fla. Stat. § 775.085(1)(a)(2).
2

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 3 of 16
unit/cell. ..." DSOP ll-022(D)(5)(a). Consistent with DSOP I 1-022's procedures for conducting the strip search of female arrestees, Plaintiff was required to completely disrobe; to open her mouth exposing her tongue; to lift her breasts exposing the area underneath; to squat and cough; and to bend over exposing her buttocks. Affidavit of Liliana Cuesta ("Cuesta Aff.") at~ 7. See also DSOP 11-022 (III)(D)(2)(a)-(h). After the conclusion ofthe strip search, Plaintiff was placed in a holding cell with five to seven other women, some of whom had also been arrested for felony offenses. Supplemental Affidavit of Liliana Cuesta ("Cuesta Supp. Aff.") at ~3; Deposition of Liliana Cuesta ("Cuesta Depo.") at p. 104-105.
Joseph Zappia ("Zappia"), Captain of the Reception and Diagnostic Bureau of the County's Department of Corrections and Rehabilitation, explains that arrestees are not housed at TGK but instead are only temporarily detained there for transportation to either the Pretrial Detention Center or the Women's Detention Center. Consequently, while at TGK, arrestees are not assigned to a general population unit or cell. Affidavit of Joseph Zappia ("Zappia Aff.") at~ 4. Contrary to this procedure, Plaintiff was never placed in a general population cell because her bond was posted before she could be transported to the Pretrial Detention Center or the Women's Detention Center. Cuesta Supp. Aff. at~ 5; Cuesta Depo. at 106.2
LEGAL STANDARD
Summary judgment is authorized only when the moving party meets its burden of demonstrating that "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
2 Zappia further explained that felony arrestees are strip searched at the commencement of the intake process at TGK to provide maximum security to the staff and other arrestees as well as to address the significant security concerns relating to transporting arrestees who may be in possession of contraband. ld. at~~ 5,6.
3

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that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). TheAdickes Court explained that when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. See Adickes, 398 U.S. at 157; Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (1 ph Cir. 1997)(citing Adickes).
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the nonmoving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrell, 477 U.S. 317 (1986); Barfield v. Brierton, 883 F.2d 923,933 (11th Cir. 1989).
If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. See Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981 ). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be draw from these facts. See Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969). If reasonable minds might differ on the inferences arising from undisputed facts, the n the Court should deny summary judgment. See Impossible Electronics Techniques, Inc. v. Wackenhut Protective Sys. Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)("[T]he dispute about a material fact is 'genuine,' ... if the evidence is such that a reasonable jury could return a verdict for the non-moving party.").
4

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Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. See Adickes, 398 U.S. at 160. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the nonmoving party has introduced no evidence whatsoever. See Brunswick Corp. v. Vineberg, 370 F.2d 605,611-12 (5 1h Cir. 1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255.
In resolving multiple motions for summary judgment, the Court will construe the facts in the light most favorable to the nonmovant when the parties' factual statements conflict or inferences are required. See Barnes v. Southwest Forest Indus., 814 F.2d 607, 609 (ll'h Cir. 1987).
LEGAL ANALYSIS As an initial matter, the Court notes the parties' agreement that the issue before the Court is whether a correctional facility may constitutionally require that all newly arrested felons be subjected to a strip search prior to being assigned to general population, and thus whether DSOP 11-022 is constitutional. In the Complaint, as well as in her Motion for Summary Judgment, Plaintiff contends that the strip search to which she was subjected and the policy pursuant to which it was conducted, is unconstitutional as it violates her Fourth Amendment right to be free from unreasonable search. The County presses several arguments in opposition. First, the County argues that the strip search of Plaintiff does not implicate the Fourth Amendment. Second, the County argues that even if the Fourth Amendment applies, Plaintiff's Fourth
5

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 6 of 16
Amendment rights have not been violated as Plaintiffs arrest and custody was lawful and the subsequent search was reasonable.
Applicability ofthe Fourth Amendment The County first argues that strip searches do not implicate and therefore should not be analyzed under the Fourth Amendment but rather under the Due Process Clause. In support, the County points to Tennessee v. Garner, 471 U.S. I (1985); Hudson v. Palmer, 468 U.S. 517 (1984) and Jones v. Diamond, 636 F.2d 1364 (Yh Cir. 1981 ). The County cites to Garner for the proposition that the Fourth Amendment addresses only seizures incident to an arrest. The County contends, therefore, that no logical reason exists to extend the Fourth Amendment to searches, strip or otherwise, which are not conducted incident to an arrest. However, a careful reading of Garner reveals that it neither articulates nor fairly implies the claimed proposition. The Gamer Court merely stated that "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Garner, 471 U.S. at 6. Thus, the Court is unpersuaded that the Supreme Court's certain application of the Fourth Amendment to seizures through the use of deadly force necessarily implies that the Supreme Court views the Fourth Amendment as applying only to seizures, or searches, incident to arrest. Additionally, the County points to the Hudson Court's pronouncement that the "Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." The County's reliance on Hudson is misplaced. Plaintiff is not asserting a reasonable expectation of privacy or a Fourth Amendment violation with respect to a search of her cell and its contents, as did the plaintiff in Hudson. See Hudson, 468 U.S. at 526 (finding it
6

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difficult to reconcile a privacy right of inmates in their cells with the concept of incarceration and the objectives ofpenal institutions). Rather, Plaintiff is asserting such an expectation as to her body. As the Eleventh Circuit made clear in Justice v. City ofPeachtree City, 961 F.2d 188 (11th Cir. 1992), a case involving a Fourth Amendment challenge to a strip search, it is axiomatic that people harbor a reasonable expectation of privacy in their "private parts." See Justice, 961 F.2d at 191. Consequently, Hudson is not dispositive of the Plaintiffs claim that the Fourth Amendment applies to insure that she is free from an unreasonable intrusion upon her body. See id. (noting the Supreme Court's interpretation of the Fourth Amendment as entitling one to be free from unreasonable intrusion wherever there is a reasonable expectation of privacy)(citing Terry v. Ohio, 392 U.S. 1 (1968)).
Finally, the County cites to Diamond arguing that the Fifth Circuit has interpreted Bell v. Wolfish, 441 U.S. 520 (1979), a Supreme Court case involving, inter alia, the constitutionality of visual body cavity searches, as holding that '"pretrial detainees' rights are to be determined by the Due Process Clause." Although the undersigned agrees that Diamond so interpreted Bell, the undersigned disagrees that such interpretation should inform the analysis in this case. Diamond, like that portion of Bell on which it relied, involved a constitutional challenge to correctional facility conditions and restrictions that implicated punishment and therefore due process. See Diamond, 636 F.2d at 1376-77 (analyzing claims concerning denial ofvisitation rights). See also Bell, 441 U.S. at 535-36.3 Moreover, a careful reading of Bell reveals that the Supreme
3 The record is devoid of any evidence that the purpose of Plaintiff's strip search was punishment or was conducted in such a way as to constitute punishment. Plaintiffs own description of the search reveals that it was consistent with DSOP 11-022. Cf Cuesta Aff. at ~ 7 and DSOP 11-022(IV)(D)(2). Moreover, DSOP 11-022 expressly provides that the "purpose of [a] search is prevention, not punishment; therefore the officer's demeanor should be professional and not personal." DSOP 11-022(1V)(B). DSOP 11-022 further provides that a "search will be
7

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Court subjected the plaintiffs' constitutional challenge to visual body cavity searches, the

relevant claim for purposes of determining the merit of the County's argument, to Fourth

Amendment analysis. See Bell, 441 U.S. at 559-60. Consequently, the Court is unpersuaded

Diamond disposes of Plaintiffs Fourth Amendment claim. See, e.g., Justice, 961 F.2d at 191,

194; Magill v. Lee County, 990 F.Supp. 1382, 1387 (M.D. Ala. 1998), aff'd 161 F.3d 22 (11'h

Cir. 1998).

Fourth Amendment Analysis

Lawfulness ofPlaintiff's Custody

In arguing the unconstitutionality of DSOP 11-022 and the strip search at issue, Plaintiff

argues that her arrest and resultant custody were pursuant to an unconstitutional statute and

therefore the subsequent strip search was unconstitutional. Although Plaintiffwas arrested

pursuant to two statutes,§ 836.11 (anonymous pamphleteering subjecting persons to ridicule)

and§ 775.085 (hate crime statute), Plaintiff does not identify which statute she contends is

unconstitutional. Moreover, Plaintiff fails to point to any case law or to provide more than her

conclusory assertion of "the statute['s]" unconstitutionality in support of this argument.

Plaintiffs mere assertion is insufficient to establish that her arrest and custody were unlawful. As a related matter, the Court notes the County's argument that Plaintiffs claim seeking

-
I
I

a declaration that § 836.11 is unconstitutional should be dismissed. However, the Court is

unpersuaded that the County's argument, particularly as it is contained in a footnote, is sufficient

to establish that, as a matter oflaw, Plaintiff is not entitled to the requested declaratory relief. If

the County wishes to press its argument for dismissal, the Court will consider a sufficiently

conducted in a professional and dignified manner." DSOP 11-022(III). 8

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 9 of 16
briefed motion on the matter. Reasonableness ofthe Search
Thus, the sole issue before the Court is the reasonableness of DSOP 11-022 procedures and the strip search conducted upon Plaintiff. In determining the constitutionality of the County's policy and the strip search at issue, the Court finds that the balancing test set out by the Supreme Court in Bell governs its decision. See Bell, 441 U.S. at 558.
In Bell, the Supreme Court held that constitutional analysis of such searches entails a balancing of the need for the particular search against the invasion of the personal rights that the particular search entailed. See id. at 559. In this regard, the Supreme Court instructed that courts should consider the following factors: a) the scope of the particular intrusion; b) the manner in which it was conducted; c) the place in which it was conducted; and d) the justification for initiating it. See id.
Scope, Manner and Place ofthe Search Plaintiff does not address and therefore appears to concede that the first three factors articulated in Bell weigh in favor of finding DSOP 11-022 and the strip search conducted upon Plaintiff constitutional. Plaintiff focuses her argument on the allegedly insufficient justification for strip searching under DSOP 11-022. Nevertheless, an analysis of the facts of this case under the first three factors confirms that the scope, manner and place in which the strip search at issue was conducted does not offend the Fourth Amendment. Specifically, with respect to the scope of searches conducted pursuant to DSOP 11-022 and thus Plaintiffs search, the Court finds such scope reasonable. DSOP 11-022 limits the scope of the search of a newly arrested felon to a visual inspection ofthe arrestee's body, albeit
9

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requiring the arrestee to assume various positions, and does not involve an actual body cavity

search. See id. at 559-60 (finding visual body cavity search of pretrial detainees reasonable).

