Case 3:09-cv-00758 Document 1 Filed 07/01/2009 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

Michael Cantley, individually, and on behalf of a Class of others similarly situated,
Plaintiff,
v.
The West Virginia Regional Jail and Correctional Facility Authority;
and;
Terry L. Miller, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority.
Defendants.

No. _ _3:_09_cv0_75_8
CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

INTRODUCTION This is a class action brought to redress the deprivation by Defendants of rights secured to the Plaintiff and proposed Class by the United States Constitution and the laws of the United States of America. For at least the past 11 years, the West Virginia Regional Jail and Correctional Facility Authority has had a policy of strip searching all individuals who enter any of the West Virginia Regional Jails and placing them in jail clothing, regardless ofthe crime with which they are charged. In addition, the West Virginia Regional Jail and Correctional Facility Authority also requires that all pre-trial detainees be deloused by having corrections officers use

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plastic bottles to spray caustic delousing solution over the genitals of detainees. Upon infonnation and belief, these policies are, in part, derived from the written procedures of the West Virginia Regional Jail and Correctional Facility Authority, and were promulgated by senior West Virginia Regional Jail and Correctional Facility Authority officials named herein.
It is well established in this judicial circuit that individuals charged with misdemeanors or other minor crimes cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. Consequently, the policy of the West Virginia Regional Jail and Correctional Facility Authority to force those charged with minor crimes to undergo the indignities of a strip search upon entry into the any of the West Virginia Regional Jails is insensitive, unnecessary, and illegal.
Plaintiff Cantley brings this action on behalf of himself, and on behalf of a Class of thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of his civil rights and those of the Class Members he proposes to represent. Plaintiff was charged with a non-felony offense, and was subjected to a strip search, in violation of his right against unreasonable searches under the Fourth Amendment of the United States Constitution. Plaintiff seeks monetary damages from Defendant Terry L. Miller for himself and each member of the Proposed Class, a declaration that Defendant West Virginia Regional Jail and Correctional Facility Authority's policies are unconstitutional, and an injunction precluding Defendant West Virginia Regional Jail and Correctional Facility Authority and Defendant Terry L. Miller from continuing to violate the rights of those placed into the custody of the Regional Jails that they administer. With this as a background, Plaintiff Cantley complains as follows:
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JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. § 1983. This Court also has jurisdiction over this action under the provisions of28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality ofthe policies of a state government. 2. Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs and Class claims occurred within this judicial district.
PARTIES 3. Plaintiff Cantley is an adult male residing in Cabell County, West Virginia. On or about September 28, 2008, he was arrested and placed in the Western Regional Jail on on nonfelony charges of violating an order of protection at the home of his ex-wife. 4. Defendant West Virginia Regional Jail and Correctional Facility Authority ("WVRJA") is a state government agency organized and existing under the laws of the State of West Virginia. At all times relevant hereto, the WVRJA was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the West Virginia Regional Jail System and was responsible for the appointment, training, supervision and conduct of all Regional Jail personnel, including those working in the Central Regional Jail, Eastern Regional Jail, North Central Regional Jail, Northern Regional Jail, Potomac Highlands Regional Jail, South Central Regional Jail, Southern Regional Jail, Southwestern Regional Jail, Tygart
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Valley Regional Jail, and the Western Regional Jail (collectively the "West Virginia Regional Jail System" or "WVRJS"). In addition, at all relevant times, the WVRJA was responsible for enforcing the rules of the West Virginia Regional Jail System, and for ensuring that personnel employed in West Virginia Regional Jail system obey the Constitution and laws of the United States and of the State of West Virginia.
5. Defendant Terry L. Miller ("Director Miller") is the duly appointed Executive Director of the WVRJA, and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees over which the WVRJA exercises custodial or other control. Director Miller's principal place of business is the WVRJA's Office, 1325 Virginia St. East, Charleston West Virginia, 25301. Director Miller is made a Defendant in this action in both his individual and official capacities.
CLASS ACTION ALLEGATIONS 6. Plaintiff brings this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) ofthe Federal Rules of Civil Procedure on behalf of himself and a Class of similarly situated individuals who were charged with misdemeanors or minor crimes and were strip searched upon their entry into the West Virginia Regional Jail System, including the Central Regional Jail, Eastern Regional Jail, North Central Regional Jail, Northern Regional Jail. Potomac Highlands Regional Jail, South Central Regional Jail. Southern Regional Jail. Southwestern Regional Jail, Tygart Valley Regional Jail, and the Western Regional Jail. 7. The Class that Plaintiff seeks to represent is defined as follows:
All persons who have been or will be placed into the custody of the West Virginia Regional Jail System, after being charged with misdemeanors, summary violations, violations of probation, traffic infractions, civil
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commitments or other minor crimes and were or will be strip searched upon their entry into the West Virginia Regional Jail System, pursuant to the policy, custom and practice of the West Virginia Regional Jail and Correctional Facility Authority. The class period commences on June 30, 2007 and extends to the date on which the West Virginia Regional Jail and Correctional Facility Authority is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 8. This action has been brought and may properly be maintained as a Class action under Federal law and satisfies the numerosity, commonality, typicality and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a). 9. The members of the Class are so numerous as to render joinder impracticable. Upon information and belief, there are hundreds of people arrested for misdemeanors and violations who are placed into the custody of the West Virginia Regional Jail System every month -- all of whom are members of the Proposed Class. Upon information and belief, the size of the Proposed Class totals at least thousands of individuals, some of whom have had their civil rights violated on multiple occasions. 10. Upon information and belief, joinder of all of these individuals is impracticable because of the large number of Class Members and the fact that Class Members are likely dispersed over a large geographical area, with some members presently residing outside of West Virginia and this Judicial District. Furthermore, upon information and belief, many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
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11. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from unreasonable searches and delousing violated by Defendants' conducting strip searches absent particularized suspicion. All members of the Class were charged with misdemeanors or summary violations when placed into the custody of the West Virginia Regional Jail System, and all were illegally strip searched in violation of the established law in this judicial circuit.
12. Plaintiffs claims are typical of the claims of the members of the Class. Plaintiff and all members of the Class sustained damages arising out of Defendants' course of conduct. The harms suffered by the Plaintiff are typical ofthe harms suffered by the Class Members.
13. The representative Plaintiff has the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are adverse to the interests of the Members of the Class.
14. Plaintiff has retained counsel with substantial experience in the prosecution of Class action and civil rights litigation, including successful litigation of strip search cases. Plaintiffs counsel has the resources, expertise and experience to successfully prosecute this action against the WVRJA and Director Miller. Counsel for the Plaintiff knows of no conflicts among members of the Class or between counsel and members of the Class.
15. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiff seeks Class Certification under Fed. R. Civ. P. 23(b)(2), in that all Class Members were subject to the same policy requiring the illegal strip searches and delousing of individuals charged with misdemeanor or minor crimes and placed into the custody of the West Virginia Regional Jail
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System. In short, the WVRJA, Director Miller, and the Regional Jail personnel acted on grounds generally applicable to all Class Members.
16. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3).
17. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants' written and/or de facto policy of strip searching and delousing all individuals charged with misdemeanors or minor crimes and committed to the Jail is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the Class Period.
18. A Class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the Class is impracticable given the large number of Class Members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a Class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
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19. Upon information and belief, there are no other actions pending to address the Defendants' flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search and delousing regimen for at least the past [three] years.
20. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiff also seeks partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 21. The Fourth Amendment of the United States Constitution prohibits state officials, such as Director Miller in this action and the Corrections Officers he supervises, from performing strip searches of arrestees who have been charged with misdemeanors or other minor crimes unless the officer has reasonable suspicion to believe that the arrestee is concealing a weapon or contraband. 22. Upon information and belief, the WVRJA and Director Miller have instituted a written andlor de facto policy, custom or practice of strip searching and delousing all individuals who enter the custody of the West Virginia Regional Jail System, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband. 23. Upon information and belief, the WVRJA and Director Miller have instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) on all individuals who enter the custody of the West Virginia Regional Jail System, regardless of the individual characteristics or the nature
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of their charged crime. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as "strip searches".
24. Upon information and belief, some members of the Proposed Class (not including the Plaintiff) are also required to undergo physical cavity searches upon entry to the custody of the WVRJA, where a Corrections Officer inserts a gloved finger into the rectum of a detainee to search for contraband.
25. Upon information and belief, the WVRJA and Director Miller have instituted a written and/or de facto policy, custom or practice of delousing all individuals who enter the custody of the West Virginia Regional Jail System, regardless of the individual characteristics or the nature of their charged crime. The delousing procedure first entails a detainee completely disrobing in front of a correction officer. The correction officer then sprays delousing solution upon a detainee's naked body. Finally, the detainee is ordered to shower within full view of the corrections officer. The delousing procedure is conducted upon all detainees without inquiry into or establishment of reasonable suspicion, or inquiry or establishment into whether the detainee actually harbors lice.
26. The WVRJA and Director Miller know that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches and delousing without particularized, reasonable suspicion.
27. The Defendants' written and/or de facto policy, practice and custom mandating wholesale strip searches and delousing of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
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28. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
29. Upon information and belief, the WVRJA and Director Miller have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching and delousing all individuals placed into the custody of the West Virginia Regional Jail System without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
30. Pursuant to this written and/or de facto policy, each member of the Class, including the named Plaintiff, was the victim of a routine strip search upon their entry into the West Virginia Regional Jail System. These searches and delousing were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, among other innocuous offenses, Driving While Intoxicated, Harassment and Trespassing.
31. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches and delousing -each member of the class, including the named Plaintiff -- has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
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Facts Applicable to the Named Plaintiff 32. Plaintiff Cantley is an adult male residing in Cabell County, West Virginia. On or about September 28, 2008 he was arrested on non-felony charges of violating an order of protection at the home of his ex-wife. Specifically, Mr. Cantley was required to stay away from his former wife's home, and failed to do so on the date in question. The allegations against Mr. Cantley did not involve a claim that he had harmed his wife, or anyone else, but rather that he was present in a location at which he was forbidden to be present. 33. Plaintiff Cantley's arrest was void of any reasonable suspicion that he harbored any weapons or contraband. 34. Mr. Cantley was first taken in custody by the West Virginia State Police, and later that evening taken to the Western Regional Jail. The Plaintiff was initially housed in a holding cell. 35. After being housed in a holding cell for several hours, the Plaintiffwas required to undergo a strip search. 36. Plaintiff was brought into a shower room and advised by a correctional officer that he would be strip searched. In connection with the strip search, Plaintiff was required to completely disrobe, lift his arms and legs, spread his butt cheeks, lift up his testicles and bend over, so that he could be inspected by a correctional officer. Plaintiff was then sprayed with delousing solution and ordered to shower while the corrections officer had a complete view of Plaintiff showering. He was then issued prison clothing. 37. Plaintiff was released from the Western Regional Jail on or about November 6, 2008, and all charges were dismissed.
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38. As a direct and proximate result of the unlawful strip search, Plaintiffhas suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION FIRST CAUSE OF ACTION AGAINST DIRECTOR MILLER IN
HIS INDIVIDUAL CAPACITY -- Violation of Constitutional Rights Under Color of State Law -
- Illegal Strip and Visual Cavity Searches 39. Plaintiff incorporates by reference and realleges each and every allegation stated in the foregoing paragraphs. 40. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches and delousing of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons. 41. The actions of Director Miller detailed above violated Plaintiffs rights under the United States Constitution. It was not objectively reasonable for West Virginia Regional Jail personnel to strip search and delouse the Plaintiff and Class Members based on their arrests for misdemeanor/ summary violation charges. It was also not objectively reasonable for Director Miller to order/direct West Virginia Regional Jail System personnel to conduct such searches. 42. These strip searches and delouses were conducted pursuant to the policy, custom or practice of Director Miller. As such, Director Miller is directly liable for the damages of Plaintiff and members of the Class.
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43. Upon infonnation and belief, Director Miller is responsible for establishing the policies and procedures to be utilized in the operation of the Western Regional Jail system, and is responsible for the implementation of the strip search and delousing policies questioned in this lawsuit. As such, Director Miller is individually responsible for the damages of the Plaintiff and Members of the Class.
44. The Policy Making Defendants knew that the Jail's strip search and delousing policies were illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiff and Members of the Class of their Constitutional rights.
45. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were taken under color of state law.
46. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the Members of the Class have been irreparably injured.
SECOND CAUSE OF ACTION AGAINST DIRECTOR MILLER IN HIS INDIVIDUAL CAPACITY
-- Violation of Constitutional Rights Under Color of State Law -- The Right to Privacy -
47. Plaintiff incorporates by reference and realleges each and every allegation stated in the foregoing paragraphs.
48. The right to privacy is protected by the Fourth Amendment and IS also an independent right with other constitutional underpinnings.
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49. The right to privacy prohibits officers from conducting delousing of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has lice.
50. The actions of Director Miller detailed above violated and improperly invaded Plaintiffs right to privacy. It was not objectively reasonable for West Virginia Regional Jail personnel to delouse the Plaintiff and Class Members based on their arrests for misdemeanor/summary violation charges. It was also not objectively reasonable for Director Miller to order/direct West Virginia Regional Jail System personnel to conduct such a procedure.
51. This delousing was conducted pursuant to the policy, custom or practice of Director Miller. As such, Director Miller is directly liable for the damages of Plaintiff and members of the Class.
52. Upon information and belief, Director Miller is responsible for establishing the policies and procedures to be utilized in the operation of the Western Regional Jail, and is responsible for the implementation of the delousing policies questioned in this lawsuit. As such, Director Miller is individually responsible for the damages of the Plaintiff and Members of the Class.
53. The Policy Making Defendant knew that the Jail's delousing policies were illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiff and Members of the Class of their Constitutional rights.
54. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were taken under color of state law.
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55. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the members of the Class have been irreparably injured.
THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS - Demand for Declaratory Judgment -
56. Plaintiff incorporates by reference and realleges each and every allegation stated in the foregoing paragraphs.
57. The policy, custom and practice of the WVRJA and Director Miller is clearly unconstitutional and violates the right to privacy, in that these entities and individuals are directing/conducting the strip searches and delousing of all individuals placed into the West Virginia Regional Jail System without any particularized suspicion that the individuals in question have either contraband or weapons.
58. Plaintiff and Members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search and delousing policies of the WVRJA and Director Miller to be unconstitutional and violative of the right to privacy.
FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS - Demand for Preliminary and Permanent Injunction -
59. Plaintiff incorporates by reference and realleges each and every allegation stated in the foregoing paragraphs.
60. The policy, custom and practice of the WVRJA and Director Miller is clearly unconstitutional and violative of the right to privacy, in that these entities and individuals are directing/conducting the strip searches and delousing of all individuals placed into the West
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Virginia Regional Jail system without any particularized suspIcIon that the individuals In question have either contraband, weapons, or lice.
61. Upon information and belief, this policy is currently in place in the West Virginia Regional Jail System, with new and/or prospective Members of the Class being subjected to the harms that have already been inflicted upon the Plaintiff.
62. The continuing pattern of strip searching and delousing individuals charged with minor crimes will cause irreparable harm to the new and/or prospective Members of the Class, an adequate remedy for which does not exist at law.
63. Plaintiff demands that the WVRJA, Director Miller, and the West Virginia Regional Jail System personnel immediately desist from strip searching and delousing individuals placed into the custody of the West Virginia Regional Jail System absent any particularized suspicion that the individuals in question have either contraband, weapons, or lice, and seeks both a preliminary and permanent injunction from this Court ordering as much.
DEMAND FOR TRIAL BY JURY 64. The Plaintiff hereby demands a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Cantley, on behalf of himself and on behalf of a Class of others similarly situated, requests that this Honorable Court grant them the following relief: 1. An order certifying this action as a Class Action pursuant to Fed. R. Civ. P. 23.
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2. A judgment against Director Miller in his individual capacity, on Plaintiffs First and Second Causes of Action detailed herein, awarding compensatory damages to Plaintiff and each Member of the Proposed Class in an amount to be determined by a jury and/or the Court on both an individual and a Class-wide basis.
3. A declaratory judgment against all Defendants declaring the WVRJA and Director Miller's policy, practice and custom of strip and visual cavity searching, and delousing, of all detainees entering the West Virginia Regional Jail System, regardless of the crime charged or suspicion of contraband or lice, to be unconstitutional, violative of the right to privacy and otherwise improper.
4. A preliminary and permanent injunction enjoining all Defendants from continuing to strip and visual cavity search, and delouse, individuals charged with misdemeanors or minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband or lice.
5. A monetary award for attorneys' fees and the costs ofthis action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23.

Dated: June 30, 2009

Respectfully submitted by:
/s/ D. Aaron Rihn. Esquire D. Aaron Rihn, Esquire ROBERT PEIRCE & ASSOCIATES, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219-1918 412.281.7229 W.V. I.D. 8736
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Elmer Robert Keach, ill, Esquire LAW OFFICES OF ELMER ROBERT KEACH, ill, P.C. 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010 518.434.1718 Gary E. Mason, Esquire Donna F. Solen, Esquire Nicholas A. Migliaccio, Esquire THE MASON LAW FIRM, LLP 1225 19th Street, NW Suite 500 Washington, DC 20036 202.429.2290 Daniel R. Karon, Esquire GOLDMAN SCARLATO & KARON, P.C. 55 Public Square Suite 1500 Cleveland, OH 44113 216.622.1851
ATTORNEYS FOR PLAINTIFF AND PROPOSED CLASS
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 Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

Michael Cantley, individually, and on behalf of a Class of others similarly situated,
Plaintiff,
v.
The West Virginia Regional Jail and Correctional Facility Authority;
and;
Terry L. Miller, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority.
Defendants.

No. 3:09-CV-0758 Honorable Robert C. Chambers
FIRST AMENDED CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

INTRODUCTION This is a class action brought to redress th e deprivation by Defendants of rights secured to the Plaintiff and proposed Class by the United States Constitution and the laws of the United States of Am erica. For at least the past 11 years, the W est Virginia Regional Jail and Correctional Facility Authority has had a policy of strip searching all individuals who enter any of the W est Virginia Regional Jails and placing them in jail clothing, regardless of the crim e with which they are charged. In addition, the W est Virginia Regional Jail and Correctional Facility Authority also requires that all pre-trial detainees be deloused by having corrections
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officers use plastic bottles to spray caustic delous ing solution over the genitals of detainees. The Defendants have admitted the truth of these factual allegations. These procedures are, in part, derived from the written policies of the W est Virginia Regional Jail and Correctional Facility Authority, and were promulgated by senior West Virginia Regional Jail and Correctional Facility Authority officials named herein.
It is well established in this judicial circ uit that individuals charged with m isdemeanors or other minor crimes cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. Consequently, the po licy of the W est Virginia Regional Jail and Correctional Facility Authority to force thos e charged with m inor crimes to undergo the indignities of a strip search upon entry into the any of the W est Virginia Regional Jails is insensitive, unnecessary, and illegal.
Plaintiff Cantley brings this action on behalf of him self, and on behalf of a Class of thousands of others who were strip searched af ter being charged with petty crim es, to vindicate the clear and unnecessary violation of his civ il rights and those of the Class Mem bers he proposes to represent. Plaintiff was charged w ith a non-felony offense, and was subjected to a strip search, in violation of his right agains t unreasonable searches under the Fourth Amendment of the United States Constitution. Plaintiff seeks monetary damages from Defendant Terry L. Miller for himself and each m ember of the Proposed Class, a declaration that Defendant W est Virginia Regional Jail and Correctional Facility Authority’s policies are unconstitutional, and an injunction precluding Defendant West Virginia Regional Jail and Correctional Facility Authority and Defendant Terry L. Miller f rom continuing to violate the rights of those placed into the
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custody of the Regional Jails that they adm inister. With this as a background, Plaintiff Cantley complains as follows:
JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain com pensatory damages and injunctive relief for the deprivation, under color of stat e law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U. S.C. § 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality of the policies of a state government. 2. Venue is proper under 28 U.S.C. § 1391(b)(2 ) because a substantial part of the events or om issions giving rise to Plaintiff’s and Class claim s occurred within this judicial district.
PARTIES 3. Plaintiff Cantley is an adult male residing in Cabell County, West Virginia. On or about September 28, 2008, he was arrested and placed in the W estern Regional Jail on on nonfelony charges of violating an order of protecti on at the hom e of his ex-w ife. Mr. Cantley was also admitted to custody of the W estern Regional Jail on several other occasions during the proposed class period. 4. Defendant West Virginia Regional Ja il and Correctional Facility Authority (“WVRJA”) is a state governm ent agency organized and existing under the laws of the State of West Virginia. At all tim es relevant heret o, the W VRJA was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the West Virginia
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Regional Jail System and was responsible for the appointment, training, supervision and conduct of all Regional Jail personnel, including those wo rking in the Central Regional Jail, Eastern Regional Jail, North Central Regional Jail, Nort hern Regional Jail, Potomac Highlands Regional Jail, South Central Regional Jail, Southern Regi onal Jail, Southwestern Regional Jail, Tygart Valley Regional Jail, and the W estern Regional Ja il (collectively the “W est Virginia Regional Jail System” or “WVRJS”). In addition, at all relevant times, the WVRJA was responsible for enforcing the rules of the W est Virginia Regional Jail System, and for ensuring that personnel employed in West Virginia Regional Jail system obey the Constitution and laws of the United States and of the State of West Virginia.
5. Defendant Terry L. Miller (“Director Miller”) is the duly appointed Executive Director of the WVRJA, and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees over which the W VRJA exercises custodial or other control. Director Miller’s principal place of business is the W VRJA’s Office, 1325 Virginia St. East, Charleston West Virginia, 25301. Director Miller is m ade a Defendant in this action in both his individual and official capacities.
CLASS ACTION ALLEGATIONS 6. Plaintiff brings this action pursuant to Rules 23(b)(1), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of himself and a Class of sim ilarly situated individuals who were charged with m isdemeanors or minor crimes and were strip searched upon their entry into the W est Virginia Regional Jail System, including the Central Regional Jail, Eastern Regional Jail, North Central Regional Ja il, Northern Regional Jail, Potom ac Highlands
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Regional Jail, South Central Regional Jail, Southe rn Regional Jail, Southwestern Regional Jail,
Tygart Valley Regional Jail, and the Western Regional Jail.
7. The Class that Plaintiff seeks to represent is defined as follows:
All persons who have been or will be placed into the custody of the W est Virginia Regional Jail System , after being charged with m isdemeanors, summary violations, violations of probation, traffic infractions, civil commitments or other m inor crimes and were or will be strip searched and deloused upon their entry into the W est Virginia Regional Jail System , pursuant to the policy, custom and practice of the West Virginia Regional Jail and Correctional Facility Author ity. The class period com mences on June 30, 2007 and extends to the date on which the West Virginia Regional Jail and Correctional Facility Authority is enjoined f rom, or otherwise ceases, enforcing its policy, practi ce and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective af filiates, legal representatives, heirs, successors, employees or assignees.
8. This action has been brought and m ay properly be maintained as a Class action
under Federal law and satisfies the num erosity, commonality, typicality and adequacy
requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
9. The members of the Class are so num erous as to render joinder im practicable.
Upon information and belief, there are hundred s of people arrested for m isdemeanors and
violations who are placed into the custody of the West Virginia Regional Jail System every
month -- all of whom are members of the Proposed Class. Upon inform ation and belief, the size
of the Proposed Class totals at least thousands of individuals, some of whom have had their civil
rights violated on multiple occasions.
10. Upon information and belief, joinder of a ll of these individuals is im practicable
because of the large num ber of Class Mem bers and the fact that Class Mem bers are likely
dispersed over a large geographical area, with so me members presently residing outside of W est
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Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 6 of 20
Virginia and this Judicial District. Furtherm ore, upon information and belief, many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
11. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from unreasonable searches and involuntary delousing violated by Defendants’ conducting strip searches absent pa rticularized suspicion. All m embers of the Class were charged with m isdemeanors or summary violations when placed into the custody of the West Virginia Regional Jail System , and all we re illegally strip searched in violation of the established law in this judicial circuit.
12. Plaintiff’s claims are typical of the claim s of the m embers of the Class. Plaintiff and all members of the Class sustained dam ages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the Class Members.
13. The representative Plaintif f has the requisite personal interest in the outcom e of this action and will f airly and adequately protect the interests of the Class. Plaintif f has no interests that are adverse to the interests of the Members of the Class.
14. Plaintiff has retained counsel with subs tantial experience in the prosecution of Class action and civil rights litigation, including su ccessful litigation of strip search cases. Plaintiff’s counsel has the resources, expertise and experience to successfully prosecute this action against the W VRJA and Director Miller. Counsel for the Plaintiff knows of no conflicts among members of the Class or between counsel and members of the Class.
15. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiff seeks Class Certification under Fed. R. Civ. P. 23(b )(2), in that all Class Mem bers were subject
6

Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 7 of 20
to the same policy requiring the illegal strip search es and delousing of individuals charged with misdemeanor or m inor crimes and placed into the custody of the W est Virginia Regional Jail System. In short, the WVRJA, Director Miller, and the Regional Jail personnel acted on grounds generally applicable to all Class Members.
16. In addition to certification under Rule 23(b)(2 ), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3).
17. Common questions of law and fact exist as to all m embers of the Class, and predominate over any questions that affect onl y individual m embers of the Class. These common questions of law and fact include, without limitation, the com mon and predom inate question of whether the Def endants’ written and/or de facto policy of strip searching and delousing all individuals charged with m isdemeanors or minor crimes and committed to the Jail is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the Class Period.
18. A Class action is superior to other ava ilable methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual m embers of the Class is impracticable given the large number of Class Members and the fact that they are dispersed over a large geographical area. Furtherm ore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system . By contrast, the conduct of this action as a Class action in this District
7

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presents far fewer management difficulties, conserves the resources of the parties and the court

system, and protects the rights of each member of the Class.

19. Upon information and belief, there are no other actions pending to address the

Defendants’ flagrant violation of the civil ri ghts of thousands of individuals, even though the

Defendants have maintained their illegal strip sear ch and delousing regimen for at least the past

twelve years.

20. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiff also

seeks partial certification under Fed. R. Civ. P. 23(c)(4).

FACTS

Facts Applicable to the Class Generally

21. The Fourth Amendment of the United States Constitution prohibits state officials,

such as Director Miller in this action and the Corrections Of

ficers he supervises, f rom

performing strip searches of arrestees who have been charged with misdemeanors or other minor

crimes unless the officer has reasonable suspici on to believe that the arrestee is concealing a

weapon or contraband.

22. The WVRJA and Director Miller have instituted a written and/or de facto policy,

custom or practice of strip searching and delous ing all individuals who enter the custody of the

West Virginia Regional Jail System , regardless of the nature of their charged crim e and without

the presence of reasonable suspicion to believe that the individual was concealing a weapon or

contraband.

23. In a recent filing with the Court, th e WVRJA and Director Miller adm itted,

through counsel, as follows: “W VRJA maintains a policy by which all incom ing detainees go

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Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 9 of 20
through a visual strip search a nd delousing procedure ….Defenda nts acknowledge that Plaintiff was strip searched and deloused upon his ad mission to W estern Regional Jail pursuant to WVRJA.” (Docket Number 8, pp. 1, 4).
24. The written policy of the W VRJA also conf irms this procedure. A copy of the WVRJA’s written “Inm ate Admission Procedures” policy is attached to this Am ended Complaint as Exhibit A.
25. The WVRJA and Director Miller have instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) on all individuals who enter the custody of the W est Virginia Regional Jail System, regardless of the individual characteristics or the nature of their charged crim e. For purposes of this Com plaint, strip and visual cavity searches are collectively referred to as “strip searches”. These strip and visual cavity search es include a visual inspection of a detainee’s genitals and anus, and require detainees to m anipulate body parts to allow for an inspection of these private areas.
26. Upon information and belief, some members of the Proposed Class (not including the Plaintiff) are also required to undergo physical cavity searches upon entry to the custody of the WVRJA, where a Corrections Officer inserts a gloved finger into the rectum of a detainee to search for contraband.
27. The WVRJA and Director Miller have instituted a written and/or de facto policy, custom or practice of delousing all individuals who enter the custody of the W est Virginia Regional Jail System, regardless of the individual characteristics or the nature of their charged crime. The delousing procedure first entails a detainee com pletely disrobing in front of a
9

Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 10 of 20
correction officer. The correction officer then sprays delousing solution upon a detainee’s naked body. Finally, the detainee is ordered to shower w ithin full view of the corrections officer. The delousing procedure is conducted upon all detainees without inquiry into or establishm ent of reasonable suspicion, or inquiry or establishm ent into whether the detainee actually harbors lice. This delousing is com pulsory, in that a correc tion officer stands before a detainee and sprays them with a plastic spray bottle, and then observes them rubbing the solution into their hair, including their pubic hair. This delousing occurs in the absence of any m edical evaluation to determine the presence, or absence, of lice.
28. Upon information and belief, the presence of lice in the W VRJA facilities is limited, and the one-tim e application of “liceall,” in the absence of any further m edical treatment, is not an effective cure for lice.
29. Upon information and belief, the “liceall” solution used by the WVRJA is caustic, in that can, and often does, cause chem ical burns to those upon whom it is applied, especially African-Americans.
30. Upon information and belief, Corrections Officers of the W VRJA do not receive any medical training prior to applying “liceall” to the faces, genitals, and rectum s of pre-trial detainees.
31. The strip searches and delousing discussed in this com plaint are often im posed upon pre-trial detainees prior to their arraignm ent before a judge. Upon inform ation and belief, many members of the proposed class are bailed out of custody shortly after being arraigned.
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32. The WVRJA and Director Miller know that they m ay not institute, enforce or permit enforcement of a policy or practice of conducting strip searches and delousing without particularized, reasonable suspicion.
33. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale strip searches and delousing of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
34. Reasonable suspicion to conduct a stri p search m ay only em anate from the particular circumstances antecedent to the searc h, such as the nature of the crim e charged, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
35. The WVRJA and Director Miller have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching and delousing all individuals placed into the custody of the West Virginia Regional Jail System without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circum stances of a particular arrest were relevant to the enforcem ent of the policy, practice and custom of routine strip searches.
36. Pursuant to this written and/or de facto policy, each m ember of the Class, including the named Plaintiff, was the victim of a routine strip search upon their entry into the West Virginia Regional Jail System . These s earches and delousing were conducted without inquiry into or establishm ent of reasonable suspicion, and in fact were not supported by
11

Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 12 of 20
reasonable suspicion. Strip searches are conduc ted for individuals arrested for, am ong other innocuous offenses, Driving While Intoxicated, Harassment and Trespassing.
37. As a direct and proxim ate result of th e unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches and delousing -each member of the class, including the na med Plaintiff -- has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiff 38. Plaintiff Cantley is an adult male residing in Cabell County, West Virginia. On or about September 28, 2008 he was arrested on non- felony charges of violating an order of protection at the home of his ex-wife. Specifically, Mr. Cantley was required to stay away from his former wife’s home, and failed to do so on the date in question. The allegations against Mr. Cantley did not involve a claim that he had harm ed his wife, or anyone else, but rather that he was present in a location at which he was forbidden to be present. Plaintiff Cantley’s arrest was void of any reasonable suspicion that he harbored any weapons or contraband. 39. Mr. Cantley was first taken in custody by the West Virginia State Police, and later that evening taken to the W estern Regional Jail. The Plaintiff was initially housed in a holding cell. 40. After being housed in a holding cell for se veral hours, the Plaintiff was required to undergo a strip search. 41. Plaintiff was brought into a shower room and advised by a correctional officer that he would be strip searche d. In connection with the strip search, Plaintiff was required to
12

Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 13 of 20
completely disrobe, lift his arm s and legs, spr ead his butt cheeks, lift up his testicles and bend over, so that he could be inspected by a correcti onal officer. Plaintiff was then sprayed with delousing solution and ordered to shower while th e corrections officer had a com plete view of Plaintiff showering. He was then issued prison clothing.
42. Plaintiff was released from the W estern Regional Jail on or about Novem ber 6, 2008, and all charges were dismissed.
43. Mr. Cantley has also been adm itted the Western Regional Jail on several other occasions during the class period for m isdemeanor or other m inor charges, and underwent procedures similar, in all m aterial ways, to those detailed in this Am ended Class Action Complaint. Upon inform ation and belief, thes e arrests were also void of any reasonable suspicion to believe that he possessed weapons or contraband in his private areas.
44. As a direct and proxim ate result of thes e unlawful strip searches, Plaintiff has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION FIRST CAUSE OF ACTION AGAINST DIRECTOR MILLER IN
HIS INDIVIDUAL CAPACITY -- Violation of Constitutional Rights Under Color of State Law --
-- Illegal Strip and Visual Cavity Searches -45. Plaintiff incorporates by reference and r ealleges each and every allegation stated in the foregoing paragraphs. 46. The Fourth Amendment of the United St ates Constitution protects citizens f rom unreasonable searches by law enforcem ent officers, and prohibits officer s from conducting strip
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Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 14 of 20
searches and delousing of individuals arrested for m isdemeanors or violations absent som e particularized suspicion that the individual in question has either contraband or weapons.
47. The actions of Director Miller detailed a bove violated Plaintiff’s rights under the United States Constitution. It was not objectivel y reasonable for W est Virginia Regional Jail personnel to strip search and delouse the Plain tiff and Class Mem bers based on their arrests for misdemeanor/ summary violation charges. It wa s also not objectively reasonable for Director Miller to order/direct West Virginia Regional Jail System personnel to conduct such searches.
48. These strip searches and delousing were conducted pursuant to the policy, custom or practice of Director Miller. As such, Director Miller is directly liable f or the dam ages of Plaintiff and members of the Class.
49. Upon information and belief, Director M iller is responsible for establishing the policies and procedures to be utilized in the operation of the Western Regional Jail system , and is responsible for the implementation of the strip search and delousing policies questioned in this lawsuit. As such, Director Miller is individually responsible for the damages of the Plaintiff and Members of the Class.
50. The Policy Making Defendants knew that th e Jail’s strip search and delousing policies were illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiff and Members of the Class of their Constitutional rights.
51. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were taken under color of state law.
52. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the Members of the Class have been irreparably injured.
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Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 15 of 20

SECOND CAUSE OF ACTION AGAINST DIRECTOR MILLER IN HIS INDIVIDUAL CAPACITY

-- Violation of Constitutional Rights Under Color of State Law --- The Right to Privacy –

53. Plaintiff incorporates by reference and r ealleges each and every allegation stated

in the foregoing paragraphs.

54. The right to privacy is protected by th e Fourth Am endment and is also an

independent right with other constitutional underpinnings.

55. The right to privacy prohibits officers from conducting delousing of individuals

arrested for misdemeanors or violations absent so me particularized suspicion that the individual

in question has lice.

56. The actions of Director Miller detailed above violated and im properly invaded

Plaintiff’s right to privacy. It was not objec tively reasonable for W est Virginia Regional Jail

personnel to delouse the Plaintiff and Cl

ass Members based on their arrests for

misdemeanor/summary violation charges. It wa s also not objectively reasonable for Director

Miller to order/direct West Virginia Regional Jail System personnel to conduct such a procedure.

57. This delousing was conducted pursuant to the policy, custom or practice of

Director Miller. As such, Director Miller is directly liable f or the dam ages of Plaintiff and

members of the Class.

58. Upon information and belief, Director M iller is responsible for establishing the

policies and procedures to be utilized in the operation of the W estern Regional Jail, and is

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Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 16 of 20
responsible for the implementation of the delousing policies questioned in this lawsuit. As such, Director Miller is individually responsible for th e damages of the Plaintiff and Mem bers of the Class.
59. The Policy Making Defendant knew that the Jail’s delousing policies were illegal, and acted willfully, knowingly, and with specific in tent to deprive Plaintiff and Mem bers of the Class of their Constitutional rights.
60. This conduct on the part of all Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were taken under color of state law.
61. As a direct and proxim ate result of the unconstitutional acts described above, Plaintiff and the members of the Class have been irreparably injured.
THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
62. Plaintiff incorporates by reference and r ealleges each and every allegation stated in the foregoing paragraphs.
63. The policy, custom and practice of the WVRJA and Director Miller is clearly unconstitutional and violates the right to privac y, in that these entities and individuals are directing/conducting the strip searches and delous ing of all individuals placed into the W est Virginia Regional Jail System without any particularized suspicion that the individuals in question have either contraband or weapons.
16

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64. Plaintiff and Mem bers of the Class request that this Court issue a declaratory judgment, and that it declare the strip search a nd delousing policies of the W VRJA and Director Miller to be unconstitutional and violative of the right to privacy.
FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
65. Plaintiff incorporates by reference and r ealleges each and every allegation stated in the foregoing paragraphs.
66. The policy, custom and practice of the WVRJA and Director Miller is clearly unconstitutional and violative of the right to priv acy, in that these entities and individuals are directing/conducting the strip searches and delous ing of all individuals placed into the W est Virginia Regional Jail system without any particularized suspicion that the individuals in question have either contraband, weapons, or lice.
67. Upon information and belief, this policy is currently in place in the West Virginia Regional Jail System, with new and/or prospectiv e Members of the Class being subjected to the harms that have already been inflicted upon the Plaintiff.
68. The continuing pattern of strip searching and delousing individuals charged with minor crimes will cause irreparable harm to the new and/or prospective Mem bers of the Class, an adequate remedy for which does not exist at law.
69. Plaintiff demands that the W VRJA, Director Miller, and the W est Virginia Regional Jail System personnel im mediately desist from strip searching and delousing individuals placed into the custody of the W est Virginia Regional Jail System absent any
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particularized suspicion that the individuals in question have either contraband, weapons, or lice, and seeks both a preliminary and permanent injunction from this Court ordering as much.
DEMAND FOR TRIAL BY JURY 70. The Plaintiff hereby demands a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Cantley, on behalf of hi mself and on behalf of a Class of others similarly situated, requests that this Honorable Court grant them the following relief: 1. An order certifying this action as a Class Action pursuant to Fed. R. Civ. P. 23. 2. A judgment against Director Miller in his individual capacity, on Plaintiff’s First and Second Causes of Action detailed herein, aw arding compensatory damages to Plaintiff and each Member of the Proposed Class in an amount to be determined by a jury and/or the Court on both an individual and a Class-wide basis. 3. A declaratory judgment against all Defendants declaring the WVRJA and Director Miller’s policy, practice and custom of strip and visual cavity searching, and delousing, of all detainees entering the West Virginia Regional Jail System, regardless of the crime charged or suspicion of contraband or lice, to be unconstitutional, violative of the right to privacy and otherwise improper.
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4. A preliminary and permanent injunction enjoining all Defendants from continuing

to strip and visual cavity search, and delouse, individuals charged with misdemeanors or minor

crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is

concealing weapons or other contraband or lice.

5. A monetary award for attorneys’ fees and the costs of this action, pursuant to 42

U.S.C. § 1988 and Fed. R. Civ. P. 23.

Respectfully submitted by:

Dated: October 9, 2009

/s/ D. Aaron Rihn, Esquire D. Aaron Rihn, Esquire ROBERT PEIRCE & ASSOCIATES, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219-1918 412.281.7229 W.V. I.D. 8736

Elm LAW
Post Am 518.434.1718

er Robert Keach, III, Esquire OFFICES OF ELMER ROBERT
KEACH, III, P.C. 1040 Riverfront Center
Office Box 70 sterdam, NY 12010

Gary Donna Nicholas
202.429.2290

E. Mason, Esquire F. Solen, Esquire A. Migliaccio, Esquire
THE MASON LAW FIRM, LLP 1225 19th Street, NW Suite 500 Washington, DC 20036

Daniel GOLDMAN 55

R. Karon, Esquire SCARLATO & KARON, P.C.
Public Square

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Case 3:09-cv-00758 Document 14 Filed 10/09/09 Page 20 of 20

Suite Cleveland,

1500 OH 44113
216.622.1851
ATTORNEYS FOR PLAINTIFF AND PROPOSED CLASS

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 Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 1 of 11
EXHIBIT A

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 2 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 1 of 10 Document Number 17001 Effective Date: May 15, 1997

CHAPTER:

Admission and Orientation

SUBJECT:

Inmate Admission Procedures

REFERENCE:

WV Jail Standards - 18.1; WV Code 15-2-24(g); Policy 12001,

12002, 18002 and 18003

CANCELLATION:

Policy and Procedure Statement No. 17001, dated 6 January 1989

POLICY:

The admission process of all new and transferred inmates shall be

implemented immediately upon the inmates arrival. Booking personnel shall ensure the

following:

a. All inmates are identified;

b. Commitment papers are complete and accurate;

c. Inmate property is properly recorded and any unauthorized property is

removed from inmates;

d. Each inmate to be assigned to a housing unit has bathed and changed into

newly issued clothing;

e. Medical, dental, and mental health screening are completed;

f.

Basic personal data is recorded;

g. Basic rules and regulations are explained to inmates before their assignment to a

housing unit;

h. Housing is assigned and personal toiletry items are issued unless the inmate is

to be released within eight hours.

Regional jails shall not accept persons who are being committed solely because of the initiation of procedures for involuntary commitment pursuant to West Virginia Code, 27-5-1 et. seq., or who have been charged only with the offense of public intoxication.

PROCEDURE A: Arrival of Inmate and Initial Processing

1.

When an inmate arrives, usually they will be escorted by a law enforcement

officer. The officer must have a certified court order committing the inmate.

2.

When an inmate is being transferred from another facility, the inmate's

institutional file and medical record file may be delivered by the escorting officer. Prior to their

departure, the escorting officer will be provided a receipt for any files and a receipt for transfer

of the inmate.

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 3 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 2 of 10 Document Number 17001 Effective Date: May 15, 1997

3.

The Booking Officer shall complete the following prior to the departure of the

escorting officer:

a. Review the commitment papers to ensure papers are certified, valid on their face, and accurate. If inaccuracies exist, the inmate shall not be accepted, and the committing court shall be contacted immediately.
b. Sign any detainer and return a copy to the escorting officer. The original is retained for records.
c. Complete the physical identification of the inmate. This can be accomplished by asking questions related to confidential information contained in the accompanying records and comparing photographs, fingerprints and other identifying characteristics.
d. Prepare admission receipt; provide one copy to the escorting officer and retain the original for records.
e. Sign transfer receipts for the escorting officer. f. Check inmate for injuries and chemical exposure as outlined in
Procedure B.

PROCEDURE B: Check for Injury

1. The Booking Officer will not accept custody of an inmate in obvious need of medical attention as determined by a medical staff member, unless the escorting officer provides a written statement from a physician verifying that the inmate has been treated and is not in need of treatment or hospitalization.

2. The Booking Officer or medical staff member will make inquiries about the physical condition of the inmate from the escorting officer and the inmate being received.

3. If the inmate exhibits symptoms of exposure to an aerosol defense spray such as Oleoresin Capsicum or Chemical Mace, the booking officer will request the assistance of the shift supervisor and a medical staff member to determine if the inmate is in need of medical treatment.

4. The escorting agency will be requested to complete an aerosol exposure form to assist in this assessment. If the escorting agency refuses to provide the information requested, or is unable to do so for what ever reason, medical staff will make their assessment based upon observations of, and information provided by the inmate to determine:

a.

the inmate is need of medical treatment or hospitalization and cannot be

committed to the facility unless the escorting agency provides

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 4 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

. Page 3 of 10 Document Number 17001 Effective Date: May 15, 1997

documentation of treatment from a physician, or show treatment was offered but refused by the inmate; or

b. The inmate is not in need of medical treatment and may be accepted. Decontamination procedures as contained in existing policy will be implemented as soon as is practical.

3. The Booking Officer or medical staff member will observe the behavior of the inmate being received to ensure that he is not injured.

4. The Booking Officer and the medical officer will document the physical condition of inmates being received. This will be entered into the jail log and on the medical screening form.

PROCEDURE C:

Preliminary Search

1.

A correctional officer will conduct a complete pat search of inmates being

received to ensure that the inmates do not have contraband in their possession when entering the

jail facility.

2.

When the officer discovers anything on an inmate which may be evidence of a

crime, the officer will:

a. Confiscate this item(s) b. Notify the Shift Supervisor that such items have been found in the
possession of the inmate. C . Complete an incident report as soon as possible and submit it to the Shift
Supervisor

3.

The Shift Supervisor will record all significant information from the officer

regarding such findings in the jail log and notify the appropriate law enforcement agency.

PROCEDURE D:

Booking Officer's Processing Duties

1.

The following procedures shall be followed by the Booking Officer to process

the new admission:

a. research inactive records to determine any previous record of admission if there is previous admission; the previously assigned number be reassigned otherwise the

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 5 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 4 of 10 Document Number 17001 Effective Date: May 15, 1997

b. c.
d.
e.
f. g.
PROCEDURE E:

next sequential number will be assigned to the new admission; Notify Central Control; Notify the Administration section by supplying inmate name and number; A complete set of forms will be taken to the records room for inclusion in the file; Record the admission, entering inmate's name assigned number, time and date admitted, sex, status, offense, committing court in the file; Enter information in the jail log and inmate information system; and Enter relevant information on daily census form, and update locator board. Inmate Property Inventory

1. Inmates admitted to regional jail facilities shall not be allowed to possess valuables, money, or potentially dangerous property. Jail personnel shall inventory and store all property taken from inmates being admitted, and will issue a receipt to the inmate.
2. All inmates entering the regional jail facility shall be pat searched for weapons or contraband.
3. Clothing worn into the facility and removed during showering, shall be carefully inspected for contraband. Shoes and socks are to be removed and searched. Shoes are to be visually checked inside; heels and soles are to be checked. A thorough search of the inmate's person shall be conducted when appropriate.
4. Property shall be carefully and thoroughly searched. All items shall be removed from containers in which they are carried and each item examined to ensure that it does not conceal contraband or other unauthorized items. Care must be taken neither to damage nor destroy personal property. If this should happen, a report will be completed by the staff involved and turned in to the Shift Supervisor along with the damaged or destroyed property.
5. The officer will list all property on the inmate's property form and provide the inmate with a copy, verified and signed by the Shift Supervisor and the inmate, as a receipt for all property.

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 6 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 5 of 10 Document Number 17001 Effective Date: May 15, 1997

6. The booking officer will enter the amount of the inmate's funds on the inmate's booking information sheet and provide a receipt for all funds placed in the inmate's account.
7. The Shift Supervisor or designee will package, label, and store the inmate's property in the inmates' property storage room.

PROCEDURE F: Initial Clothing, Bedding, Personal Hygiene, and Linen Issue 1. Each inmate shall be provided institutional clothing.
2. A clothing issue form shall be completed for the new inmate and placed in the clothing file located in the inmate property storage room.
3. The clothing issue form shall be completed indicating type, size, and quantity of clothing issued.
4. The standard initial clothing issue provided to new inmates upon assignment to a housing unit shall include:
a. 2 - two piece uniforms b. 3 - pairs of briefs c. 3 - pairs of socks d. 1 - pair of thongs e. 1 - laundry bag identified by room number f. 2 - brassieres (for female inmates)
5. Each inmate shall receive replacement clothing as needed on the next laundry day for the housing unit.
6. The standard bedding issue provided to the new inmate shall include:
a. 1 - Mattress b. 1 - Pillow c. 2 = Sheets d. 1 - Pillowcase e. 1 - Towel f. 1 Washcloth g. 1 Blanket

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 7 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 6 of 10 Document Number 17001 Effective Date: May 15, 1997

7. items:

Each inmate shall be provided a personal hygiene kit containing the following

a.

Soap

b.

Toothpaste

c.

Toothbrush

d.

Comb

e.

Cup

8.

The officer will document the items issued on the appropriate inventory log.

PROCEDURE G: Telephone Calls by New Admissions

1.

The Booking Officer shall inform all new inmates upon admission that the

regional jail allows inmates to make up to three completed local, or long distance, collect

telephone calls to secure counsel, bond, or to contact family or friends. Such calls must be

limited to a reasonable time period not to exceed five minutes. This allowance is not extended

to inmates transferred to the regional facility from other correctional facilities.

2.

The Booking Officer will allow the inmate to use the telephones located in the

intake lobby as soon as the initial steps of admission have been completed.

3.

The Booking Officer will log all calls made by the inmate on the back of the

inmate's admission form.

4.

The Booking Officer will allow the inmate as much privacy as possible,

consistent with security and supervision requirements.

PROCEDURE H: Inmate Identification/Booking

1. All persons arrested and committed to a regional jail facility shall be finger printed and photographed.

2. follows:

A total of two (2) fingerprint cards shall be completed for each new inmate, as

a.

One (1) Criminal Investigation Bureau (CIB) of the Department of

Public Safety fingerprint card, and

b.

One (1) Federal Bureau of Investigation (FBI) fingerprint card

3. A total of four (4) photographs shall be taken of each new inmate, charged or

sentenced for a felony; two (2) frontal view and two (2) side view. The photographs shall be

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 8 of 11

WV Regional Jail and Correctional Facility Policy and Procedure Statement

Page 7 of 10 Document Number 17001 Effective Date: May 15 , 1997

maintained at the facility. One (1) frontal view shall be utilized for the Inmate Identification Card.

4.

A descriptive date sheet shall be completed on each new inmate committed to the

regional jail facility. Information shall include, but not be limited to, remarks concerning

identifying marks and/or unusual physical characteristics.

PROCEDURE I: Mental Health Screening

1.

The medical staff member will screen and observe all inmates being admitted for

possible mental health problems. The staff member will attempt to determine if the inmate is:

a.

Disoriented (the inmate must know who he is, where he is, the date, and

what is taking place around him);

b.

Seriously aggravated and displaying inappropriate behavior (such as not

being able to control anger or having visions or hallucinations);

c.

Seriously depressed and having suicidal thoughts.

2.

If the medical staff member determines that the inmate may be in need of

professional mental health services, the medical staff member will inform the Shift

Supervisor and the Director of Medical Services.

3.

If the Shift Supervisor contacts the mental health center, the supervisor will

describe the inmate's behavior to the mental health center's contact person.

4.

The Shift Supervisor will record in the jail daily log all information and

instructions from the mental health worker.

5.

The Shift Supervisor will cause the inmate to be placed in an unoccupied

holding cell and observe the inmate's behavior at least every fifteen (15) minutes, until the

mental health worker arrives at the facility.

6.

The Shift Supervisor will ensure that all items which could be used by the

inmate to harm himself are taken from the inmate.

7.

The Shift Supervisor will ensure that the instructions from the mental health

worker are carried out.

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 9 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 8 of 10 Document Number 17001 Effective Date: May 15, 1997

8. If the Medical Director or Mental Health Worker determines that the inmate is in need of hospitalization, the Shift Supervisor will make arrangements to have the inmate transported to the hospital.

9. The Shift Supervisor will document all actions taken to ensure the safety of the inmate in the jail daily log.

10. If the Medical Director or Mental Health Worker determines that the inmate is not in need of hospitalization, but is in a questionable state, the Shift Supervisor will ensure that all instructions from the Medical Director or Mental Health Workers are carried out.

11. The Shift Supervisor will ensure that the counselor, and next shift is informed and understands all instructions to be carried out regarding any inmate who is in a questionable state.

12. The Medical Director will ensure that follow-up treatment is provided to inmates in need of treatment.

PROCEDURE J: Shower
1. Each inmate committed to a regional jail facility will be required to delouse and shower prior to being placed in a housing unit.
2. Shower facilities in the intake and booking area will be used; required personal hygiene items and linens will be provided by the facility
. PROCEDURE K: Inmate Orientation
1. The Booking Officer will ensure each admitted inmate has a copy of the regional jail facility's rules and regulations.
2. If an inmate does not understand or speak English, jail personnel will arrange for an interpreter to read the rules to the inmate in the inmate's language. Arrangements will also be made for continued communication with the inmate while the inmate is confined.
3. The Booking Officer will ensure that each inmate understands the facility's rules and regulations. If the officer suspects or is informed that the inmate cannot read, the rules and regulations will be read by an officer to the inmate.

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 10 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 9 of 10 Document Number 17001 Effective Date: May 15, 1997

4.

Completion of orientation shall be documented by a statement that is signed

and dated by the inmate.

PROCEDURE L: Screening Interview

1.

Screening interviews will be conducted by a counselor or trained interviewer

within 3 days of the time of admission, excluding weekends.

2.

The Counselor or trained interviewer will review the jail log each morning and

afternoon to determine which inmates are to be interviewed.

3.

The screening interviews will be held in the Counselor's office, unless security

requirements require an alternate site.

4.

The Counselor or trained interviewer will notify the Central Control when an

inmate is to be interviewed.

5.

The Counselor or trained interviewer shall attempt to, during the screening

interview, obtain the following information from the inmate:

a. Alias(es)

b. Nickname(s)

c. Race/Ethnic Origin

d. Religion

e. Nationality

f.

Date of Birth

g. Age

h. Marital Status

i.

Number of Children (if any)

j.

Other Family Relations

k. Place of Employment

1.

Military Status

6.

Interviews should not be conducted in a "mechanical fashion" manner. The

Counselor or trained interviewer will conduct the interview in an unhurried, professional,

personalized manner in-order to obtain information necessary to properly evaluate the inmate.

Case 3:09-cv-00758 Document 14-1 Filed 10/09/09 Page 11 of 11

WV Regional Jail and Correctional Facility Authority Policy and Procedure Statement

Page 10 of 10 Document Number 17001 Effective Date: May 15, 1997

PROCEDURE M: Inmate Classification
1. The Shift Supervisor will be responsible for the interim classification of incoming inmates, in accordance with Policy #20002.
PROCEDURE N: Initial Inmate Housing Assignment

1.

Incoming inmates will be housed in accordance with the results of the

interim classification.

2. The Shift Supervisor will log all housing assignments in the daily log, and place the inmate's name on the locator board.

3. The Shift Supervisor will ensure that new inmates are personally observed by a correctional officer at least every thirty minutes. A schedule of at least 15 minutes observation shall be required for new inmates who are violent, suicidal, mentally disordered or who demonstrate unusual or bizarre behavior.

4. Prior to being placed in a Housing Unit, the inmate will be assigned a Photo Identification Card.

 
 Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 1 of 21 PageID #: 105
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

MICHAEL CANTLEY, Individually, and on behalf of a Class of others similarly situated,
Plaintiff, v. THE WEST VIRGINIA REGIONAL JAIL and CORRECTIONAL FACILITY AUTHORITY; and TERRY L. MILLER, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority
Defendants.

No: 3:09-cv-0758

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT

COME NOW Defendants West Virginia Regional Jail and Correctional Facility Authority

(hereinafter referred to as “WVRJA”), and Terry L. Miller, individually and in his official capacity

as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority, by and

through counsel David J. Mincer, Joshua K. Boggs, and the law firm of Bailey & Wyant, PLLC, and

for their Memorandum in Support of Defendants’ Motion to Dismiss Plaintiff’s First Amended

Complaint do state unto the Court as follows:

I. INTRODUCTION

WVRJA maintains a policy by which incoming detainees go through a visual strip search and

delousing procedure to ensure that detainees are not concealing weapons or contraband, and are

without lice and/or scabies. The WVRJA has determined that such procedures are necessary for

safety and health reasons. Plaintiff alleges that the strip search and delousing procedure to which

he was subjected subsequent to his arrest and detainment at the Western Regional Jail was a

violation of his constitutional right against unreasonable searches and in violation of his right to

privacy. Plaintiff further suggests that as a pre-trial detainee detained on only misdemeanor charges,

as opposed to a post-conviction detainee or a detainee being held on felony charges, it is a violation

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 2 of 21 PageID #: 106 of his constitutional rights to be subjected to these procedures. The United States Supreme Court has previously addressed this exact same issue and the claims of Plaintiff and has held on numerous occasions that a visual strip search and delousing of detainees, including pre-trial detainees charged only with misdemeanors, does not violate their constitutional rights. The Courts have uniformly noted that detainment in a correctional facility inherently comes with certain restrictions and infringements on one’s constitutional rights and those restrictions are constitutionally valid if they are related to a legitimate penological interest as opposed to having been implemented purely as a punitive measure as long as there are no outstanding circumstances which heighten the severity of the constitutional violation so that it outweighs the penological interest. As WVRJA’s visual strip search and delousing policies are implemented in a minimally intrusive fashion and for the dual purpose of detecting and deterring the smuggling of contraband and weapons into the facilities and to protect the health and safety of all detainees and correctional officers, the policies are instituted for a legitimate penological interest. As such, the WVRJA policies are justifiable and are not a constitutional violation for which this Plaintiff should be permitted to pursue this cause of action against these Defendants.
Furthermore, Plaintiff may not maintain this action, because he has failed to exhaust his administrative remedies within the jail system prior to filing this action. In addition, Plaintiff may not maintain this action, because the Defendants are immune from his claims under the Eleventh Amendment to the United States Constitution and the Will Doctrine. Finally, Defendant Terry Miller is entitled to qualified immunity with respect to the claims asserted against him. For all of the foregoing reasons, the Defendants are entitled to the dismissal of this action. II. STATEMENT OF FACTS
On September 28, 2008, Plaintiff, Michael Cantley, was arrested at the home of his ex-wife after violating a Domestic Violence Protective Order that was issued against him pursuant to a claim
2

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 3 of 21 PageID #: 107 of domestic violence made by his ex-wife. Following the arrest, Plaintiff was taken to the Western Regional Jail, located in Barboursville, Cabell County, West Virginia. Upon his arrival at the facility, Plaintiff exhibited hostile and violent behavior towards the correctional officers, including threatening to strangle one of the nurses at the facility when she attempted to check Plaintiff’s pulse. Because of this behavior, Plaintiff initially had to be restrained until he was calm enough to proceed through the admission process.
After Plaintiff calmed down, he was then “patted down” by one of the correctional officers for the purpose of locating any contraband or weapons concealed in the Plaintiff’s clothing. Following the “pat-down,” Plaintiff was pre-screened by the medical department and then his clothing and personal belongings were inventoried. Plaintiff was then pictured and finger printed. Next, the Plaintiff was taken to a private shower area and was asked by a male correctional officer to remove his clothing. Plaintiff was asked to squat and cough, and then asked to bend over at the waist. Additionally, Plaintiff was asked to lift his genitals so that the correctional officer could determine that the Plaintiff had not taped anything to his body. Plaintiff was not touched in any way during this procedure. Once the visual search was complete, Plaintiff was sprayed with a non-toxic solution called Liceall and after a short waiting period, he was asked to shower. The purpose of the delousing process is to ensure that the detainee is free of lice and scabies prior to being intermingled with the rest of the prison population. Like the search procedure, Plaintiff was not touched in any way during the delousing.1 Plaintiff was then issued prison clothing and admitted to the jail.
On or about July 1, 2009, Plaintiff filed a Class Action Complaint with this court naming the West Virginia Jail and Correctional Facility Authority as well as Terry Miller, Executive Director
1 Plaintiff alleges that some individuals undergoing the strip search procedure are required to undergo a physical cavity search in which a Corrections Officer inserts a gloved finger into the rectum of the detainee; however Plaintiff acknowledges that his search was purely visual. While Plaintiff’s allegation regarding other detainees is factually incorrect, that allegation would be irrelevant to his claims in any case. He acknowledges he was not touched during his visual strip search and delousing procedure.
3

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 4 of 21 PageID #: 108 of the West Virginia Regional Jail and Correctional Facility Authority, as Defendants. Plaintiff’s Complaint alleged that the Defendants’ policy of visually strip searching and delousing all individuals who enter one of the West Virginia Regional Jails, regardless of the crime with which they are charged, constitutes a violation of his privacy rights and the right to be free from unreasonable searches under the Fourth Amendment of the United States Constitution.
On October 9, 2009, Plaintiff filed an Amended Class Action Complaint that is virtually identical in the allegations asserted against these Defendants other than attaching a copy of the WVRJA “Policy and Procedure Statement,” dated May 15, 19972, and asserting additional allegations regarding the use of a delousing solution in the administration of WVRJA’s policy of delousing detainees located within its facilities. Plaintiff seeks to have certified a class action on behalf of himself and other individuals who have been or will be placed into the custody of the West Virginia Regional Jail System after being charged with misdemeanors or other minor crimes and will undergo the visual strip search and delousing procedure prior to their entry into the West Virginia Regional Jail System.3
Specifically, Plaintiff alleges that he should not have been subjected to WVRJA’s visual strip search and delousing procedure since his charge involved the non-violent offense of violating an Domestic Violence Protective Order. Further, Plaintiff asserts that his charge did not involve a claim that he caused harm to anyone else, but was simply an allegation that he was present in a location where he was forbidden to be pursuant to the Order of Protection. As such, Plaintiff contends that his arrest provided no reasonable basis for jail officials to suspect that he harbored either weapons
2
While it is assumed that Plaintiff has attached the policy as evidence of a “wholesale” strip search and delousing procedure at WVRJA facilities, with regard to searches the policy only states that inmates being received will receive a “pat search” and that a “a thorough search of the inmate’s person shall be conducted when appropriate.” Nowhere within the policy is it stated or implied that all incoming detainees are subjected to a strip search. Defendants do not contest that WVRJA policy requires that inmates be deloused prior to being placed in a WVRJA facility.
3
The Defendants certainly believe that there are numerous reasons why class certification should not be granted and intend to vigorously contest class certification should this Court deny their Motion to Dismiss.
4

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 5 of 21 PageID #: 109 or contraband. While Plaintiff’s labeling of his reason for arrest as non-violent is curious given that it was a violation of a Domestic Violence Protective Order, the charges upon which the arrest were made are inapposite factually to the need for a visual strip search and delousing policy to be implemented and, under the controlling case law handed down by the United States Supreme Court, inapposite legally to whether Plaintiff’s constitutional rights were violated.
Defendants acknowledge that Plaintiff was visually strip searched and deloused upon his admission to Western Regional Jail, pursuant to WVRJA policy. Additionally, while Plaintiff alleges that a correctional officer conducted the strip search and delousing and observed his shower afterwards, Plaintiff does not allege that anyone else, whether employees of the jail or inmates, witnessed any of the above. As a result of the procedure as described above, Plaintiff now claims that he suffered and is suffering psychological pain, humiliation, and mental anguish. In this regard, Plaintiff seeks the following from these Defendants: monetary damages, a declaration that the Defendants’ policies are unconstitutional, and an injunction precluding the Defendants from administering the policies regarding the strip search and delousing of its detainees. III. STANDARD FOR MOTION TO DISMISS
A motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted functions “to test the formal sufficiency of the statement of the claim for relief, and is not a procedure for resolving a contest about the facts or merits of the case.” Henegar v. Sears, Roebuck & Co., 965 F.Supp. 833 (N.D.W. Va. 1997). In considering a motion to dismiss on 12(b)(6) grounds, a dismissal is granted when “the allegations raised in the complaint clearly demonstrate that plaintiff does not have a claim and that no set of facts would support plaintiff’s claim.” Booth v. Old Nat’l Bank, 900 F.Supp. 836 (N.D.W. Va. 1995). A motion to dismiss should be granted where “it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief.” Collins v. SWVA, Inc., 2005 WL
5

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 6 of 21 PageID #: 110 1639305 (S.D.W. Va. 2005). While the Court should accept as true all well-pleaded allegations and should view the complaint in a light favorable to the Plaintiff, “the court need not, however, accept unsupported legal conclusions, legal conclusions couched as factual allegations, or conclusory factual allegations devoid of any reference to actual events.” Collins v. Red Roof Inns, Inc., 248 F.Supp.2d 512, 515-516 (S.D.W. Va. 2003). Even viewing the facts alleged by Plaintiff as true, based on the precedent set by our United States Supreme Court, there is no legal basis for Plaintiff’s claims and the Defendants are entitled to the dismissal of this action. Furthermore, both Defendants are entitled to dismissal due to Plaintiff’s failure to exhaust administrative remedies and under the 11th Amendment and the Will doctrine and Defendant Miller is entitled to immunity from this suit. IV. ARGUMENT
A. The Supreme Court of the United States established long ago that the significant and legitimate security interests of the institution weigh heavily in favor of conducting strip searches of pretrial detainees on less than probable cause and as such, these searches are not unreasonable and do not constitute a violation of a detainee’s right to privacy.
As stated above, Plaintiff asserts that the Defendants’ policy, wherein pre-trial detainees charged with non-felonious crimes are strip searched and deloused, is an unreasonable search that is in violation of the Fourth Amendment’s protection against unreasonable searches and of the detainee’s right to privacy. More specifically, Plaintiff states that the Fourth Amendment specifically “prohibits officers from conducting strip searches and delousing of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons.” See Complaint, ¶ 40. Plaintiff’s position in that regard is directly contrary to controlling law from the United States Supreme Court as set forth in Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884 (1979).
In Bell, the Supreme Court considered several challenges made by pretrial detainees in relation to the conditions of confinement and practices present in a federally operated short-term
6

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 7 of 21 PageID #: 111 custodial facility. While most of these challenges are not relevant to the case before this court, one of the challenges brought by the pre-trial detainees concerned the practice of conducting visual bodycavity searches of the detainees. The Bell court recognized that pre-trial detainees have not yet been adjudged guilty of any crime and that there is only a “judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Id. at 536, 99 S.Ct. at 1872. Noting that a pre-trial detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, the court found that the individual may be detained in order to ensure his presence at trial and pursuant to that goal, the individual may be subjected to the restrictions and conditions of the facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution. Id. at 536-537, 99 S.Ct. at 1873.
In considering the specific policy that is being challenged, the court must decide whether the policy “is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538, 99 S.Ct. at 1873 (quoting Fleming v. Nestor, 363 U.S. 603, 613-617, 80 S.Ct. 1367, 1374-1376). The Court explained that unless Plaintiff can demonstrate an “expressed intent to punish on the part of facility officials,” this determination should be based on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable to it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Bell, 441 U.S. at 538, 99 S.Ct. at 1874 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568. Thus, the Bell Court held, “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” 441 U.S. at 539, 83 S.Ct. at 1874. With respect to identifying those “legitimate governmental objective[s]”, the Court noted that “the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees.”
7

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 8 of 21 PageID #: 112 Before addressing the specific constitutional challenges raised by the detainees, the court
recognized that while pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that are held by convicted prisoners, “simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.” Id. at 545, 99 S.Ct. at 1877. Noting that institutional security as well as internal order and discipline are essential goals that may require limitation or retraction of retained constitution rights, the court held that “prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry” and in this regard, the goal of maintaining institutional security is “central to all other corrections goals.” Id. at 546-547, 99 S.Ct. at 1878 (quoting Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804).
Because of the need to preserve institutional security and order, the Bell Court recognized that prison administrators have a certain perspective and expertise in this regard that others, including members of the judicial branch, simply do not have. In light of this fact, the Court held that prison administrators “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” 441 U.S. at 547, 99 S.Ct. at 1878. This deference should be afforded because these issues are “peculiarly within the province and professional expertise of corrections officials” and because prison officials “have a better grasp of his domain than the reviewing judge” and “the operation of our correctional facilities is peculiarly within the province of the Legislative and Executive Branches of our Government, not the Judicial. 441 U.S. at 548, 99 S.Ct. at 1879 (citing to Pell, 417 U.S. at 827, 94 S.Ct. at 2806; Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807 (1974)).
With the notion that the constitutional rights of pre-trial detainees can be restricted if the restriction is related to a legitimate governmental objective and that deference should be afforded
8