In making this finding, the Court does not trivialize the humiliation Plaintiff felt upon the

experience of disrobing and exposing her body to a stranger for visual inspection. However, the

undersigned is unpersuaded that, in this case, the scope of the intrusion is so unreasonable as to

call into question the constitutionality of DSOP 11-022. Further, to find unconstitutionality

solely upon the admittedly demeaning nature of strip searching would be to suggest the

unconstitutionality of all strip searches, a result inconsistent with binding precedent. See Bell,

441 U.S. at 558-560 (recognizing the degree of invasion a strip search exacts yet finding visual

body cavity searches of pretrial detainees constitutional); Justice, 961 F.2d at 192 (noting the

humiliating nature of a strip search yet finding strip search ofjuvenile arrested for loitering and

truancy constitutional).4

With respect to the manner and place in which DSOP 11-022 requires officers to conduct

strip searches, the Court finds such to be similarly reasonable. See Justice, 961 F.2d 188 (finding

a strip search performed by a same sex officer, using a room where only the officer and arrestee

were present was reasonable as to place and manner). DSOP 11-022 requires that a strip search

of an arrestee be conducted in a professional and dignified manner, individually and in an area

designed to provide maximum privacy. See DSOP ll-022(1V)(D). Moreover, only a female

I

officer may conduct a strip search of a female arrestee. See DSOP 11-022(111). The record is

I,

4To the extent Plaintiff argues that DSOP I 1-022's requirement ofhaving an arrestee remove all of their clothing rather than just remove the outer clothing is unreasonable, the Court is unpersuaded that such a difference is of constitutional significance. See Magill v. Lee County, 990 F.Supp. 1382, 1390 (M.D. Ala. 1998)("The constitutional balancing of the inmate's rights and jail's concerns does not necessarily turn on the issue of whether the inmates are allowed to wear a bra and panties."), aff'd 161 F.3d 22 (11th Cir. 1998).
10

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devoid of any evidence that the strip search conducted upon Plaintiff was not conducted

consistent with these requirements.

Justification for the Search

As noted above, Plaintiffs attack on the constitutionality of the strip search to which she

was subjected, and thus DSOP 11-022, centers on whether the search was justified. Specifically,

Plaintiff argues that because the officers conducting the search lacked a particularized basis for

the search and because DSOP fails to require such a basis but rather authorizes routine strip

searching, DSOP 11-022 and the search conducted upon Plaintiff are unconstitutional. In

support, Plaintiff points to a number of cases from other jurisdictions purportedly holding that

routine or blanket policies requiring strip searching are unconstitutional. A careful analysis of

the authorities cited by Plaintiff reveal that they fail to compel a finding of unconstitutionality in

the instant case.

All of the cases cited by Plaintiff in which the court found the policy and strip search

unreasonable involved minor, misdemeanor offenses, a fact which clearly drove the respective

courts' holdings.5 See, e.g., Masters v. Crouch, 872 F.2d 1248, 1257 (6'h Cir. 1989)(finding the

law clearly established that a person charged only with a minor traffic offense or nonviolent

offense may not be strip searched unless there are reasonable grounds); Watt v. City of

I

Richardson Police Dep 't, 849 F.2d 195 (51h Cir. 1988)(finding strip search of female arrested for

I

failure to license dog unreasonable); Walsh v. Franco, 849 F.2d 66 (2"d Cir. 1988)(finding strip

and body cavity search of person arrested for failure to pay parking tickets unconstitutional);

5ln the interests ofbrevity, the Court will not list all of the cases cited by Plaintiffbut notes the chart of said cases provided at the conclusion of Plaintiffs Cross Motion for Summary Judgment and Incorporated Memorandum of Law.
11

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 12 of 16
Mary Beth G. v. City ofChicago, 723 F.2d 1263, 1273 )(7'h Cir. 1983)(finding insubstantial the need for a strip search of female arrestees charged only with misdemeanor offenses).b Such is not the case here.
It is undisputed that DSOP 11-022 requires the strip searching of all newly arrested felons at the commencement of the booking process, and it is this policy that Plaintiff attacks. It is equally undisputed that Plaintiff was arrested for a felony offense. Plaintiff attempts to minimize this fact by characterizing her offense as nothing more than the distribution of an anonymous pamphlet evincing no more than ordinary adolescent protest.7 Nevertheless, the fact remains that Plaintiff was delivered to TGK as a felony arrestee.
In addition to pointing to the cases striking down blanket policies that authorized the strip searching of misdemeanor arrestees, Plaintiff points to the Eleventh Circuit's decision in Justice to argue that regardless of whether there is a blanket policy regarding strip searches, some particularized determination must be made before a strip search of a felon arrestee may be constitutionally undertaken. In Justice, the Eleventh Circuit considered the constitutionality of a strip search of a thirteen year-old female arrested for loitering and truancy and who was not going to be placed in contact with other arrestees but was to be released to her mother. See
6In any event, the authority cited by Plaintiff is insufficient to compel this Court to find that DSOP 11-022 policy of strip searchingfelons upon entry into correctional facilities is unconstitutional as the cases cited deal almost exclusively with true "blanket" policies that authorized the strip searching of persons charged with misdemeanor offenses.
7A careful review of the Pamphlet reveals that it was not just a satirical pamphlet containing ordinary adolescent protest, as Plaintiff would suggest. Rather, the Pamphlet contained depictions of the contributors' principal with a dart through his head and musings about the consequences of shooting the principal and fellow students. The Court is not inclined to find that Plaintitrs participation in the creation and distribution of such material undercuts the County's justification for conducting Plaintitrs strip search as the Pamphlet's content reveals a certain indicia of violence.
12

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 13 of 16
Justice, 961 F.2d at 190. The Eleventh Circuit held only that law enforcement may conduct a strip search of a juvenile, even for a minor offense, but they must have reasonable suspicion. In so holding, the court explained that the strip search of a juvenile based on less than probable cause 'instinctively gives us the most pause.' See id., 961 F.2d at 193 (quoting Be//)(emphais added). The undersigned thus is unpersuaded that Justice's holding extends to prohibit a strip search of an adult felony arrestee before placement in the general population absent a particularized determination that security in the correctional facility will be compromised. See Magill, 990 F.Supp at 1390 (rejecting the argument that Justice mandated any particularized determination with respect to adult arrestees who will be placed in contact with other detainees).
At this juncture, the Court notes Plaintiffs emphasis on the fact that she was never placed in general population but rather was released directly from her holding cell.8 However, the record is devoid of any evidence that TGK personnel knew at the time Plaintiffwas booked that Plaintiff would not be transported thereafter to a general population cell at the Pretrial Detention Center or the Women's Detention Center. As it happened, Plaintiff was bonded out before she was transported. The constitutionality ofDSOP 11-022 simply cannot turn on the possibility that an arrestee will be bonded out before she is transported and placed in a general population cell. To do so would mandate powers of clairvoyance that the Constitution clearly does not require.
Moreover, even assuming that TGK personnel knew Plaintiff would never be placed in general population, the undisputed record evidence establishes Plaintiff was not placed in a private cell but was placed in a holding cell with five to seven other arrestees, some of whom had
8In fact, in her reply memorandum, Plaintiff recharacterizes the issue before the Court as whether the County can constitutionally strip search arrestees without regard to whether they are in fact assigned to general population. See Plaintiffs Reply to County's Response in Opposition to Plaintiffs Motion for Partial Summary Judgment at p. 2.
13

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 14 of 16
also been arrested for felony offenses. Thus, Plaintiff was placed in contact with other arrestees and there is no evidence that the other arrestees with whom she came in contact were not then placed in general population. Consequently, the security dangers and concerns inherent in the management of correctional facilities were still present and no less serious. See Magill, 990 F.Supp. at 1390 (noting that "even those who are only placed in a holding cell could pose a danger to themselves, other inmates and the guards.").
The Court also notes Plaintiffs contention that she represented little if any threat of introducing contraband into the correctional facility because she entered the facility after being arrested at school (not a drug den) and, like all arrestees, in the custody of police officers. However, these facts do not undercut the possible security dangers that newly arrested felons present for correctional personnel. In reaching this conclusion, the Court finds Bell instructive.
In upholding the constitutionality of visual body cavity searches of pretrial detainees after contact visits with individuals from outside the institution, the Supreme Court reasoned that such searches were justified to address the serious security dangers inherent in detention facilities. See Bell, 441 U.S. at 559, 560. Certainly, if visual body cavity searches of pretrial detainees after contact visits are justified despite the highly regulated nature of such contact, strip searches of newly arrested felons after unregulated contact in the community at large are justified. After all, newly arrested felons, no less than detained inmates, pose a potential danger to themselves, other inmates and correctional personnel, particularly, where as here, the arrestee's detention may involve transportation from one facility to another. See Bell, 441 U.S. at 559 ("A detention facility is a unique place fraught with serious security dangers. Smuggling of money drugs, weapons and other contraband is all too common an occurrence."); Justice, 961 F.2d at 193
14

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 15 of 16
(recognizing that strip searches are a valuable tool in maintaining security and locating contraband). Thus, as Bell requires, the scope, place, manner and justification for strip searches under DSOP 11-022 support the constitutionality of the policy.
Reduced to its essence, Plaintiffs argument is that in addition to conducting strip searches that comport with the Bell factors, correctional personnel must make individualized determinations as to whether the nature of the felony with which each arrestee is charged implicates a security concern for the institution. The Court is unpersuaded that the Constitution mandates this additional requirement. As other courts have reasoned, allowing correctional personnel to strip search based on the class of offense, specifically felonies, obviates the hundreds of individualized determinations that would be necessary absent such a bright line rule. See Davis v. City ofCamden, 657 F.Supp. 396 (D. N.J. 1987)(finding that a "blanket policy" covering only persons charged with felonies or misdemeanors involving weapons or contraband is justified because it is based on a reasonable generalization that such persons are likely to be concealing weapons or contraband); Smith v. Montgomery County, Maryland, 643 F.Supp. 435, 437 (D. Md. 1986)(noting that the absence of a bright line rule based on the offense requires jail personnel to "ponder the niceties of Fourth Amendment law every time they admit a potentially dangerous inmate into their facility"). In fact, to the extent the Constitution requires any particularized determination with respect to strip searching an adult felony arrestee who may be placed into a general population unit or cell, a determination of reasonable suspicion is supplied by the felony status of the offense. See Smith, 643 F.Supp. at 438 (approving the determination of reasonable suspicion based on the category of the criminal charge).
In conclusion, in this case, the Court is convinced that the admittedly significant personal
15

Case 1:99-cv-00517-UU Document 84 Entered on FLSD Docket 04/18/2000 Page 16 of 16

privacy intrusion sustained by Plaintiff pursuant to the County's policy of strip searching adult,

felony arrestees, when balanced against the reasonableness of the scope, manner and place of the

search as well as the County's legitimate institutional security concerns, was reasonable and thus

constitutional. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant Miami Dade County's Motion to Dismiss

and for Final Summary Judgment is GRANTED as stated herein. It is further

ORDERED AND ADJUDGED that Plaintiffs Cross Motion for Summary Judgment is

DENIED. It is further

ORDERED AND ADJUDGED that Plaintiffs Motion for Leave to File Plaintiffs

Supplement Affidavit Nunc Pro Tunc to May 25, 1999, or in the Alternative, to Rule that the

Supplement Affidavit was Authorized to be filed is GRANTED. It is further

ORDERED AND ADJUDGED that the County's Motion to Accept Supplemental

Affidavit, contained in its Response to Plaintiffs Motion for Leave to File Supplemental

Affidavit, is GRANTED. In granting this Motion, the Court notes Plaintiffs concession as to

the propriety of the requested relief.

/J DONE AND ORDERED in Chambers at Miami, Florida, this day of April, 2000.

IJ.;_

PxA ,(U{{) -

~ 4. _/j_

URSULA UNG -BENAGES

t/

UNITED STATE DISTRICT JUDGE

copies provided: counsel of record

16

 
 Case 1:99-cv-00517-UU Document 111 Entered on FLSD Docket 10/19/2000 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 99-517-CIV-UNGARO-BENAGES

LILIANA CUESTA, Plaintiff,
vs.
THE SCHOOL BOARD OF MIAMI DADE COUNTY, et al.,
Defendants.
--------------------------~/

7!LED by:t1!- u~:.l.
OCT 1 5 2UOU
CL/IRE;•C" M~DuOX CLERI\ u.S. DIST. CT. S.D. OF FL/1. · MIAMI

FINAL JUDGMENT

Pursuant to Fed.R.Civ.P. 54 and this Court's April 10, 2000 Order granting Defendant

Michael Alexander's Motion to Dismiss Plaintiffs Complaint, April 14, 2000 Omnibus Order

granting Defendant Miami-Dade County's Motion to Dismiss and for Final Summary Judgment

and October 2000 Omnibus Order granting Defendant School Board of Miami-Dade County's

Motion for Final Summary Judgment, it is hereby

ORDERED AND ADJUDGED that Final Judgment is entered in favor of Defendants as

to all counts of Plaintiffs Complaint.
/l DONE AND ORDERED in Chambers at 'ami, Florida, this day of October, 2000.

URSULA UNGARO ENAGES UNITED STATES STRICT JUDGE

copies provided: counsel of record

 
 Cuesta v. School Bd. of Miami Dade County, Not Reported in F.Supp.2d (2000)

2000 WL 33174398 United States District Court, S.D. Florida.
Liliana CUESTA, Plaintiff, v.
THE SCHOOL BOARD OF MIAMI DADE COUNTY, et al., Defendants.
No. 99-517-CIV. | Oct. 18, 2000.
Opinion

OMNIBUS ORDER

UNGARO-BENAGES, District J.
*1 THIS CAUSE is before the Court upon Plaintiff’s Motion for Partial Summary Judgment on Counts I and II to Determine Liability of Defendants Alexander and School Board of Miami-Dade County, filed February 29, 2000, The School Board of Miami-Dade County, Florida and Michael Alexander’s Motion for Final Summary Judgment, filed April 3, 2000, Plaintiff’s Request for Oral Argument on Pending Motions, filed May 22, 2000, Plaintiff’s Motion to Strike Defendants’ Statement of Disputed Facts, filed May 5, 2000, Plaintiff’s Motion to Strike Portions of Defendants’ Statement of Undisputed Facts, filed May 5, 2000, Plaintiff’s Motion to Strike Portions of Affidavit of Timothy Dawson, filed May 5, 2000, Plaintiff’s Motion to Strike Affidavit of Charles P. Ewing, filed May 5, 2000.

THE COURT has considered the Motions, the pertinent portions of the record and is otherwise fully advised in the premises.1

1

The parties agree that those portions of the Motions

with respect to the propriety of summary judgment on

the claims against Defendant Michael Alexander have

been rendered moot by the Court’s April 10, 2000

Order dismissing said claims based on qualified

immunity.

FACTS
Unless otherwise noted, the following material facts are undisputed:
On or about February 20, 1998, Timothy Dawson

(“Dawson”), the principal of Killian Senior High School, was made aware of the distribution of an anonymous pamphlet entitled “First Amendment” (the “Pamphlet”) on school grounds and received a list of nine students believed to have participated in its creation and distribution. Affidavit of Timothy Dawson (“Dawson Aff.”) at ¶ 10; Exhibit 2 to Plaintiff’s Notice of Filing Exhibits in Support of Motion for Partial Summary Judgment Against Miami Dade School Board (“Notice of Filing Exhibits”). The Pamphlet contains sketches, including a picture of Dawson with a dart drawn through his head and essays, including one in which the author wonders what would happen if he shot certain fellow students as well as Dawson and derogatory comments regarding Blacks and Hispanics. Exhibit 1A to Dawson Aff.
On February 23, 1998, the nine students believed to have participated in the creation and distribution of the Pamphlet were summoned to Dawson’s office. Dawson requested that John Galardi (“Officer Galardi”), a Miami-Dade police officer then assigned to Killian, come to his office and be present during the questioning of the students. Dawson also requested that Michael Alexander (“Officer Alexander”), a police officer with the Division of School Police, come to his office and question the students. Deposition of Michael Alexander (“Alexander Depo.”) at pp. 9, 10, 12. Dawson explained to Officer Alexander that based on the contents of the Pamphlet, he feared for his safety and wanted an investigation initiated. Id. at p. 14.
After Officer Alexander read each student his Miranda rights, Dawson and Alexander questioned the students about the Pamphlet and obtained written statements from the students, including Plaintiff, admitting their involvement. Alexander Depo. at p. 17, 38; Defendant’s Statement of Undisputed Facts at ¶ 14; Exhibit 5 to Plaintiff’s Notice of Filing Exhibits. Based on the contents of the Pamphlet and Dawson’s concern for his personal safety, Officer Alexander believed that the actions of the students were criminal. Alexander Depo. at p. 38. Dawson advised Alexander that he wanted to pursue the matter through the legal system, and if appropriate, do so through arrests of the students. Id. at p. 41. Officer Alexander, after consultation with the State Attorney’s Office, decided to arrest the students. Id. at pp. 41-42, 49.
*2 Specifically, Alexander and Galardi determined that Fla. Stat. § 836.11 2 was applicable to the students’ publication and distribution of the Pamphlet. Id. at p. 42. Alexander then called the Office of the State Attorney to discuss the situation and obtain advice regarding the existence of probable cause to make an arrest under § 836.11. Id. at pp. 44-47. Additionally, Alexander inquired
1

Cuesta v. School Bd. of Miami Dade County, Not Reported in F.Supp.2d (2000)

whether the charges could be enhanced under Fla. Stat. § 775.085,3 Florida’s hate crime statute. Id. at 45. After being read portions of the Pamphlet, Assistant State Attorney Carlos Guzman confirmed the applicability of § 836.11 and § 775.085 and the existence of probable cause. Id. at 46.

2

Fla. Stat. § 836.11 provides, in pertinent part, that it

shall be a misdemeanor of the first degree

to print, publish, distribute or cause to be printed,

published or distributed by any means, or in any

manner whatsoever, any publication, ... pamphlet, ... or

other printed material which tends to expose any

individual ... to hatred, contempt, ridicule or obloquy

unless clearly printed thereon [is] ... the true name and

post office address of the person, ... or organization

causing the same to be printed, published or distributed.

Fla. Stat. § 836.11(1)(a), (2).

3

Fla. Stat. § 775.085 reclassifies a misdemeanor of the

first degree to a felony of the third degree if the

commission of the misdemeanor evidences prejudice

based on, inter alia, race, color, ancestry or ethnicity.

See Fla. Stat. § 775.085(1)(a)

Officer Alexander advised Plaintiff and the other students that they were under arrest. Id. at 65. Additional officers were called to assist with transporting the students to the Juvenile Assessment Center and the Turner Guilford Knight Correctional Facility. Id. at 66.

LEGAL STANDARD
Summary judgment is authorized only when the moving party meets its burden of demonstrating that “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.” Fed.R.Civ.P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The Adickes Court explained that when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. See Adickes, 398 U.S. at 157; Poole v. Country Club of Columbus, Inc ., 129 F.3d 551, 553 (11th Cir.1997) (citing Adickes ).
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the nonmoving party must make a sufficient showing to

establish the existence of an essential element to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrell, 477 U.S. 317 (1986); Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).
If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. See Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. See Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment. See Impossible Electronics Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir.1982). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“[T]he dispute about a material fact is ‘genuine,’ ... if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”).
*3 Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. See Adickes, 398 U.S. at 160. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the nonmoving party has introduced no evidence whatsoever. See Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255. In resolving multiple motions or summary judgment, the Court will construe the facts in the light most favorable to the nonmovant when the parties’ factual statements conflict of inferences are required. See Barnes v. Southwest Forest Indus., 814 F.2d 607, 609 (11th Cir.1987).
LEGAL ANALYSIS
Plaintiff contends that she is entitled to summary judgment against the School Board because § 836.11, the law pursuant to which Officer Alexander effected her arrest, is vague and overbroad and thus violative of the First Amendment. Plaintiff contends that as a result, Officer Alexander’s arrest of her violated her rights under the First and Fourth Amendments, thereby triggering § 1983 liability.
As Plaintiff recognizes, however, a local governmental
2

Cuesta v. School Bd. of Miami Dade County, Not Reported in F.Supp.2d (2000)

body, such as the School Board, is not subject to § 1983 liability for the constitutional injuries inflicted by its employees based solely on respondeat superior. See Board of the County Comm. of Bryan County, Oklahoma v. Brown, 117 S.Ct. 1382 (1996)(citing Monell v. New York City Dept. of Socal Servs., 436 U.S. 658 (1977)); Denno v. School Bd. of Volusia County, Florida, 218 F.3d 1267, 1276 (11th Cir.2000). Rather, as the Eleventh Circuit has explained, “ § 1983 provides a fault-based analysis for imposing [governmental body] liability; therefore, plaintiffs must establish that the [governmental body] was the person who caused them to be subjected to their deprivation.” Depew v. City of St. Marys, Georgia, 787 F.2d 1496, 1499 (11th Cir.1986). Accordingly, Plaintiff must establish the liability of the School Board under § 1983 in one of the following two ways.
First, Plaintiff may establish § 1983 liability if she identifies as the cause of the alleged constitutional deprivation an express policy or a “widespread practice that, ‘although not authorized by written law or express ... policy, ... is so permanent and well settled as to constitute a custom and usage with the force of law.” ’ Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (quoting City of St. Louis v. Praprotnik, 485 U . S. 112, 123 ((1988)). Second, Plaintiff may establish the School Board’s § 1983 liability if she demonstrates that the alleged constitutional deprivation was caused by a person who possessed final authority to establish policy with respect to the action ordered. Id. at 1480 (quoting Pembaur v. City of Cinncinnati, 475 U.S. 469, 481 (1986)).

defendant city’s § 1983 liability in Garner was based on a city police department policy that implemented the unconstitutional statute. Garner v. Memphis Police Dept., 8 F.3d 358, 364-65 (6th Cir.1993). Here, there is no evidence of a School Board policy or custom that implements Fla. Stat. § 836.11.
I. Express Policy or Custom that Caused the Constitutional Injury In reaching the conclusion that Plaintiff has failed to identify an unconstitutional policy or custom, the Court finds that contrary to Plaintiff’s argument, the relevant showing for establishing the instant claims is a School Board policy or custom that required unlawful arrests of students or otherwise required violations of students’ First and Fourth Amendment rights. See, e.g., Walters v. City of Andalusia, 89 F.Supp.2d 1266, 1276 (M.D.Ala.2000) (denying summary judgment where plaintiff failed to offer any evidence of a city policy approving the illegal acts of its employees or a single prior incident in which an individual’s constitutional rights were violated); Penn v. City of Miami, 1999 WL 1050059, *10-11 (S.D.Fla. Sept. 7, 1999) (granting summary judgment where plaintiff failed to present any evidence of a custom of engaging in false arrests). Cf. Brown, 923 F.2d at 1481 (noting plaintiff’s allegation that discriminatory practices were accepted by the defendant police department was sufficient to demonstrate municipal liability based on custom of racial discrimination).

*4 In resolving the cross-motions for summary judgment, the Court notes the parties’ extensive argument on the issue of the constitutionality of § 836.11, however, the Court need not reach this issue because even assuming § 836.11 is unconstitutional, thereby rendering Plaintiff’s arrest pursuant to the statute unconstitutional, Plaintiff has failed to identify a sufficient policy, custom or decision of a final policymaker of the School Board that caused the alleged unconstitutional arrest and thereby permit the imposition of § 1983 liability.4

4

In making this determination, the undersigned has

considered Plaintiff’s reliance on Tennesee v. Garner,

471 U.S. 1 (1985) but rejects Plaintiff’s contention that

Garner compels judgment in her favor. While it is true

that Garner instructs that a finding of the

unconstitutionality of a state statute should be applied

in determining the liability of the parties in the case

such a finding is made, Garner does not relieve a court

from undertaking the additional analysis required by

Monell v. New York City Dept. of Social Services, 436

U.S. 658 (1978) to determine a governmental entity’s §

1983 liability for action taken pursuant to the

unconstitutional statute. See Garner, 471 U.S. at 22.