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 9 of 21 PageID #: 113 to prison officials in this regard, the Bell Court turned to a consideration of the detainees’ challenge with regard to the visual body-cavity searches, which are generically referred to as a “strip search.” Just as in the case at issue, the Bell Court was evaluating a purely visual strip search with on touching involved. Just as in Bell, WVRJA strip searches are conducted by a member of the same sex as the detainee. Further, WVRJA strip searches are conducted in a place out of the sight of other staff members and other inmates.
While the Court in Bell was confronted with a policy that required inmates, including pretrial detainees, to expose their bodies for visual inspection following every contact visit with a person from the outside, there is no reason to believe that the court’s analysis in this regard would not apply to a policy like WVRJA’s that requires the search of a pre-trial detainee when s/he is first brought to the facility. While some jurisdictions have tried to categorize the Bell holding in this regard and it is anticipated that Plaintiff will attempt to do the same, there is no reasoning that would support making that type of distinction. At the heart of the Bell court’s analysis is the reasoning that a visual cavity search is “necessary not only to discover but to deter the smuggling of weapons, drugs, and other contraband into the institution.” 411 U.S. at 558, 99 S. Ct. at 1884. It is indisputable that this is the goal behind WVRJA’s strip search policy; in fact, Plaintiff makes no allegations to the contrary. Given this fact, there is simply no reason why the Bell analysis would not extend to the search of a pre-trial detainee upon his/her initial entry into the facility. Noting that the detainees’ allegations of constitutional violations are based on the Fourth Amendment and its various constitutional guarantees, the Bell court concluded that visual cavity strip searches of pretrial detainees are not in violation of the Fourth Amendment, as only “unreasonable” searches are prohibited. Evaluating the circumstances and purpose surrounding the strip searches along with the manner in which they are conducted, the court held that the searches were not unreasonable and were not in violation of the detainees’ constitutional rights. Given that the policy at issue in Bell is
9

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 10 of 21 PageID #: 114 virtually identical to the WVRJA policy, this Court should find that WVRJA’s policies are also reasonable and constitutionally sound.
Referencing its articulation of the “reasonableness test” by which the Plaintiff’s allegations of constitutional violations should be evaluated, the court held that this test is not able to be defined precisely and should not be applied in a mechanical fashion as each case “requires a balancing 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 is conducted.” Bell, 411 U.S. at 559, 99 S. Ct. at 1884. The Court noted that 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. And inmate attempts to secret these items into the facility by concealing them in body cavities are documented in this accord.” Id. (referencing U.S. v. Edwards, 536 F.Supp. 2d 977 (D.Minn. 2008), Bonner v. Outlaw, 552 F.3d 673 (8th cir. 2009), Young v. County of Cook, 598 F. Supp. 2d 854 (N.D. Ill. 2009), Allison v. GEO Group, Inc., 611 F.Supp.2d 433 (E.D.Pa. 2009), Young v. County of Cook, 616 F. Supp.2d 834 (N.D.Ill. 2009), Chehade Refai v. Lazaro, 614 F.Supp.2d 1103 (D.Nev. 2009), and Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002)).
Focusing on the allegation that strip searches are a violation of a detainee’s right to privacy, the court recognized that strip searches may invade the personal privacy of the individual and also recognized that on occasion a search may be conducted in an abusive fashion. Despite this, the court held that the appropriate question is “whether visual body-cavity inspections ... can ever be conducted on less than probable cause.” Bell, 441 U.S. 520, 560, 99 S.Ct. 1861, 1885. After “balancing the significant and legitimate security interests of the institution against the privacy interests” of the detainees, the Bell court held that the institutional goals or ensuring safety and security in the facility was so detrimental to these facilities that visual body-cavity inspections or
10

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 11 of 21 PageID #: 115 strip searches can be conducted on less than probable cause. Furthermore, the court found that the detainees did not meet their heavy burden of demonstrating that the officials exaggerated their response to the indisputable security concerns at the facility. In the instant case, Plaintiff asserts that his search was conducted without “reasonable suspicion” that he possessed weapons or contraband. It is clear that “reasonable suspicion” as used by the Plaintiff and “probable cause” are referring to the same question of whether there is justification for a correctional officer to believe that a particular detainee may possess weapons or contraband. Thus, Bell’s analysis regarding probable cause can and should be extended to find that strip searches conducted pursuant to WVRJA policy can be conducted on less than “reasonable suspicion.”
Anticipating that lower courts would dissect and compartmentalize its rulings, the Bell court included a warning against courts becoming “increasingly enmeshed in the minutiae of prison operations.” Id. at 561, 99 S.Ct. at 1886. Doing so, the court noted, would go against the spirit of the Constitution since under the Constitution, “the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan.” Id. The court continued that “the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution or, in the case of a federal prison, a statute. The wide range of “judgment calls” that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of the Government.” Id. Therefore, unless a particular policy clearly violates a particular Constitutional right or prohibition, the Judicial Branch should be relatively hands-off with regard to the integral decisions unique to prison administration.
After Bell was decided, the United States Court of Appeals for the Fourth Circuit had the occasion in Logan v. Shealy, 660 F.2d 1007 (1981) to apply those standards enunciated by the Bell court in relation to a strip search by prison officials of a female DWI arrestee following her arrest
11

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 12 of 21 PageID #: 116 and arrival at the jail facility. The detainee in Logan alleged that the strip search policy was unreasonable in both scope and manner as it was conducted without a warrant or probable cause and therefore, was in violation of various unspecified Fourth and Fourteenth Amendment rights, and constituted cruel and unusual punishment in violation of the Eighth Amendment. Using the balancing test articulated in Bell, the court found that the policy in question was unconstitutional in that it “bore no such discernible relationship to security needs ... when balanced against the ultimate invasion of personal rights involved.” Id. at 1013. The court based its decision on its evaluation of the manner in which this particular search was conducted and the invasion of the detainee’s personal rights. In this regard, the Logan decision can be distinguished from Bell and the case currently before this court. The Logan court explicitly based its decision on the fact that the detainee in Logan would not have been intermingled with the general jail population as she was simply being held until someone picked her up or until she became sober; and second, the strip search in Logan was alleged to have occurred in an area exposed to public view. Neither of these elements are present in the case before this court. The search and delousing of Plaintiff occurred in a shower stall out of the view of other staff members and other detainees. Additionally, the WVRJA strip searches are performed precisely because the detainees are intermingled, thereby increasing the security risk associated with doing anything other than a uniform strip search of all detainees.
Therefore, while Plaintiff may assert that the court should have just taken it for granted that he was not concealing contraband or weapons since his charge was “non-violent,” this is a risk that the facility simply cannot bear. It creates the possibility that a “non-violent” detainee will smuggle in and provide a “violent” detainee with a weapon, thus endangering the safety of every individual in the facility. Therefore, given that the Logan court’s reasoning was based solely on the basis that the particular invasions, which are not present in the case before this court, outweighed the risk of not performing that particular search, Logan can be factually and legally distinguished from the case
12

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 13 of 21 PageID #: 117 before this Court.
The standards set forth in Bell have went largely untouched by courts who have utilized those standards in the evaluation of constitutional claims made by detainees. Eight years after the court handed down its decision in Bell, it took those standards and enumerated specific factors that courts should use in evaluating allegations that a prison regulation has impinged upon a detainee’s constitutional rights. In Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987), the court echoed Bell and held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987). Although Turner concerned regulations regarding the personal relationships of inmates, such as marriages and personal correspondence, the Turner standard “applies to all circumstances in which the needs of prison administration implicate constitutional rights,” including circumstances where the claim involves a fundamental right. Washington v. Harper, 494 U.S. 210, 223-224, 110 S. Ct. 1028, 1037-1038 (1990).
Turner acknowledged the principles enunciated in Bell that “running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government” and that, with regard to issues of prison administration and state penal systems, “separation of powers concerns counsel a policy of judicial restraint.” 482 U.S. at 85, 107 S.Ct. at 2259. In acknowledgment of this policy of judicial restraint, the court sought to use the Bell principles to formulate a standard of review that would be responsive to both judicial restraint and the need to protect constitutional rights. Hence, the court articulated four factors that a court should consider in determining the reasonableness of a prison regulation: (1) whether there is “a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it,” 482 U.S. at 89, 107 S. Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576,
13

Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 14 of 21 PageID #: 118 586, 104 S. Ct. 3227, 3232 (1984)); (2) “whether there are alternative means of exercising the right that remains open to prison inmates,” Id. at 90, 107 S. Ct. at 2262; (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” Id.; and (4) whether there is a ready alternative to the policy “that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests,” Id. at 90-91, 107 S.Ct. at 2262.
While it is not necessary for this Court to evaluate these factors as to the WVRJA strip search policy, by virtue of the fact that the same policy was upheld as not a violation of detainees’ constitutional rights in Bell, it is clear that if this Court engages in that analysis, the strip search policy is clearly non-violative of those rights. There can be no doubt but that the WVRJA strip search policy has a rational connection to regulation of the jails and legitimate governmental interests; that there is no other less intrusive means of achieving the purpose of a strip search; and that the adverse impact on guards, other inmates, and the general public of abandoning the policy is detrimental, severe, and recklessly dangerous.
B. WVRJA’s policy of delousing all pretrial detainees regardless of the crime with which they are charged does not violate Plaintiff’s constitutional rights in that the policy is rationally related to the legitimate penological interest of preserving the health of all detainees confined within the facility.
Prior to a consideration of WVRJA’s policy regarding the delousing of pretrial detainees, it should be noted that this is a unique issue that has not squarely been dealt with in an in-depth fashion. Plaintiff alleges that the delousing procedure to which he was subjected was a violation of his right to privacy and also his right to be free from unreasonable searches. It is unclear, however, upon what facts Plaintiff bases his claim. Plaintiff alleges no direct harm from the delousing and like the strip search procedure, the delousing occurred in a private area with no spectators (other than the attending correctional officers) and involved absolutely no touching. Plaintiff’s claim essentially amounts to a claim of a violation of his right to privacy for having to remove his clothing and expose
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Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 15 of 21 PageID #: 119 himself to a correctional officer. This, argument, however is not unique to the delousing procedure since detainees must remove their clothing in order to undergo the visual strip search. Therefore, the Turner analysis as it is applied to strip searches is clearly applicable here, as well. Once it is established that the visual strip search policy is constitutional, Plaintiff no longer has a claim with regard to “privacy” as it relates to the delousing procedure, since Plaintiff’s allegations regarding the unconstitutionality of the search and delousing procedures rely upon the same central fact - Plaintiff must disrobe in front of a correctional officer. If this withstands constitutional scrutiny as it relates to the visual strip search, then it also withstands constitutional scrutiny with regard to the delousing.
The delousing procedure is implemented to prevent detainees from bringing lice and scabies into the facility and to prevent the spread of lice and scabies among other inmates and other areas of the facility. The closest a Court has come to considering this issue was a case considered by the United States Court of Appeals for the Seventh Circuit. In Russell, et al. v. Richards, 384 F. 3d 444 (7th Cir. 2004), the court considered a correctional facility’s policy of requiring incoming inmates to use a delousing shampoo in order to rid the inmate of lice. Although Russell concerned a claim that the delousing procedure violated the inmates’ Fourteenth Amendment due process right to be free from unwanted medical treatment, the court’s discussion is applicable here and sheds light on the importance of such a procedure. The court noted that the purpose of administering the delousing shampoo to new inmates was to avoid a lice infestation in the jail. When lice are noticed on an inmate, the inmate and everyone and everything that the inmate has come in contact with must be completely disinfected, which takes a great deal of time and manpower. Id. at 446. Evaluating the delousing procedure in light of these goals, the court found that “there is a satisfactory connection between the jail’s policy and the interest put forward to justify it” since “the jail has an obligation to ensure the safety and medical well-being of its inmates and its personnel.” Id. at 448. Additionally, the court held that “the jail has a legitimate interest in preventing its inmate population
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Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 16 of 21 PageID #: 120 and staff from being exposed to lice, not to mention a legitimate fiscal interest in avoiding the costs associated with eradicating a lice infestation.” Id.
C. Given the facts attendant to Plaintiff Cantley’s detention, Plaintiff Cantley cannot in good faith allege that a strip search of him in particular was not warranted and that no reasonable suspicion would exist to support his strip search.
Plaintiff has asserted that absent a reasonable suspicion that a particular detainee might be smuggling contraband or a weapon, there is no basis for said detainee to be strip searched and he uses that argument as the support for his claim of constitutional rights violations. Beyond the fact that the United States Supreme Court has already found that argument to be without merit and a reasonable suspicion to be unnecessary, the actions of Plaintiff Cantley would have provided reasonable suspicion if the Supreme Court required it. He was arrested for violation of a Domestic Violence Protective Order, which is an indication of violence on his part. He was hostile and threatening to correctional officers upon his entry to the facility. See “WV Regional Jail & Correctional Facility Authority Incident Report # 080928" attached hereto as Exhibit A. After being secured in a temporary holding cell, Plaintiff began kicking the holding cell door in an attempt to break the glass. See Exhibit A. Plaintiff then began kicking the door to the cell in an attempt to cause further damage. See Exhibit A. Plaintiff had to be placed in a restraint chair to ensure Plaintiff’s safety and to keep him from causing harm to himself or others. See Exhibit A. Plaintiff attempted to remove himself from the restraint chair and when a nurse attempted to check Plaintiff’s pulse as part of the medical screening process, he menacingly and threateningly grabbed her by the hand. See Exhibit A. Plaintiff continually yelled, cursed, and struggled throughout the admission process.
Further evidence of Plaintiff’s demeanor and behavior can be found in the “Booking Summary Report” as Plaintiff was noted as being “belligerent” upon arrival at Western Regional Jail for admission. See “Booking Summary Report” attached hereto as Exhibit B. A “Watch Log” was also kept with regard to this Plaintiff because of his hostile behavior and confirms the information
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Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 17 of 21 PageID #: 121 provided in the Incident Report referenced above. Specifically, the Watch Log indicates that Plaintiff was yelling, struggling, and threatening to strangle one of the officers. See “Inmate Special Watch Log” attached hereto as Exhibit C. Given the charges against him and his conduct upon admission, it is clear that if a reasonable suspicion was required of WVRJA, that requirement would have been met in this case.
D. Plaintiff failed to exhaust the administrative remedies available to inmates housed in the WVRJA correctional facilities.
Following the strip search and delousing of Plaintiff, he was housed at the Western Regional Jail for over a month. Throughout his incarceration, Plaintiff voiced no complaints regarding the strip search and delousing procedures, and did not initiate the administrative grievance procedure available to all inmates housed in WVRJA correctional facilities. As such, Plaintiff has failed to exhaust the available administrative remedies.
With regard to the exhaustion of administrative remedies, 42 U.S.C. § 1997e(a) provides that: “No action shall be brought with respect to prison conditions under § 1997 of the revised statute of the United States or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The West Virginia Regional Jail and Correctional Facility Authority provides all inmates with an administrative grievance procedure by which inmates may redress complaints concerning the conditions of their confinement at the facility. All inmates are informed of this procedure as outlined in the Inmate Handbook distributed to each inmate upon admission to the jail. Whenever an inmate feels that he or she has a serious complaint or significant problem, the inmate simply completes an inmate grievance addressed to the Administrator of the facility. Upon receipt of the grievance, the Administrator will, if warranted, investigate the complaint and promptly provide the inmate with a written decision identifying any corrective action taken or reasons why the grievance is denied. An inmate dissatisfied with the Administrator’s decision may then appeal directly to the Chief of
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Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 18 of 21 PageID #: 122 Operations. After receiving the appeal, the Chief informs the inmate in writing of any corrective actions taken or the reasons for a denial of the grievance. Finally, the inmate is provided a Level III appeal directly to the Office of the Executive Director. Despite the availability of this multi-level grievance procedure and the steps taken to make it accessible to each inmate, Plaintiff failed to avail himself of the same. See “Affidavit” attached hereto as Exhibit D.
In Booth v. Churner, 532 U.S. 731, 149 L.ed.2d 958, 121 S.Ct. 1819 (2001), the United States Supreme Court held that the Prison Litigation Reform Act requires inmates to exhaust administrative remedies even if the inmate seeks only monetary damages and such relief is unavailable under the administrative process. Additionally, in Porter v. Nussle, 534 U.S. 516, 11 S.Ct. 983, 152 L.ed.2d 12 (2002), the United States Supreme Court held that the Prison Litigation Reform Acts’ exhaustion requirements are applicable to all inmate suits relating to prison life, whether they involve general circumstances or a particular episode. Regardless of the circumstance, Plaintiff must exhaust the administrative remedies. Plaintiff’s failure to utilize and exhaust the administrative process in this case should compel this court to dismiss Plaintiff’s Complaint for failure to comply with the requirement imposed by 42 U.S.C. § 1997e(a) that inmates exhaust administrative remedies.
E. The Eleventh Amendment to the United States Constitution as well as the Will Doctrine bar Plaintiff’s claim against Defendants.
The United States Supreme Court has held that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. Brandon v. Holt, 469 U.S. 464 (1985). As such, it is not different from a suit against the State itself. Furthermore, it has been held that neither a state, nor its officials, acting in their official capacities are ‘persons’ under 42 U.S.C. § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58, 109 (1989).
A careful reading of Plaintiff’s Complaint and Amended Complaint reveals that Plaintiff has named Defendant Terry L. Miller simply because of his official position as a state official, and not
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because of any actual deprivation allegedly undertaken by this Defendant. Defendant is an agent of the State instrumentality through his employment with the West Virginia Regional Jail and Correctional Facility Authority, a state agency. As all of the actions alleged in the Complaint were rendered in furtherance of Defendant Miller’s official duties in his official capacity as a state official, Plaintiff’s claims as to Defendant Terry L. Miller are barred, as are those against the WVRJA.
F. Qualified good faith immunity shields Defendant Terry L. Miller from claims asserted against him in his individual capacity.
Qualified good faith immunity shields a governmental official from liability if the officer’s conduct does not violate a clearly established statutory or constitutional right of which a reasonable person in the same position would have known. Harlow v. Gitzgerald, 457 U.S. 800, 818 (1982). It has been held that “in determining whether the specific right allegedly violated was ‘clearly established,’ the proper focus is not on the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged.” Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). Moreover, “the manner in which... [the clearly established] right applies to the action of the official must also be apparent.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), citing Tarantino v. Baker, 825 F.2d 772, 774 (4th Cir. 1987). Plaintiff has failed to make any allegation that a particular action of Defendant Terry L. Miller violated a right, privilege, or immunity secured to the Plaintiff. As such, Plaintiff’s claims against Defendant Miller in his individual capacity should be dismissed. V. CONCLUSION
The Defendants are entitled to the dismissal of this action. The United States Supreme Court has already evaluated the policy and practice that Plaintiff was subjected to by WVRJA in Bell and determined that the practice of visual strip searches of pre-trial misdemeanor detainees is not a violation of their constitutional rights, because it serves a legitimate penological interest to ensure
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the order, safety and security of the institution, there is no alternative that could be used to satisfy

the same purposes and without it, the safety of correctional officers, other detainees and the general

public would be compromised. Although delousing has not been evaluated in as much detail by our

nation’s highest court, the same reasoning applies and under the factors set forth in Turner, it also

cannot be said to be a violation of a detainee’s constitutional rights. In addition, even if Plaintiff’s

position that there needs to be a reasonable suspicion present to justify a strip search is accepted,

Plaintiff’s conduct would have provided that reasonable suspicion and justified him being strip

searched. Furthermore, the Defendants are entitled to dismissal of this action based on Eleventh

Amendment immunity and the Will doctrine and due to Plaintiff’s failure to exhaust administrative

remedies. Finally, Defendant Terry Miller is entitled to qualified immunity for the claims asserted

against him.

WHEREFORE, for the foregoing reasons, these Defendants move this Honorable Court to

dismiss the Plaintiff’s Amended Complaint for failure to state a claim upon which relief may be

granted, for the attorney fees and costs incurred by Defendants to be assessed against Plaintiff, and

for such further and other relief as this Court deems appropriate.

s/David J. Mincer David J. Mincer, Esquire Joshua K. Boggs, Esquire BAILEY & WYANT, P.L.L.C. 500 Virginia Street, East, Suite 600 Post Office Box 3710 Charleston, West Virginia 25337-3710 (304) 345-4222

TERRY L. MILLER and WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY By counsel

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Case 3:09-cv-00758 Document 17 Filed 10/28/09 Page 21 of 21 PageID #: 125

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

MICHAEL CANTLEY, Individually, and on behalf of a Class of others similarly situated,
Plaintiff, v. THE WEST VIRGINIA REGIONAL JAIL and CORRECTIONAL FACILITY AUTHORITY; and TERRY L. MILLER, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority
Defendants.

No: 3:09-cv-0758

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of foregoing “Defendants Terry L.

Miller and West Virginia Regional Jail and Correctional Facility’s Motion to Dismiss and

Memorandum of Law in Support” was served upon the following parties via CM/ECF on this

day, Wednesday, October 28, 2009:

D. Aaron Rihn, Esq. Robert Peirce & Associates, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219-1918
Attorney For: Michael Cantley

Elmer Robert Keach, III Law Offices of Elmer Robert Keach, III, P.C. 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010
Attorney For: Michael Cantley

Daniel R. Karon, Esq. Goldman Scarlato & Karon, P.C. 55 Public Square, Suite 1500 Cleveland, OH 44113
Attorney For: Michael Cantley

Gary E. Mason, Esq. The Mason Law Firm, LLP 1225 19th Street, NW, Suite 500 Washington, DC 20036
Attorney For: Michael Cantley

s/David J. Mincer David J. Mincer, Esquire

 
 Case 3:09-cv-00758 Document 23 Filed 11/17/09 Page 1 of 24 PageID #: 140

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

Michael Cantley, individually and on behalf of a class of others similarly situated,
Plaintiff,
v.
The West Virginia Regional Jail and Correctional Facility Authority;
and;
Terry L. Miller, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority.
Defendants.

No. 3:09-cv-0758

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION AND SUMMARY OF ARGUMENT The Defendants have acknowledged that they strip search and “delouse” all detainees
admitted to the custody of the West Virginia Regional Jail Authority (“WVRJA”), including the proposed class representative in this case, Michael Cantley. This admission is contained in their motion papers, as well as the WVRJA written policies regarding strip searches. The procedures employed by the WVRJA could not be more humiliating. All detainees are required to undress in front of a corrections officer, manipulate their breasts, genitals and buttocks to allow for an examination of their genitals and body cavities, and then have their privates sprayed down with a caustic delousing solution. The strip and visual cavity searches of pre-trial detainees conducted

Case 3:09-cv-00758 Document 23 Filed 11/17/09 Page 2 of 24 PageID #: 141
by WVRJA are done in the absence of any particularized reasonable suspicion to believe that detainees are harboring contraband in their private areas.
WVRJA Corrections Officers, by the Defendants’ own admission, do not consider the seriousness or nature of the charges faced by individual detainees before subjecting them to a strip search. Many other these searches occur before a detainee is even arraigned. Amended Complaint, ¶ 31. A legion of federal courts, including the United States Court of Appeals for the Fourth Circuit and the District of Maryland, have held that strip searches of misdemeanor pretrial detainees are illegal in the absence of reasonable suspicion. See, Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Jones v. Murphy, 470 F. Supp.2d 537, 547-48 (D. Md. 2007). In short, forcing someone charged with a minor crime to undergo the indignity of having a stranger visually examine their private areas, including their vagina and/or rectum, is a quintessential example of an unreasonable search under the Fourth Amendment. One appeals court described these searches as being “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). Over twenty class actions have been successfully prosecuted regarding blanket strip search policies. See, for example, Wilson v. County of Gloucester, 256 F.R.D. 479 (D.N.J. 2009); Williams v. County of Niagara, 2008 WL 4501918 (W.D.N.Y. September 29, 2008); Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005).
Faced with their own admission that WVRJA strip searches and delouses all detainees, including proposed class members, in the absence of reasonable suspicion or individual justification, the Defendants come before this Court, in the absence of any fact discovery, and while ignoring case precedent, and claim that their practices are legal and proper. The
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Defendants posit five arguments in support of dismissal: (1) their blanket strip search and delousing policies comport with the Constitution “precisely because the detainees are intermingled” and because jails have a generalized interest in avoiding lice infestations; (2) the circumstances of Mr. Cantley’s entry to the Western Regional Jail, and the charges that Mr. Cantley was brought in upon, provided reasonable suspicion to strip search him; (3) Plaintiff failed to exhaust administrative remedies under the Prison Litigation Reform Act; (4) the Eleventh Amendment and the Will Doctrine bars Plaintiff’s claims against Director Miller in his official capacity; and (5) the doctrine of qualified immunity shields Director Miller from liability in his individual capacity. Many of these arguments ignore the plain language of the Plaintiffs’ thorough Amended Complaint, which details that: a) many members of the class are strip searched and deloused before being arraigned; b) Mr. Cantley was admitted to the WVRJA’s custody on multiple occasions during the proposed class period for misdemeanor charges, not on just the one occasion where the Defendants proffer documents that have not been the subject of any discovery inquiry; and c) claims regarding illegal strip searches are clearly asserted against Defendant Terry Miller, the Executive Director of the Regional Jail Authority, in his individual capacity. The Defendants remaining arguments conveniently ignore case authority from this and other judicial circuits that undermines their claims regarding dismissal for qualified immunity and under the exhaustion requirements of the PLRA.
The Defendants’ Motion to Dismiss this action should be denied, both as a matter of procedure and, more importantly, as a matter of law.
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II. FACTUAL BACKGROUND A. The Defendants’ Illegal, Blanket Strip Search and Delousing Policies. Plaintiff has alleged that the WVRJA and Director Miller have instituted a written and/or
de facto policy, custom or practice of strip searching and delousing all individuals who enter the custody of the West Virginia Regional Jail System, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband. Amended Complaint, ¶ 22. Moreover, the WVRJA and Director Miller have instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) on all individuals who enter the custody of the West Virginia Regional Jail System, regardless of the individual characteristics or the nature of their charged crime. Amended Complaint, ¶¶ 23-25.
Plaintiffs have alleged that that the WVRJA and Director Miller have instituted a written and/or de facto policy, custom or practice of delousing all individuals who enter the custody of the West Virginia Regional Jail System, regardless of the individual characteristics or the nature of their charged crime. Amended Complaint, ¶ 27. The delousing procedure first entails a detainee completely disrobing in front of a correction officer. Id. The correction officer then sprays delousing solution upon a detainee's naked body. Id. Finally, the detainee is ordered to shower within full view of the corrections officer. Id. The delousing procedure is conducted upon all detainees without inquiry into or establishment of reasonable suspicion, or inquiry or establishment into whether the detainee actually harbors lice. Id. The Plaintiff’s Amended Complaint also states that many detainees are strip searched and deloused before being arraigned, and that a substantial number of proposed class members are strip searched and deloused only to be released from WVRJA facilities a short time later. Amended Complaint, ¶
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31. Aside from denying physical cavity searches, the Defendants have not denied that they
perform blanket strip searches and delousing on all detainees who enter the West Virginia Regional Jail system. See Defendants’ Brief at 5. Rather, Defendants have attempted to justify their blanket strip search policy on the basis of intermingling: “the WVRJA strip searches are performed precisely because the detainees are intermingled, thereby increasing the security risk associated with doing anything other than a uniform strip search of all detainees.” See Defendants’ Brief at p. 12. The Defendants fail to provide any facts that justify this argument – for instance – detailing to the Court the number of occasions when contraband is actually found, nor have the Plaintiffs had an opportunity to challenge these assertions. See, Ford v. City of Boston, 154 F. Supp.2d 131, 134 (D. Mass. 2001) (contraband discovered “five times,” or 0.063 percent of the time, during admissions at Suffolk County Jail undermines claims of reasonableness). The Defendants also ignore the well-pled allegations of the Plaintiffs complaint detailing that WVRJA detainees are routinely strip searched and deloused prior to being arraigned before a judge. Amended Complaint, ¶ 31.
The Defendants have failed to proffer any justification whatsoever for their blanket delousing policy other than citing to Russell v. Richards, 384 F.3d 444 (7th Cir. 2004), where, unlike here, the defendant adduced evidence of lice infestations in the jail. Plaintiff has had no opportunity to take discovery into the factual justification, if any, to substantiate the Defendants’ need to conduct blanket strip searches and delousing on new pretrial detainees.
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B. Facts Relevant to the Named Plaintiff Michael Cantley. Contrary to the factual recitation put forward by the Defendants, Plaintiff Michael Cantley has been admitted to the custody of the WVRJA on multiple occasions during the proposed class period for misdemeanor charges. Mr. Cantley alleges that the charges brought against him did not support a claim that he “possessed weapons or contraband in private areas.” Amended Complaint, ¶ 43. Defendants, in turn, contend that the charges brought against Mr. Cantley – on one occasion -- were indicative of violence, thus providing reasonable suspicion to strip search him. See Defendants’ Brief at 15-16. Defendants further submit three documents from the Western Regional Jail, which they contend show that Plaintiff was hostile and belligerent upon his entry of the jail, thus providing reasonable suspicion for his strip search. See id. and Exhibits A-C thereto. Plaintiff’s counsel has not had opportunity to take any discovery into the circumstances of Mr. Cantley’s multiple entries into the WVRJA facilities, including the instance detailed in the Defendants’ motion papers. The Plaintiffs maintain that discovery will demonstrate that the facts posited by the Defendants are nothing but a post hoc effort to justify Mr. Cantley being strip searched and deloused under their blanket policy. III. STANDARD OF REVIEW A Rule 12(b)(6) motion “should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Ruttenberg v. Jones, 283 Fed. Appx. 121, 128 (4th Cir. 2008) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570, (2007)). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal at 1950. A claim is facially plausible when the alleged facts “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal at 1949.
“A district court may not resolve factual disputes on Rule 12(b)(6) motion without converting motion into one for summary judgment under Rule 56.” Andrew v. Clark, 561 F.3d 261, 267 (4th Cir. 2009) (citing Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). IV. ARGUMENT
A. The Fourth Circuit Court of Appeals, Along With the Overwhelmingly Majority of Federal Courts, Have Held that Blanket Jail Strip Search Policies are Unconstitutional When Applied to Individuals Charged With Misdemeanors or Other Minor Crimes.
Defendants argue that their uniform strip search policy is Constitutional under the balancing test set forth by the Supreme Court in Bell v. Wolfish, as applied by the Fourth Circuit Court of Appeals in Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert. denied sub nom. Clements v. Logan, 455 U.S. 942, 71 L. Ed. 2d 653, 102 S. Ct. 1435 (1982). Specifically, Defendants contend that their blanket strip searches “are performed precisely because the detainees are intermingled, thereby increasing the security risk associated with doing anything other than a uniform strip search of all detainees.” See Defendants’ Brief at p. 11-12. For this reason, Defendants assert their blanket strip search policy passes muster under Bell. This argument, however, is wholly contradicted by Logan and the overwhelming majority of case precedent from other judicial circuits, as intermingling alone has never been found to provide sufficient basis to justify a blanket strip search policy. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir.1989), cert. denied, 493 U.S. 977 (1989) (citing to Logan and finding that
7