Moreover, contrary to Plaintiff’s assertion, the

A. Express Policy With respect to an express policy, Plaintiff points to School Board Rules 6Gx13-5D-1.08 (“5D-1.08”), 6Gx13-4A-1.21 (“4A-1.21”) and 6Gx13-4A-1.09(1) (“4A-1.09”) to satisfy her burden of identifying a policy that caused the alleged unlawful arrest. Plaintiff asserts that School Board Rules 5D-1.08 and 4A-1.21 require ‘reference of criminal acts to the Dade County Public School Police and the local police agency for appropriate action’ and require ‘the principal [ ] to report to the appropriate law enforcement agencies and the District Office of the Dade County Public Schools Police any criminal act occurring on school premises or at any school related function,’ respectively. Plaintiff further asserts that Rule 4A-1.09 requires the Division of School Police to enforce the penal laws of the state with respect to any violations that occur on or to Miami-Dade County school property. Plaintiff reasons that these Rules, as well as the existence of a Dade County School police force, all but guarantee a student’s arrest for on-campus crime and thus demonstrate a policy of arrest sufficient to establish the School Board’s liability. Plaintiff’s arguments are misplaced.
3

Cuesta v. School Bd. of Miami Dade County, Not Reported in F.Supp.2d (2000)

As an initial matter, the Court points out after its own review of the text of Rules 5D-1.08, 4A-1.21 and 4A-1.09 that Plaintiff has misconstrued and in some instances misquoted the Rules. See Miami-Dade County School Board Rule 6Gx13-5D-1.08; Rule 6Gx13-4A-1.21; Rule 6Gx13-4A-1.09.5 This notwithstanding, neither the Rules nor Plaintiff’s construction of them are sufficient to constitute the requisite policy for imposing § 1983 liability against the School Board because, at most, the Rules simply clarify the responsibilities of school police to enforce the law on school campuses (not necessarily by way of arrest) and require only that school employees report instances of criminal activity. In short, the Rules are not reasonably susceptible of being construed to mandate arrests of students who commit on-campus crimes, much less unlawful arrests. Cf., e.g., Gattis v. Brice, 136 F.3d 724, 725 (11th Cir.1998) (affirming summary judgment where record was devoid of evidence of a county policy requiring the plaintiff’s demotion in retaliation for engaging in the subject speech); Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997) (noting the obvious lack of a policy of the defendant town commanding its officers to barter arrests for sexual favors as well as the lack of a custom of allowing such behavior).6

5

Rule 5D-1.08 provides, in pertinent part, only that

“[s]tudent behavior that disrupts [the learning and

teaching] process or that infringes upon the rights of

other individuals will not be tolerated. The Board

endorses a zero tolerance policy toward school related

violent crime.” School Board Rule 6Gx13-5D-1.08

(Maintenance of Appropriate Student Behavior).

Rule 4A-1.21 provides, in pertinent part, that “[a]ll

employees are under an affirmative duty to report any

criminal act, and/or disruptive, and/or inappropriate

behavior.... All violations of law and incidents of

disruptive and/or appropriate behavior are to be

reported in accordance with administrative procedures

established by the Superintendent of Schools.” School

Board Rule 6Gx13-4A-1.21.III, IV (Responsibilities

and Duties).

Lastly, Rule 6Gx13-4A-1.09 provides, in pertinent part,

that [t]he functions of the Division of School Police

shall include providing assistance in the following

areas: 1. The prevention and detection of crime and the

enforcement of the penal laws of this state as the

violation occurs on or to the properties of the Dade

County Public Schools....” School Board Rule

6Gx13-41-1.09

(Division

of

School

Police-Organization and Responsibilities).

The Court’s staff obtained official copies of these Rules

from School Board Clerk Ileana Martinez of the

Miami-Dade County School Board. Unofficial copies

of the School Board Rules may be found at http://

www.dade.k12.fl.us/board/rules. See also Exhibit 3 to

Dawson Aff.

6

Even assuming the relevant inquiry is the existence of a

School Board policy of arrest for on-campus crime, the

only specific evidence in this regard is Officer

Alexander’s deposition testimony that no such policy

exists. Alexander Depo. at 63.

B. Custom *5 With respect to a custom, Plaintiff contends that the record contains evidence of “frequent” arrests of Miami-Dade County students for on-campus crimes, thus establishing the School Board’s § 1983 liability. Again, however, Plaintiff’s focus on the frequency of arrests, rather than the frequency of arrests that violated the arrestees’ First or Fourth Amendment rights or were otherwise unlawful, is misplaced. Cf., id. More importantly, the record is devoid of any evidence that any of the arrests effected on the campuses of the thirty-four Miami-Dade senior high schools during the school years leading up to and including the year Plaintiff was arrested were in fact unlawful.7 See Exhibits 7 and 8 to Plaintiff’s Notice of Filing Exhibits in Support of Motion for Partial summary Judgment Against Miami-Dade School Board. Consequently, Plaintiff has failed to establish the School Board’s liability based on a relevant policy or custom.

7

In fact, the Court is doubtful that the record supports a

finding of a legally sufficient custom of arrest. For the

school year 1997-98, the year Plaintiff was arrested,

police officers made arrests in only 14.91% of the total

number of incidents reported. See Affidavit of Joanne

Sinckler-Mack at ¶ 4, 5; Brown, 923 F.2d at 1481

(requiring proof of a “widespread practice” that is so

“permanent and well-settled” as to constitute custom

with the force of law).

II. Final Policymaker that Caused the Constitutional Injury Notwithstanding the fact that the argument on this issue was relegated to a single paragraph in a footnote, the Court also finds that Plaintiff has failed to establish the School Board’s liability under § 1983 based on the acts of a final policymaker. The undersigned rejects Plaintiff’s contention that Dawson’s degree of involvement in the investigation leading to Plaintiff’s arrest alone is sufficient to establish liability under this theory.
As discussed above, a local governmental body may be subject to § 1983 liability where the action alleged to have caused the particular constitutional injury was taken by one having final policymaking authority with respect to the action. See McMillan v. Johnson, 88 F.3d 1573, 1577 (11th Cir.1996). The evidence is undisputed that Dawson
4

Cuesta v. School Bd. of Miami Dade County, Not Reported in F.Supp.2d (2000)

did not arrest Plaintiff, the action alleged to have caused Plaintiff’s constitutional injury. Moreover, there is no evidence that Dawson directed, rather than simply requested if appropriate, Plaintiff’s arrest. See Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996) (explaining that municipal liability may lie where final policymaker ratifies the subject action of a subordinate and the basis for the action). Instead, the evidence, even when viewed in the light most favorable to Plaintiff, demonstrates that while Dawson initiated the school police investigation and participated in questioning the students involved in the Pamphlet’s creation and distribution, Officer Alexander alone made the decision to arrest Plaintiff after consulting with the State Attorney’s Office and confirming the existence of probable cause.
Finally, and most importantly, even assuming Dawson’s desire that the students be arrested factored into Officer’s Alexander’s decision to arrest Plaintiff, there is no evidence that Dawson or any of the other thirty-four principals of Miami-Dade County’s senior high schools have any authority, much less final authority in the area of arrests for offenses committed on school campuses. See School Board Rule 6Gx13-4A-1.095 (conferring upon school police officers the power to make arrests for crimes committed upon School Board property); Miami-Dade County Public Schools Code of Student Conduct (Secondary), p. 8 (providing a three-step appeal process for review of disciplinary action taken at the school level). Consequently, Plaintiff also has failed to establish the School Board’s liability based on the acts of

a final policymaker and thus, the School Board is entitled to summary judgment. Accordingly, it is hereby
*6 ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment on Counts I and II to Determine Liability of Defendants Alexander and School Board of Miami-Dade County is DENIED. It is further
ORDERED AND ADJUDGED that the School Board of Miami-Dade County, Florida and Michael Alexander’s Motion for Final Summary Judgment is GRANTED. It is further
ORDERED AND ADJUDGED that Plaintiff’s Request for Oral Argument on Pending Motions is DENIED. It is further
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Defendant’s Statement of Disputed Facts is DENIED and Plaintiff’s Motion to Strike Portions of Defendants’ Statement of Undisputed Facts, Plaintiff’s Motion to Strike Portions of Affidavit of Timothy Dawson and Plaintiff’s Motion to Strike Affidavit of Charles P. Ewing are DENIED as moot.
Parallel Citations
14 Fla. L. Weekly Fed. D 215
	  

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U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:99-cv-00517-UU

CLOSED

Cuesta v. School Board Miami, et al Assigned to: Judge Ursula Ungaro Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff Liliana Cuesta
V. Defendant School Board of Miami-Dade County, Florida

Date Filed: 02/19/1999 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Benjamin Samuel Waxman Robbins Tunkey Ross Amsel Raben et al 2250 SW 3rd Avenue 4th Floor Miami, FL 33129-2095 305-858-9550 Fax: 858-7491 Email: benjiwaxman@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Jay Wisotsky Zuckerman Spaeder Taylor & Evans 201 S Biscayne Boulevard Suite 900 Miami, FL 33131 305-358-5000 Fax: 579-9749 Email: swisotsky@zuckerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ana Isabel Segura Miami-Dade County School Board Attorney's Office 1450 NE 2nd Avenue Suite 400 Miami, FL 33132 305-995-3102 Fax: 305-995-1412 Email: seguraanai@dadeschools.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Michael Alexander
Defendant Miami Dade County
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Patricia Dolores Bass Miami-Dade County School Board 1450 NE 2nd Avenue Suite 400 Miami, FL 33132 305-995-1304 Fax: 995-1412 Email: patriciabass@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phyllis Ober Douglas Miami-Dade County School Board 1450 NE 2nd Avenue Suite 400 Miami, FL 33132 305-995-1304 Fax: 995-1412 TERMINATED: 07/01/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ana Isabel Segura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Dolores Bass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phyllis Ober Douglas (See above for address) TERMINATED: 07/01/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Allen Dade County Attorney's Office Metro Dade Center 111 NW 1st Street Suite 2810 Miami, FL 33128-1993 305-375-5868 Fax: 375-5634 Email: jja3@miamidade.gov
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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/19/1999 02/19/1999 02/25/1999 02/25/1999 02/25/1999 03/09/1999 03/09/1999 03/09/1999
03/17/1999 03/17/1999 03/22/1999 03/23/1999
03/24/1999
03/29/1999
03/31/1999

#

Docket Text

1 COMPLAINT filed; FILING FEE $150.00 RECEIPT # 705364; A-7; TEB (ra, Deputy Clerk) (Entered: 02/22/1999)
Magistrate identification: Magistrate Judge Ted E. Bandstra (ra, Deputy Clerk) (Entered: 02/22/1999)
2 SUMMONS(ES) issued for School Board Miami (tb, Deputy Clerk) (Entered: 03/01/1999)
3 SUMMONS(ES) issued for Miami Dade County (tb, Deputy Clerk) (Entered: 03/01/1999)
4 SUMMONS(ES) issued for Michael Alexander (tb, Deputy Clerk) (Entered: 03/01/1999)
5 RETURN OF SERVICE executed for Michael Alexander on 3/1/99 Answer due on 3/21/99 for Michael Alexander (tb, Deputy Clerk) (Entered: 03/12/1999)
6 RETURN OF SERVICE executed for Miami Dade County on 3/1/99 Answer due on 3/21/99 for Miami Dade County (tb, Deputy Clerk) (Entered: 03/12/1999)
7 RETURN OF SERVICE executed for School Board Miami on 3/1/99 Answer due on 3/21/99 for School Board Miami (tb, Deputy Clerk) (Entered: 03/12/1999)
8 MOTION with memorandum in support by School Board Miami to dismiss plaintiff's complaint (tb, Deputy Clerk) (Entered: 03/22/1999)
9 MOTION with memorandum in support by Michael Alexander to dismiss complaint (tb, Deputy Clerk) (Entered: 03/22/1999)
10 MOTION by Miami Dade County to extend time to respond to complaint (dg, Deputy Clerk) (Entered: 03/26/1999)
11 PRETRIAL ORDER filed: Scheduling Conference deadline: 9:30 5/28/99 Scheduling Meeting Report due 5/18/99 ( signed by Judge Ursula Ungaro-Benages on 3/17/99) CCAP (dg, Deputy Clerk) (Entered: 03/26/1999)
12 ORDER granting [10-1] motion to extend time to respond to complaint reset answer due for 4/6/99 for Miami Dade County ( signed by Judge Ursula Ungaro-Benages on 3/23/99) CCAP (dg, Deputy Clerk) (Entered: 03/26/1999)
13 MOTION by Liliana Cuesta to extend time to respond to motions to dismiss of defendants Alexander and School Board (ra, Deputy Clerk) (Entered: 03/31/1999)
14 ORDER granting [13-1] motion to extend time to respond to motions to dismiss of defendants Alexander and School Board ( signed by Judge Ursula Ungaro-Benages on 3/31/99) CCAP (tb, Deputy Clerk) (Entered: 04/07/1999)

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04/05/1999 04/05/1999 04/06/1999 04/06/1999 04/09/1999 04/09/1999 04/14/1999 04/14/1999 04/16/1999 04/19/1999 04/19/1999
04/19/1999 04/19/1999 04/19/1999 04/21/1999
04/27/1999

15 RESPONSE by Liliana Cuesta in opposition to [2-1] summons, [0-0] Magistrate (tb, Deputy Clerk) (Entered: 04/07/1999)
16 MEMORANDUM by Liliana Cuesta in opposition to [9-1] motion to dismiss complaint (tb, Deputy Clerk) (Entered: 04/07/1999)
17 MOTION with memorandum in support by Miami Dade County to dismiss plaintiff's complaint , and for summary judgment (tb, Deputy Clerk) (Entered: 04/09/1999)
18 CONCISE Statement of undisputed material facts in support of motion for final summary judgment by Miami Dade County (tb, Deputy Clerk) (Entered: 04/09/1999)
19 REPLY MEMORANDUM by Liliana Cuesta in support of [17-1] motion to dismiss plaintiff's complaint (tb, Deputy Clerk) (Entered: 04/13/1999)
20 REPLY MEMORANDUM by Liliana Cuesta in support of [9-1] motion to dismiss complaint (tb, Deputy Clerk) (Entered: 04/13/1999)
21 Notice of compliance with Florida Statute 86.091 and Local Rule by Liliana Cuesta with (tb, Deputy Clerk) (Entered: 04/15/1999)
22 NOTICE of additional authorities relevant to motions to dismiss of defendants Alexander and Miami Dade School by Liliana Cuesta (tb, Deputy Clerk) (Entered: 04/15/1999)
23 NOTICE of filing attached return of service on Katherine Rundle Fernandez by Liliana Cuesta (tb, Deputy Clerk) (Entered: 04/20/1999)
24 MEMORANDUM of law in response to plaintiff's notice of additional authorities by School Board Miami, Michael Alexander (tb, Deputy Clerk) (Entered: 04/21/1999)
25 MOTION with memorandum in support by School Board Miami, Michael Alexander for permission to respond to plaintiff's notice of additional authorities relevant to motions to dismiss of defendants Alexander and Miami Dade County School Board (tb, Deputy Clerk) (Entered: 04/21/1999)
26 CROSS MOTION with memorandum in support by Liliana Cuesta for summary judgment (tb, Deputy Clerk) (Entered: 04/21/1999)
27 NOTICE of filing affidavit in support of motion for partial summary judgment by Liliana Cuesta (tb, Deputy Clerk) (Entered: 04/21/1999)
28 AFFIDAVIT by Liliana Cuesta Re:Liliana Cuesta (tb, Deputy Clerk) (Entered: 04/21/1999)
29 ORDER granting [25-1] motion for permission to respond to plaintiff's notice of additional authorities relevant to motions to dismiss of defendants Alexander and Miami Dade County School Board ( signed by Judge Ursula Ungaro-Benages on 4/20/99) CCAP (tb, Deputy Clerk) (Entered: 04/27/1999)
30 RESPONSE by Liliana Cuesta in opposition to [17-1] motion to dismiss plaintiff's complaint, [17-2] motion for summary judgment (tb, Deputy Clerk) (Entered: 04/30/1999)

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05/03/1999
05/10/1999 05/10/1999
05/12/1999
05/17/1999 05/17/1999 05/17/1999 05/17/1999 05/17/1999 05/17/1999 05/19/1999
05/19/1999
05/19/1999
05/25/1999 05/25/1999 06/01/1999 06/16/1999

31 UNOPPOSED MOTION by Miami Dade County to extend time to file response to plaintiff's motion for summary judgment (tb, Deputy Clerk) (Entered: 05/07/1999)
32 MOTION by Miami Dade County to extend time to respond to motion for summary judgment (ra, Deputy Clerk) (Entered: 05/11/1999)
33 ORDER granting [31-1] motion to extend time to file response to plaintiff's motion for summary judgment Response to motion reset to 5/10/99 for [26-1] motion for summary judgment (signed by Judge Ursula Ungaro-Benages on 5/10/99) CCAP (ra, Deputy Clerk) (Entered: 05/11/1999)
34 ORDER granting [32-1] motion to extend time to respond to motion for summary judgment Response to motion reset to 5/17/99 for [26-1] motion for summary judgment ( signed by Judge Ursula Ungaro-Benages on 5/12/99) CCAP (tb, Deputy Clerk) (Entered: 05/14/1999)
35 MOTION by Miami Dade County for leave to file oversize response to plaintiff's motion for summary judgment (tb, Deputy Clerk) (Entered: 05/20/1999)
36 RESPONSE by Miami Dade County to [26-1] motion for summary judgment (tb, Deputy Clerk) (Entered: 05/20/1999)
37 RESPONSE by Miami Dade County in support of [17-2] motion for summary judgment (tb, Deputy Clerk) (Entered: 05/20/1999)
38 NOTICE of filing attached documents by Miami Dade County (tb, Deputy Clerk) (Entered: 05/20/1999)
39 DEPOSITION of John Galardi (tb, Deputy Clerk) (Entered: 05/20/1999)
40 DEPOSITION of Michael Alexander (tb, Deputy Clerk) (Entered: 05/20/1999)
41 INITIAL JOINT STATUS REPORT by Liliana Cuesta, School Board Miami, Michael Alexander, Miami Dade County (nt, Deputy Clerk) (Entered: 05/24/1999)
41 Initial Joint Status and Scheduling Report of Scheduling Meeting by Liliana Cuesta, School Board Miami, Michael Alexander, Miami Dade County 5/18/99 (nt, Deputy Clerk) (Entered: 05/24/1999)
42 ORDER granting [35-1] motion for leave to file oversize response to plaintiff's motion for summary judgment ( Signed by Judge Ursula Ungaro-Benages on 5/19/99) CCAP [EOD Date: 5/27/99] (tb, Deputy Clerk) (Entered: 05/27/1999)
43 REPLY by Liliana Cuesta to response to [26-1] motion for summary judgment (tb, Deputy Clerk) (Entered: 06/01/1999)
44 NOTICE of filing supplemental affidavit in support of motion for partial summary judgment by Liliana Cuesta (tb, Deputy Clerk) (Entered: 06/01/1999)
45 NOTICE of Unavailability by Liliana Cuesta (tb, Deputy Clerk) (Entered: 06/04/1999)
46 MOTION by Liliana Cuesta for leave to file plaintiff's supplemental affidavit , or in the alternative to rule that the supplemental affidavit was authorized to be filed (tb, Deputy Clerk) (Entered: 06/17/1999)

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06/24/1999 06/25/1999 07/01/1999 07/01/1999 07/02/1999 07/02/1999 07/06/1999 07/12/1999 07/27/1999
08/04/1999 08/06/1999
09/29/1999 10/04/1999 10/06/1999 11/08/1999

47 ORDER set scheduling conference for 1:30 7/23/99 before Judge Ursula Ungaro-Benages ( Signed by Judge Ursula Ungaro-Benages on 6/22/99) CCAP [EOD Date: 6/25/99] (tb, Deputy Clerk) (Entered: 06/25/1999)
48 ORDER denying [17-1] motion to dismiss plaintiff's complaint ( Signed by Judge Ursula Ungaro-Benages on 6/24) CCAP [EOD Date: 6/29/99] (tb, Deputy Clerk) (Entered: 06/29/1999)
49 Answer and affirmative defenses by School Board Miami (ra, Deputy Clerk) (Entered: 07/06/1999)
50 STIPULATION by School Board Miami In Re: substitution of counsel, substituting Patricia D. Bass for Phyllis O. Douglas (ra, Deputy Clerk) (Entered: 07/06/1999)
51 MEMORANDUM OF LAW IN RESPONSE by Miami Dade County to [46-1] motion for leave to file plaintiff's supplemental affidavit (ra, Deputy Clerk) (Entered: 07/09/1999)
52 NOTICE of filing affidavit and copy of deposition (attached) by Miami Dade County (ra, Deputy Clerk) (Entered: 07/09/1999)
53 ORDER granting [50-1] stipulation (Signed by Judge Ursula Ungaro-Benages on 7/2/99) CCAP [EOD Date: 7/12/99] (ra, Deputy Clerk) (Entered: 07/12/1999)
54 RESPONSE by Liliana Cuesta in opposition to [46-1] motion for leave to file plaintiff's supplemental affidavit, [46-2] motion to rule that the supplemental affidavit was authorized to be filed (tb, Deputy Clerk) (Entered: 07/14/1999)
55 ORDER set pretrial conference for 11:00 4/28/00 before Judge Ursula Ungaro-Benages , setting discovery deadline for 1/28/00 , set motion filing deadline for 3/3/00 , set pretrial stipulation due for 3/24/00 , set calendar call for 1:00 5/10/00 before Judge Ursula Ungaro-Benages , set Jury trial for 9:00 5/15/00 before Judge Ursula Ungaro-Benages ( Signed by Judge Ursula Ungaro-Benages on 7/26/99) CCAP [EOD Date: 7/28/99] (tb, Deputy Clerk) (Entered: 07/28/1999)
56 MOTION by Miami Dade County to extend time to respond to plaintiff's fourth request for production of documents (tb, Deputy Clerk) (Entered: 08/06/1999)
57 ORDER granting [56-1] motion to extend time to respond to plaintiff's fourth request for production of documents; Miami Dade County shall serve its response on or before 8/25/99 ( Signed by Judge Ursula Ungaro-Benages on 8/6/99) CCAP [EOD Date: 8/12/99] (Former Deputy Clerk) (Entered: 08/12/1999)
58 NOTICE of attorney appearance as co-counsel for School Board Miami by Ana Isabel Segura (lk, Deputy Clerk) (Entered: 09/30/1999)
59 NOTICE of attorney appearance for School Board Miami, Michael Alexander by Ana Isabel Segura (tb, Deputy Clerk) (Entered: 10/05/1999)
60 OBJECTION TO subpoena by School Board Miami (tb, Deputy Clerk) (Entered: 10/07/1999)
61 NOTICE by Liliana Cuesta to take deposition of Principal Timothy Dawson 11/19/99 at 10:00 (tb, Deputy Clerk) (Entered: 11/09/1999)