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“the fact of intermingling alone has never been found to justify such a search without consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband to the institution”); Allison v. GEO Group, 611 F. Supp.2d 433, 460-61 (E.D. Pa. 2009).
The Fourth Amendment protects citizens against unreasonable searches and seizures by the government. In the context of searches incident to criminal detention, the United States Supreme Court held in Bell v. Wolfish, 441 U.S. 520 (1979), that:
[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing 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 is conducted. Id. at 559. An examination of one’s naked body, especially someone’s anus and vagina, clearly constitutes “an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). “[F]ew exercises of authority by the state… intrude on a citizen’s privacy and dignity as severely as the visual anal and genital searches practiced here.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). In addressing the propriety of blanket strip search policies, the Fourth Circuit has held that an “indiscriminate strip search policy routinely applied to detainees such as [the misdemeanant plaintiff] along with all other detainees cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations.” Logan, 660 F.2d at
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1013.1 In Logan, the plaintiff was arrested for driving while intoxicated and ordered to be held
for four hours or until released to a responsible person. Id. She was taken to a holding area and
subjected to a visual strip search. Id. In reversing a directed verdict for the defendants the court
of appeals found that the search was unrelated to any discernible security needs and could not
reasonably be thought justified when balanced against the nature of the intrusion. Id. See also, Abshire v. Walls, 830 F.2d 1277, 1279-80 (4th Cir. 1987) (strip search of pre-trial detainee ruled
unconstitutional, “the standard in this circuit for judging the constitutionality of a strip search of
a pre-trial detainee is firmly established”). The Fourth Circuit listed four factors that led to its
conclusion in Logan: (1) the plaintiff would not be intermingled with the general jail population;
(2) the offense, although not a minor traffic violation, was not one usually associated with the
possession of weapons or contraband; (3) there was no cause to believe that this particular
detainee might possess either; and (4) when the search was conducted the plaintiff had been at
the detention center for one and one-half hours without even a pat down. Id. District Courts
within the Fourth Circuit have also addressed blanket strip search policies, and have uniformly
found them to be unconstitutional. See Jones v. Murphy, 470 F. Supp. 2d 537, 547-548 (D. Md.
2007) (citing Logan, 660 F.2d at 1013-14 (explaining that "[a]n indiscriminate strip search policy
routinely applied to detainees [whose underlying offense is unlikely to involve weapons or
contraband] cannot be constitutionally justified . . ."); see also Smith v. Montgomery County, 643
1 Further, the overwhelming majority of Circuit Courts, when considering the balancing test required by Bell, have likewise held that strip searches cannot be utilized against individuals charged with, but not convicted of, minor crimes (misdemeanors, summary offenses, arrests on bench warrants, etc.) in the absence of reasonable suspicion to believe a detainee is in possession of a weapon or contraband. See Wood v. Hancock County Sheriff’s Dep’t., 354 F.3d 57, 62 (1st Cir. 2003); Weber v. Dell, 804 F.2d 796, 801 (2d Cir. 1986); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir. 1985); Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), cert. denied, 493 U.S. 977 (1989); Mary Beth G., 723 F.2d at 1273; Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984); Chapman v. Nichols, 989 F.2d 393, 395-96 (10th Cir. 1993). This is because “[r]equiring particularized reasonable suspicion to strip search misdemeanant arrestees balances institutional security needs with individual privacy, which includes a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have one’s private parts observed or touched by others.” Wood, 354 F.3d at 62 (internal quotation marks omitted).
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F. Supp. 435, 439-43 (D. Md. 1986) (holding that strip searching "all felony arrestees, and all temporary detainees arrested for misdemeanor offenses that involve weapons or contraband" was constitutional but explaining that blanket strip search policy regardless of underlying offense was unconstitutional).
Moreover, Defendants’ reliance upon “intermingling” with the general prison population is unavailing as a justification for blanket strip searches. As detailed above, the Fourth Circuit in Logan cited to a total of four factors in determining that the blanket strip searches at issue were unconstitutional, including two factors that Defendants ignore in their brief: whether a detainee’s offense was commonly associated by its very nature with the possession of weapons or contraband and whether there cause in a detainee’s specific case to believe that he or she might possess weapons or contraband. Logan, 660 F.2d at 1013. The Logan court then held that blanket strip searches could not be based on “administrative ease in attending to security considerations.” Id. Thus, Logan directly contravenes the Defendants’ proffered justification for the blanket strip searches here: that they “are performed precisely because the detainees are intermingled.” Defendants’ Brief at 11-12. Instead, the Court in Logan applied the balancing test required by Bell after having full information about the searches in question. Looking to one factor from Logan is both unfair and a mischaracterization of the Fourth Circuit’s holding. This is especially true given that the Plaintiffs’ complaint alleges that many members of the proposed class were strip search before being arraigned, which would directly undermine concerns about commingling because many detainees would presumably then be released. Other courts, incidentally, have reached the same conclusion in finding intermingling alone lacking as a justification for blanket strip searches. See Masters, 872 F.2d at 1254 (citing to Logan and finding that “intermingling alone” has never been found to justify blanket strip searches); see
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also Roberts v. State of Rhode Island, 239 F.3d 107, 112-113 (1st Cir. 2001) (“the deterrent rationale for the Bell search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration”); Walsh v. Franco, 849 F.2d 66, 68 (2nd Cir. 1988) (blanket strip searching is not acceptable merely because intermingling existed); Young v. County of Cook, 616 F. Supp. 2d 834, 848 (N.D. Ill. 2009) (“though intermingling with general prisoners may be one factor in evaluating the reasonableness of a strip search policy, that fact standing alone is not enough to justify strip searches in the absence of individualized reasonable suspicion”) (cited in Defendants’ brief); Allison v. GEO Group, Inc., 611 F. Supp. 2d 433, 46061 (E.D. Pa. 2009) (citations omitted) (“the Court is not influenced by the fact that some persons do anticipate their own arrests and might have the opportunity to conceal contraband. . . Such circumstances do not justify an otherwise unreasonable blanket policy.”) (cited by Defendants’ brief); Newkirk v. Sheers, 834 F. Supp. 772, 789-90 (E.D. Pa. 1993) (rejecting defendants' argument that the strip searches of non-violent protestors pursuant to a blanket policy was reasonable because persons "'who commit actions intending or expecting to go to prison'" threaten institutional security); John Does 1-100 v. Boyd, 613 F. Supp. 1514, 1524 (D. Minn. 1985) (“[T]he commingling of detainees does not mandate a finding that the defendants’ strip search policy is constitutional … any danger associated with commingling is minimized by the fact that a detainee’s arrest is an unplanned event. The danger of smuggling is therefore wholly unsubstantiated. Further, methods can be devised by defendants to minimize commingling”). The Plaintiffs should be given an opportunity to take discovery on the WVRJA’s justification for its strip search and delousing policies before a decision is rendered on the merits.
Finally, the other cases that Defendants rely upon are unavailing. Defendants’ reliance upon Turner v. Safely, 482 U.S. 78 (1987) and Hudson v. Palmer, 468 U.S. 517 (1984), and other
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similar prison regulation cases, is entirely misplaced. These decisions address the rights of incarcerated, convicted individuals, not pretrial detainees. Both Turner and Hudson cited to the Bell decision with approval, and neither set aside Bell’s balancing test regarding strip searches. See, Allison v. GEO Group, 611 F. Supp.2d 433, 444-48 (E.D. Pa. 2009); Foote v. Spiegel, 995 F. Supp. 1347, 1359, n. 2 (D. Utah 1998) (“Because the Fourth Amendment test is already one of reasonableness under the circumstances, the court finds that the Bell factors, formulated specifically for use in the Fourth Amendment context, are more appropriate for use in this [blanket strip search case] than the factors promulgated in Turner.”) One circuit has expressly held that Turner does not apply to local correctional facilities, see, Shain v. Ellison, 273 F.3d 56, 65-66 (2d Cir. 2001), while another has found that, in the context of strip searches, the Turner factors must still be balanced by the reasonableness requirements of Bell. See, Jordan v. Gardner, 986 F.2d 1521, 1540 (9th Cir. 1993) (en banc). This Court, when previously analyzing a strip search claim brought by an inmate housed in a high security area of a state prison – a situation far removed from that considered here – also held that the reasonableness test in Bell “is more appropriate to the specific question whether [visual body cavity] searches violate the Fourth Amendment.” Skundor v. McBride, 280 F. Supp.2d 524, 526, n. 2 (S.D.W.Va. 2003). The Defendants have not come forward with one case, from any jurisdiction, that holds that Bell’s reasonableness requirement, as applied to strip searches, is in any way limited by prison regulation cases.
In sum, because Defendants’ blanket strip search policy violates the Fourth Amendment’s prohibition on unreasonable searches as interpreted by the Fourth Circuit in Logan, Defendants’ motion to dismiss should be denied.
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B. Defendants’ Delousing Policy Is An Unreasonable Search That Violates Plaintiff’s Right To Privacy Protected By The Fourth Amendment And Other Constitutional Underpinnings.
Defendants argue that their delousing procedure is permissible because it takes place concomitantly with their blanket strip search procedure, which they contend to be permissible. But for the same reasons that Defendants’ blanket strip search procedure fails muster under the Constitution, so too does Defendants’ delousing procedure. Further, Defendants’ delousing procedure is an even more intrusive search and invasion of privacy than a visual cavity search because it involves the involuntary spraying of delousing solution upon detainees’ naked bodies, including their genitals, regardless of whether a detainee is actually harboring lice. See Amended Complaint, ¶ 27. The Defendants have proffered almost no cogent argument to the Court to justify this delousing procedure, other than relying on one easily distinguishable case.
Defendants cite to Russell v. Richards, 384 F.3d 444 (7th Cir. 2004), as the “closest a Court has come to considering” the issue of whether a blanket delousing policy comports with the Constitution. To the contrary, at least three other District Courts have considered blanket delousing policies where naked detainees are sprayed down with anti-lice solution like Defendants’ policy here. One of these courts condemned the delousing policy as unconstitutional, and the other two certified classes relating to the issue of blanket delousing, without yet passing judgment on liability. See, Doan v. Watson, 168 F. Supp. 2d 932, 937 (S.D. Ind. 2001) (holding that the blanket, naked, spraying-down “delousing procedure administered by Defendants in the Floyd County Jail violates the Fourth Amendment's prohibition of unreasonable searches” and granting summary judgment for the plaintiffs); Wilson v. County of Gloucester, 256 F.R.D. 479, 486 (D.N.J. 2009) (finding that “Plaintiffs have put forth a legitimate question of law common to all proposed class members: whether requiring all newly
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admitted pretrial detainees to completely disrobe before a corrections officer-- either during a supervised shower or application of delousing spray-- violates federal or state law.”); Gwiazdowski v. County of Chester, 2009 WL 3448121, *6 (E.D. Pa., October 20, 2009) (“Defendant’s delousing policy specifically requires a visual inspection of the naked body to inspect for wounds and sores, and therefore is considered a strip search”). The Plaintiffs also respectfully suggest that the WVRJA’s delousing policy goes beyond violating Cantley’s rights and the rights of putative class members under the Fourth Amendment, and also violates their constitutional right to privacy. See, Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (recognizing the “penumbral rights of privacy and repose”); Canady v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (“[O]ne of the clearest forms of degradation in Western Society is to strip a person of his clothes, The right to be free from strip searches and degrading body inspections is thus basic to the concept of privacy”). Thus, there is ample authority for the Court to find that Defendants’ delousing policy is unconstitutional.
Further, the delousing procedure employed by Defendants here markedly differs from policy at issue in Russell, which was described by the court as follows:
Before entering the general population of the Johnson County jail, each incoming inmate is handed a small cup of Liceall brand delousing shampoo and is told to apply it to his scalp and rinse it out while showering. No one at the jail monitors the inmate to verify that he has used the shampoo as instructed, however. In fact, as far as the jail is concerned, any inmate may refuse to apply the shampoo, although inmates are not told that they have this right. Russell, 384 F.3d at 446 (emphasis added). In addition to the fact that Russell concerned a claim under the Fourteenth Amendment for unwanted medical treatment, rather than the Fourth Amendment claims at issue here, there was no allegation in Russell that the detainees were forced to disrobe in front of a corrections officer. Second, unlike in Russell, Plaintiff and the putative class members here are not merely
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handed a small cup of anti-lice shampoo and then left unsupervised to shower, with the apparent option to refuse to apply the shampoo. Rather, Plaintiff and the putative class members were and are sprayed down with anti-lice solution, stand naked for a period of time while being observed “rubbing the solution into their hair, including their pubic hair,” and then are ordered to shower within full view of a corrections officer. See Amended Complaint, ¶ 27; see also Defendants’ Brief at 3-4. Finally, unlike the defendant in Russell, the Defendants here have failed to adduce any evidence whatsoever that the WVRJA has had lice infestation problems sufficiently severe to justify a blanket delousing policy.2
Furthermore, if the Court chooses to analyze the delousing policy under the Fourth Amendment balancing test enunciated in Bell, the rights of pre-trial detainees relative to forced delousing are even more compelling that their rights regarding strip searches. The WVRJA’s delousing policy involves corrections officers spraying a caustic substance on the genitals, head and buttocks of detainees, making them stand there with this solution on their bodies for a period of time, and then supervising them showering the delousing solution off of their privates, all in the absence of any inspection or determination that an individual is actually infested with lice. It is hard to imagine a more degrading procedure for someone charged with a minor crime, who has likely not even seen a judge, then for them to be deloused like an animal; the justification for this procedure should be highly compelling and grounded in medical necessity. The Plaintiffs will present proof to the Court, after having an opportunity to conduct discovery, to demonstrate that there is no medical justification for requiring the delousing of all detainees absent a finding, made by a medical professional, that a detainee is actually harboring lice. The Plaintiffs will also present proof to the Court that a one-time “Liceall” treatment sprayed on by a Corrections
2 As detailed elsewhere herein, Plaintiff has had no opportunity to take discovery into the factual justification, if any, to substantiate the Defendants’ need to conduct blanket delousing on new pretrial detainees.
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Officer, without any effort to remove lice eggs from head or pubic hair, is a largely ineffective treatment for someone infested with lice.
Accordingly, because Defendants’ delousing procedure is the same as the delousing procedure at issue in Doan, and an order of magnitude more intrusive and invasive than the delousing procedure at issue in Russell¸ the court should deny Defendants’ motion to dismiss.
C. Whether Defendants Had Reasonable Suspicion to Strip Search Plaintiff Cantley Is Properly the Subject Of a Summary Judgment Motion, Not a Motion to Dismiss
Defendants contend that there was reasonable suspicion to strip search Plaintiff Cantley because of the nature of the offense with which he was charged, and his actions at the jail. Plaintiff disagrees with these contentions and has alleged otherwise. See Amended Complaint, ¶¶ 38-43. (alleging that “the allegations against Mr. Cantley did not involve a claim that he had harmed his wife, or anyone else, but rather that he was present in a location at which he was forbidden to be present,” and that “Plaintiff Cantley's arrest was void of any reasonable suspicion that he harbored any weapons or contraband”).
First and foremost, it is well-settled that a “district court may not resolve factual disputes on Rule 12(b)(6) motion without converting motion into one for summary judgment under Rule 56.” Andrew v. Clark, 561 F.3d 261, 267 (4th Cir. 2009) (citing Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). Because Plaintiff’s counsel have not had opportunity to take any discovery into the circumstances of Mr. Cantley’s entry into the Western Regional Jail, Defendants’ motion to dismiss should be denied. This is especially true given that Mr. Cantley has been admitted to the WVRJA’s custody for misdemeanor charges on several occasions during the class period, Amended Complaint, ¶ 43, not just on the one occasion referenced by the Defendants in their motion papers.
Second, Defendants have not contended that the corrections officer(s) who strip searched
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and deloused Mr. Cantley even knew what Mr. Cantley was charged with when he entered the jail. Exhibits A, B and C to the Defendants’ motion papers provide no further information on this point, as they appear devoid of any charging information for Mr. Cantley. Because a defendant may not invent a post hoc justification for an unconstitutional strip search, Defendants’ argument that the nature of Mr. Cantley’s alleged offense justified his strip search must fail. See, Bizzarro v. Ocean County, 2009 WL 1617887, * 13 (D.N.J. June 9, 2009) (“Defendants cannot create post-hoc rationales to manufacture justifications for conducting strip searches”); Doe v. Calumet City, 754 F. Supp. 1211, 1220 (N.D. Ill. 1990) (defendant cannot avoid liability by manufacturing post-hoc basis for strip searches which were conducted pursuant to indiscriminate and routine policy); Gonzalez v. City of Schenectady, 141 F. Supp.2d 304, 309 (N.D.N.Y. 2001) (effort to establish reasonable suspicion after admitting blanket strip searches “defies logic and, frankly, is absurd”).
Finally, Defendants do not and cannot argue that Mr. Cantley’s alleged offense, or his purported belligerence upon entry to the jail, justified the delousing procedure that he underwent. For this reason alone, Defendants’ motion to dismiss should be denied.
The Court should not rule upon whether the Defendants had reasonable suspicion to strip search Mr. Cantley until such time that Plaintiff has had opportunity to take discovery in this matter.
D. The Prison Litigation Reform Act’s Exhaustion Requirement Is Not A Bar To Plaintiff’s Claims.
Defendants argue that the Complaint should be dismissed because Plaintiff has not exhausted his administrative remedies as set forth in the Prison Litigation Reform Act (PLRA). However, the PLRA’s exhaustion requirement does not apply to Plaintiff’s claims since Plaintiff was not incarcerated at the time that the Complaint was filed. The Western District of North
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Carolina has recently held that:
An inmate who has been released from custody is no longer “incarcerated or detained” as defined in § 1997e(h) and, therefore, does not qualify as a prisoner subject to the exhaustion requirement of the PLRA. See e.g., Cofield v. Bowser, 247 Fed. App’x 413, 414 (4th Cir. 2007)] (“Because [the plaintiff] was not a prisoner when he filed his complaint, the PLRA exhaustion requirement is not applicable to his § 1983 action.”); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir.2005) (“First, [plaintiff] was not subject to the PLRA's exhaustion requirement because he was not a prisoner or otherwise incarcerated when he filed his complaint .”); Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005),] “[P]laintiff, who was not a prisoner confined in a jail, prison, or other correctional facility when he brought suit, did not have to exhaust his administrative remedies first.”); Ahmed v. Dragovich, 297 F.3d 201, 210 n. 10 (3d Cir.2002) (“We note that every court of appeals to have considered the issue has held that the PLRA does not apply to actions filed by former prisoners.”).
Shembo v. Bailey, 2009 WL 129974, *2 (W.D.N.C. Jan. 20, 2009); see also Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000); Grieg v. Goord, 169 F.3d 165 (2d Cir.1999); Wilson v.
Hampton County, 2005 WL 2877725, *3 (D.S.C. Oct. 31, 2005) (“the exhaustion-of-remedies
requirement in the PLRA does not apply to plaintiffs who file § 1983 actions after being released
from prison”). See also, Kelsey v. County of Schoharie, 2005 WL 1972557, *3 (N.D.N.Y.
August 5, 2005) (refusing to apply the PLRA to a strip search class action). Thus, Defendants’
argument with regard to the PLRA is without merit.
E. The Eleventh Amendment And The Will Doctrine Do Not Bar Plaintiff’s Claims Against Director Miller In His Individual Capacity.
The Defendants next argue that the Plaintiff’s claims against Defendant Miller are barred by both 11th Amendment to the United States Constitution and the rule that state officials, acting
in their official capacities, are not ‘persons’ under 42 U.S.C. § 1983. Defendants’ Brief at 18
(citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 109 (1989)). The law on these issues is
so well developed, and the Plaintiff’s Complaint so patently clear, that Defendants’ argument is
little more than unnecessary filler.
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Although all of the case authority provided by the Defendants deals only with claims against a state official in their official capacity, rather than their individual capacity, the Defendant apparently seeks a dismissal of all claims. It is unclear whether this is an oversight on the Defendants’ part, or if they are being deliberately vague in order to create confusion. The case law is clear that § 1983 suits seeking monetary damages are permissible against state officials in their individual capacities, and the Defendants have not cited a single authority to the contrary. See Hafer v. Melo, 502 U.S. 21, 23 (1991). See also, Roach v. Burke, 825 F. Supp. 116, 118 (N.D.W.Va. 1993) (“individuals may still be sued in their individual capacities even if the alleged wrongdoing was conducted while in performance of their official capacity”). Furthermore, although claims for monetary damages against state officials in their official capacities, and state agencies, are barred, claims for declaratory and injunctive relief are perfectly appropriate. Will v. Mich. Dept. of State Police, 491 U.S. 71, n. 10 (1989); Davis v. Greene, 2009 WL 3064106, * 16 (S.D.W.Va., September 18, 2009) (“A state agency is not a “person” within the meaning of 42 U.S.C. § 1983, and can only be sued for injunctive relief”). Ironically, Will is the very case which the Defendants relied upon to make their arguments. The Plaintiff conspicuously distinguished the “individual capacity” damages causes of action from the declaratory and injunctive relief causes of action in his Complaint just to forgo unnecessary briefing such as this. Amended Complaint, First and Second Causes of Action, pp. 13-14 (stating claims pled against Director Miller in his “individual capacity”). The Defendants’ specious claims in this regard are not a basis for dismissal.
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F. Qualified Immunity Does Not Not Bar Plaintiff’s Claims Against Director Miller Because Plaintiff’s Right to Be Free Of Unreasonable Searches Was Clearly Established, and It Was Not Objectively Reasonable For Director Miller To Believe That A Blanket Strip Search Policy Was Lawful, Especially Given His Position Of Authority.
Defendant Miller further contends that he is entitled to dismissal under the doctrine of qualified immunity, arguing that the “Plaintiff has failed to make any allegation that a particular action of the Defendant Terry L. Miller violated a right, privilege, or immunity secured to the Plaintiff.” Defendants’ Brief at 19. Other than this terse statement, the Defendants do not even set forth a basis for the application of qualified immunity.
The Defendants correctly observe that “[q]ualified good faith immunity shields a governmental official from liability if the officer’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person in the same position would have known.” Defendants’ Brief at 18 (citing Harlow v. Gitzgerald (sic), 457 U.S. 800, 818 (1982)). However, the Defendants do not proceed to argue that Defendant Miller did not violate the Plaintiff’s “clearly established rights.” Rather, the Defendants merely seem to argue that the Plaintiff failed to plead facts sufficient to overcome a qualified immunity defense. This argument is unavailing for several reasons, not the least of which is that since qualified immunity is an affirmative defense, it need not be addressed by the Plaintiff in his Complaint.
In Gomez v. Toledo, 466 U.S. 635, 635-36, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980), the Supreme Court considered the issue of whether, in an action brought under § 1983 against a public official whose position might entitle him to qualified immunity; a plaintiff must plead allegations in anticipation of the affirmative defense. The Gomez Court began its analysis by elucidating the distinction between a plaintiff’s cause of action under § 1983 and a claim of qualified immunity:
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[T]wo -- and only two -- allegations are required in order to state a cause of action under [§ 1983]. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. Id. at 640. The Plaintiff’s Amended Complaint pleads both of these requirements, almost to the point of redundancy. Specifically, paragraphs 5, 21-37, and 46-52, address these issues in a clear and incontrovertible manner. The Gomez Court observed that neither the language of § 1983 nor its legislative history suggests that a plaintiff has the duty to plead facts relevant to a qualified immunity defense in order to state a claim. See id. at 639-40. Qualified immunity, explained the Court, is a defense available to the government official in question, not a part of the plaintiff’s cause of action which he must denigrate. Id. at 640. Citing to the Federal Rules, the Court stated that “[s]ince qualified immunity is a defense, the burden of pleading it rests with the defendant.” Id. (citing Fed. R. Civ. P. 8(c) (imposing upon the defendant the burden of pleading any “matter constituting an avoidance or affirmative defense”)). The Court concluded that there is “no basis for imposing on the plaintiff an obligation to anticipate such a defense…” Id. at 640. Additionally, as discussed in greater detail earlier in this Brief, the law regarding the unconstitutionality of blanket strip searches of pre-trial misdemeanor detainees was clearly established at the time of the Plaintiff’s detention. Indeed, the 4th Circuit itself had already decided this issue as far back as 1981. Logan, 660 F.2d 1007 at 1013; see also Jones, 470 F. Supp. 2d at 547-548 (“the right of those arrested for offenses not likely to involve weapons or contraband to be free from strip searches without any individualized finding of reasonable suspicion appears to be clearly established.” ) (citing Logan, 660 F.2d at 1013 (strip searching must be reasonable under the circumstances and was not reasonable when done to arrestee whose offense was not likely to involve weapons or contraband); Amaechi v. West, 237 F.3d 356, 364
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(4th Cir. 2001) ("because West had no reason to believe that Amaechi posed a danger to the officers, and because Amaechi was arrested for a misdemeanor noise violation, West should have known that his search of Amaechi similarly was unjustified and therefore unconstitutional."); Abshire v. Walls, 830 F.2d 1277, 1279-80 (4th Cir. 1987) (citing Logan and stating "the standard in this circuit for judging the constitutionality of a strip search of a pre-trial detainee is firmly established")). Moreover, and even more specifically, “it seems clear that it was not objectively reasonable for [Director Miller] to believe that a blanket strip search policy was lawful, especially when [his] position of authority is considered.” Jones, 470 F. Supp. 2d at 547-548 (citing Logan, 660 F.2d at 1013-14 (explaining that "[a]n indiscriminate strip search policy routinely applied to detainees [whose underlying offense is unlikely to involve weapons or contraband] cannot be constitutionally justified . . ." and distinguishing the reasonableness of a policy-setting sheriff having believed a policy to be constitutional from that of an implementing deputy).
Finally, as evidenced in other strip search litigation, factual discovery may undermine any qualified immunity defense the Defendant may attempt to raise. Practically speaking, correctional officials generally follow the developing law pertinent to their duties and are usually aware of most seminal decisions. It is quite likely that Defendant Miller was perfectly aware of the numerous legal decisions holding that blanket strip search policies are unconstitutional, yet continued to employ those unconstitutional practices in West Virginia. The Plaintiffs’ complaint states as much. Amended Complaint, ¶ 33 (policy promulgated “in bad faith and contrary to clearly established law”). The Defendant further disputes the facts pertinent to the Plaintiff’s arrest, detention and subsequent strip search. This alone is sufficient grounds to deny the Motion to Dismiss at this stage. See Dimeglio v. Haines, 45 F.3d 790 (4th Cir. 1995) (noting that in cases
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where there is a material dispute concerning an alleged violation of clearly-established law, the question of qualified immunity “cannot be resolved without discovery.”).

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss should be denied in its entirety,

especially in the absence of appropriate discovery.

Respectfully submitted by:

Dated: November 17, 2009

/s Aaron Rihn
_______________________ Aaron Rihn, Esquire ROBERT PEIRCE & ASSOCIATES, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219-1918 412.281.7229

Elmer Robert Keach, III, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, P.C. 1040 Riverfront Center Post Office Box 70 Amsterdam, NY 12010 518.434.1718

Gary E. Mason, Esquire Donna F. Solen, Esquire Nicholas A. Migliaccio, Esquire MASON, LLP 1625 Massachusetts Avenue, N.W. Suite 605 Washington, DC 20036 202.429.2290

23

Case 3:09-cv-00758 Document 23 Filed 11/17/09 Page 24 of 24 PageID #: 163 Daniel R. Karon, Esquire GOLDMAN SCARLATO & KARON, P.C. 55 Public Square Suite 1500 Cleveland, OH 44113 216.622.1851 ATTORNEYS FOR PLAINTIFF AND THE PROPOSED CLASS
24

 
 Case 3:09-cv-00758 Document 32 Filed 08/05/10 Page 1 of 29 PageID #: 197

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MICHAEL CANTLEY, individually, and on behalf of a Class of others similarly situated,

Plaintiff,

v.

CIVIL ACTION NO. 3:09-0758

THE WEST VIRGINIA REGIONAL JAIL and CORRECTIONAL FACILITY AUTHORITY; and TERRY L. MILLER, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion to Dismiss by Defendants The West Virginia

Regional Jail and Correctional Facility Authority (WVRJA) and Terry L. Miller. [Doc. No. 16].

Upon consideration of the arguments by the parties, the Court DENIES Defendants’ motion.

I. FACTS

On October 9, 2009, Plaintiff Michael Cantley, individually and on behalf of a Class

of others similarly situated, filed his First Amended Complaint. In his First Amended Class Action

Complaint, Plaintiff asserts he was arrested on or about September 28, 2008, on non-felony charges

of violating a domestic violence protection order. Plaintiff states he was at his former wife’s house

in violation of the order, but he did not harm her or anyone else while there. Following his arrest,

Plaintiff was taken into custody and placed in a holding cell at the Western Regional Jail, where

Plaintiff states he has been in custody on several previous occasions. According to Plaintiff,