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11/09/1999 01/18/2000
01/26/2000
02/29/2000 02/29/2000 03/14/2000
03/15/2000
04/03/2000 04/03/2000 04/03/2000 04/03/2000 04/03/2000
04/03/2000 04/03/2000 04/03/2000

62 NOTICE of attorney appearance for School Board Miami, Michael Alexander, Miami Dade County by Ana I. Segura (tb, Deputy Clerk) (Entered: 11/10/1999)
63 MOTION with memorandum in support by Liliana Cuesta to extend time all pretrial and trial deadline pending ruling on summary judgment issues , and for status conference prior to 1/28/00 , and to toll pretrial scheduling owner during pendency of this motion (tb, Deputy Clerk) (Entered: 01/19/2000)
64 ORDER granting [63-1] motion to extend time all pretrial and trial deadline pending ruling on summary judgment issues, denying [63-2] motion for status conference prior to 1/28/00 ( Signed by Judge Ursula Ungaro-Benages on 1/26/00) CCAP [EOD Date: 1/27/00] (tb, Deputy Clerk) (Entered: 01/27/2000)
65 NOTICE of filing exhibits in support of motion for partial summary judgment against Miami Dade School Board by Liliana Cuesta (tb, Deputy Clerk) (Entered: 03/01/2000)
66 MOTION with memorandum in support by Liliana Cuesta for partial summary judgment on counts I and II to determine liability of defendants Alexander and School Board of Miami Dade (tb, Deputy Clerk) (Entered: 03/01/2000)
67 UNOPPOSED MOTION with memorandum in support by School Board Miami, Michael Alexander to extend time to file defendants' opposition to Plaintiff's Motion for Summary Judgment and to file defendants' cross motion for summary judgment (Former Deputy Clerk) (Entered: 03/15/2000)
68 ORDER granting [67-1] motion to extend time to file defendants' opposition to Plaintiff's Motion for Summary Judgment and to file defendants' cross motion for summary judgment Response to motion reset to 4/3/00 for [26-1] motion for summary judgment ( Signed by Judge Ursula Ungaro-Benages on 3/15/00) CCAP [EOD Date: 3/16/00] (dg, Deputy Clerk) (Entered: 03/16/2000)
69 NOTICE of filing depositions in support of their motion for final summary judgment by School Board Miami (tb, Deputy Clerk) (Entered: 04/04/2000)
70 DEPOSITION of John Galardi (tb, Deputy Clerk) (Entered: 04/04/2000)
71 DEPOSITION of Michael Alexander (tb, Deputy Clerk) (Entered: 04/04/2000)
72 DEPOSITION of Liliana Cuesta (tb, Deputy Clerk) (Entered: 04/04/2000)
73 RESPONSE by School Board Miami, Michael Alexander in opposition to [66-1] motion for partial summary judgment on counts I and II to determine liability of defendants Alexander and School Board of Miami Dade (tb, Deputy Clerk) (Entered: 04/04/2000)
74 Statement of disputed facts in opposition to plaintiff's motion for partial summary judgment by School Board Miami, Michael Alexander (tb, Deputy Clerk) (Entered: 04/04/2000)
75 MOTION by School Board Miami, Michael Alexander for final summary judgment (tb, Deputy Clerk) (Entered: 04/04/2000)
76 Statement of undisputed facts in support of their motion for summary final judgment by School Board Miami, Michael Alexander (tb, Deputy Clerk) (Entered: 04/04/2000)

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04/03/2000 04/03/2000 04/03/2000 04/03/2000 04/03/2000 04/05/2000 04/10/2000 04/17/2000
04/17/2000 04/18/2000
04/28/2000
05/05/2000 05/05/2000 05/05/2000 05/05/2000

77 MEMORANDUM by School Board Miami, Michael Alexander in support of [75-1] motion for final summary judgment (tb, Deputy Clerk) (Entered: 04/04/2000)
78 AFFIDAVIT by School Board Miami, Michael Alexander Re: [75-1] motion for final summary judgment (tb, Deputy Clerk) (Entered: 04/04/2000)
79 AFFIDAVIT by School Board Miami, Michael Alexander Re: [75-1] motion for final summary judgment (tb, Deputy Clerk) (Entered: 04/04/2000)
80 AFFIDAVIT by School Board Miami, Michael Alexander Re: [75-1] motion for final summary judgment (tb, Deputy Clerk) (Entered: 04/04/2000)
81 AFFIDAVIT by School Board Miami, Michael Alexander Re: [75-1] motion for final summary judgment (tb, Deputy Clerk) (Entered: 04/04/2000)
82 AMENDED NOTICE of filing depositions in support of their motion for final summary judgment by School Board Miami (tb, Deputy Clerk) (Entered: 04/06/2000)
83 ORDER granting [9-1] motion to dismiss complaint as to defendant Alexander ( Signed by Judge Ursula Ungaro-Benages on 4/10/00) CCAP [EOD Date: 4/11/00] (tb, Deputy Clerk) (Entered: 04/11/2000)
84 ORDER denying [8-1] motion to dismiss plaintiff's complaint denying [26-1] motion for summary judgment granting [46-1] motion for leave to file plaintiff's supplemental affidavit ( Signed by Judge Ursula Ungaro-Benages on 4/14/00) CCAP [EOD Date: 4/18/00] (tb, Deputy Clerk) (Entered: 04/18/2000)
85 MOTION by Liliana Cuesta to extend time for plaintiff and School Board to respond to pending motions for summary judgment (tb, Deputy Clerk) (Entered: 04/18/2000)
86 ORDER granting [85-1] motion to extend time for plaintiff and School Board to respond to pending motions for summary judgment ( Signed by Judge Ursula Ungaro-Benages on 4/18/00) CCAP [EOD Date: 4/19/00] (tb, Deputy Clerk) (Entered: 04/19/2000)
87 ORDER setting discovery deadline for 7/24/00 , reset pretrial conference for 11:00 8/25/00 before Judge Ursula Ungaro-Benages , reset calendar call for 1:00 9/20/00 before Judge Ursula Ungaro-Benages , reset Jury trial for 9:00 9/25/00 before Judge Ursula Ungaro-Benages ( Signed by Judge Ursula Ungaro-Benages on 4/25/00) CCAP [EOD Date: 5/1/00] (tb, Deputy Clerk) (Entered: 05/01/2000)
88 REPLY by Liliana Cuesta to response to [66-1] motion for partial summary judgment on counts I and II to determine liability of defendants Alexander and School Board of Miami Dade (tb, Deputy Clerk) (Entered: 05/05/2000)
89 RESPONSE by Liliana Cuesta in opposition to [75-1] motion for final summary judgment (tb, Deputy Clerk) (Entered: 05/05/2000)
90 MOTION with memorandum in support by Liliana Cuesta to strike [76-1] Statement of (tb, Deputy Clerk) (Entered: 05/05/2000)
91 MOTION with memorandum in support by Liliana Cuesta to strike [76-1] Statement of (tb, Deputy Clerk) (Entered: 05/05/2000)

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05/05/2000 05/05/2000 05/22/2000 05/22/2000 05/22/2000 05/22/2000 05/22/2000 05/22/2000 05/24/2000 06/12/2000
06/20/2000 06/27/2000
06/29/2000 07/10/2000 08/01/2000
08/01/2000
08/25/2000

92 MOTION with memorandum in support by Liliana Cuesta to strike [79-1] affidavit (tb, Deputy Clerk) (Entered: 05/05/2000)
93 MOTION with memorandum in support by Liliana Cuesta to strike [81-1] affidavit (tb, Deputy Clerk) (Entered: 05/05/2000)
94 RESPONSE by School Board Miami in opposition to plaintiff's motion to strike affidavit of Charles Ewing (tb, Deputy Clerk) (Entered: 05/22/2000)
95 MOTION by Liliana Cuesta for Hearing on pending motions (tb, Deputy Clerk) (Entered: 05/23/2000)
96 OPPOSITION by School Board Miami [93-1] motion to strike [81-1] affidavit of Timothy Dawson (nt, Deputy Clerk) (Entered: 05/23/2000)
97 OPPOSITION by School Board Miami to [91-1] motion to strike [76-1] Statement of Undisputed Facts (nt, Deputy Clerk) (Entered: 05/23/2000)
98 OPPOSITION by School Board Miami [90-1] motion to strike [76-1] Statement of Disputed Facts (nt, Deputy Clerk) (Entered: 05/23/2000)
99 REPLY by School Board Miami to opposition to [75-1] motion for final summary judgment (nt, Deputy Clerk) (Entered: 05/23/2000)
100 RESPONSE by School Board Miami in opposition to [95-1] motion for Hearing on pending motions (tb, Deputy Clerk) (Entered: 05/25/2000)
101 MOTION with memorandum in support by Liliana Cuesta to defer pretrial and trial deadlines pending ruling on cross motions for summary judgment (tb, Deputy Clerk) (Entered: 06/12/2000)
102 NOTICE of filing State Court Order declaring statute challenged herein to be unconstitutional by Liliana Cuesta (tb, Deputy Clerk) (Entered: 06/20/2000)
103 ORDER granting [101-1] motion to defer pretrial and trial deadlines pending ruling on cross motions for summary judgment ( Signed by Judge Ursula Ungaro-Benages on 6/27/00) CCAP [EOD Date: 6/28/00] (tb, Deputy Clerk) (Entered: 06/28/2000)
104 RESPONSE by School Board Miami to [102-1] notice (dg, Deputy Clerk) (Entered: 06/30/2000)
105 REPLY by Liliana Cuesta to response to notice of filing State court order declaring statute unconstitutional (tb, Deputy Clerk) (Entered: 07/11/2000)
106 NOTICE OF FILING SUPPLEMENTAL AUTHORITY by School Board Miami re: parties cross motions for summary judgment (tb, Deputy Clerk) (Entered: 08/02/2000)
106 NOTICE OF FILING SUPPLEMENTAL AUTHORITY by School Board Miami re: [75-1] motion for final summary judgment, [66-1] motion for partial summary judgment on counts I and II to determine liability of defendants Alexander and School Board of Miami Dade (tb, Deputy Clerk) (Entered: 08/03/2000)
107 ORDER reset pretrial conference for 9:30 10/6/00 before Judge Ursula Ungaro-Benages , reset calendar call for 1:00 10/18/00 before Judge Ursula

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09/05/2000
10/02/2000
10/18/2000
10/18/2000 10/18/2000 10/18/2000 11/15/2000 11/16/2000 11/30/2000

Ungaro-Benages , reset Jury trial for 9:30 10/23/00 before Judge Ursula Ungaro-Benages ( Signed by Judge Ursula Ungaro-Benages on 8/25/00) CCAP [EOD Date: 8/28/00] (tb, Deputy Clerk) (Entered: 08/28/2000)
108 JOINT MOTION by Liliana Cuesta, School Board Miami to amend [107-1] relief reset pretrial conference for 9:30 10/6/00 before Judge Ursula Ungaro-Benages, [107-2] relief reset calendar call for 1:00 10/18/00 before Judge Ursula Ungaro-Benages, [107-3] relief reset Jury trial for 9:30 10/23/00 before Judge Ursula Ungaro-Benages, [107-4] order (Former Deputy Clerk) (Entered: 09/06/2000)
109 ORDER granting [108-1] joint motion to amend [107-4] order vacating [107-4] ORDER reset pretrial conference for 9:30 10/6/00 before Judge Ursula Ungaro-Benages, reset calendar call for 1:00 10/18/00 before Judge Ursula Ungaro-Benages, reset Jury trial for 9:30 10/23/00 before Judge Ursula Ungaro-Benages ( Signed by Judge Ursula Ungaro-Benages on 8/25/00) ( Signed by Judge Ursula Ungaro-Benages on 9/29/00) CCAP [EOD Date: 10/3/00] (sk, Deputy Clerk) (Entered: 10/03/2000)
110 ORDER denying [66-1] motion for partial summary judgment on counts I and II to determine liability of defendants Alexander and School Board of Miami Dade granting [75-1] motion for final summary judgment denying [95-1] motion for Hearing on pending motions denying [93-1] motion to strike [81-1] affidavit, denying [92-1] motion to strike [79-1] affidavit, denying [91-1] motion to strike [76-1] Statement of, denying [90-1] motion to strike [76-1] Statement of ( Signed by Judge Ursula Ungaro-Benages on 10/18/00) CCAP [EOD Date: 10/19/00] (tb, Deputy Clerk) (Entered: 10/19/2000)
111 FINAL JUDGMENT for School Board Miami, Michael Alexander, Miami Dade County against Liliana Cuesta for amount of ( Signed by Judge Ursula Ungaro-Benages on 10/18/00) CCAP [EOD Date: 10/19/00] (tb, Deputy Clerk) (Entered: 10/19/2000)
112 ADMINISTRATIVE ORDER closing case ( Signed by Judge Ursula Ungaro-Benages on 10/18/00) CCAP [EOD Date: 10/19/00] (tb, Deputy Clerk) (Entered: 10/19/2000)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (tb, Deputy Clerk) (Entered: 10/19/2000)
113 NOTICE OF APPEAL by Liliana Cuesta of [111-1] judgment order EOD Date: 10/19/00; Filing Fee: $ 105.00; Receipt #: 831693 Copies to USCA and Counsel of Record. (Former Deputy Clerk) Modified on 06/05/2001 (Entered: 11/16/2000)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [113-1] appeal by Liliana Cuesta as to Liliana Cuesta (Former Deputy Clerk) (Entered: 11/16/2000)
NOTICE of Receipt of Transmittal Letter from USCA as to Liliana Cuesta Re: [113-1] appeal by Liliana Cuesta USCA NUMBER: 00-16086-H (ga, Deputy Clerk) (Entered: 12/04/2000)

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114 Appeal Information Sheet re: [113-1] appeal by Liliana Cuesta. No transcript requested. Appeal Record due on 12/18/00 (sn, Deputy Clerk) (Entered: 12/04/2000)
115 Certificate of readiness transmitted to USCA Re: [113-1] appeal by Liliana Cuesta USCA NUMBER: 00-16086-H (sn, Deputy Clerk) (Entered: 12/19/2000)
Transmitted record on appeal to U.S. Court of Appeals consisting of 3 volumes of original pleadings and 1 accordion folder: [113-1] appeal by Liliana Cuesta USCA 00-16086-H (sn, Deputy Clerk) (Entered: 12/19/2000)
116 MANDATE OF USCA (certified copy) dismissing appeal for want of prosecution because appellant has failed to file an appellant's brief within the time fixed by the rules [113-1] appeal Mandate Issued Date: 4/24/01; USCA Appeal #: 00-16086-HH; Copy to Judge. (Former Deputy Clerk) (Entered: 05/02/2001)
APPEAL REINSTATED Re: [113-1] appeal by Liliana Cuesta as to Liliana Cuesta USCA NUMBER: 00-16086-HH (Former Deputy Clerk) (Entered: 06/05/2001)
117 DEPOSITION of Carlos M. Guzman (Former Deputy Clerk) (Entered: 07/30/2001)
118 1st Supplemental Certificate of readiness transmitted to USCA Re: [113-1] appeal by Liliana Cuesta USCA NUMBER: 00-16086-H (Former Deputy Clerk) (Entered: 07/30/2001)
Transmitted 1st Supplemental record on appeal to U.S. Court of Appeals (Miami Office) consisting of 1 volume of pleadings: [113-1] appeal by Liliana Cuesta USCA #00-16086-H. (Former Deputy Clerk) (Entered: 07/30/2001)
ACKNOWLEDGMENT of receipt by U.S.C.A. of: 1st Supplement, On 8/2/01; U.S.C.A. # 00-16086-H (gp, Deputy Clerk) (Entered: 08/10/2001)
119 MANDATE OF USCA (certified copy) with opinion affirming Judgment/Order of the district court [113-1] appeal Mandate Issued Date: 4/12/02; USCA Appeal #: 00-16086-HH; Copy to Judge. (Former Deputy Clerk) (Entered: 04/19/2002)
Record on appeal returned from U.S. Court of Appeals consisting of three volumes, one folder, and one supplemental: [113-1] appeal by Liliana Cuesta USCA 00-16086-HH (Former Deputy Clerk) (Entered: 04/19/2002)

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 285 F.3d 962 (2002)
Liliana CUESTA, Plaintiff-Appellant, v.
SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Michael Alexander, Miami-Dade County, Defendants-Appellees.
No. 00-16086.
United States Court of Appeals, Eleventh Circuit.
March 14, 2002.
9634 *963 *964 Steven Wisotsky, Coconut Grove, FL, for Plaintiff-Appellant.
Ana Isabel Segura, James J. Allen, Miami, FL, for Defendants-Appellees.
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
In this appeal, we consider two issues: whether a school board is liable for an allegedly unlawful arrest stemming from a "zero tolerance" policy towards school related violent crime and whether a county is liable for an allegedly unconstitutional strip search of the arrestee. With respect to the first issue, we conclude that a school board cannot be held liable for allegedly unlawful arrests that result from a policy that merely calls on school officials to report criminal behavior. With respect to the second issue, we conclude that there was reasonable suspicion to strip search the arrestee, and therefore the search was constitutional. Accordingly, we affirm the district court's grant of summary judgment to both defendants.
I. BACKGROUND
On the morning of February 20, 1998, Liliana Cuesta and eight other students at Killian Senior High School 965 distributed an *965 anonymous pamphlet, entitled "First Amendment," on school grounds. The pamphlet's cover
featured a graphic of Timothy Dawson, the school's principal, with a dart through his head. The pamphlet included several poems, cartoons and essays. Among the essays was one in which the author "wondered what would happen" if he shot the principal, the school's teachers, or other students.[1] The same essay made reference to "an African disease" and "immigrants who can't talk a fucking word of English." Cartoons in the pamphlet depicted violent and sexual activity.
The following Monday, Principal Dawson discovered the identities of the nine students who created and distributed the pamphlet and called them to his office. Because he feared for his safety, Dawson requested that both Miami-Dade Police Officer John Galardi and Division of School Police Officer Michael Alexander assist with the questioning of the students. Each of the students admitted having been involved in the production and distribution of the pamphlet. Dawson told the police officers that if any crime had been committed, he wished to prosecute as far as the law would allow. After examining a book of Florida statutes, Officer Alexander concluded that the students had violated Fla. Stat. § 836.11, a misdemeanor that criminalizes the anonymous distribution of publications that "expose any individual or any religious group to hatred, contempt, ridicule or obloquy."[2] He also believed that, given the racially motivated content of the pamphlet, the crime could be enhanced to a felony under Fla. Stat. § 775.085, a law that allows the enhancement of a crime that "evidences prejudice."[3] Alexander spoke with an Assistant State Attorney on the telephone, who conferred with colleagues and agreed that there was probable cause to arrest under § 836.11 and that the crime could be enhanced to a felony under § 775.085. The students were arrested and transported to either the Juvenile Assessment Center or the Turner Guilford Knight Correctional Facility ("TGK"), depending on whether they were over eighteen years old.

Cuesta, who was over eighteen years old, was taken to TGK. Cuesta was booked and strip searched pursuant to 966 a Metro-Dade County policy requiring the strip *966 search of all newly arrested felons. The strip search,
conducted by a female corrections officer in a closed room, required Cuesta to completely disrobe; to lift her breasts exposing the area underneath; and to squat down and cough while exposing her buttocks. After the strip search was completed, Cuesta was placed in a holding cell with several other women until she was released on bond.
Four days after the arrests, the State Attorney's Office decided not to prosecute any of the students who had participated in creating and distributing the pamphlet. The State Attorney issued a press release indicating that the decision not to file criminal charges was made because "recent decisions of the United States Supreme Court ... render the statute in question unconstitutional and unenforceable." In an unrelated case, the Florida Fourth District Court of Appeal later declared § 836.11 to be an unconstitutional infringement of the First Amendment. Florida v. Shank, 795 So.2d 1067 (Fla.Dist.Ct.App. 2001).
Cuesta subsequently filed this action under 42 U.S.C. § 1983 against: (1) The Dade County School Board and Police Officer Michael Alexander, for violating her First and Fourth Amendment rights by unlawfully arresting her; and (2) Miami-Dade County, for violating her Fourth Amendment rights by subjecting her to an unconstitutional strip search. The district court granted a motion to dismiss by Officer Alexander based on qualified immunity; that decision has not been appealed. The district court then granted summary judgment for both the County and the School Board. Cuesta appeals those grants of summary judgment.
II. DISCUSSION
Summary judgment is granted 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." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This court reviews the grant of summary judgment de novo, applying the same legal standards as the district court. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1339 (11th Cir.2000). We construe the facts and draw all reasonable inferences in the light most favorable to the non-moving party. Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir.1998).
A. The Arrest
A local government body, such as the School Board in this case, is liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury...." Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff can establish § 1983 liability by identifying that she has been deprived of constitutional rights by either an express policy or a "widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom and usage with the force of law." Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (internal quotes omitted) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Cuesta asserts that both the express policy and the custom of the County were responsible for her alleged constitutional deprivations.[4]
967 *967 It is not sufficient for a government body's policy to be tangentially related to a constitutional deprivation. The "official policy or custom must be the moving force of the constitutional violation in order to establish liability of a government body under § 1983." Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir.1984) (internal quotes omitted). A plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Cuesta asserts that the "zero tolerance" policy of the School Board was the "moving force" behind her allegedly unconstitutional arrest. A fair reading of the School Board Rules ("the Rules"), however, reveals that they were not the "moving force" behind her arrest.[5]