Case 3:09-cv-00758 Document 32 Filed 08/05/10 Page 2 of 29 PageID #: 198
Defendant WVRJA is responsible for the policies, practices, supervision, implementation, and conduct of all matters pertaining to the West Virginia Regional Jail System, which includes the Western Regional Jail. Defendant Miller is the duly appointed Executive Director and a policy maker for the WVRJA.
After several hours of custody, Plaintiff was required to undergo a visual cavity strip search (vcs)1 and delousing pursuant to a WVRJA policy. Although Plaintiff claims his arrest was void of any reasonable suspicion he possessed any weapons or contraband, the policy required him to completely disrobe in front of a correctional officer of the same sex for a visual inspection. During the inspection, Plaintiff had to lift his arms and legs, spread his butt cheeks, lift up his testicles and bend at the waist. The correctional officer then sprayed a delousing solution on him and required him to shower in view of the officer. Plaintiff claims that correctional officers receive no medical training in applying the delousing solution and the delousing policy is enforced without
1“A ‘strip search,’ though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject's body cavities. A ‘visual body cavity search’ extends to visual inspection of the anal and genital areas. A ‘manual body cavity search’ includes some degree of touching or probing of body cavities.” Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir. 1985) (citation omitted). Although Plaintiff states he was not subjected to a physical cavity search, he makes a cursory statement that he believes some members of the proposed class may have been subject to such a search. Defendants deny they do physical cavity searches. In any event, Plaintiff does not focus on this type of search in his briefing before the Court, and it does not appear that he relies upon this type of search in any of his causes of action. In the First Amended Complaint, Plaintiff states he refers collectively to strip and vcs searches as “strip searches,” and these require a detainee to manipulate body parts for a visual inspection of the detainee’s genitals and anus. A physical cavity search is not included in this description. He then proceeds to discuss only strip and vcs searches in his causes of action, with no specific mention of physical cavity searches. Thus, this Court will not discuss the impact physical cavity searches may have on the constitutional issues raised in this case.
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any medical evaluation to determine if lice are present. Based upon information and belief, Plaintiff further asserts that the WVJRA uses “Liceall,” which Plaintiff alleges is a caustic solution that can, and often does, cause chemical burns, especially when applied to African-Americans. Following his shower, Plaintiff was issued prison clothing to wear. Plaintiff remained incarcerated until on or about November 6, 2008, when all charges against him were dismissed.
Plaintiff argues the strip search and delousing policy as applied to pretrial detainees charged with misdemeanors or other minor crimes is unconstitutional under the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983. As a result of the policy, Plaintiff claims to have suffered psychological pain, humiliation, suffering, and mental anguish. Plaintiff brings this action on behalf of himself and others similarly situated seeking declaratory and injunctive relief, compensatory damages, and attorneys’ fees and costs. On the other hand, Defendants contend that the strip search policy and the delousing procedures are necessary for safety and health reasons. Thus, Defendants argue the policies do not violate the Fourth Amendment.
II. STANDARD OF REVIEW In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court disavowed the “no set of facts” language found in Conley v. Gibson, 355 U.S. 41 (1957), which was long used to evaluate complaints subject to 12(b)(6) motions. 550 U.S. at 563. In its place, courts must now look for “plausibility” in the complaint. This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. (internal quotation marks and citations omitted). Accepting the factual allegations in the complaint
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as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotation marks and citations omitted).
In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court explained the requirements of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme Court reiterated that Rule 8 does not demand “detailed factual allegations[.]” 129 S. Ct. at 1949 (internal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfullyharmed-me accusation” is insufficient. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The Supreme Court continued by explaining that, although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court’s own judicial experience and common sense. Id. at 1950. If the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the
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pleader is entitled to relief.’” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)). The Supreme Court further articulated that “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.
III. DISCUSSION
A. The Strip Search Policy The issue facing the Court in this case is whether the alleged blanket strip search and delousing policy is constitutional. The parties agree that this issue is controlled by the United States Supreme Court’s benchmark decision in Bell v. Wolfish, 441 U.S. 520 (1979). In Bell, the Court was asked to consider the constitutional rights of pretrial detainees who were subject to a variety of correctional conditions and practices at the Metropolitan Correctional Center (MCC). 441 U.S. at 523.2 The Court began by recognizing that, under the Due Process Clause, a condition of confinement for a pretrial detainee cannot amount to a punishment. Id. at 535-36 n.16. However, the Court was careful to state that not every restriction placed upon a pretrial detainee is a punishment under the Constitution. Clearly, the government must have the power to effectuate detention when necessary. “Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility.” Id. at 537. The fact that confinement interferes with a detainee’s
2MCC was a federally-run short-term facility that primarily housed pretrial detainees. Id. There were, however, some convicted inmates at the facility. Id. at 524.
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comfort and restraint levels “does not convert the conditions or restrictions of detention into ‘punishment.’” Id.
In determining when the constitutional line is crossed, “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538 (citation omitted). If there is no expressed punitive intent, the decision generally will rest on “‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purposes assigned [to it].’” Id. (citations omitted). If a condition or restriction is reasonably related to a legitimate governmental goal, “it does not, without more, amount to ‘punishment.’” Id. at 539 (footnote omitted). On the other hand, if a condition is arbitrary or purposeless or otherwise not reasonably related to a governmental objective, a court “may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id. (citation and footnote omitted).
When deciding whether a particular policy is constitutional, courts also must be mindful of the government’s interest in maintaining security and order at the facility and in making sure that “no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution’s interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial ” Id. at 540 (footnote omitted). In other words, effective management of a facility “is a valid objective that may justify imposition of
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conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.” Id. (footnote omitted).
The Court also identified several general principles guiding the constitutionality of restrictions. First, the Court said “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Id. at 545 (citations omitted). Second, although inmates maintain some constitutional rights, it “does not mean that these rights are not subject to restrictions and limitations.” Id. Third, institutional security, order, and discipline are all “essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Id. at 546. In this regard, the Court said in a footnote that “[t]here is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates.” Id. at 547 n. 28. Lastly, it is important to recognize that there are not easy answers to operating a correctional facility on a day-to-day basis. “Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. (citations omitted). The Court cautioned that lower courts must be wary that such management decisions “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. 547-48 (citations omitted).
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Relying upon this analysis, the Court proceeded to discuss some of the specific issues before it. As relevant here, one of those issues involved vcs searches of all inmates at Bureau of Prison facilities, including MCC, after every contact visit with an outsider. Id. at 558. Correctional officials testified such searches were necessary to prevent and deter the smuggling of weapons, drugs, and other contraband into the facilities. Id. Although the practice gave the Court pause, it nonetheless held that it did not violate the reasonableness requirement of the Fourth Amendment for either convicted prisoners or pretrial detainees. Id. Under the Fourth Amendment, reasonableness “requires a balancing 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 is conducted.” Id. at 559 (citations omitted). In acknowledging the security issues arising in a detention facility, the Court noted the prevalence of smuggling items into facilities and stated that “inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record and in other cases.” Id. (citations omitted). The Court further said the fact that there was only one documented instance of an MCC inmate attempting to smuggle in contraband on his person may demonstrate the deterrent effect of the policy. Id. Balancing the security interests against privacy interests, the Court concluded that a vcs search under the MCC rules can “be conducted on less than probable cause.” Id. at 560.
Two years after the Bell decision, the Fourth Circuit was confronted with the reasonableness of a visual strip search in Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). The plaintiff Lucy Logan was involved in an auto accident and was suspected of driving while
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intoxicated (DWI). 660 F.2d at 1009. Ms. Logan was taken to the Arlington County Detention Center, but refused to take a breathalyzer test. A magistrate judge issued warrants for DWI and refusal to take the test. Ms. Logan was booked on the charges, and the magistrate judge ordered her released on her own recognizance. Id. at 1010. However, to ensure Ms. Logan’s sobriety, the magistrate judge directed that she could not leave the facility for four hours unless a responsible person picked her up. Id.
Prior to Ms. Logan being given the opportunity to call someone to pick her up, a female deputy sheriff inventoried her personal property, took her to a holding cell, and conducted a visual strip search pursuant to an established policy that all persons held at the Center be strip searched for weapons or contraband regardless of the offense. The policy was adopted “after a deputy allegedly was shot by a misdemeanant who had not been strip-searched.” Id. Following the search, Ms. Logan was allowed to call a friend and was released upon her friend’s arrival. Id. Thereafter, Ms. Logan filed suit alleging, in part, that the strip search policy was unreasonable in its scope and manner. Id. at 1011. Upon consideration of the evidence, the Fourth Circuit agreed.
In so holding, the Fourth Circuit relied upon Bell and found that the “strip search bore no . . . discernible relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, it could reasonably be thought justified.” Id. at 1013. The Court noted that detainees, like Ms. Logan, were not intermingled with the general population, her offense was not one commonly associated with possession of weapons or contraband, there was no reason to believe she was harboring a weapon or contraband, and she was
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at the facility an hour and a half before she was subject to the strip search and she had not even been patted down. The Fourth Circuit held that “[a]n indiscriminate strip search policy routinely applied to detainees such as Logan along with all other detainees cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations.” Id. (citation omitted).
Since Logan was decided in 1981 numerous other district court’s and the vast majority of courts of appeals have found strip searches of pretrial detainees, who are arrested for misdemeanor offenses, unconstitutional in an absence of some particularized suspicion that a specific individual may have contraband. For instance, in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1984), the Seventh Circuit cited both Bell and Logan in striking down a policy by the City of Chicago that required strip and vcs searches “of all women arrested and detained in the City lockups, regardless of the charges against the women and without regard to whether the arresting officers or detention aides had reason to believe that the women were concealing weapons or contraband on their persons.” 723 F.2d at 1266.
The plaintiffs in Mary Beth G. were women arrested on misdemeanor offenses and were detained while awaiting bail money. Id. The Seventh Circuit observed that the balancing test prescribed in . . . [Bell] does not validate strip searches in detention settings per se.” Id. at 1272 (citations omitted). Although the Supreme Court upheld the strip search in Bell, the Seventh Circuit stated it did so on much different facts. Thus, the Court found it necessary to apply the balancing test announced in Bell to the facts before it.
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In doing so, the Seventh Circuit remarked that there are few instances that invade an individual’s privacy more than a vcs search. The City argued, however, that such searches were necessary to prevent misdemeanor offenders from bringing weapons and contraband into the lockup facilities. Despite these arguments, the Seventh Circuit found that only a few items over the years were ever discovered during a body cavity search of women arrested for minor offenses. Id. Thus, the Seventh Circuit found using Bell’s balancing test that “the strip searches bore an insubstantial relationship to security needs” and cannot be considered reasonable under these facts. Id. at 1273 (citing Logan).3
More recently in Allison v. The GEO Group, Inc., 611 F. Supp.2d 433 (E.D. Pa. 2009), the district court, as here, was confronted with a blanket strip search policy of all arrestees detained at one of the custodial facilities operated by the defendant. The searches allegedly were conducted irrespective of any reasonable suspicion or probable cause that the individual being searched had any contraband. Id. at 438. The district court recognized that detention situations obviously require the curtailment of rights, including personal privacy and Fourth Amendment rights. In addition, courts should limit their roles in the administration of detention facilities. Id. at 442 (citations omitted). The court then proceeded to discuss Bell’s reasonableness test and noted
3The policy also was challenged on equal protection grounds because it did not apply to men. Id. at 1266. The Seventh Circuit found, as an additional ground, that the policy violated the Fourteenth Amendment’s equal protection clause. Id. at 1274.
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that most courts addressing custodial strip searches have relied upon that test in evaluating claims.
Id. at 448.4
4The defendant in Allison, however, argued that Bell no longer controlled such decisions, but rather, the court should rely upon the holdings in Hudson v. Palmer, 468 U.S. 517 (1984), and Turner v. Safley, 482 U.S. 78 (1987).
In Hudson, the Supreme Court addressed the constitutionality under the Fourth Amendment of searching prisoners’ cells. The Court held that “society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” 468 U.S. at 526. In Turner, inmates had challenged under the First and Fourteenth Amendment certain prison regulations related to inmate marriages and inmate-to-inmate correspondence. 482 U.S. at 81. In that case, the Court announced a four-part test to consider in determining the reasonableness of a prison restriction, which includes: (1) whether there is “a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it[;]” (2) “whether there are alternative means of exercising the right that remain open to prison inmates[;]” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally[;]” and (4) “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. at 89-90 (citations omitted).
In rejecting both of these standards in Allison, the district court noted that neither Hudson nor Turner overruled Bell’s holding or analysis. 611 F. Supp.2d at 445 & 448. In fact, a decision rendered by the Supreme Court on the same day as Hudson affirmed Bell’s Fourth Amendment assumption with regard to searching the cells of pretrial detainees. Id. at 445 (citing Block v. Rutherford, 468 U.S. 576 (1984)). In addition, the district court found that the majority of courts which have considered the impact of Hudson upon Bell have limited Hudson to cell searches and have not extended Hudson’s ruling to the constitutionality of custodial strip searches. Id. (citations omitted). Likewise, the district court found that “Turner cited Bell with approval and did not at any point suggest that Bell’s approach to Fourth Amendment claims should no longer be controlling law.” Id. at 448. Moreover, Bell specifically applied in a Fourth Amendment context of a strip search, while Turner challenged other polices under the First and Fourteenth Amendment, which are irrelevant here. Although the district court noted that both the Second and Ninth Circuit mention Turner’s analysis in custodial strip search cases, the district court was not persuaded by their use. Id. at 447-48 (citing Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007); and Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001).
In this case, Defendants mention Turner in their Memorandum of Law in Support of their Motion to Dismiss, however, they assert that “it is not necessary for this Court to evaluate these factors as to the WVRJA strip search policy” because Bell controls. Memorandum of Law, at 14; see
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In applying Bell to the facts before it, the district court recognized that a vcs search constitutes an extremely invasive action by the government, and is “grossly disproportionate” when someone is arrested on a relatively minor offense. Id. at 452-53 (citations omitted). “Few people would think that their right of privacy in their own body, a ‘cherished value of our society,’ could be jeopardized by the failure to pay parking tickets, shoplifting, or driving without a license.” Id. (citation omitted). However, it is exactly what occurs when a blanket policy in enforced. Id. The district court noted that “[c]ourts that strike down blanket strip search policies for detained arrestees conclude that the two justifications which supported the constitutionality of the MCC policy for contact visit strip searches are lacking in the arrestee context.” Id. at 454 (citation omitted).
First, arrests and detention are usually “unplanned events,” with little opportunity to smuggle contraband. Id. (citations and internal quotation omitted). In addition, it is likely that any contraband would be uncovered “during a valid search incident to arrest or a less intrusive custodial search.” Id. (citations omitted). Moreover, when an individual is arrested on an offense that is not commonly associated with weapons, drugs, or other contraband, “the risk that an arrestee has secreted contraband in such a way that it could only be detected by a strip search shrinks further.” Id. (citations omitted). Citing Logan and Mary Beth G., the district court found that “[s]trip searching arrestees who are unlikely to possess, much less conceal, contraband does not serve the
4(...continued) also Defendants’ Reply in Support of its Motion to Dismiss, at 15 (stating “Bell established the framework by which this court must evaluate the WVRJA policy and Bell remains the only precedent that this court should consider”). Plaintiff also argues that the Hudson and Turner standards are inapplicable. Upon review, this Court agrees with the parties that Bell controls this situation.
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institutional security needs of a custodial facility.” Id. at 454. Second, the district court noted that, as arrests are typically unplanned, there is little deterrent effect as the Supreme Court found in Bell. Id. at 455; see Bell, 441 U.S. at 559. Thus, the district court stated that “[t]hese considerations significantly weaken the effectiveness of a blanket arrestee strip search policy and, therefore, a custodial facility’s justification for enforcing it.” Id. Balancing these considerations with the invasion of privacy involved in a strip search, and the need for security in custodial facilities, the district court agreed with the majority of courts which have determined that blanket strip search policies permitting “indiscriminate searches of arrestees simply do not satisfy the basic Fourth Amendment requirement of reasonableness because they subject too many people to highly invasive, humiliating searches that do not actually promote the institutional security interests of the custodial facility.” Id. at 455 & 463. Accordingly, the district court determined that the plaintiffs pled a viable claim under the Fourth Amendment. Id. at 463.
In making its decision, the district court discussed the fact that, at the time, the Eleventh Circuit was the only circuit court of appeals which had determined it was constitutionally permissible to have a policy “of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband[.]” Powell v. Barrett, 541 F.3d 1298, 1300 (11th Cir. 2008). In so holding, the Eleventh Circuit stated that “the security needs the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time.” Id. at 1302. In addition, the court noted the strip searches in Bell actually were more intrusive than
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the ones challenged in the case before it. Thus, the Eleventh Circuit found “[i]t follows from the Bell decision that the less intrusive searches in this case do not violate the Fourth Amendment.” Id.
After briefing was complete in this case, a sharply divided Ninth Circuit in Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010), overruled its prior holdings and joined the Eleventh Circuit in finding that a policy requiring strip searches of all arrestees placed in the general jail population did not violate the Fourth Amendment. 595 F.3d at 982. According to jail administrators, the policy in Bull was instituted because there was a serious problem of smuggling into the jail system. Id. at 966. Jail administrators also “concluded that, based on their experience, ‘the greatest opportunity for the introduction of drugs and weapons into the jail occurs at the point when an arrestee is received into the jail for booking and, thereafter, housing.’” Id. at 967.
Previously, in Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam),5 the Ninth Circuit held that strip searches of an arrestee for a minor offense cannot be justified on the fact the arrestee will be placed in contact with the general inmate population. Rather, it must be based upon individualized reasonable suspicion that the arrestee has contraband. 746 F.2d at 617. In Bull, the majority found that conclusion was inconsistent with Bell as the Supreme Court made no such requirement. “Rather, the Supreme Court upheld a policy of strip searching all persons who had contact visits as categorically reasonable under the circumstances in the detention facility. Id.
5Overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir. 1999 (en banc).
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(citations omitted). In addition, the Ninth Circuit in Bull disavowed its previous finding “that arrestees charged with minor offenses ‘pose no security threat to the facility.’” 595 F.3d at 978 (citing Giles, 746 F.2d at 618) (footnote omitted). Again, the Ninth Circuit stated that Bell made no such requirement and the Supreme Court said nothing about modifying the policy based upon the nature of inmate’s underlying offense. Id.
Next, the Ninth Circuit found a record of smuggling was not necessary under Bell because of the deterrent effect a strip search policy may have. Id. at 979. Lastly, the Ninth Circuit rejected its previous finding that arrests are normally unplanned events and, therefore, it is less likely that an arrestee has contraband than an inmate after a contact visit. Id. In this respect, the majority agreed with Eleventh Circuit’s reasoning in Powell which stated the fallacy in the “unplanned event” position is that many individuals know when officers are coming to arrest them on warrants, others voluntarily surrender to police, and some get themselves deliberately arrested. In addition, even those arrested pursuant to a vehicle stop may have time to hide contraband before an officer reaches the vehicle. Id. at 980 (quoting Powell, 541 F.3d at 1313). Accordingly, the majority found no meaningful distinction between the policy in Bull and the one in Bell and, therefore, upheld the policy.
In a sharply worded dissent, the minority stated there was absolutely no evidence in the record of any arrestee hiding contraband with the intent to smuggle it into jail. Moreover, there was not anyone in the proposed class who was found to possess contraband when strip searched. Id. at 990. Likewise, there is not even anecdotal support for the notion that some detainees get arrested
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for the purpose of smuggling contraband into jail. Id. at 998-99. The dissent stated that all but the Eleventh Circuit rejected the majority’s approach because “[s]uspicionless, routine, mandatory strip search policies flatly contradict the balancing of interests that the Supreme Court has instructed us to undertake.” Id. at 991. The majority’s holding simply legitimizes “abusive, unnecessary body cavity searches of those who pose no security risk.” Id. The dissent emphasized the degrading nature of strip searches requires a strong justification by the government. Id. at 1001. However, in the case before it, the dissent found no justification for the policy, “aside from minor bureaucratic inconvenience. . . . Judicial review cannot be halted when the government’s rationale is simply ‘because I said so.’ Under proper, deferential judicial review, . . . [the] body cavity search policy cannot pass constitutional muster.” Id. In ending, the dissent pointedly stated that “[i]nvading the rights of everyone, regardless of whether we have reason to suspect them or not, should give no one illusory comfort that we are providing justice for all.” Id. at 1004.6
Defendant contends that this Court should adopt the Eleventh Circuit’s decision in Powell7 as the policy there is substantially similar to the policy at issue here.8 Defendant also asserts
6The dissent also strongly disagreed with the majority’s suggestion that Turner may supplant Bell’s analysis. Although the majority did discuss the factors in Turner, it first concluded under Bell that the strip search policy was reasonable and therefore did not violate the class members’ Fourth Amendment rights.” Id. at 975. The majority then stated that “[b]ecause the Turner factors require us to give more deference to detention officials’ determinations than does the balancing test in Bell, it is not surprising that our consideration of the Turner factors leads to the same conclusion.” Id. at 975-76.
7Presumably, if the Court permitted additional briefing on the issue, Defendants also would argue the Court likewise should follow the decision in Bull.
8Defendants contend that the only difference in the policies is that the WVJRA policy requires searches be conducted in an area not visible to other inmates, prison employees not
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the Court should disregard the cases from other jurisdictions because they are factually diverse and many merely challenge the particular conditions of a search rather than whether a policy, on its own, is constitutional. Although the Court recognizes there is a wide variety of factual scenarios and legal challenges in the strip search cases cited by Plaintiff, the overarching theme of those cases is that Bell’s teaching requires “a detainee held on a misdemeanor charge not related to weapons or drugs may not be strip searched absent individualized reasonable suspicion that he or she is carrying such contraband.” Young v. County of Cook, 616 F. Supp.2d 834, 846 (N.D. Ill. 2009); see also Smith v. Montgomery County, Maryland, 643 F. Supp. 435, 440 (D. Md. 1986) (stating “courts have found that strip searches of detainees arrested on minor offenses violate the Fourth Amendment”).
Although the parties spend a great deal of time discussing cases from other jurisdictions and those discussions are helpful in framing and understanding the issues, in the end, this Court must be consistent with the Fourth Circuit’s application of Bell. In quoting Bell, the Fourth Circuit in Logan held:
Strip searches of detainees are constitutionally constrained by due process requirements of reasonableness under the circumstances. “In each case it requires a balancing 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 is conducted.”
8(...continued) involved in the search, or the public. In Powell, the searches were conducted with up to forty other inmates. 541 F.3d at 1301.
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660 F.2d at 1013 (quoting Bell, 441 U.S. at 559). The Fourth Circuit then concluded that the Sheriff’s policy of strip searching “all persons held at the Detention Center for weapons or contraband regardless of their offense” “was conclusively shown to be unconstitutional under the standards laid out in Bell[.]” 660 F.2d at 1010 & 1013.
Defendants argue, however, that the facts of Logan distinguish it from this case in that, unlike Plaintiff in this case, Ms. Logan was never intermingled with the general population. Defendant argues intermingling with the general population increases the security risk and justifies the policy. However, Plaintiff asserts the proposed class includes all individuals who were strip searched prior to being arraigned and, presumably, many of those individuals were released before being intermingled.9 Thus, they fall precisely in line with the facts in Logan.
Assuming, as this Court must for purposes of this motion to dismiss, the truth of Plaintiff’s allegation that the policy applies broadly to all pretrial detainees regardless of whether they are intermingled, the policy strikes directly in the face of the policy struck down in Logan. If true, the blanket nature of the policy clearly would be unconstitutional. Nevertheless, Defendant argues that Plaintiff’s claim cannot survive because reasonable suspicion existed to strip search him in this case. Defendants make a number of factual allegations against Plaintiff which they assert warranted the search. In his First Amended Class Action Complaint, Plaintiff alleges his “arrest was
9In paragraph 31 of the First Amended Class Action Complaint, Plaintiff alleges “[t]he strip searches and delousing discussed in this complaint are often imposed upon pre-trial detainees prior to their arraignment before a judge. Upon information and belief, many members of the proposed class are bailed out of custody shortly after being arraigned.” First Amended Class Action Complaint, at ¶ 31.
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void of any reasonable suspicion that he harbored any weapons or contraband.” First Amended Class Action Complaint, at ¶ 38, in part.10 Again, for purposes of a motion to dismiss, this Court must accept the truth of Plaintiff’s allegations. Having done so, the Court DENIES Defendant’s motion to dismiss with respect to Plaintiff’s challenge of the strip search policy.
B. The Delousing Policy The next issue the Court must address is whether Defendants’ delousing policy is unconstitutional. The Court recognizes there are few cases which discuss delousing policies and the parties cite none within this circuit. In support of their motion, Defendants rely upon Russell v. Richards, 384 F.3d 444 (7th Cir. 2004). In Russell, the Seventh Circuit was asked to consider whether a “jail’s policy of directing that all incoming inmates to use a delousing shampoo violated their Fourteenth Amendment due process right to be free from unwanted medical treatment.” 384 F.3d at 446. The plaintiffs in Russell were minor, non-violent offenders who were arrested and taken to jail. Upon arrival, incoming inmates were given a cup of Liceall and told to apply it to their scalp and then shower it out. There was no monitoring of its use and no way to verify that the inmates actually used it. In addition, although inmates were not told they can refuse to use it, the jail’s position was that they may refuse. Id.
10In addition, although Defendants contend that Plaintiff’s arrest and actions on September 28, 2008, provided reasonable suspicion for the strip search, Plaintiff maintains that he was held at WVRJA facilities on multiple occasions and counsel has not had the opportunity to take any discovery into the circumstances of those other instances. In addition, Plaintiff argues that he will demonstrate that the facts now cited by Defendants are nothing more than a post hoc effort to justify his strip search and delousing under the blanket policy. Specifically, Plaintiff asserts that it is not even known yet whether the correctional officers knew what he was charged with when he entered the facility. Plaintiff argues that these are all issues for which discovery is appropriate and which are more properly dealt with on a motion for summary judgment, not a motion to dismiss.
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The jail administrators justified their policy on the grounds that they were trying to prevent lice infestations, which, if they occur, are difficult and time consuming to ameliorate. Id. However, the manner in which they attempted to prevent infestations through the policy had some serious flaws. In addition to the fact that there was no effort made to ensure incoming inmates actually used the delousing solution, the instructions for Liceall were not followed. For instance, inmates were never told they had to leave it on their hair for ten minutes and were not given a second application. In addition, inmates were not told to put Liceall on other parts of their bodies where lice may be present. Id. The instructions also cautioned that individuals allergic to ragweed could have a reaction, but inmates were never given this warning. Id. at 446-47.
In discussing the policy, the Seventh Circuit assumed without deciding that the application of Liceall constitute a medical treatment, which implicates an “inmate’s constitutionallyprotected interest in refusing unwanted medical treatment. Id. at 447 (citations and footnote omitted). The Seventh Circuit then proceeded to discuss the policy under the test announced in Turner v. Safley, 482 U.S. 78 (1987), to determine its reasonableness. The reasonableness test under Turner includes: (1) whether there is “a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it[;]” (2) “whether there are alternative means of exercising the right that remain open to prison inmates[;]” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally[;]” and (4) “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” 482 U.S. at 89-90 (citations omitted).
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Analyzing factors (1), (3), and (4),11 the Seventh Circuit found there was a satisfactory justification between the policy and the jail’s justification for it despite the problems noted with how it was being administered. 384 F.3d at 448 & 450. Specifically, the Seventh Circuit stated that if inmates were accommodated by being told they could refuse treatment, it could result in lice infestations. Id. at 448-49. In addition, the Seventh Circuit found no evidence in the record as to the effectiveness or cost of directing examinations for lice prior to using the solution so that it only would be given to those actually infected. Indeed, the Seventh Circuit observed that some inmates may consider a close examination of their hair more intrusive then just being given the treatment. Id. at 449. Therefore, the Seventh Circuit concluded “the record . . . [did] not support the conclusion that the jail’s policy with respect to delousing shampoo amounts to an unreasonable intrusion on an inmate’s constitutional rights.” Id.
Plaintiff argues that Russell is distinguishable from this case because it was brought under the Fourteenth Amendment and the inmates were given the product to apply themselves and there was no monitoring by prison personnel. To the contrary, Plaintiff points out he has filed a Fourth Amendment challenge to the policy and it involves prison officials spraying the product on naked detainees. In support of his position that this policy is unconstitutional, Plaintiff cites Doan v. Watson, 168 F. Supp.2d 932 (S.D. In. 2001).12
11The Seventh Circuit stated that factor number 2 is irrelevant in the context of involuntary medical treatment. Id. at 448 n. 2 (citing Washington v. Harper, 494 U.S. 210 (1990)).
12Plaintiff also cites Wilson v. County of Gloucester, 256 F.R.D. 479 (D. N.J. 2009), and Gwiazdowski v. County of Chester, 263 F.R.D. 178 (E.D. Pa. 2009). In Wilson, the district court found common issues of law and fact for class action purposes exist as to the purpose of supervised
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In Doan, individuals arrested on misdemeanor offenses were strip searched, sprayed with a delousing solution, and then told to shower. 168 F. Supp.2d at 933. The district court found “the delousing procedure included the essential elements of the strip search” and, therefore, the Fourth Amendment and Bell’s reasonableness test applied. Id. at 936. Finding the strip searches in Doan “closely resemble the searches at issue in Mary Beth G., the district court found the defendants failed to “demonstrate[] any factual basis to relate the blanket strip search policy to legitimate security interests.” Id. at 936. Without any further discussion about the reasonableness under Bell of the delousing policy, the district court found it violated the Fourth Amendment right against unreasonable searches. Id. at 937.
As the current action challenges the delousing policy on Fourth Amendment grounds, the Court finds that the reasonableness test in Bell is more relevant than the test announced in Turner. However, there is no record in this case upon which this Court can apply Bell’s test. Based upon Plaintiff’s allegations, the delousing policy was a blanket policy which applied to pretrial detainees prior to arraignment with some of those detainees presumably being released without ever being housed with the general population. At first glance, a court may sweep this challenge up with the strip search challenge and declare it unreasonable. However, such result does not take into account that Defendants should be given the opportunity to present evidence and arguments
12(...continued) shower and delousing policies. 263 F.R.D. at 486. In Gwiazdowski, the district court found the delousing policy, which required a visual inspection of the inmate for wounds and sores, a strip search. Nevertheless, it did not decide whether the policy violated the Fourth Amendment’s reasonableness standard. It stated its finding was only relevant for class certification purposes, and it did not bind the finder of fact on the merits. 263 F.R.D. at 186.
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justifying the delousing policy on its own merits.13 The Court will not sit and ponder all the possible justifications and evidence that Defendants may cite in support of its delousing policy. Suffice it to say, the Court believes it is necessary to independently examine the reasonableness of the delousing policy.14 Therefore, the Court DENIES Defendants’ motion to dismiss Plaintiff’s challenge of this policy.
C. Immunity Defendants further assert that Plaintiff’s claims against them are barred under the Eleventh Amendment and Will v. Michigan Department of State Police, 491 U.S. 58 (1989). In Will, the Supreme Court stated “that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” 491 U.S. at 71. It is well established that the WVRJA is an agency of the State of West Virginia and is not a “person” within the meaning of § 1983 for purposes of an action seeking money damages. See Roach v. Burke, 825 F. Supp. 116, 118 (N.D. W. Va. 1993) (holding that the WVRJA is not a person amenable to suit under § 1983); see also Lavender v. West Virginia Reg’l Jail Auth. and Corr. Facility Auth., No. 3:06-1032, 2008 WL 313957 (S.D. W. Va. 2008) (same). “An individual defendant employed . . . [by the WVRJA] and sued in his official capacity is also immune from suit in federal court under the Eleventh Amendment.” Edwards v. West
13For instance, the Court can imagine Defendants may attempt to distinguish delousing from a search for weapons on the basis that, merely because someone is arrested on a misdemeanor, it does not mean they are any less likely to have lice as some courts have held is the situation in searching for weapons and other contraband.
14To be clear, the Court is not saying that a detainee being nude in front of a prison official is not a factor the Court will consider in weighing the reasonableness of the delousing policy. However, it is but one of the many factors the Court must consider in applying the reasonableness test.
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Virginia, No. 2:00-0775, 2002 WL 34364404 (S.D. W. Va. 2002). Thus, a claim for money damages against these Defendants acting in their official capacity is barred by the Eleventh Amendment. See Gillette v. West Virginia, No. Civ. A. 2:01-1309, 2003 WL 23522062 (S.D. W. Va. June 6, 2003) (holding the WVRJA “is an agency of the State . . . . [and] [a] . . . suit for money damages is barred by the Eleventh Amendment”).
However, as pointed out by Plaintiff, he has not filed any claims for monetary relief under § 1983 against Defendants in their official capacities. Rather, his claims against both Defendants in their official capacities are for declaratory judgment and injunctive relief. The Supreme Court in Will very clearly held that “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’” Will, 491 U.S. at 71 n.10 (citation omitted); see also Frew v. Hawkins, 540 U.S. 431, 437 (2004) (stating “[t]o ensure the enforcement of federal law, however, the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law”). Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiff’s claims against them in their official capacities.
Defendant Miller also moves to dismiss the claim against him in his individual capacity on the basis of qualified immunity. Defendant Miller asserts that it is clear the allegations against him are made for actions he took in furtherance of his official duties and not because he, in his individual capacity, deprived Plaintiff of any rights. However, the Eleventh Amendment does not bar suits under § 1983 for money damages against defendants sued in their individual capacities
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merely because “the alleged wrongdoing was conducted while in performance of their official capacity.” Roach, 825 F. Supp. at 118; Hafer v. Melo, 502 U.S. 21, 27 (1991) (rejecting the petitioner’s argument that “[u]nder Will, . . . state officials may not be held liable in their personal capacity for actions they take in their official capacity”). The doctrine of qualified immunity, however, does protect public officials performing discretionary functions from civil liability if they can show that their conduct did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999); (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The threshold question a court must answer when qualified immunity is raised is: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001).15 If the answer to this question is no, the inquiry ends. Id. If, on the other hand, the answer is yes, then the court must determine whether the right was clearly established in the specific context of the case. Id.
In this case, there are two alleged actions which the Court will address separately for qualified immunity purposes. The first action is the actual strip search. As discussed above, taking Plaintiff’s allegations as true, the Court has no difficulty finding the strip search policy violates a
15Although it often will be appropriate to conduct the qualified immunity analysis by first determining whether a constitutional violation occurred and by next determining whether the constitutional right was clearly established, the order of that two-step protocol is no longer mandatory. Pearson v. Callahan, 129 S. Ct. 808 (2009) (overruling Saucier).
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constitutional right and such right was clearly established under Logan. As governmental officials are held to have “presumptive knowledge of and respect for ‘basic, unquestioned constitutional rights,’” and may be liable for constitutional violations when they “‘knew or reasonably should have known’” their actions violated those rights,16 the Court DENIES Defendant Miller’s Motion to Dismiss with respect to the strip search policy.
The second action is the delousing policy. As mentioned above, there are very few cases which discuss delousing policies and there do not appear to be any cases on point within the Fourth Circuit. Thus, even if the Court were to presume at this point in the litigation that the delousing policy violates a constitutional right, the Court finds it highly unlikely that a reasonable person would have notice of that violation. Nevertheless, as the Court has denied Defendants’ Motion to Dismiss with respect to the delousing policy, the Court also DENIES Defendant Miller’s qualified immunity argument with respect to this policy. The Court believes this issue is best resolved after the Court decides the underlying issue regarding the policy itself, which will give both parties the opportunity to present evidence and arguments in support of their positions. See Amaechi v. West, 237 F.3d 356, 362-63 (2001) (stating that the concept of “clearly established” includes those rights previously adjudicated and “those manifestly included within more general applications of the core constitutional principle invoked” which would provide notice to a reasonable person in the official’s position that certain conduct violates those rights (citations and internal quotation marks omitted)).
16Harlow, 457 U.S. at 815 (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975) (emphasis in Harlow deleted).
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D. The PLRA Defendants further argue Plaintiff’s action must be dismissed because he failed to exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA). Section 1997e(a) of the PLRA provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). However, Plaintiff was no longer an inmate at the time he filed this action. Therefore, the PLRA is not applicable. See Cofield v. Bowser, 247 Fed. Appx. 413, 414, 2007 WL 2710423, *1 (4th Cir. 2007) (unpublished) (stating because the plaintiff “was not a prisoner when he filed his complaint, the PLRA exhaustion requirement is not applicable to his § 1983 action. A former inmate who has been released is no longer ‘incarcerated or detained’ for the purposes of § 1997e(h) and therefore does not qualify as a ‘prisoner’ subject to the PLRA”); Shembo v. Bailey, No. 3:07cv543-RJC, 2009 WL 129974, *2 (W.D. N.C. Jan. 20, 2009) (same). Accordingly, the Court DENIES Defendants’ motion on exhaustion grounds.
III. CONCLUSION Accordingly, for the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss.
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Case 3:09-cv-00758 Document 32 Filed 08/05/10 Page 29 of 29 PageID #: 225 The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and
any unrepresented parties. ENTER: August 5, 2010 ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 1 of 25 PageID #: 859

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

Michael Cantley and Floyd Teter, on behalf of themselves and on behalf of a Class of others similarly situated,
Plaintiffs,
v.
The West Virginia Regional Jail and Correctional Facility Authority;
and;
Terry L. Miller, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority;
and;
Joseph A. DeLong, both individually and in his official capacity as Acting Executive Director of the West Virginia Regional Jail and Correctional Facility Authority;
and;
Larry Parsons, both individually and in his Official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority
Defendants.

No. 3:09-CV-0758 Honorable Robert C. Chambers
THIRD AMENDED CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

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INTRODUCTION This is a class action brought to redress th e deprivation by Defendants of rights secured to the Plaintiffs and proposed Class by the Unite d States Constitution and the laws of the United States of Am erica. For at least the past 11 years, the W est Virginia Regional Jail and Correctional Facility Authority has had a policy of strip searching all individuals who enter any of the West Virginia Regional Jails and placing them in jail clothing, regardless of the crime with which they are charged. In addition, the West Virginia Regional Jail and Correctional Facility Authority also requires that all pre-trial detainees be deloused by having corrections officers use plastic bottles to spray caustic delousing solution over the genitals of detainees. Of particular import to this action, the W est Virginia Regi onal Jail and Correctional Facility Authority performs these blanket strip searches and delous ing procedures on detainees who ha ve yet to be arraigned before a judicial officer. These p rocedures are, in part, derived from the written policies of the W est Virginia Regional Jail and Correctional Facility Authority, and were promulgated by senior West Virg inia Regional Jail and Cor rectional Facility Authority officials named herein. Plaintiffs bring this action on behalf of themselves, and on behalf of a Class of thousands of others who were deloused after being charge d with pe tty crimes, to vindicate the clear and unnecessary violation of their ci vil rights and those of the Class Members they propose to represent. Plaintiffs were charged with non-felony offenses, and were subj ected to delousing, in violation of their rights against unreasonable searches under the Fourth Am endment of the United States Constitution. Both Plaintiffs were also subjected to strip and visual cavity searches before being arraigned by a judicial officer, which also represents a clear violation o f their civil
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rights. The Plaintiffs seek to represent o ther similarly situated indi viduals who were strip searched prior to being arraigne d while in the custody of the W est Virginia Regional Jail and Correctional Facility Authority. Pl aintiffs seeks monetary damages from Defendants Terry L. Miller, Joseph DeLong and Larry Parsons for himself and each member of the Proposed Class, a declaration that Defend ant West Virginia Regional Jail and Correctional Facility Authority’s policies are unconstitutional, and an injunction precluding Defendant We st Virginia Regional Jail and Co rrectional Facility Auth ority and th e Individual Defendants from continuing to violate the rights of those placed into the custody of the R egional Jails that th ey administer. With this as a background, Plaintiffs complains as follows:
JURISDICTION 1. This Court has jurisdiction over this action und er the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain com pensatory damages and injunctive relief for the deprivation, under color of state law, of the ri ghts of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. § 1983. Th is Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality of the policies of a state government. 2. Venue is proper under 28 U.S.C. § 1391(b)(2 ) because a substantial p art of the events or om issions giving rise to Plaintiffs’ a nd Class claim s occurred within this judicial district.
PARTIES 3. Plaintiff Michael Cantley is an adult male residing in C abell County, W est Virginia. On or about Septem ber 28, 2008, he wa s arrested and placed in the Western Regional
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Jail on non-felony charges of violating an order of protection at the hom e of his ex-wife. Mr. Cantley was also adm itted to cus tody of the Western Regional Jail on s everal other occasions during the proposed class period.
4. Plaintiff Teter is an adult m ale residing in Preston County, West Virginia. On or about February 19, 2010, he was arrested and placed in the Tygart Valley Regional Jail on non felony charges of putting materials on a highway and obstructing an officer.
5. Defendant West Virginia Regional Jail and Correctional Facility Authority (“WVRJA”) is a state governm ent agency organized and existing under the laws of the State of West Virginia. At all tim es relevant hereto, the W VRJA was resp onsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the West Virginia Regional Jail System and was responsible for the appointment, training, supervision and conduct of all Regional Jail personnel, including those working in the Central Regional Jail, Eastern Regional Jail, North Central Regional Jail, Nort hern Regional Jail, Potomac Highlands Regional Jail, South Central Reg ional Jail, Southern Regional Jail, Southw estern Regional Jail, Tygart Valley Regional Ja il, and the W estern Regional Jail (co llectively the “West Virginia Regional Jail System” or “WVRJS”). In addition, at all relevant times, the WVRJA was re sponsible for enforcing the rules of the W est Virginia Regional Jail System, and fo r ensuring that personnel employed in West Virginia Regiona l Jail system obey the Constitu tion and laws o f the Unite d States and of the State of West Virginia.
6. Defendant Terry L. Miller (“Director Miller”) was the duly appointed E xecutive Director of the W VRJA, and, as such, was a policy m aker with respect to the treatm ent of pretrial and other detainees over which the W VRJA exercises custodial or other con trol. Director
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Miller’s principal place of business was the WVRJA’s Office, 1325 Virginia St. East, Charleston West Virginia, 25301. Director Miller is m ade a Defendant in this action in both his individual and official capacities. Miller was fired as Director of the WVRJA in October 2010.
7. Defendant Joseph A. DeLong (“Acting Dir ector DeLong”) is the duly appointed Acting Executive Director of the WVRJA, and, as such, is a policy m aker with respect to the treatment of pre-trial and othe r detainees over which the W VRJA exercises custodial and other control. Acting Directo r DeLong’s principal place of business is th e WVRJA’s Of fice, 1325 Virginia Street East, C harleston, West Virginia 25301. Acti ng Director DeLong is m ade a Defendant in this action in both his individua l and official capacities. Upon infor mation and belief, Defendant DeLong becam e the Acting Executive Director of the WVRJA from October 2010 until April 2011, and then again in February 2012.
8. Defendant Larry Parsons (“Director Pars on”) was the duly a ppointed Executive Director of the W VRJA, and, as such, was a policy m aker with respect to the treatm ent of pretrial and other detainees over which the W VRJA exercises custodial or other con trol. Director Parsons’ principal place of business was the WVRJA’s Office, 1325 Vi rginia Street East, Charleston West Virginia 25301. Director Parsons is made a Defendant in this action in both his individual and official capacities. P arsons served as the Director of the WVRJA from April 1, 2011 until February 2, 2012.
9. Collectively, Defendants Miller, Pars ons and DeLong are referred to the “Individual Defendants.”
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CLASS ACTION ALLEGATIONS
10. Plaintiffs brings this action pursuant to Rules 23(b)(1), 23(b)(2) and 2 3(b)(3) of
the Federal Rules of Civil Procedure on behalf of the mselves and a Class of si milarly situated
individuals who were charged wi th misdemeanors or m inor crimes and were s trip searched
and/or deloused upon their entr y into the W est Virginia Re gional Jail System , including the
Central Regional Jail, Eastern Regional Jail, North Central Regional Jail, Northern Regional Jail,
Potomac Highlands R egional Jail, South Centra l Regional Jail, S outhern Regional Jail,
Southwestern Regional Jail, Tygart Valley Regional Jail, and the Western Regional Jail.
11. The Plaintiffs propose to represent the following Classes and Subclasses::
CLASS ONE:
All persons who have been or will be placed into the custody of the West Virginia Regional Ja il System, after being charged with m isdemeanors, summary violations, violations of probation, traffic infractions, civil commitments or other minor crimes and were or will be deloused upon their entry into the West Virginia Reg ional Jail System, pursuant to the po licy, custom and practice of the W est Virginia Regional Jail and Correctional Facility Authority. The class period commences on June 30, 2007 and extends to the date on which the W est Virginia Regional Jail and Correctional Facility Authority is enjoined from, or oth erwise ceases, enforcing its policy, practice and custom of conducting the uniform delousing of pre-trial detainees. Speci fically excluded from the class are Defendants and any and a ll of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
CLASS TWO
All persons who have been or will be placed into the custody of the West Virginia Regional Jail System afte r being charged with m isdemeanors, summary violations, violations of probation, traffic infractions, civil commitments or oth er minor crimes were or will be strip searched upon their entry into the West Virginia Regional Jail System prior to their be ing arraigned or provided with an appropriate initial court appearance to contest their detention prior to being searched, pursuant to the policy, custom and practice of the W est Virginia Regi onal Jail and Correctional Fac ility
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Authority. The class period commen ces on June 30, 2007 and extends to the date on which the West Virginia Regional Jail and Correctional Facility Authority is enjoined from , or ot herwise ceases, enforcing its policy, practice and custom of conducting the uni form strip searches of pre-trial detainees prior to their being prov ided with an initial appe arance to contest their detention. Specifica lly excluded from the class are D efendants and any and all of their respec tive affiliates, legal rep resentatives, heirs, successors, employees or assignees.
SUB-CLASS A
All persons who have been or will be into the custody of the Central, Potomac Highlands or Tygart Valley Regional Jails after being charged with misdemeanors, summary violati ons, violations of probation traffic infractions, civil commitments or other m inor crimes were or will be s trip searched upon their entry into thes e Regional Jails prior to their bein g arraigned or provided with an appropriate initial court appearance to contest their detention prior to being searched, pursuant to the policy, custom and practice of the W est Virginia Regi onal Jail and Correctional Fac ility Authority. The class period commen ces on June 30, 2007 and extends to the date on which the West Virginia Regional Jail and Correctional Facility Authority is enjoined from , or ot herwise ceases, enforcing its policy, practice and custom of conducting the uni form strip searches of pre-trial detainees prior to their being prov ided with an initial appe arance to contest their detention. Specifica lly excluded from the class are D efendants and any and all of their respec tive affiliates, legal rep resentatives, heirs, successors, employees or assignees.
12. This action has been brought and m ay properly be maintained as a Class action
under Federal law an d satisfies the num erosity, commonality, typicality and adequacy
requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
13. The members of the Class are so n umerous as to render jo inder impracticable.
Upon information and belief, there are hundreds of people arrested for m isdemeanors and
violations who are placed into the custody of the W est Virginia Regional Jail System every
month -- all of whom are m embers of the Proposed Class. Upon information and belief, the size
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of the Proposed Class totals at least thousands of individuals, some of whom have had their civil rights violated on multiple occasions.
14. Upon information and belief, joinder of a ll of these individuals is im practicable because of the larg e number of Class Mem bers and the fact that Class Mem bers are likely dispersed over a large geographical area, with so me members presently residing outside of West Virginia and this Judicial Dist rict. Furthermore, upon information and belief, many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
15. Common questions of law and f act exist as to all m embers of the Clas s, in that they all had their right to be free from unreasonable searches and involuntary delousing violated by Defendants’ conducting strip searches absent pa rticularized suspicion. All m embers of the Class were charged with m isdemeanors or summary violations when placed into th e custody of the West Virginia Regional Jail System , and all were illegally deloused in violation of the established law in this ju dicial circuit. Many Class Members were also subjected to a strip and visual cavity search prior to being arraigned, in violation of the es tablished law in this judicial circuit.
16. Plaintiffs’ claims are typical of the claim s of the members of the Class. P laintiffs and all members of the Class sustained dam ages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by the Class Members.
17. The representative Plaintiffs have the requisite personal interest in the outcome of this action a nd will f airly and ad equately protect the inte rests of the Cla ss. Pla intiffs have n o interests that are adverse to the interests of the Members of the Class.
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18. Plaintiffs have retained counsel with subs tantial experience in the prosecution of Class action and civil rights litigation, includin g successful litigation o f strip search cases. Plaintiffs’ counsel have the resources, expertis e and experience to succe ssfully prosecute this action against the WVRJA and the Individual Defendants.. Counsel for the Plaintiffs know of no conflicts among members of the Class or between counsel and members of the Class.
19. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs seek Class Certification under Fed. R. Civ. P. 23(b)(2), in that all Class Members were subject to the same policy requirin g the illeg al strip searches and delousi ng of individuals charged with misdemeanor or m inor crimes and placed in to the custody of the W est Virginia Regional Jail System. In short, the WVRJA, the Individual Defendants and the Regional Jail personnel acted on grounds generally applicable to all Class Members.
20. In addition to certification unde r Rule 23(b)(2), and in th e alternative, Plaintiffs seek certification under Rule 23(b)(3).
21. Common questions of law and fact exist as to all m embers of th e Class, and predominate over any questions that affect on ly individual members of the Clas s. Thes e common questions of law and fact include, without limitation, the co mmon and predom inate question of whether the De fendants’ written and/or de facto policy of delousin g all individuals charged with m isdemeanors or minor crimes and committed to the Jail is a v iolation of the Fourth and Fourteenth Amendments to the Un ited States Constitution, and whether such a written and/or de facto policy existed during the Class Peri od. Common questions also arise regarding the WVRJA’s policy, practice and/or pro cedure of strip s earching detainees prior to
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their being arraigned or provide d with other appropriate judici al process to c ontest their detention.
22. A Class action is superior to other ava ilable methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual mem bers of the Class is impracticable given the large number of Class Members and the fact that they are dispersed over a large geographical area. Furthermore, the e xpense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would al so magnify the delay and expense to all parties and the court system . By contra st, the conduct of this action as a Class action in this District presents far fewer m anagement difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
23. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip sear ch and delousing regim en for at least the past twelve years.
24. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
FACTS Facts Applicable to the Class Generally 25. The Fourth Amendment of the United States Constitution prohibits state officials, such as the Individual Defendants in this actio n and the Corrections Officers they supervise,
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from performing strip searches of arrestees who have been charged with m isdemeanors or other minor crimes, and who have not been arraigned or provided with appropriate process to contest their detention, unless the officer has reasonable suspic ion to believe that the arrestee is concealing a weapon or contraband.
26. The WVRJA and Director Miller ha ve instituted a written and/or de facto policy, custom or practice of strip sear ching and delousing all individua ls who enter the custody of the West Virginia Regional Jail System, regardless of the nature of their charged crime and without the presence of reasonable suspicion to believ e that the individual wa s concealing a weapon or contraband.
27. In a recen t filing with the Court, the WVRJA and Director Miller adm itted, through counsel, as follows: “W VRJA maintains a policy by which all incom ing detainees go through a visual strip search and delousing pr ocedure ….Defendants acknowledge that Plaintiff was strip searched and deloused upon his ad mission to Western Regi onal Jail pursuant to WVRJA.” (Docket Number 8, pp. 1, 4).
28. The written policy of th e WVRJA also conf irms this p rocedure. A cop y of the WVRJA’s written “In mate Admission Procedures” policy is attac hed to this Amended Complaint as Exhibit A.
29. The WVRJA and Director Miller ha ve instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual insp ection of the vaginal and rectal cavities) on all indivi duals who enter the custody of th e West Virginia Regional Jail System, regardless of the individual characteris tics or the nature of their cha rged crime. For purposes of this Complaint, strip and visual cavity searches are coll ectively referred to as “strip
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searches”. These strip and visual cavity s earches include a visual insp ection of a detain ee’s genitals and anus, and require detainees to m anipulate body parts to allow for an inspection of these private areas.
30. Upon information and belief, some members of the Proposed Class (not including the Plaintiffs) are also required to undergo physical cavity searches upon en try to the custody of the WVRJA, where a Corrections Officer inserts a gloved finger into the rect um of a detainee to search for contraband.
31. Many of the pre-trial detainees in this action, e.g., members of Class Two, were subjected to a strip search, a visual cavity se arch and compulsory delousing prior to being arraigned before a Judge or provided with any judicial process to contest their detentions.
32. Many of the pre-trial detainees in this action, e.g., m embers of Class Two, are taken into the custody of the W VRJA immediately after their arrest before appearing in Court to be arraigned. This often occurs during the even ing and on weekends, or fo r individuals arrested in rural areas. Generally, th ese individuals are arraigned by videoconference several hours and/or days after being taken into the custody of the WVRJA.
33. Specifically, the WVRJA and the I ndividual Defendants’ written policies do not specifically require that individuals who are to be stri p searched and deloused should be arraigned first prior to being strip searched and deloused. This procedure, however, is conducted contemporaneously with receivin g the jail uni form. According to de position testimony from employees of the WVRJ A, detainees are usuall y photographed prior to be ing arraigned, and are always photographed prior to arraignm ent when they committed directly to the WVRJA after arrest.
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34. In deposition testimony, the Rule 30(b)(6) deponent of the WVRJA adm itted that three facilities, the Tyg art Valley Regional Ja il, the Potom ac Highlands Regional Jail and the Central Regional Jail universally photographed pre-trial detainees in the WVRJA jail uniform.
35. The WVRJA and the I ndividual Defendants instituted a written and /or de facto policy, custom or practice of strip searching all pre-trial detainees at the WVRJA without regard to whether or not they had b een arraigned, and consequently strip searched and deloused thousands of individuals prior to their seeing a j udicial officer to contes t their detention. Many of these individuals, such as Plaintiff Floyd Tete r, were released on their own recognizance after arraignment. Others made bail in short order after being arraigned.
36. The WVRJA and the I ndividual Defendants have instituted a written and/or de facto policy, custom or practice of delousing all individuals who enter the custody of the W est Virginia Regional Jail S ystem, regardless of the indi vidual characteristics or the nature of their charged crime. The delousing procedure first enta ils a detainee completely disrobing in front of a correction officer. T he correction officer then sprays delousing solu tion upon a detainee’s naked body. Finally, the detainee is ordered to shower within full view of the corrections officer. The delousing procedure is conducted upon all detainees without inquiry into or establishment of reasonable suspicion, or inquiry or establishment into whether the de tainee actually harbors lice. This delousing is com pulsory, in that a correction officer s tands before a detainee and sprays them with a plastic spray bottl e, and then observes them rubbing the solution into their hair, including their pubic hair. This delousing occurs in the absen ce of any m edical evaluation to determine the presence, or absence, of lice.
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37. Upon information and belief, the presen ce of lice in the W VRJA facilities is limited, and the on e-time application of “liceall,” in the absence of any further m edical treatment, is not an effective cure for lice.
38. Upon information and belief, the “liceall” solution used by the WVRJA is caustic, in that can, and often does, cause chem ical burns to those upon whom it is applied, especially African-Americans.
39. Upon information and belief, Corrections Officers of the WVRJA do not receive any medical training prior to apply ing “liceall” to the faces, genitals, an d rectums of pre-trial detainees.
40. The WVRJA and the I ndividual Defendants know that they m ay not institute, enforce or perm it enforcement of a policy or practice of conducting delousing without particularized, reasonable suspicion that the detainee was harboring lice.
41. The Defendants’ written and/or de facto policy, practice and custom mandating wholesale delousing of all m isdemeanor and violation arrestees has been prom ulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
42. The WVRJA and Director Miller have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or cust om of delousing all individuals placed into the custody of the West Virginia Regional Jail System without any requirement of reasonable suspic ion, or indeed suspicion o f any sort. This writte n and/or de facto policy made the delousing of pre-trial detainees routine; whether or not a detainee was actually harboring lice, or was suspected to harbor lice, was not relevant to the WVRJA’s policy, practice and custom of compulsory delousing.
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43. . 44. As a direct and proxim ate result of th e unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches and delousing -each member of the proposed classes, including the named Plaintiffs -- has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiff Michael Cantley 45. Plaintiff Cantley is an adult male residing in Cabell County, West Virginia. On or about September 28, 2008 he was arrested on non- felony charges of violating an order of protection at the home of his ex-wife. Specifically, Mr. Cantley was required to stay away from his former wife’s home, and failed to do so on t he date in question. The allegations against Mr. Cantley did not involve a claim that he had harm ed his wife, or anyone else, but ra ther that he was present in a location at which he was forbidden to be present. Plaintiff Cantley’s arrest was void of any reasonable suspicion that he harbored any weapons, contraband, or lice. 46. Mr. Cantley was first taken in custody by the West Virginia State Police, and later that evening taken to the W estern Regional Jail. Plaintiff Cantley was initially housed in a holding cell. 47. After being housed in a holding cell for several hours, Plaintiff Cantley was required to undergo a strip search. 48. Plaintiff Cantley was brought into a shower room and advised by a correctional officer that he would be strip searched. In connection with the strip search, Plaintiff Cantley was required to completely disrobe, lift his arm s and legs, spread his butt cheeks, lift up his testicles and bend over, so that he could be inspected by a correctional officer. Plaintiff Cantley was then
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 16 of 25 PageID #: 874
sprayed with de-lousing solution and ordered to shower while the corrections officer had a complete view of him showering. He was then issued prison clothing.
49. Plaintiff Cantley was released from th e Western Regional Jail on or about November 6, 2008, and all charges were dismissed.
50. Plaintiff Cantley was a dmitted to the W estern Regional Ja il on othe r occasions during the class period, and was strip searched a nd deloused prior to being arraigned before a judicial officer.
51. Mr. Cantley has also been adm itted the W estern Regional Jail on seve ral other occasions during the class period f or misdemeanor or oth er minor charges, and underwent procedures similar, in all m aterial ways, to those detaile d in this Am ended Class Action Complaint. Upon inform ation and belief, thes e arrests were also voi d of any reasonable suspicion to believe that he possessed weapons or contraband in his private areas, or lice.
52. As a direct and proximate result of these unlawful strip searches, Plaintiff Cantley has suffered and continues to suf fer psychological pain, humiliation, suffering and m ental anguish.
Facts Applicable to the Named Plaintiff Floyd Teter 53. Plaintiff Teter is an adult m ale residing in Preston County, West Virginia. On or about February 19, 2010, he was arrested by an of ficer of the Terra Alta Police Departm ent on non-felony charges of putting materials on a highway and obstructing an officer.
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54. Specifically, Mr. Teter was on a tractor moving snow in the vicinity of a road, and was arrested in a Church parking lo t after driving his tractor there. Plaintiff Teter’s arrest was void of any reasonable suspicion that he harbored any weapons, contraband, or lice.
55. Mr. Teter was first taken into custody by the Terra Alta Po lice Department to the Preston Memorial Hospital to treat injuries to hi s back. After being rel eased from the hospital, he was transported to the Preston County Sher iff’s Department, and la ter transported by the Preston County Sheriff’s Department Transport Office to the Tygart Valley Regional Jail. Plaintiff Teter was initially housed in a holding cell.
56. After being housed in a holding cell for se veral hours, and prior to arraignm ent, Plaintiff Teter was required to undergo a strip search.
57. Plaintiff Teter was brought into a show er room and advised by a correctional officer that he would be strip se arched. In conn ection with the strip search, Plaintiff Teter was required to completely disrobe, lift his arm s and legs, spread his butt cheeks, lift up his testicles and bend over, so that he could be inspected by a correctional officer. Plaintiff Teter was th en sprayed with de-lousing solution and ordered to shower while the corrections officer had a complete view of him showering. He was then issued prison clothing.
58. Plaintiff Teter was released from the Western Regional Jail on or about February 20, 2011 shortly after being arraigned.
59. As a direct and proxim ate result of this unlawful strip search, Plaintiff Teter has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 18 of 25 PageID #: 876
CAUSES OF ACTION FIRST CAUSE OF ACTION AGAINST THE INDIVDIUAL DEFENDANTS IN
THEIR INDIVIDUAL CAPACITIES -- Violation of Constitutional Rights Under Color of State Law --
-- Illegal Strip and Visual Cavity Searches -60. Plaintiffs incorporate by reference and realleges each and ever y allegation stated in the foregoing paragraphs. 61. The Fourth Amendment of the United Stat es Constitution protects citizens from unreasonable searches by law enforcem ent officers, and prohibits officers from conducting strip searches and delousing of indi viduals arrested for m isdemeanors or violations absent som e particularized suspicion that th e individual in question has eith er contraband or weapons when those detainees have not been provided with a ppropriate judicial pro cess to contes t their detention. 62. The Fourth Am endment of the United St ates Constitution also protects citizens from unreasonable searches and seizures by law enforcement officers, and proh ibits officers from conducting uniform delousing of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question is harboring lice on their bodies. This is especially so when the delousing regimen in question will not actually cure someone who is infested with lice. 63. The actions of the Individual Defendants de tailed above violated Plaintiffs’ rights under the United States Constituti on. It was not objectively r easonable for W est Virginia Regional Jail personnel to strip search and delouse the Plainti ffs and Class Mem bers based on their arrests for m isdemeanor/ summary violation charges when they were no t provided with
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 19 of 25 PageID #: 877
judicial process to contest their detention an d seek bail. Additiona lly, it was not objectively reasonable for W est Virginia Regional Jail pers onnel to delouse all pre-trial detainees charged with misdemeanors/summary violation charges in the absence of any m edical inspection or suspicion that the detainee’s body was harboring li ce. It was also not objectively reasonable for the Individual Defendants to or der/direct West Virginia Re gional Jail System personnel to conduct such searches.
64. These strip searches and delousing were conducted pursuant to the policy, custom or practice of the Individual Defendants. As su ch, the Individual Defendant s are directly liable for the damages of Plaintiffs and members of the Class.
65. Upon information and belief, the Indivi dual Defendants are responsible for establishing the policie s and procedures to be utilized in the opera tion of the West Virgin ia Regional Jail system , and are re sponsible for the im plementation of the strip search and delousing policies questioned in this lawsu it. As such, the Individual Defendants are individually responsible for the damages of the Plaintiffs and Members of the Class.
66. The Policy Making Defendants knew that th e Jail’s strip search and delousing policies were illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and Members of the Class of their Constitutional rights.
67. This conduct on the part of all Individual Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were taken under color of state law.
68. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs and the Members of the Class have been irreparably injured.
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 20 of 25 PageID #: 878
SECOND CAUSE OF ACTION AGAINST THE INDIVDIUAL DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES
-- Violation of Constitutional Rights Under Color of State Law --- The Right to Privacy –
69. Plaintiffs incorporate by reference and realleges each and ever y allegation stated in the foregoing paragraphs.
70. The right to privacy is protected by th e Fourth Am endment and is also an independent right with other constitutional underpinnings.
71. The right to privacy pro hibits officers from conducting delousing of individuals arrested for misdemeanors or violations absent so me particularized suspicion that the individual in question has lice.
72. The actions of the Individual Defendants detailed above violated and im properly invaded Plaintiffs’ right to privacy. It was not objectively reasonable for West Virginia Regional Jail personnel to delo use the Plaintiffs and Class Members based on their arrests for misdemeanor/summary violation charges. It was also n ot objectively reasonable for the Individual Defendant to order/direct West Virginia Region al Jail System personnel to conduct such a procedure.
73. This delousing was conducte d pursuant to the policy, custom or practice of the Individual Defendants. As such, the Individual Defendants are directly liable for the damages of Plaintiffs and members of the Class.
74. Upon information and belief, the Indivi dual Defendants are responsible for establishing the policie s and procedures to be utilized in the opera tion of the West Virgin ia Regional Jail system , and are re sponsible for the im plementation of the delousing policies
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 21 of 25 PageID #: 879
questioned in this lawsuit. As such, the Indi vidual Defendants are indi vidually responsible for the damages of the Plaintiffs and Members of the Class.
75. The Policy Making D efendants knew that the Jail’s delousing policies were illegal, and acted willfully, knowingly, and with specific intent to de prive Plaintiffs and Members of the Class of their Constitutional rights.
76. This conduct on the part of the Individual Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were taken under color of state law.
77. As a direct and p roximate result of the unconstitutional acts described above, Plaintiffs and the members of the Class have been irreparably injured.
THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
78. Plaintiffs incorporate by reference and realleges each and ever y allegation stated in the foregoing paragraphs.
79. The policy, custom and practice of the WVRJA and the Individual Defendants are clearly unconstitutional and violates the right to privacy, in that these entities and individuals are directing/conducting the strip sear ches and delousing of all individuals placed into the W est Virginia Regional Jail System without any partic ularized suspicion that the individuals in question have either contraband or weapons.
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80. Plaintiffs and Mem bers of the Class reque st that this Court issue a de claratory judgment, and that it declare the strip search and delousing policies of the W VRJA and the Individual Defendants to be unconstitutional and violative of the right to privacy.
FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
81. Plaintiffs incorporate by reference and realleges each and ever y allegation stated in the foregoing paragraphs.
82. The policy, custom and practice of the WVRJA and the Individual Defendants is clearly unconstitutional and violative of the right to privacy, in that these entities and individuals are directing/conducting the strip s earches and delousing of all i ndividuals placed into the West Virginia Regional Jail system without any partic ularized suspicion that the individuals in question have either contraband, weapons, or lice.
83. Upon information and belief, this policy is currently in place in the West Virginia Regional Jail System, with new and/or prospectiv e Members of the Class being subjected to th e harms that have already been inflicted upon the Plaintiffs.
84. The continuing pattern of strip searching and delousing individuals charged with minor crimes will cause irreparable harm to the new and/or prospective Members of the Class, an adequate remedy for which does not exist at law.
85. Plaintiffs demand that the W VRJA, Director Miller, and the W est Virginia Regional Jail System personnel immediately de sist from strip searching and delousing individuals placed into the custod y of the We st Virginia Regional J ail System absent any
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 23 of 25 PageID #: 881
particularized suspicion that the individuals in question have either contraband, weapons, or lice, and seeks both a preliminary and permanent injunction from this Court ordering as much.
DEMAND FOR TRIAL BY JURY 86. The Plaintiffs hereby demands a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of the mselves and on behalf of a Class of others similarly situated, requests that this Honorable Court grant them the following relief: 1. An order certifying this action as a Class Action pursuant to Fed. R. Civ. P. 23. 2. A judgment against Director Miller in his individual capacity, on Plaintiffs’ First and Second Causes of Action deta iled herein, awarding compensatory damages to Plaintiffs and each Member of the Proposed Class in an amount to be determined by a jury and/or the Court on both an individual and a Class-wide basis. 3. A declaratory judgment against all Defendants declaring the WVRJA and the Individual Defendants’ policy, practice and custom of strip and visual cavity searching, and delousing, of all detainees entering the West Virginia Regional Jail System, regardless of the crime charged or suspicion of contraband or lice, to be unconstitutional, violative of the right to privacy and otherwise improper.
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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 24 of 25 PageID #: 882

4. A preliminary and permanent injunction enjoining all Defendants from continuing to strip and visual cavity search, and delouse, individuals charged with misdemeanors or minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband or lice.
5. A monetary award for attorneys’ fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23.
Respectfully submitted by:

Dated: September 14, 2012

/s D. Aaron Rihn
_____________________________________ D. Aaron Rihn, Esquire ROBERT PEIRCE & ASSOCIATES, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219-1918 412.281.7229 W.V. I.D. 8736

Elm LAW
Post Am 518.434.1718 Gary Donna Nicholas
202.429.2290

/s Elmer Robert Keach, III
______________________________________ er Robert Keach, III, Esquire OFFICES OF ELMER ROBERT
KEACH, III, P.C. 1040 Riverfront Center
Office Box 70 sterdam, NY 12010
E. Mason, Esquire F. Solen, Esquire A. Migliaccio, Esquire
THE MASON LAW FIRM, LLP 1225 19th Street, NW Suite 500 Washington, DC 20036

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Case 3:09-cv-00758 Document 89 Filed 09/14/12 Page 25 of 25 PageID #: 883

Daniel GOLDM 55 Suite Cleveland,

R. Karon, Esquire AN SCARLATO & KARON, P.C.
Public Square 1500 OH 44113
216.622.1851
ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

25

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MICHAEL CANTLEY and FLOYD TETER, on behalf of themselves and on behalf a Class of others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:09-0758

THE WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY; TERRY L. MILLER, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority; JOSEPH A. DELONG, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority; and LARRY PARSONS, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority.

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Renewed Motoin to Dismiss Plaintiffs’ Third Amended

Complaint by Defendants The West Virginia Regional Jail and Correctional Authority (WVRJA)

and Terry L. Miller, Joseph A. DeLong, and Larry Parsons, all in their individua l and official

capacities as the Executive Directors of the WVRJA. ECF No. 95. For the following reasons, the

Court DENIES the motion.

I. FACTUAL AND PROCEDURAL HISTORY This action was filed on July 1, 2009, by Planitiff Michael Cantley, individually and on behalf of a Class of others similarly situated, against the WVRJA and Mr. Miller. In his First Amended Class Action Complaint filed on October 9, 2009, Plaintiff asserted he was arrested on or about September 28, 2008, on non-felony charges and was required to undergo a visual cavity strip search (vcs)1 and de lousing pursuant to a W VRJA policy. Plaintiff Cantley claim ed that the WVRJA policy of strip searching and delousing pretrial detainees charged with misdemeanors or other minor crimes is unconstitutional under the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983.
Defendants WVRJA and Mr. Miller filed a motion to dismiss. On August 5, 2010, the Court denied the motion. Cantley v. W. Va. Reg’l Jail and Corr. Fac. Auth,.728 F. Supp.2d 803 (S.D. W. Va. 2010). Discovery proceeded in this case until June 1, 2011, when the Court signed the parties’ proposed stipulation to stay further proceedings in this matter until after the United States Supreme Court issued a decision in Florence v. Board of Chosen Freeholders, another strip search case. T he Supreme Court issued its decision on A pril 2, 2012. Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012). In the interim period, the Court permitted Floyd Teter to be
1“A ‘strip search,’ though an um brella term, generally refers to an inspection of a naked individual, without any scrutiny of the subjecst'body cavities. A ‘visual body cavity search’ extends to visual inspection of t he anal and genital areas. A ‘manual body cavity search’ includes som e degree of touching or probing of body cavities.”Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir. 1985) (citation omitted).
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added as a class representative in a Second Amended Complaint. ECF Nos. 65 & 66. Mr. Teter also alleges that he was arrested on non-felony charges,subjected to a visual cavity search, and sprayed with a delousing solution prior to being arraigned.
In light of the Supreme Court’s decision in Florence, the Court permitted Plaintiffs to amend and file a Third Am ended Complaint, in which Defendants DeLong and Parsons were added. ECF No. 89. The Court also entered a newScheduling Order. Thereafter, Defendants filed the current motion to dismiss the Third Amended Complaint.
II. STANDARD OF REVIEW In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court disavowed the “no set of facts” language found in Conley v. Gibson, 355 U.S. 41 (1957), which was long used to evaluate com plaints subject to 12(b)(6) motions. 550 U.S. at 563. In its place, courts must now look for “plausibility” in the complaint. This standard requires a plaintiff to set forth the “grounds” for an “entitle[m ent] to relief” that is m ore than m ere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotation marks and citations omitted). Accepting the factual allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claimof entitlement to relief, this basic deficiency should. . . be exposed at the point of minimum expenditure of time and money by the parties and the court.”Id. at 558 (internal quotation marks and citations omitted).
3