The zero tolerance policy is made up of three provisions of the School Board Rules ("the Rules") and is supplemented by the Code of Student Conduct. Under the Rules, School Police are responsible for "providing assistance" in "[t]he prevention and detection of crime and the enforcement of the penal laws of this state as the violation occurs on or to the properties of the Dade County Public Schools." School Board Rule 6Gx13-4A-1.09 (Division of School Police-Organization and Responsibilities). The Rules also state that "[a]ll employees are under an affirmative duty to report any criminal act, and/or disruptive, and/or inappropriate behavior.... All violations of law and incidents of disruptive and/or inappropriate behavior are to be reported in accordance with administrative procedures established by the Superintendent of Schools." School Board Rule 6Gx13-4A-1.21.III, IV (Responsibilities and Duties). Finally, the Rules state that "[t]he Board endorses a zero tolerance policy toward school related violent crime." School Board Rule 6Gx13-5D-1.08 (Maintenance of Appropriate Student Behavior). The rule endorsing the zero tolerance policy incorporates the Code of Student Conduct by reference. The Code of Student Conduct describes the zero tolerance policy as requiring "school districts to invoke the most severe consequences provided for in the Code of Student Conduct in dealing with students who engage in violent criminal acts ..." Code of Student Conduct Secondary i (1997). The consequences provided for in the Code of Student Conduct direct individuals to "[r]efer criminal acts to the Miami-Dade County Public Schools Police and the local police agency for appropriate legal action." Id. at 10-13. We do not construe these Rules to be the 968 "moving force" behind Cuesta's arrest; rather, the Rules merely *968 call on school officials to report criminal behavior.
We also do not find that the School Board had a custom that was the "moving force" behind Cuesta's arrest. According to Cuesta, School Board Police officers had a widespread customary practice of making arrests for all serious on-campus crimes, and therefore the policy that mandates the reporting of criminal behavior directly caused Cuesta's arrest. The facts of this case demonstrate otherwise. Principal Dawson reported the students' conduct to Officer Alexander, as is mandated under the policy. He also indicated that he wished to prosecute the students if they had violated any criminal laws. Officer Alexander, together with Officer Galardi, looked through a book of statutes and found § 836.11. Officer Alexander then called the State Attorney's Office and spoke with Assistant State Attorney Carlos Guzman about the possibility of making an arrest under § 836.11, and the possibility of enhancing the crime under § 775.085. Guzman discussed the situation with two colleagues at the State Attorney's Office, and the three of them concluded that there was probable cause to make an arrest, and that the crime could be enhanced. Only after Guzman conveyed this conclusion to Officer Alexander was an arrest made. Thus, the facts of Cuesta's arrest demonstrate that reports of serious crimes do not automatically lead to arrest-two police officers and three Assistant State's Attorneys considered whether to arrest the students after the conduct was reported. The statistics in the record also indicate that the school police officers exercised independent judgment before arresting. For the school year in which Cuesta was arrested, police officers only made arrests in 14.91% of the incidents reported to them. We therefore perceive no custom leading to Cuesta's allegedly unlawful arrest.
Even in the absence of an express policy or custom, a local government body can be held liable "for a single act or decision of a municipal official with final policymaking authority in the area of the act or decision." See McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir.1996). Cuesta argues that Principal Dawson was such a final policymaker, and therefore the School Board can be held liable for her allegedly unlawful arrest. It is clear from the record, however, that Dawson has no final policymaking authority to make arrests. As discussed earlier, the decision to arrest was made by Officer Alexander after consultation with the State Attorney's Office. Therefore, the School Board can not be held liable for any constitutional deprivation that might have occurred as a result of Cuesta's arrest.
B. The Strip Search
In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court concluded that strip and visual body cavity searches of arrestees can be constitutionally conducted with less than probable cause. Id. at 560, 99 S.Ct. 1861. The Court recognized that "a detention facility is a unique place fraught with serious security dangers." Id. at 559, 99 S.Ct. 1861. As a result, the Court reasoned that "there must be a `mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of

general application.'" Id. at 546, 99 S.Ct. 1861 (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). To assist courts in determining the reasonableness of searches, Bell gives the following balancing test:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or

969

mechanical application. In each case it requires a balancing *969 of the need for the particular

search against the invasion of personal rights that the search entails. Courts must consider the

scope of the particular intrusion, the manner in which it is conducted, the justification for initiating

it, and the place in which it was conducted.

Id. at 559, 99 S.Ct. 1861. Cuesta argues that her search was not justified and therefore violated her Fourth Amendment rights[6]0907she does not challenge the constitutionality of the scope, place, or manner of her strip
search.

This court has explained the "justification" prong of the Bell decision in two recent cases: Skurstenis v. Jones, 236 F.3d 678 (11th Cir.2000) and Wilson v. Jones, 251 F.3d 1340 (11th Cir.2001). Both cases make clear that the Fourth Amendment requires jail officials to have "reasonable suspicion" that an arrestee is concealing weapons or contraband before they can perform a strip search. If jail officials have reasonable suspicion that an arrestee is concealing weapons or contraband, then they do not infringe on her constitutional rights by conducting a strip search.

In Skurstenis, the plaintiff was arrested for driving under the influence. While being booked into jail, she was strip searched pursuant to a jail policy requiring that all arrestees be strip searched before being placed in a cell or detention room. Skurstenis brought a § 1983 action, complaining that the strip search violated her rights under the Fourth Amendment. This court held that Skurstenis's constitutional rights were not violated because there was reasonable suspicion to search her based upon the fact that she had a handgun in the floorboard of her car when she was arrested. Skurstenis, 236 F.3d at 682. In dicta, the Skurstenis court addressed the jail's mandatory search policy by noting that "[t]his policy, which does not require any reasonable suspicion, does not comport with the requirements of the Fourth Amendment." Id.

In Wilson, we made the dicta of Skurstenis binding law. The plaintiff in Wilson was also arrested for driving under the influence and strip searched pursuant to the same jail's policy. The court distinguished the case from Skurstenis by noting that "unlike Skurstenis, there is no evidence that the officers at Shelby County Jail had reasonable suspicion that Wilson was concealing weapons or any other type of contraband." Wilson, 251 F.3d at 1343. The Wilson court therefore held that the jail policy of searching all arrestees violated the Fourth Amendment. Id.

In this case, we hold that Cuesta's constitutional rights were not violated because TGK officers had reasonable suspicion to search based upon the violent and threatening language and imagery contained in the pamphlet.[7] 970 The record makes evident *970 that TGK personnel knew about the violent contents of the pamphlet. The arrest affidavit indicated to TGK officials that Cuesta had been charged with both "Distributing Unlawful Hate Publication" and "Hate Crime Enhancement." The narrative on the arrest affidavit indicated that "THE PAMPHLET CONTAINED `HATE CRIME' REMARKS DIRECTED TOWARD THE (BLACK) PRINCIPAL AND NON ENGLISH SPEAKING IMMIGRANTS. THE PAMPHLET REFERED [sic] TO `SHOOTING DAWSON IN THE HEAD' AND THE `AFRICAN DISEASE.'" TGK officers also were made aware of the pamphlet's content by Officer Galardi, the Miami-Dade Police Officer who transported Cuesta to TGK. Galardi indicated in his deposition that he spent "[r]oughly an hour, forty-five minutes" attending to Cuesta's booking. Cuesta similarly stated in her deposition that Officer Galardi spoke with the booking agents about her for approximately twenty minutes before she was taken to be strip searched.

Cuesta argues that the County failed to introduce evidence that anyone at TGK actually knew the contents of the pamphlet at the time she was searched, and therefore summary judgment should not have been granted for the County. It is true that on a motion for summary judgment, all reasonable inferences must be made in favor of the non-moving party. Arrington, 139 F.3d at 871 (11th Cir.1998). "A court need not permit a case to go to a jury, however, when the inferences that are drawn from the evidence, and upon which the non-movant relies, are

`implausible.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 592, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In this case, it is implausible to believe that TGK personnel did not know about the violent and hateful language contained in the pamphlet, given the contents of the arrest affidavit and their lengthy discussion with Officer Galardi.[8]
Cuesta's argument also fails because in a § 1983 action, the plaintiff bears the burden of persuasion on every element. See, e.g., Miller v. Taylor, 877 F.2d 469, 472 (6th Cir.1989) (plaintiff in § 1983 excessive force action had burden of proving that force was excessive); Edwards v. Philadelphia, 860 F.2d 568, 572 (3d Cir.1988) (same); Davis v. Lane, 814 F.2d 397, 401 (7th Cir.1987) (prisoner alleging Eighth Amendment violation bore burden of proving every element, including that guard acted without justification). Because Cuesta alleges that she was searched without reasonable suspicion, it is her burden to show that the County lacked reasonable suspicion to search her. Armington v. Sch. Dist. of Philadelphia, 767 F.Supp. 661, 667 (E.D.Pa.1991) ("In a § 1983 action plaintiff has the burden of proving that defendant lacked reasonable suspicion."). Cuesta failed to produce any evidence indicating that the TGK personnel lacked reasonable suspicion that she was concealing weapons or 971 contraband. *971 Therefore, Cuesta's claim that her constitutional rights were violated by the strip search fails as a matter of law.
III. CONCLUSION
For the reasons stated above, the district court's grants of summary judgment to both the County and the School Board are AFFIRMED.
[1] The essay included the following language:
I have often wondered what would happen if I shot Dawson in the head and other teachers who have pissed me off or shot the fucking bastard who thought I looked at him wrong or the airheaded cheerleader who is more concerned about what added layer of Revlon she's putting on instead of the fact that she's blocking my path or, I would shoot (twice) the fucking freshmen who think they're cool cuz they're in high school.
[2] The relevant portion of § 836.11 states:
It shall be unlawful to print, publish, distribute or cause to be printed, published or distributed by any means, or in any manner whatsoever, any publication, handbill, dodger, circular, booklet, pamphlet, leaflet, card, sticker, periodical, literature, paper or other printed material which tends to expose any individual or any religious group to hatred, contempt, ridicule or obloquy unless [the name and address of those responsible for the publication] is clearly printed or written thereon.
Fla. Stat. Ann. § 836.11 (West 2001).
[3] The relevant portion of § 775.085 states:
The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim:
* * * *
2. A misdemeanor of the first degree is reclassified to a felony of the third degree.
Fla. Stat. Ann. § 775.085 (West 2001).
[4] Cuesta also claims that the School Board should be held liable for the police officer's arrest under a theory of respondeat superior, but this argument is foreclosed by the Supreme Court's decision in Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.").

[5] It is unclear whether the School Board would be liable even if its policy was the "moving force" behind Cuesta's arrest, because § 836.11 was valid law at the time of the arrest. The "subsequently determined invalidity of [a statute] on vagueness grounds does not undermine the validity of the arrest made for violation of that [statute]." Michigan v. DeFillippo, 443 U.S. 31, 40, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). The Supreme Court has stated that "[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality0907with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." Id. at 38, 99 S.Ct. 2627. Because we hold that the School Board's policy was not the moving force behind the arrest, there is no need for us to address whether § 836.11 was "grossly and flagrantly unconstitutional."
[6] The County argues that the search should be analyzed under the Due Process Clause of the Fourteenth Amendment. Under the law of this circuit, however, a strip search performed without reasonable suspicion violates the Fourth Amendment rights of the, individual searched. See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001). Because Cuesta's § 1983 action alleges that her Fourth Amendment rights were violated, this opinion will examine her rights under that constitutional amendment.
[7] The County argues that reasonable suspicion was also provided, in part, by the fact that one of the other students involved in creating and distributing the pamphlet voluntarily turned over a small knife prior to being transported. The County provides no support in the record for this claim, and we have been unable to locate this fact in an independent search of the record. We therefore will not consider it on review. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 n. 3 (11th Cir.1992) ("Upon review of a grant by a district court of a motion for summary judgment, a federal appellate court may examine only the evidence which was before the district court when the latter decided the motion for summary judgment.").
[8] Because we hold that Cuesta suffered no deprivation of her constitutional rights, we need not decide the question of whether the County's policy, in which all felony arrestees are strip searched, might deprive others of their constitutional rights. See City of Los Angeles v. Heller, 475 U.S. 796, 811, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Rooney v. Watson, 101 F.3d 1378, 1381-82 (11th Cir.1996) ("[O]ur finding that the Rooneys did not suffer any constitutional deprivation makes it unnecessary to consider Volusia County's policy or custom.").
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