In Ashcroft v. Iqbal , 556 U.S. 662 (2009), the Suprem e Court explained the requirements of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme Court reiterated that Rule 8 does not dem and “detailed factual allegations[.]” 556 U.S. at 678 (i nternal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfullyharmed-me accusation” is insufficient. Id. “To survive a m otion to dismiss, a compl aint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Fa cial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The Supreme Court continued by explaining that, although factual allegations in a com plaint must be accepted as true for purposes of a m otion to dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court’s own judicial experience and com mon sense. Id. at 679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more than the mere possibility of m isconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief .’” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)). The Suprem e Court further articulated that “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the fram ework of a com plaint, they must be supported by factual allegations.” Id.
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III. DISCUSSION In Florence, the Supreme Court was asked to decide whether all detainees who are admitted to the general jail 2 population may be required to undress and subm it to a close visual inspection. 132 S. Ct. at 1513. The case before itnivolved Albert W. Florence who was arrested on an outstanding warrant, which inexplicitly rem ained in a com puter database despite the f act the underlying reason for the warrant was resolved. Id. at 1514. Upon his arrest, Mr. Florence was confined at the Burlington County Detent ion Center in New Jersey for six days and then was transferred to the Essex County Correctional Facility. Id.
Pursuant to the procedures at the Burlni gton County jail, every arrestee was required “to shower with a delousing agent.” Id. As an arrestee disrobed, officers also would examine the individual “for scars, marks, gang tattoos, and contraband[.]” Id. Mr. Florence further claimed he was directed “to open his m outh, lift his tongue , hold out his arm s, turn around, and lift his genitals[,]” although it was not clear whether these requirements were normal practice. Id. (citations omitted). During his detention, Mr. Fl orence “shared a cell with at least one other person and interacted with other inmates[.]” Id. at 1513.
Similarly, when Mr. Florence was transf erred to the Essex County Correctional Facility, he was placed in a holding cell, instructed to disrobe, and subjected to a visual inspection “for body markings, wounds, and contraband” and “anofficer looked at their ears, nose, mouth, hair,
2The Supreme Court used a broad meaning of the word “jail” to include prisons and detention facilities. Id.
5

scalp, fingers, hands, arms, armpits, and other body openings” without touching him . Id. at 1514 (citation omitted). “This policy applied regardless ofthe circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history.” Id. Mr. Florence then was required to shower (while his clothes were inspected) and, thereafter, he was admitted to the Essex facility. Mr. Florence was released the following day, after the charges were dismissed. Id.
Mr. Florence brought an action challenging the policy requiring c lose visual inspections of those arrested of m inor offenses, without any reason to believe the arrestee was harboring weapons, drugs, or contraband. Id. at 1514-15. The district court certified a class and, after discovery, ruled on summary judgment that the policy violated the Fourth Amendment. Id. at 1515. The United States Cour t of Appeals for th e Third Circuit reversed, finding the procedure “struck a reasonable balance between inmate privacy and the security needs of the two jails.” Id. (citation omitted). The Third Circuit prem ised its finding that the search es occurred prior to an arrestee’s admission into the general population, and Mr. Florence did not dispute this premise. Id.
In ruling on the constitutionality of thepolicy, the Supreme Court acknowledged the difficulties in operating and maintaining safety in detention facilities, which “requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” Id. (citation omitted). The Supreme Court emphasized its position of giving deference to correctional authorities and upholdingregulations that impinge upon the constitutional rights of inmates if they are “‘reasonably related to legitimate penological interests.’” Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987) (other citations omitted)). In addition, the Supreme Court
6

recognized there is no m echanical test to determ ine the reasonableness of an intrusion into an inmate’s privacy. Id. at 1516 (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Rather, “[t]he need for a particular search must be balanced against the resulting invasion of personal rights.”Id. (citing Bell, 441 U.S. at 559).
Utilizing this balancing test, the Supreme Court upheld “[p]olicies designed to keep contraband out of jails and prisons[.]”Id. (citing Block v. Rutherford, 468 U.S. 576 (1984) (banning contact visits); Hudson v. Palmer, 468 U.S. 517 (1984) (upholding random searches of inmates’ lockers and cells)). “These cases establish that correctional of ficials must be permitted to devise reasonable search policies to detect and deterthe possession of contraband in their facilities.” Id. at 1517 (citation omitted). In addition, the reasonableness of a policy, when juxtaposed to legitimate security concerns, lies within the realmand expertise of those officials. Further, the Supreme Court repeatedly admonished that “in the absence of substantial evidence inthe record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.” Id. (citations omitted).
Applying this standard, the Supreme Court stated that admitting new detainees to the inmate population creates numerous risks to staff, other inmates, and the new detainee. Id. at 1518. Thus, given that f acilities “are often crowded, unsanitary, and dangerous places,” there is a significant interest on the part of correctional foficials to conduct a thoroughsearch during the intake process. Id. at 1520. Specificall y, the Court stated th at “[t]he danger of introducing lice or contagious infections, for example, is well documented.” Id. at 1518 (citations omitted). Likewise,
7

the Court noted that visually inspecting tatt oos to identif y gang af filiation is a reasonable requirement during the intake process to protect everyone at the facility. Id. at 1519. Moreover, screening for contraband during intake is the m ost serious duty officials have, and some inmates who may be believed to be the lowest risk areactually dangerous criminals and are caught bringing contraband into jail. Id. at 1519-20. The Court noted that, not only do those arrested for minor offenses have the same incentive to conceal contraband, but they may be coerced to hide contraband if it is known they are not subject to the sam e searches as other s. The refore, to carve out an exception to a standard search protocol for thoserarested for minor offenses opens the door for those arrestees to being asked or coerced into bringingcontraband into the facilities because it will be well known they will not be searched. Id. at 1520-21.
In addition, the Court recognized that, practically speaking, it m ay be difficult to make inmate classifications based upon current and prior offenses before an intake se arch is conducted. Id. at 1521. Moreover, in the case before it, cirminal history records were not available to the intake officers conducting searches and, even if they were available, they may be inaccurate or incomplete. Id. (citations omitted). Without reliable information about the arrestees’ records, the Court found “it would be illogical to require officers to assume the arrestees in front of themdo not pose a risk of smuggling something into the facility.” Id. Furthermore, even if reliable records are available, requiring officers to make quick decisions on whether the arrestee’s record requires a search raises serious difficulties with im plementation and opens the door to potential charges of discrimination. Id. at 1521-22 (citation om itted). Therefore, for all of these reasons, the Court affirmed the Third Circuit’s decision finding the procedure was a reasonable balance between the
8

need for security and inmate privacy. Id. at 1523. In doing so, the Court specifically stated it was not ruling on a situation in which the arrestee’s detnetion had “not yet been reviewed by a magistrate or other judicial of ficer, and who can be held in available f acilities removed from the general population[.]” Id. at 1523. In addition, in their concurrni g opinions, both Chief Justice Roberts and Justice Alito emphasized that the Court was not foreclosing the possibility of an exception when a detainee has been arrested for a minor offense, the detention has not yet been reviewed by a judicial officer, and the detainee m ay be placed in an a lternative facility away from the general inm ate population. Id. at 1523-24.
In response to the Florence decision, Plaintiffs in the present case filed their Third Amended Class Action Complaint in an attempt to conform their claims to the holding inFlorence. Plaintiffs allege the WVRJA has a blanket policyrequiring all pretrial detainees, who have not been before a judicial officer, be strip searched, deloused, and placed in jail clothing regardless of their offense. TAC, at 2. Specifically, Plaintfif Michael Cantley asserts hewas arrested on September 28, 2008, on non-felony charges of violating a domestic violence protection order. Plaintiff Cantley states he was at his former wife’s house in violation of the order, but hedid not harm her or anyone else while there. Plaintif f was arrested, taken into custody, and placed in a holding cell at the Western Regional Jail.
9

Plaintiff Cantley claims that, after several hours of custody in a holding cell, he was required to undergo a “strip search” 3 and delousing pursuant to a W VRJA policy. Alt hough Plaintiff Cantley claims his arrest was void of any reasonable suspicion he possessed any weapons or contraband or harbored lice, the policy required him to com pletely disrobe in front of a correctional officer for a visual inspection. During the inspection, Plaintiff Cantley had to lift his arms and legs, spread his butt cheeks, lift up his te sticles and bend at the waist. The correctional officer then sprayed a delousing solution on him and required him to shower in view of the officer. Plaintiff Cantley was then issued prison clothing, and he remained incarcerated for over a month, until on or about November 6, 2008, when all charges against him were dismissed.
Plaintiff Teter was arrested on February 19, 2010, “on non-felony charges of putting materials on a highway and obstructing an officer.”Id. at ¶53. According toPlaintiff Teter, he was arrested after using “a tractor moving snow in the vicinity of a road, and was arrested in a Church parking lot after driving his tractor there.” Id. at ¶54. Like Plaintiff Cantley, he asserts “his arrest was void of any reasonable suspicion that heharbored any weapons, contraband, or lice.”Id. After his arrest, Plaintiff Teter was treated for back injuries at a hospital and then ultimately placed in a holding cell at the Tygart Valley Regional Jail.Id. at ¶55. Plaintiff Teter claims he was held in the holding cell for several hours and then strip s earched, sprayed with the delousing solution, and
3In their Third Amended Complaint, Plaintiffs define their use of the phrase “strip search” to include a vc s and a requirem ent that the detainees “m anipulate body parts to allow for an inspection of these private areas.” Id. at ¶29. In addition, Plaintiffs claim that “some members of the Proposed Class (not including the Plaintiffs) are also required to undergo physical cavity searches upon entry to the custody of the W VRJA, where a Correctional Officer inserts a gloved finger into the rectum of a detainee to search for contraband.” Id. at ¶30.
10

required to shower prior to being arraigned. He describes his strip search as being identical to that of Plaintiff Cantley. Plaintiff Teter states he was released from custody the next day on his own recognizance, shortly after being arraigned.4
With respect to delousing, Plaintiffs cl aim that correctional officers receive no medical training in applying the delousing solutionand the policy is enforced without any medical evaluation to determine if lice are present. Based upon inform ation and belief, Plaintiff fur ther asserts that the WVJRA uses “Liceall,” which Plaintiff alleges is a caustic solution that can, and often does, cause chemical burns, especially whenapplied to African-Americans. However, neither Plaintiff Cantley nor Plaintiff Teter claim they personally suffered any chemical burns. In addition, Plaintiffs assert that a one-time treatment with Liceall, without further medical care, is ineffective as a cure for lice.
Plaintiffs argue the strip search policy as applied to pretrial detainees charged with misdemeanors or other minor crimes, absent some particularized suspicion, and prior to j udicial process to contest their detention violates theFourth Amendment and 42 U.S.C. § 1983. In addition, they assert that the delousing policy as applied taoll detainees charged with misdemeanors and other minor crimes, irrespective of whether they were arraigned, violates the Fourth Am endment and § 1983. As a result of these policies, Plainti ffs claim to have suffered psychological pain, humiliation, suffering, and mental anguish. Although Plaintiffs’ first and second causes of actions
4Plaintiff Teter actually states he was arrested on February 19, 2010, and released after his arraignment on February 20, 2011. The Court believesthat one of the years is a typographical error given that it is unlikely his arraignment occurred over a year after his arrest.
11

are labeled as being “against the individual Def endants in their individual capacities,” Plaintiffs’ Prayer for Relief only seeks “judgm ent against Director Miller in his individua l capacity, on Plaintiffs’ First and Second Causesof Action . . ., awarding compensatory damages to Plaintiffs and each Member of the Proposed Class . . . .”TAC, at 23 ¶2. In addition, Plaintiffs seek declaratory and injunctive relief against all Defendants that the policies are unconstitutional and violates their right to privacy. On the other hand, Defendants contend that the strip search policy and the delousing procedures are necessary for safety and healthreasons. Thus, Defendants argue the policies are not constitutionally defective and, in any event, they are entitled to qualified immunity.
Defendants assert they are entitled to qualif ied immunity on the strip search issue because their conduct did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson v. Layne , 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Under the dotcrine of qualified immunity, a court first asks: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? ” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer is no, the inquiry ends. Id. On the other hand, if the answer is yes, then the Court must decide if it was a clearly established right within the context of the case. Id.5
Considering the factual allegations in theThird Amended Complaint in the light most favorable to Plaintiffs in this case, the Cour t shall assume (without deciding) that both Plaintiffs
5The order of the two-step protocol is no longer mandatory, but it often will be conducted in this order. Pearson v. Callahan, 555 U.S. 223 (2009) (overruling Saucier).
12

were arrested for minor crimes and strip searchedand subject to delousing prior to appearing before a judicial officer without any reasonable suspicionthat either harbored contraband, weapons, or lice. The problem in this case in deciding the first question under Saucier, however, is that there is no mention in the Third Amended Complaint as to whether or not either Plaintiff was in close contact with other detainees or inmates or admitted into the general population of the facility and, if so, were there any reasonable alternatives to such placement. Clearly, under Florence, a detainee’s access and contact to other inm ates is an important factor for this Court to consider in weighing the reasonableness of Defendants’ actions against Plaintiffs’ rights. Therefore, at this point, the Court simply does not have sufficient inform ation to rule on whether Defendants’ conduct viol ated a constitutional right. See Saucier, 533 U.S. at 201.
Defendants argue, however, that even if Plaintiffs were released from custody prior to being placed in a general housing unit, the Supreme Court in Florence made it clear it was not deciding whether a strip search under those circ umstances would be reasonable. Therefore, Defendants insist they did not violate any “clearly established statutory or constitutional rights of which a reasonable person woul d have known” and , therefore, they are entitled to im munity. Wilson, 526 U.S. at 609 (citation omitted).
Although it is true Florence did not rule on this precise issue, the Fourth Circuit established long ago that it is unconstitutional to have an indiscriminate policy of strip searching a detainee who was not interm ingled into the general population, who did not com mit an offense commonly associated with possession of a weapon or contraband, who gave no reason to believe
13

she possessed a weapon or contraband, and who was de tained for a short amount of time prior to release. Logan v. Shealy, 660 F.2d 1007, 1013 ( 4th Cir. 1981).6 The Supreme Court in Florence very specifically stated it was not ruling on theerasonableness of searches where a detainee was not assigned to the general inmate population or in substantial contact with other detainees. 132 S. Ct. at 1523. As mentioned above, this limitation in Florence was echoed by Chief Justice Roberts and Justice Alito in their separate concurring opinions. Clearly, the Supreme Court left the door open to the possibility of finding a constitutional violtaion under these more narrow circumstances. Thus, as Florence did not overrule the Fourth Circuit’s decision inLogan in this regard, it remains clearly established within the Fourth Circuit that such searches are unconstitutional. Assum ing these limited facts, the decision in Florence does nothing to change t he legal landscape in the Fourth Circuit. Therefore, at this point, Defendants are not entitled to qualified immunity with respect to the strip search and the Court DENIES Defendants’ motion with respect to the strip search claims. Compare Jones v. Murphy, Civil No. CCB-05-1287, 2013 WL 822372, *6 (D. Md. Mar. 5, 2013) (granting immunity to individual defendant wardens on the grounds that Florence overruled some aspects of Fourth Circuit law and “left the cont ours of any ‘exception’ that would apply to the plaintiffs in this case unclear and open to debate”).
Turning next to the delousing issue, this Court fully explained i n its earlier Memorandum Opinion and Order that whether or not the delousing policy violated Plaintiffs’ constitutional rights is a matter upon which the Court will withhold judgment until after Defendants
6This Court fully discussed the holding in Logan in its decision resolving Defendants’ first motion to dismiss. Cantley v. W. Va. Reg’l Jail and Corr. Auth., 728 F. Supp.2d at 809-815.
14

are “given the opportunity to present evidence and arguments justifying the delousing policy on its own merits.” Cantley, 728 F. Supp.2d at 817. Defendants neverhteless argue they should be granted qualified immunity on this issue because they did not violate any “clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson, 526 U.S. a t 609 (citation omitted).
Again, the Court finds that, under the particularcircumstances of this case, this issue is one best resolved after discovery because there are numerous scenarios that may warrant or not warrant immunity. As stated in dicta in Florence, “[t]he danger of introducing lice . . . is well documented.” 132 S. Ct. at 1518 (citations omitted). Thus, it is conceivable that immunity may be appropriate if detainees entering the general inm ate population, or who a re in close contact with other detainees, are subject to delousing to prevent a potential outbreak. On the other hand, a court may decide that a reasonable oficial would not believe it is constitutional to have a detainee remove his clothes and get sprayed with a delousing soluotin when that detainee has no indications of having lice, is never integrated with other detainees or in the general inm ate population, and is released from custody within a few hours.See Amaechi v. West, 237 F.3d 356, 362-63 (4th Cir. 2001) (stating that the concept of “clearly established” include s those rights previously adjudicated and “those manifestly included within more general applications of the core constitutional principle invoked” which would provide notice to a reasonable person in the official’s position that certain conduct violates those rights (citations and internal quotation marks omitted)). The Court is not indicating how it would rule on these different scenarios, but it is m erely demonstrating the breath of
15

possibilities and how it may impact whether a reasonable person in D efendants’ position would believe the conduct violated the constitutional rights of the detainee.
In the instant case, the Court simply does not know whether either named Plaintiff was integrated with other inmates or what specific justifications Defendants may have for the policy. Although the Court is m indful that decisions on i mmunity ordinarily should be decided early in litigation,7 the Court does not have enough information at this point to rule on the issue and finds a decision would be premature. Moreover, even if the Court would find qualified immunity for the individual Defendants exists, Plaintiffs also request injunctive relief which is not barred by qualified immunity so discovery on the constitutionality ofspraying Plaintiffs’ with a delousing solution will still proceed. See Williams v. Ozmint, No. 11–6940, 2013 WL 1987231, *5 (May 15, 2013) (“The defense of qualified immunity has no bearing, however, on claims for prospective court action such as injunctive relief.” (citations omitted)). Therefore, the Court DENIES Defendants’ motion to dismiss Plaintiffs’ claims with respect to the delousing policy.
In their motion, Defendants further argue that Plaintiffs’ proposed classes must be reformulated under Florence to exclude those individuals who were placed into a general housing unit.8 As Plaintiffs’ have not yetrequested class certification and the parties have not fully briefed
7See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“stress[ing] the importance of resolving immunity questions at the earliest possible stage in litigation”(citations omitted)).
8Plaintiffs propose to represent the following two classes and a subclass of detainees:
(continued...) 16

8(...continued)
CLASS ONE:
All persons who have been or will be placed into the custody of the W est Virginia Regional Jail System , after being charged with m isdemeanors, summary violations, violations of probation, traffic infractions, civil commitments or other minor crimes and were or will be deloused upon their entry into the W est Virginia Regional Jail System, pursuant to the policy, custom and practice of the W est Virginia Regional Jail and Correctional Facility Authority. The class period commences on June 30, 2007 and extends to the date on which the West Virginia Regional Jail and Correctional Facility Authority is enjoined f rom, or otherwise ceases, enforcing its policy, practice and custom of conducting the unifor m delousing of pretrial detainees. Specifically excluded from the class are Defendants and any and all of their respec tive affiliates, legal representatives, heirs, successors, employees or assigns.
CLASS TWO
All persons who have been or will be placed into the custody of the W est Virginia Regional Jail System after being charged with m isdemeanors, summary violations, violations of probation, traffic infractions, civil commitments or other minor crimes were or will be strip s earched upon their entry into the W est Virginia Regional Jail System prior to their being arraigned or provided with an appropriate initial court appearance to contest t heir detention prior to being searched, pursuant to the policy, custom and practice of the West Virginia Regional Jail and Correctional Facility Authority. The class period com mences on June 30, 2007 and extends to the date on which the West Virginia Regional Jail and Correctional Facility Authority is enjoined from , or otherwise c eases, enforcing its policy, practice and c ustom of
17

(continued...)

those issues and/or any standing issues Defendants may have with respect to the named Plaintiffs,
the Court will not rule on whether any class identifed by Plaintiffs can survive Florence or whether
the classes need to be modified until after those issues are fully presented to the Court.
8(...continued) conducting the uniform strip sear ches of pre-trial detainees prior to their being provided with an initial appearance to conte st their detention. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
SUB-CLASS A
All persons who have beenor will be into the custody of the Central, Potomac Highlands or Tygart Valley Regional Jails after being charged wi th misdemeanors, summary violations, violations of probation[,] traffic infractions, civil commitments or other minor crim es were or will be strip searched upon their entry into these Regional Jails prior to their being arraigned or provided with an appropriate initial court appearance to contest their detention prior to being searched, pursuant to policy, custom and practice of the W est Virginia Regional Jail and Correctional Facility Authority. The class period commences on June 30, 2007 and extends to the date on which the W est Virginia Regional Jail and Correctional Facility Authority is enjoined f rom, or otherwise ceases, enforcing its pol icy, practice an custom of conducting the uniform strip searches of pre-trial detainees prior to their being provided with an initial appearance to c ontest their detention. Specifically excluded from the class are Defendants and any and all of their respective af filiates, legal representatives, heirs, successors, em ployees or assignees.
TAC, at ¶11.
18

IV. CONCLUSION Accordingly, for the foregoing reasons, the Court DENIES Defendants’ Renewed Motion to Dismiss Plaintiffs’ Third Amended Complaint. ECF No. 95. Given this ruling, the Court further GRANTS Plaintiffs’ Motion and Request for a Staut s Conference with the Court. ECF No. 102. The Court SCHEDULES a telephone conference to be held on Tuesday, June 11, 2013 at 11:00 a.m. to discuss discovery and scheduling issues. The CourDt IRECTS counsel for Plaintiffs to initiate the call with counsel for Defendants and the Court. The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
ENTER: May 30, 2013
19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MICHAEL CANTLEY and FLOYD TETER, on behalf of themselves and on behalf a Class of others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:09-0758

THE WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY; TERRY L. MILLER, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority; JOSEPH A. DELONG, both individually and in his capacity as Acting Executive Director of the West Virginia Regional Jail and Correctional Facility Authority; and LARRY PARSONS, both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are the parties’ cross-motions for summary judgment. ECF

Nos. 149 & 157. The Court held a hearing on the motions on September 19, 2013. Based upon the

arguments of the parties and evidence submitted, the Court GRANTS the motion by Defendants The

West Virginia Regional Jail and Correctional Authority (WVRJA), Terry L. Miller, Joseph A.

DeLong, and Larry Parsons1 and DENIES the like motion by Plaintiffs Michael Cantley and Floyd Teter.
I. FACTUAL AND PROCEDURAL HISTORY The procedural history of this case was set forth recently in this Court’s Memorandum Opinion and Order entered on May 30, 2013 (ECF No. 107), denying Defendants’ Renewed Motion to Dismiss Plaintiffs’ Third Amended Complaint. To briefly reiterate, this action was filed on July 1, 2009, by Plaintiff Michael Cantley, individually and on behalf of a class of others similarly situated, against the WVRJA and Mr. Miller. In his First Amended Class Action Complaint filed on October 9, 2009, Plaintiff Cantley claimed he was arrested on or about September 28, 2008, on nonfelony charges and was required to undergo a visual cavity strip search2 and delousing pursuant to a WVRJA policy. Plaintiff Cantley claimed that the WVRJA policy of strip searching and delousing pretrial detainees charged with misdemeanors or other minor crimes is unconstitutional under the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983.
1Mr. Miller was the Executive Director of the WVRJA at the time Plaintiffs Cantley and Teter were detained. Mr. DeLong served as the Executive Director after Mr. Miller until Mr. Parsons was named as the Executive Director. Later, Mr. DeLong was renamed as the Executive Director and is currently serving in that position.
2“A ‘strip search,’ though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject's body cavities. A ‘visual body cavity search’ extends to visual inspection of the anal and genital areas. A ‘manual body cavity search’ includes some degree of touching or probing of body cavities.” Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985) (citation omitted).
2

Defendants WVRJA and Mr. Miller filed a motion to dismiss. On August 5, 2010, the Court denied the motion. Cantley v. W. Va. Reg’l Jail & Corr. Fac. Auth., 728 F. Supp. 2d 803 (S.D. W. Va. 2010). Discovery proceeded in this case until June 1, 2011, when the Court signed the parties’ proposed stipulation to stay further proceedings in this matter until after the United States Supreme Court issued a decision in Florence v. Board of Chosen Freeholders, another strip search case in a jail setting. The Supreme Court issued its decision on April 2, 2012. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012). In the interim period, the Court permitted Floyd Teter to be added as a class representative in a Second Amended Complaint. ECF Nos. 65 & 66. Mr. Teter also alleges that he was arrested on non-felony charges, subjected to a visual cavity search, and sprayed with a delousing solution prior to being arraigned.
In light of the Supreme Court’s decision in Florence, the Court permitted Plaintiffs to amend and file a Third Amended Complaint, in which Defendants DeLong and Parsons were added. ECF No. 89. The Court also entered a new Scheduling Order. Thereafter, Defendants filed another motion to dismiss the Third Amended Complaint. The Court denied the motion on May 30, 2013, and the parties proceeded with discovery. The parties now have filed cross-motions for summary judgment. Although this case was filed as a putative class action, a class has not been certified and the only claims before the Court are the individual claims of Plaintiff Cantley and Plaintiff Teter. Therefore, the Court restricts its decision in this matter to the individual claims of Plaintiffs Cantley and Teter. See Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1289 (11th Cir. 2001) (“[T]he district court is not required to resolve . . . [Plaintiff’s] class certification request before resolving a challenge to . . . [Plaintiff’s] individual claim. If the district court were to resolve a summary judgment in Defendants' favor and in so doing dismiss . . .
3

[Plaintiff’s] individual claim before ruling on class certification, then . . . [Plaintiff] would not be an appropriate class representative.”)
II. STANDARD OF REVIEW
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
4

III. DISCUSSION
A. The Florence Decision Before discussing the specific facts of this case, it is important for the Court to analyze the Supreme Court’s recent decision in Florence. As this Court explained in its May 30, 2013 Memorandum Opinion and Order, the Supreme Court in Florence was asked to determine whether all detainees who are admitted to the general jail3 population may be compelled to undress and submit to a close visual inspection. 132 S. Ct. at 1513. In that case, Albert W. Florence was arrested on an outstanding warrant, which inexplicitly remained in a computer database despite the fact the underlying reason for the warrant was resolved. Id. at 1514. Upon his arrest, Mr. Florence was confined at the Burlington County Detention Center in New Jersey for six days and then was transferred to the Essex County Correctional Facility. Id.
Pursuant to the procedures at the Burlington County jail, every arrestee was required “to shower with a delousing agent.” Id. As an arrestee disrobed, officers examined the individual “for scars, marks, gang tattoos, and contraband.” Id. Mr. Florence also said he was directed “to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals[,]” although it was not clear whether these requirements were normal practice. Id. (citations omitted). During his detention, Mr. Florence “shared a cell with at least one other person and interacted with other inmates[.]” Id. at 1513.
3The Supreme Court used a broad meaning of the word “jail” to include prisons and detention facilities. 132 S. Ct. at 1513.
5

Similarly, when Mr. Florence was transferred to the Essex County Correctional Facility, he was placed in a holding cell, instructed to disrobe, and subjected to a visual inspection “for body markings, wounds, and contraband” while “an officer looked at . . . [his] ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings” without touching him. Id. at 1514 (citation omitted). “This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history.” Id. Mr. Florence then was required to shower (while his clothes were inspected) and, thereafter, was admitted to the Essex facility. Mr. Florence was released the following day, after the charges were dismissed. Id.
Mr. Florence brought an action challenging the policy requiring visual cavity strip searches of those arrested for minor offenses, without any reason to believe the arrestee was harboring weapons, drugs, or contraband. Id. at 1514-15. The district court certified a class and, after discovery, ruled on summary judgment that the policy violated the Fourth Amendment. Id. at 1515. The United States Court of Appeals for the Third Circuit reversed, finding the procedure “struck a reasonable balance between inmate privacy and the security needs of the two jails.” Id. (citation omitted). The Third Circuit premised its holding on finding that the searches occurred prior to an arrestee’s admission into the general population. Mr. Florence did not dispute this premise. Id.
In ruling on the constitutionality of the policy, the Supreme Court acknowledged the difficulties in operating and maintaining safety in detention facilities, which “requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” Id. The Supreme Court emphasized its position of giving deference to correctional authorities and upholding regulations that impinge upon the constitutional rights of
6

inmates if they are “‘reasonably related to legitimate penological interests.’” Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987) (other citations omitted)). In addition, the Supreme Court recognized there is no mechanical test to determine the reasonableness of an intrusion into an inmate’s privacy. Id. at 1516 (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Rather, “[t]he need for a particular search must be balanced against the resulting invasion of personal rights.” Id. (citing Bell, 441 U.S. at 559).
Utilizing this balancing test, the Supreme Court upheld “[p]olicies designed to keep contraband out of jails and prisons.” Id. (citing Block v. Rutherford, 468 U.S. 576 (1984) (banning contact visits); Hudson v. Palmer, 468 U.S. 517 (1984) (upholding random searches of inmates’ lockers and cells)). The Supreme Court recognized that its prior “cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities.” Id. at 1517 (citation omitted). In addition, the reasonableness of a policy, when juxtaposed to legitimate security concerns, lies within the realm and expertise of those officials. Further, the Supreme Court repeatedly admonished that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.” Id. (citations omitted).
Applying this standard, the Supreme Court stated that admitting a new detainee to the inmate population creates numerous risks to staff, other inmates, and the new detainee. Id. at 1518. Given that facilities “are often crowded, unsanitary, and dangerous places,” there is a significant interest on the part of correctional officials to conduct a thorough search during the intake process.
7

Id. at 1520. Specifically, the Court stated that “[t]he danger of introducing lice or contagious infections, for example, is well documented.” Id. at 1518 (citations omitted). Likewise, the Court noted that visually inspecting tattoos to identify gang affiliation is a reasonable requirement during the intake process to protect everyone at the facility. Id. at 1519. Moreover, screening for contraband during intake is a most serious duty, and some inmates who may be believed to be the lowest risk are actually dangerous criminals and may be caught bringing contraband into jail. Id. at 1519-20. The Court noted that, not only do those arrested for minor offenses have the same incentive to conceal contraband, they may be coerced to hide contraband if it is known they are not subject to the same searches as others. Therefore, to carve out an exception to a standard search protocol for those arrested for minor offenses opens the door for those arrestees to being asked or coerced into bringing contraband into the facilities because it will be well known that they will not be searched. Id. at 152021.
In addition, the Court recognized that, practically speaking, it may be difficult to make inmate classifications based upon current and prior offenses before an intake search is conducted. Id. at 1521. Moreover, in the case before it, criminal history records were not available to the intake officers conducting searches and, even if they were available, they may be inaccurate or incomplete. Id. (citations omitted). Without reliable information about the arrestees’ records, the Court found “it would be illogical to require officers to assume the arrestees in front of them do not pose a risk of smuggling something into the facility.” Id. Furthermore, even if reliable records are available, requiring officers to make quick decisions on whether the arrestee’s record requires a search raises serious difficulties with implementation and opens the door to potential charges of discrimination. Id. at 1521-22 (citation omitted). Therefore, for all of these reasons, the Supreme Court affirmed the
8

Third Circuit’s decision finding the procedure was a reasonable balance between the need for security
and inmate privacy. Id. at 1523. In doing so, the Court specifically stated it was not ruling on a
situation in which the arrestee’s detention had “not yet been reviewed by a magistrate or other judicial
officer, and who can be held in available facilities removed from the general population[.]” Id. at
1523. In addition, in their concurring opinions, both Chief Justice Roberts and Justice Alito
emphasized that the Court was not foreclosing the possibility of an exception when a detainee has
been arrested for a minor offense, the detention has not yet been reviewed by a judicial officer, and
the detainee may be placed in an alternative facility away from the general inmate population. Id. at
1523-24.
B. Search of Mr. Cantley
Applying Florence to the present case, the Court considers separately the facts related
to the named Plaintiffs’ strip search claims. With respect to Mr. Cantley, it is undisputed that he was
arrested on non-felony charges of violating a domestic protection order on September 28, 2008.
Following his arrest, Mr. Cantley was taken before a magistrate for his arraignment. Afterwards, he
was admitted to the Western Regional Jail pursuant to a Jail Commitment Order signed by the
magistrate judge.4
4Plaintiff Cantley also makes a general statement in his Third Amended Complaint that he “was admitted to the Western Regional Jail on other occasions during the class period, and was strip searched and deloused prior to being arraigned before a judicial officer.” Third Amend. Compl. ¶ 50. He further states that on some occasions he was admitted for misdemeanor or other minor crimes and there was no reasonable suspicion to search him. Id. ¶ 51. Although Plaintiff Cantley makes these general statements, it is clear the focus of his claim, and the focus of discovery, always has been his detention on September 28. Other than some records showing he was admitted to the facility on multiple occasions, Plaintiff Cantley makes these self-serving allegations with no real supporting evidence. Therefore, to the extent Mr. Cantley is now attempting to argue there were other occasions in which he was improperly strip searched and deloused, the Court rejects those arguments as being
(continued...)
9

Lieutenant C.E. Aldridge, who is assigned to the Western Regional Jail and named as one of Defendants’ Rule 30(b)(6) designees, stated in his deposition that, if a detainee had a commitment order from a magistrate judge (as was the case with Mr. Cantley), the detainee, upon entry to the facility, was given a pat down search.5 The detainee also was asked if he or she needed any medical attention and was given a quick medical assessment. If deemed fit for incarceration, the arresting officer was permitted to leave, and jail officials began the booking process. The detainee had his or her fingerprints and photographs taken, and the detainee’s information was entered in the jail’s computer system (referred to as the TAG system). The detainee was then taken to a shower area and visually strip searched and deloused. During this process, the detainee was given a prison uniform, and the detainee’s clothes were checked for contraband and placed in a property bag.
Lt. Aldridge further stated in his deposition that he was aware of incidents where weapons were found in duffle bags and in ankle holsters and instances in which pills were found. He also recounted a recent incident in which a temporary female detainee, who had not been arraigned, had a cigarette fall out of her bra. As a result, she was strip searched and a lighter and dice were found on her person and cash was found in her vagina.6
4(...continued) insufficiently pled as a matter of law.
5Lt. Aldridge stated jail officials also take the detainee’s personal property and shoes, but the detainee is kept in his or her clothes during this time.
6Although the woman was a pre-arraignment detainee, Lt. Aldridge stated she was searched because the cigarette fell out of her bra, which gave the booking officer reasonable suspicion to search her.
10

Upon his arrival at the Western Regional Jail, Mr. Cantley stated in his deposition that he was patted down and booked into the facility. According to an Incident Report filed by booking officer Corporal Ferrell, Mr. Cantley cursed at the deputy upon entry to the facility. Cpl. Ferrell initially was able to calm Mr. Cantley down, but he then began cursing and making threatening statements. Mr. Cantley was cleared by a nurse and placed in a holding cell. However, Mr. Cantley began kicking the cell door. Despite being told to stop, Mr. Cantley refused to do so and, ultimately, he was placed in a restraint chair. When a nurse attempted to check Mr. Cantley, he tried to grab her hand. According to Cpl. Ferrell, Mr. Cantley yelled, cursed, and struggled to get out of the chair for an hour and a half. The Inmate Special Watch Log indicates that, during that time, he also threatened to strangle an officer. He was removed from the chair fifteen minutes after he calmed down. In his deposition, Mr. Cantley said that, except for a few minor differences, the Incident Report was accurate.7
Mr. Cantley testified that, prior to being admitted to the general housing population, he was strip searched and deloused. The strip search entailed him removing his clothing in a private shower area where he could not be seen by other detainees. After disrobing, he handed his clothes to a male correctional officer who checked his clothes for contraband. Mr. Cantley stated there was only one correctional officer in the room with him. Mr. Cantley was then subjected to a visual inspection by the same officer, which included Mr. Cantley raising his scrotum, bending over, and coughing. There are no allegations that the officer ever touched Mr. Cantley during the process. After the visual inspection, Mr. Cantley stated he was asked to walk over to the shower area, where
7In his deposition, Mr. Cantley did say the Incident Report inaccurately stated the time he was released from the restraint chair and inaccurately stated he broke free from one of the restraints.
11

the officer sprayed him with a delousing solution from a Windex type bottle. He then was permitted to shower off and dress in his prison uniform. After dressing, Mr. Cantley was placed in a holding cell with other people until he was assigned to the general housing unit. Mr. Cantley remained incarcerated in the general inmate population until he was released on November 6, 2008.
Upon consideration of this evidence, the Court finds as a matter of law that the visual cavity strip search conducted on Mr. Cantley did not violate his constitutional rights. As recognized in Florence, Defendants have a significant interest in searching detainees to ensure they are not bringing any contraband into a facility, even when detainees like Mr. Cantley are held for minor offenses. The search here was conducted post-arraignment by a male correctional officer who never physically touched Mr. Cantley. The area in which Mr. Cantley disrobed was a private setting where no other correctional officers or other detainees could see him. After the search was complete, Mr. Cantley was placed in a general housing unit, where he remained for over a month.8 Clearly, Mr. Cantley’s search falls precisely within the parameters of the constitutionally-permitted conduct outlined in Florence.9 Therefore, the Court GRANTS Defendants’ Motion for Summary Judgment with respect to this claim.
8Mr. Cantley stated during his deposition that, after the search, he was placed back in a holding cell with other inmates/detainees before he got his assignment to a pod in general housing.
9Moreover, although not necessary to establish the constitutionality of Mr. Cantley’s search, the Court finds the search was permissible on other grounds. Mr. Cantley was arrested for violating a domestic violence protection order and was acting in a violent manner when he was admitted to the facility. Not only did he attempt to grab a nurse, he threatened to strangle a correctional officer and was so belligerent that he was placed in a restraint chair for an hour and a half before he calmed down. Certainly, under these circumstances, officers were justified in searching Mr. Cantley to ensure their personal safety and the safety of others in the facility.
12

C. Search of Mr. Teter Turning next to Mr. Teter’s claim, he was arrested on Friday, February 19, 2010, on misdemeanor charges of Putting Debris in a Roadway and Obstructing an Officer. At his deposition, Mr. Teter said he believed he was arrested between 3:00 and 4:00 in the afternoon. Following his arrest, Mr. Teter was taken to a local hospital to be examined and then was transported to the Preston County Courthouse, where he was fingerprinted but did not appear before a judicial officer. When he was finished at the Courthouse, he was taken to the Tygart Valley Regional Jail in a cruiser with an inmate whom he believed was being transferred from a federal facility. When he got to the regional jail, he and the inmate being transferred were patted down by correctional officers and brought to the intake area. The booking data sheet shows he arrived at the facility at 10:15 p.m. on Friday.
During the intake procedures, officers took his personal property, and he discussed his medical situation with a nurse. According to the booking data sheet, he was medically pre-screened at 10:25 p.m. and screened again at 2:45 a.m. on Saturday. Afterwards, Mr. Teter said he was taken to a shower room and asked to undress. Mr. Teter testified that there was one male correctional officer in the room with him, whom he identified as Sergeant Daniel Cutright. According to Mr. Teter, Sgt. Cutright searched his clothes and placed them in a bag. Sgt. Cutright then asked him to spread his legs, lift his testicles, turn around, bend over, and spread his cheeks. He also checked in Mr. Teter’s mouth. When he finished with the visual inspection, Sgt. Cutright took a garden type
13

sprayer and sprayed a delousing solution on him.10 Mr. Teter was instructed to wait for some period of time, a matter of minutes, before he could shower.11 After his shower, Mr. Teter dressed in a jail uniform and ultimately was taken to a holding cell. Mr. Teter said that another person was put in the cell with him.
Mr. Teter testified he was in the cell for three or four hours before he and the other detainee were placed together in a smaller cell. He understood that he was being moved into a smaller cell because the facility was expecting a van load of detainees who were going to be placed in the larger cell. Mr. Teter remained in the smaller cell for about one-half hour. He said he then was taken through a set of doors and down a hallway past other inmates. He was placed in a room where he had a video arraignment and was released on a $500 bond. According to the Jail Release Order, Mr. Teter was released at 9:00 a.m. on Saturday.
Sgt. Cutright was deposed, and he described that to get to the video conferencing room, detainees have to exit the booking area and go into the core part of the facility, which is about 100 to 150 yards from the holding cells. Sgt. Cutright also said the jail had some inmates who had been sentenced and whose housing assignments were in the booking area, but the pre-arraignment detainees were held in different cells. Sgt. Cutright said that most detainees who arrived at the facility after 4:00 p.m. were not arraigned until 8:00 a.m. the next day. When that occurred, detainees, like
10At oral argument, Defendants clarified that the sprayer was a small, hand-held container, not attached to any hose, with a low-pressure spray.
11At first Mr. Teter said it was a couple of minutes, but later he said it could have been five to ten minutes.
14

Mr. Teter, were designated in the TAG system as temporary commitments.12 Sgt. Cutright said that, at the time Mr. Teter was brought to the facility, every detainee, whether or not yet arraigned, were subject to being visually strip searched and deloused.
Sgt. Cutright claimed that he was aware of multiple pieces of contraband being discovered during pat down searches of individuals arriving at the Tygart Valley facility, including knives, ammunition, brass knuckles, large pieces of metal, illegal drugs, cigarettes, and lighters. He further testified he had found just as much contraband in detainees’ genital areas while doing strip searches as he had by doing pat down searches. He also said he had found such items taped in armpits during strip searches. In his Affidavit, Sgt. Cutright averred that the cells where new detainees are held at Tygart Valley hold up to 15 detainees at a time. He said it was impossible to predict how many people will be placed in a cell on any given occasion because it is dependent upon how many individuals are arrested and brought to the facility.
Defendants’ Rule 30(b)(6) designee for the Tygart Valley facility is Sergeant Michael Wayne. Sgt. Wayne was deposed and confirmed Sgt. Cutright’s statement that the video arraignment room is located in the core area of the facility. He also agreed with Sgt. Cutright that everyone who was brought to the facility was visually strip searched and deloused. In January 2011, however, the Tygart Valley facility was directed to change its practice so that no one charged with a minor crime could be strip searched and deloused until after arraignment unless correctional officers had
12The designation also is referred to as a CDR because it is made on a document entitled Core Disposition Reporting. Sgt. Cutright noted there are a number of situations where detainees are not considered temporary commitments, but those other situations are not applicable to Mr. Teter’s case.
15

reasonable suspicion to search. Sgt. Wayne stated that the facility was told to change its procedure to be in compliance with Policy and Procedure Statement 17001.
Sgt. Wayne said he was troubled by the directive because he believed it downgraded security at the facility. He stated that, as a result of inmate overpopulation, they only can use holding cells five and six in the booking area to hold detainees.13 As a result, detainees are segregated only by sex, not by whether they are charged with a felony or misdemeanor. Although the detainees were subjected to pat down searches upon arrival at the facility, he recalled an incident after the directive was issued when marijuana was found inside a holding cell and the detainees were smoking it. He also recalled a time when a woman concealed eighty Xanax pills on her person and the entire group of detainees in the cell were high on Xanax. He further said that when he has conducted strip searches he has found contraband, including cocaine in the underwear of a person charged with a misdemeanor offense of domestic violence.
Policy and Procedure Statement 17001, referred to by Sgt. Wayne, sets forth the official Inmate Admission Procedures promulgated by the WVRJA. Procedure J of 17001 provides that “[e]ach inmate committed to a regional jail facility will be required to delouse and shower prior to being placed in a housing unit.” Policy and Procedure Statement, at 8. In addition, Policy and Procedure 17004, referred to by both parties, states, in part:
13At the hearing, counsel represented there are six cells in the booking area. Cells one through four are small cells designed to hold just one or two people. Cells five and six are large cells. The small cells often are used to hold those who are ill, mentally unstable, or under the influence of drugs and alcohol.
16

A newly admitted inmate charged with a misdemeanor will be strip searched only upon reasonable suspicion that the inmate is concealing weapons, contraband or evidence. Reasonable suspicion must be documented by the Shift Supervisor. In determining whether reasonable suspicion exists, circumstances surrounding the arrest, the crime for which the person is charged, and the inmate’s conduct at time of admission shall be considered. In any case, no inmate shall be placed in a housing unit until showered and personal property inventoried in accordance with Policy 17001.
Policy and Procedure Statement, at 1-2. These policies have been in effect since May 15, 1997, long
before Mr. Teter was taken into custody. Although the parties disagree on the meaning and
implementation of these policies, they do agree that Tygart Valley’s practice of doing blanket strip
searches of all detainees violated the policies to the extent they may prohibit a strip search of a
misdemeanant pre-arraignment detainee absent reasonable suspicion to conduct a search. Regardless
of whether the strip search of Mr. Teter violated the WVRJA’s own policy, however, the first thing
the Court must consider is whether, in light of the facts of his case, the strip search violated Mr.
Teter’s constitutional rights.14
Although Florence left open the question of whether blanket pre-arraignment strip
searches of those charged with minor offenses violate detainees’ constitutional rights, the Court finds
the decision instructive in Mr. Teter’s case. Florence specifically directs courts to begin their analysis
with the framework announced in Bell v. Wolfish, 441 U.S. 520 (1979). Florence, 132 S. Ct. at 1516.
In Bell, the Supreme Court recognized the need for a search must be balanced against an individual
14Moreover, even when a state policy is not followed, it does not necessarily mean there is a constitutional violation. See Smith v. Atkins, 777 F. Supp. 2d 955, 965 (E.D. N.C. 2011) (stating “the mere failure to comply with . . . [a] state regulation and jail policy [regarding suicide watches] is not a constitutional violation”).
17

detainee’s rights. Bell, 441 U.S. at 559. In applying this balancing test, the Supreme Court upheld the constitutionality of requiring pretrial detainees “to expose their body cavities for visual inspection as part of a strip search conducted after every contact visit with a person from outside the institution.” Id. at 558 (footnote omitted). The Court made clear that the “[l]oss of freedom of choice and privacy are inherent incidents of confinement in such a facility” and correctional officials must have the power to discover and deter in a reasonable manner the smuggling of contraband into facilities. Id. at 537 & 560; see also Florence, 132 S. Ct. at 1517 (reiterating that case law “establish[es] that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities”). Moreover, the Supreme Court emphasized in Florence that, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to the expert judgment in such matters.” Florence, 132 S. Ct. at 1517 (internal quotation marks and citations omitted).
In this case, the Tygart Valley facility admittedly was conducting blanket visual strip searches of all detainees, which included Mr. Teter, apparently contrary to Defendants’ policies. The Court finds the search of Mr. Teter, nevertheless, did not violate his constitutional rights. The deposition testimony of both Sgt. Cutright and Sgt. Wayne establishes that the facility had a reasonable concern about detainees bringing dangerous contraband into the facility. Although detainees were patted down when they arrived at the facility, Sgt. Cutright stated he found just as much contraband during strip searches as during pat down searches. Similarly, Sgt. Wayne specifically recalled an incident, after they stopped doing blanket searches, when detainees were found smoking marijuana in a holding cell and when an individual secreted Xanax pills on her person and apparently shared them with the other detainees. He also recalled a time when he discovered
18

cocaine during a strip search of an individual charged with a misdemeanor offense of domestic violence.
The problem with exempting misdemeanant pre-arraignment detainees from strip searches at the Tygart Valley facility is compounded by the fact that detainees are segregated by sex and held together in a communal cell that holds up to fifteen people. The Tygart Valley facility serves as the detention center for at least six counties in West Virginia, and it is impossible for correctional officers to know in advance how many detainees they will hold at any given time or whether those detainees will be charged with misdemeanors or felonies. When detainees, like Mr. Teter, are brought to the facility after the magistrates or judges go off duty, they have to wait until the next morning in the holding cell until their arraignment. The result is that detainees who are charged with misdemeanors and those charged with felonies end up in the same holding cell. In addition, for various reasons, committed inmates are sometimes assigned to the other cells in the booking area as their general housing assignment.
As recognized by the Supreme Court in Florence, “[e]xempting people arrested for minor offenses from a standard search protocol,” when misdemeanants and felons are intermingled, increases the risk of “more contraband being brought into the detention facility” and it “is a substantial reason not to mandate the exception . . . as a matter of constitutional law.” Id. at 1521. At the Tygart Valley facility, there is not only the intermingling of misdemeanant and felony detainees, but other committed inmates are sometimes assigned to the booking area. Detainees also may encounter committed inmates when they go to the video conferencing room because it is located in the core of the facility. In fact, Mr. Teter stated that he saw other inmates when he went to the video
19

conferencing room for his arraignment. At the hearing, defense counsel further explained that the video conferencing room is used by all inmates, both pretrial detainees and committed inmates.
Although the Court views the intrusion on Mr. Teter’s privacy as significant, it is tempered somewhat by the fact it was conducted in a private setting, with a same-sex correctional officer who never physically touched him. No doubt it was an embarrassing and humiliating experience for Mr. Teter, but his interest must be weighed against the strong interest correctional officials have in preventing the introduction of contraband at the facility. In balancing these interests, the Court finds it weighs in favor of the officials at the Tygart Valley facility, where, as described above, there was a problem with contraband, detainees were held communally in an area that sometimes held other committed inmates, and detainees had to walk into the core of the facility to be arraigned where other committed inmates were present. Clearly, there is a risk that contraband could be introduced at the Tygart Valley facility because of the manner in which pre-arraignment detainees are held. The Court certainly cannot say there is substantial evidence demonstrating that blanket visual strip searches at the Tygart Valley facility are an exaggerated response to the situation.15
In addition, merely because a detainee is currently being held on a misdemeanor does not mean the detainee is not dangerous or has no significant criminal history for other more serious
15In 1981, the Fourth Circuit decided Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), in which it determined that a visual strip search of a detainee being held for driving while intoxicated was unconstitutional. To the extent Logan remains viable under Florence, the Court finds that it clearly is distinguishable from the facts presented in this case. In Logan, the detainee was not intermingled with the general inmate population, she was at the facility for only one and one-half hours and her release was impending, and she was not subject to a pat down search before being strip searched. 660 F.2d at 1013. In addition, the court noted that the search may have been conducted in an area where others could observe her because the window blinds were either open or broken. Id. at 1010.
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offenses. Likewise, misdemeanants may have their own incentive to bring contraband to the facility. Even if they do not have such an incentive, if it is known that misdemeanant pre-arraignment detainees are not strip searched, others may coerce them to hold contraband for them. See Florence, 132 S. Ct. at 1521 (stating “[e]ven if people arrested for a minor offense do not themselves wish to introduce contraband into jail, they may be coerced into doing so by others. This could happen any time detainees are held in the same area, including in a van on the way to the station or in the holding cell of a jail.”). Accordingly, the Court finds that, under the particular circumstances at the Tygart Valley facility, the correctional officials implementing the search struck a reasonable balance between the need to provide safety and security at the facility and Mr. Teter’s privacy interests. Thus, the Court finds the visual strip search at the Tygart Valley facility did not violate Mr. Teter’s constitutional rights and GRANTS summary judgment in favor of Defendants on this claim.16
D. Delousing Procedure Plaintiffs also complain that the compulsory delousing procedure at the facilities was unconstitutional because it violated the detainee’s right to privacy and it constituted an unwanted medical treatment. In addition, Plaintiffs claim the process is degrading, ineffective, and unnecessary and there are reasonable alternatives to a universal delousing policy. In balancing the interests of detainees against the interest of facility officials, however, the Court finds the policy strikes a reasonable balance and does not violate the detainees’ constitutional rights.
16Defendants claim they are entitled to summary judgment on several grounds, including qualified immunity. However, the Court need not address those other arguments because the Court finds there was no constitutional violation.
21

In Florence, the Supreme Court stated that “[t]he danger of introducing lice or contagious infections . . . is well documented.” 132 S. Ct. at 1518 (citations omitted). During his deposition, Lt. Aldridge estimated that he saw thirty to thirty-five cases of lice at the Western Regional Jail over the past year. Infection control records for 2010 from the Western Regional Jail show incidents of head lice and scabies nearly every month, but no incidence of pubic lice. Sgt. Wayne explained when outbreaks of lice do occur at facilities, it creates a number of problems. First, it requires an extensive process to rid the pests from the facility. Inmates must be deloused and their cells must be stripped and cleaned. He stated he was aware of another WVRJA facility which had to continuously use delousing solutions on large sections of inmates. Second, it creates potential conflicts because those inmates subjected to the process do not think highly of those inmates identified as being infected.
The process of delousing at the facilities involves spraying all detainees17 with a delousing solution from a plastic sprayer after they have been visually strip searched. In Mr. Cantley’s case it was sprayed from a Windex type bottle, and in Mr. Teter’s case it was a garden sprayer. After the solution is applied, detainees have to keep it on their bodies for about ten minutes before they are allowed to shower it off. John L. King II, who is the Chief of Operations for the WVRJA, explained that officers do not hand the spray bottle to detainees to spray on themselves because the bottle may be used as a weapon, they may spray it at the face of the officer, or they may not comply with applying the solution. In addition, Mr. DeLong, who is the acting Executive Director
17Mr. King stated pregnant women are not sprayed. 22

of the WVRJA, stated in his deposition that they do not provide nit combs to detainees because the detainee may use the comb as a weapon.
There is no medical screening to determine whether or not a particular detainee has lice before they are sprayed. Mr. King explained the WVRJA contracts with a medical company that provides medical care throughout the facilities, and there may be one or two nurses on duty at a jail during normal business hours. Mr. King stated it is simply not practical to do visual inspections of every detainee given the volume of detainees coming into some of the facilities and the amount of medical care they must provide other inmates. Given limited resources, Mr. King said it is an administrative decision to use their personnel and resources in the most cost effective manner they can. Moreover, he stated that most of the nurses are female, so visual inspections would require a female nurse to come into the shower area and closely inspect both male and female detainees’ bodies, including their pubic areas, to see if there are any nits or lice present. Mr. King believed this process would be much more embarrassing to a detainee then just being sprayed with a solution. Indeed, Plaintiffs’ own proffered expert, Richard J. Pollack, Ph.D., a public-health entomologist, stated in his Preliminary Report that the detection of louse eggs and their hatchlings requires specialized training and a close inspection or the use of an illuminated magnification device. He further opined it may take a skilled inspector an hour to examine long, braided or tangled hair on someone’s head.
Toxicologist Anthony F. Pizon, M.D. was named as Defendants’ delousing expert. In his deposition, Dr. Pizon stated that it is more likely to see lice in places like prisons because the population is held closely together and it easily spreads. Dr. Pizon said Liceall, the delousing solution used by the WVRJA, is a pyrehtrin, which is a safe over-the-counter natural product derived from a
23

chrysanthemum plant. Although Dr. Pizon said he recommends two applications of the solution about seven days apart because of the life cycle of lice and their eggs, he estimated that one application will eradicate lice on about fifty to seventy-five percent of people who have it. With two treatments, he said it would eliminate lice on about ninety percent of the people who have it. Dr. Pollack also opined that a single application would not kill embryotic lice.
Dr. Pizon opined that proactively delousing detainees in a correctional facility is appropriate because there is a greater risk of lice in a prison population, delousing treats everyone the same, and Liceall is a safe product. He also approves of the manner in which the WVRJA has correctional officers apply the solution because they can ensure it is thoroughly applied to the hairy areas of the body and officers can avoid getting the solution on sores or in eyes, which may cause irritation. He further mentioned that detainees may attempt to drink the solution if correctional officers hand it to them to apply themselves.
Plaintiffs argue that, because there is only one application and detainees are not provided a nit comb to remove eggs, the treatment is completely ineffective. Plaintiffs insist that a better procedure would be to ask the detainees whether they have lice or to have them screened by a nurse or assessed by a correctional officer. In addition, Plaintiffs contend there is no legitimate justification for delousing detainees’ entire bodies because none of the deponents could identify a single outbreak of body lice in the regional jail system. Despite these arguments, the Court finds the policy strikes a reasonable balance between the legitimate interests of the WVRJA and the detainee.
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In assessing Plaintiffs’ arguments, the Court is guided by Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme Court recognized that “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” 482 U.S. at 84-85. In addition, the Supreme Court cautioned that “[w]here a state penal system is involved federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” Id. at 85 (citation omitted). “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89. In assessing the reasonableness of a regulation, courts should consider: (1) whether there is a “‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it[;]” (2) whether there are alternative means of exercising the right that remain open to prison inmates[;]” (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally[;]” and (4) “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. at 89-90 (citations omitted).
In applying these considerations to the present case, the Court finds there is a valid and rational relationship between the delousing policy and the correctional authorities’ interest in reducing the outbreak of lice in the jails. As stated above, lice infestation is a real problem in correctional facilities. Inmates live in close quarters and outbreaks can be hard and expensive to eradicate. The delousing policy is designed to reduce the number of outbreaks in the facility by eliminating anywhere from fifty to seventy-five percent of the cases from the outset. Although the process does not kill embryotic lice and some outbreaks still occur in the facility, perfection is not a constitutional
25

requirement. It certainly is laudable to eradicate a significant percentage of the lice before they spread, and the policy is logically connected to this objective. Moreover, although there is no evidence of outbreaks of pubic lice in a facility, it is unknown if there would be outbreaks if the policy was not in place. Given the strong interest correctional officials have in maintaining a lice-free environment, the Court finds that the policy is not unreasonable.
Next, the Court recognizes that the correctional officials should be given deference as to what is the most effective and efficient manner in which to maintain a lice-free environment. Plaintiffs suggest correctional officers simply should ask an inmate whether they have lice and then delouse as needed. However, as noted by Mr. King, correctional officers cannot trust that detainees will give an honest answer because it may be a situation in which they do not know they have lice or they may have a reason to lie about it. In addition, the Court rejects Plaintiffs’ suggestion that the delousing policy should be replaced by physically screening all inmates. Such a process would be extremely time consuming, expensive, and intrusive as it would require either an up-close or illuminated magnification of a detainee’s body. In addition, if the screening is performed by a nurse, it will have a significant impact on the other inmates in need of medical care because those nurses would be unavailable to deliver that care unless correctional officials would allocate more prison resources for additional nurses. Under these circumstances, the Court will leave to the sound discretion of the WVRJA how best to allocate its resources and reduce the incidence of lice in the jails in a cost effective and efficient way.
In addition, the Court finds the policy is not unconstitutional because the detainees are sprayed by a correctional officer rather than given a cup of the solution to apply it to themselves, as
26

Plaintiffs assert were the underlying facts in Florence. First, the Court recognizes that the detainees already have been visually strip searched so the fact they remain in view of the correctional officer for a very limited time longer in order to be deloused is not a significant additional impingement on their right to privacy. Second, the correctional officers have offered legitimate reasons for not allowing detainees to apply the solution to themselves because they may not comply, may use it as a weapon, or may apply it improperly or incompletely. Third, the correctional officers never touch the detainees with their hands; they merely spray the solution on them. Plaintiffs attempt to compare this spraying with the unconstitutional touching in Amaechi v. West, 237 F.3d 356 (4th Cir. 2001), but that case is far removed from the facts of this case. See Amaechi, 237 F.3d at 359-60 (finding a constitutional violation where a semi-clad woman, who was being arrested for a noise violation that occurred two days earlier, was subjected to an officer swiping his ungloved hand across the vagina in front of her townhouse where others could observe). Thus, the Court finds no reason to declare the policy unconstitutional based upon the manner in which it is applied. Therefore, the Court finds that the delousing policy at issue in this case is reasonably related to the WVRJA’s goal of decreasing the spread of lice and it is entitled to deference. The Court finds neither Mr. Cantley nor Mr. Teter’s constitutional rights were violated by virtue of being deloused.
IV. CONCLUSION Accordingly, after review of the undisputed evidence submitted in this case and for the foregoing reasons, the Court GRANTS summary judgment in favor of Defendants on Plaintiffs’ claims and DENIES summary judgment in favor of Plaintiffs. In addition, as Defendants have been awarded summary judgment on Plaintiffs’ individual claims and a class has not been certified, the Court finds Plaintiffs may not proceed with this action. See J & R Mktg., SEP v. Gen. Motors Corp.,
27

549 F.3d 384, 390 (6th Cir. 2008) (“If it is found, prior to class certification, that the named plaintiffs’ individual claims are without merit, then dismissal is proper.”); Bass v. Butler, 116 F. App’x 376, 385 (3d Cir. 2004) (dismissing class claim where individual claims were dismissed pre-certification). Thus, as there are no other matters pending before the Court, the Court DISMISSES this case from the docket of the Court.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and

any unrepresented parties.

ENTER:

October 4, 2013

28

 
 Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 1 of 20
United States District Court Southern District of West Virginia (Huntington)
CIVIL DOCKET FOR CASE #: 3:09−cv−00758

CLOSED,LC−B

Cantley et al v. The West Virginia Regional Jail and Correctional Facility Authority et al Assigned to: Judge Robert C. Chambers Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 07/01/2009 Date Terminated: 10/04/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Michael Cantley and

represented by Chad P. Shannon ROBERT PEIRCE & ASSOCIATES 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 412/281−7229 Fax: 412/281−4229 Email: cshannon@peircelaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

D. Aaron Rihn ROBERT PEIRCE & ASSOCIATES 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 412/281−7229 Fax: 412/281−4229 Email: arihn@peircelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel R. Karon GOLDMAN SCARLATO & KARON 700 W. St. Clair Avenue, Suite 204 Cleveland, OH 44113 216−622−1851 Fax: 216−241−8175 Email: karon@gsk−law.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Donna F. Solen THE MASON LAW FIRM 1225 19th Street, NW Suite 500 Washington, DC 20036 202/429−2290 Fax: 202/429−2294 Email: dsolen@masonlawdc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elmer Robert Keach , III LAW OFFICES OF ELMER ROBERT KEACH, III P. O. Box 70 Amsterdam, NY 12010

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 2 of 20

518/434−1718 Fax: 518/770−1558 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gary E. Mason WHITFIELD BRYSON & MASON Suite 605 1625 Massachusetts Avenue, NW Washington, DC 20036 202/429−2290 Fax: 202/429−2294 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Migliaccio WHITFIELD BRYSON & MASON Suite 605 1625 Massachusetts Avenue NW Washington, DC 20036 202/429−2290 Fax: 202/429−2294 Email: nmigliaccio@wbmllp.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elgine Heceta McArdle MCARDLE LAW OFFICE Suite 206 80 12th Street Wheeling, WV 26003 304/232−0700 Fax: 304/214−1703 Email: maclaw@swave.net ATTORNEY TO BE NOTICED

Plaintiff
Floyd Teter on behalf of themselves and on behalf of a Class of others similarly situated

represented by D. Aaron Rihn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel R. Karon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Donna F. Solen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elmer Robert Keach , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gary E. Mason

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 3 of 20
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas A. Migliaccio (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elgine Heceta McArdle (See above for address) ATTORNEY TO BE NOTICED

V. Defendant The West Virginia Regional Jail and Correctional Facility Authority and
Defendant Terry L. Miller both individually and in his official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority and
Defendant Joseph A. DeLong both individually and in his official capacity as Acting Executive Director of the West Virginia Regional Jail and Correctional Facility Authority and Defendant Larry Parsons both individually and in his Official capacity as Executive Director of the West Virginia Regional Jail and Correctional Facility Authority

represented by David J. Mincer BAILEY & WYANT P. O. Box 3710 Charleston, WV 25337−3710 304/345−4222 Fax: 304/343−3133 Email: dmincer@baileywyant.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua K. Boggs BAILEY & WYANT P. O. Box 3710 Charleston, WV 25337−3710 304/345−4222 Fax: 304/343−3133 Email: jboggs@baileywyant.com TERMINATED: 05/22/2012
represented by David J. Mincer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua K. Boggs (See above for address) TERMINATED: 05/22/2012
represented by David J. Mincer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David J. Mincer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 4 of 20

07/01/2009 07/01/2009 07/01/2009 07/01/2009
07/01/2009 08/10/2009 08/10/2009 08/31/2009 08/31/2009
09/03/2009
09/14/2009
09/14/2009
09/15/2009
09/16/2009 10/09/2009 10/09/2009 10/13/2009

1 COMPLAINT. Filing Fee $350.00. Receipt # 04425000000000103883. (dcm) (Additional attachment(s) added on 7/1/2009: # 1 Civil Cover Sheet) (dcm).
2 WAIVER OF SERVICE OF SUMMONS by Michael Cantley for The West Virginia Regional Jail and Correctional Facility Authority (dcm)
3 WAIVER OF SERVICE OF SUMMONS by Michael Cantley for Terry L. Miller. (dcm)
4 STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED AUGUST 1, 2006. This matter referred to Magistrate Judge Taylor for discovery. (cc:attys; any unrepresented party) (dcm)
CASE assigned to Judge Robert C. Chambers. (ras) (Entered: 07/10/2009)
5 WAIVER OF SERVICE EXECUTED. Waiver signed by Joshua K. Boggs, Attorney on 08/10/2009. Terry L. Miller waiver mailed on 7/1/2009, answer due 8/31/2009. (Boggs, Joshua)
6 WAIVER OF SERVICE EXECUTED. Waiver signed by Joshua K. Boggs, Attorney on 08/10/2009. The West Virginia Regional Jail and Correctional Facility Authority waiver mailed on 7/1/2009, answer due 8/31/2009. (Boggs, Joshua)
7 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 1 Complaint (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D)(Mincer, David)
8 MEMORANDUM by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority in support of 7 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 1 Complaint (Mincer, David)
9 ORDER AND NOTICE: Rule 12(b) Motions 10/2/2009. Rule 26(f) Meeting 11/2/2009. Last day to file report of Rule 26(f) Meeting 11/9/2009. Scheduling Conference at 11:30 AM on 11/23/2009 in Huntington. Entry of Scheduling Order 12/3/2009. Last Day to make Rule 26(a)(1) disclosures 12/7/2009. Signed by Judge Robert C. Chambers on 9/3/2009. (cc:attys; any unrepresented party) (skm)
10 MOTION by Michael Cantley for Extension of Time to File Response re: 7 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 1 Complaint to October, 9, 2009 (Rihn, D.) (Modified text to conform to filed document, to add link to #7 motion and to remove attachment (stipulation) and file as entry #11 on 9/15/2009) (skh).
11 STIPULATION EXTENDING TIME to respond re: 7 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 1 Complaint to 10/9/2009 and to reply to 10/26/2009 by Michael Cantley, Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority. (skh) (Entered: 09/15/2009)
NOTICE OF DOCKET CORRECTION re: 10 MOTION by Michael Cantley for Extension of Time to File Response re: 7 MOTION to Dismiss. ERROR: Attached stipulation should be filed separately. CORRECTION: Detached stipulation and filed using the event Stipulation Extending Time. (skh)
12 ORDER granting 10 MOTION for Extension of Time to File Response/Reply. Responses due by 10/9/2009 Replies due by 10/26/2009. Signed by Judge Robert C. Chambers on 9/16/2009. (cc: attys; any unrepresented party) (skm)
13 INCORRECT ENTRY; SEE ENTRY #14. (Modified on 10/13/2009 to remove image and file as entry #14) (skh).
14 FIRST AMENDED CLASS ACTION COMPLAINT by Michael Cantley against The West Virginia Regional Jail and Correctional Facility Authority, Terry L. Miller. (Attachment: # 1 Exhibit A) (skh) (Entered: 10/13/2009)
NOTICE OF DOCKET CORRECTION re: 13 NOTICE of Filing of First Amended Class Action Complaint by Michael Cantley. ERROR: Incorrect event selected.

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 5 of 20

10/27/2009 10/28/2009 10/28/2009 11/02/2009 11/02/2009 11/03/2009
11/16/2009 11/17/2009 11/17/2009 11/30/2009 05/04/2010
06/14/2010

CORRECTION: Removed image and filed as entry 14 . (skh)
15 ORDER denying as moot 7 MOTION to Dismiss. Signed by Judge Robert C. Chambers on 10/27/2009. (cc: attys; any unrepresented party) (dcm)
16 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 14 First Amended Complaint (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D)(Mincer, David) (Modified text to conform to filed document on 10/29/2009) (skh).
17 MEMORANDUM by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority in support of 16 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 14 First Amended Complaint (Mincer, David) (Modified text to conform to filed document on 10/29/2009) (skh).
18 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Extension of Deadline to Conduct Rule 26(f) Meeting and Deadline to File Report Thereof (Mincer, David) (Modified text to conform to filed document on 11/3/2009) (skh).
19 MEMORANDUM by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority in support of 18 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Extension of Deadline to Conduct Rule 26(f) Meeting and Deadline to File Report Thereof (Mincer, David) (Modified text to conform to filed document on 11/3/2009) (skh).
20 ORDER granting 18 MOTION for Extension of Time to conduct Rule 26(f) Meeting and file the report thereof. The Court vacates the remainder of the Order and Notice entered on 09/03/2009. If necessary, the Court will reset the Rule 26(f) deadlines and a date and time for the Scheduling Conference after the Court rules on defendant's Motion to Dismiss. Signed by Judge Robert C. Chambers on 11/3/2009. (cc: attys; any unrepresented party) (dcm)
21 MOTION by Michael Cantley for Extension of Time to File Response to 16 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss the 14 First Amended Complaint to November 27, 2009 (Attachments: # 1 Stipulation, # 2 Proposed Order)(Rihn, D.) (Modified text to conform to filed document on 11/17/2009) (skh).
22 ORDER granting 21 MOTION for Extension of Time to File Response/Reply re: 16 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss. Responses due by 11/17/2009. Replies due by 11/27/2009. Signed by Judge Robert C. Chambers on 11/17/2009. (cc: attys; any unrepresented party) (skm) Modified on 11/18/2009 to remove and add text (dcm).
23 MEMORANDUM by Michael Cantley in opposition to 16 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss re: 14 First Amended Complaint (Rihn, D.) (Modified on 11/18/2009 to remove duplicate text) (skh).
24 REPLY by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to 23 Memorandum In Opposition. (Mincer, David)
25 CLERK'S ORDER WITHDRAWING AND TRANSFERRING REFERENCE TO UNITED STATES MAGISTRATE JUDGE. The reference of this civil action to Magistrate Judge Maurice G. Taylor, Jr., pursuant to the Standing Order of this Court entered on 08/1/2006, is withdrawn and this civil action will be referred to Magistrate Judge Stanley for discovery disputes. Signed by Clerk of Court Teresa L. Deppner on 5/4/2010.(cc: unrepresented parties; non CM/ECF users). (klc)
26 ORDER Counsel for the Plaintiff have not met the requirements of LRCivP 83.6 of the United States District Court for the Southern District of West Virginia; it is therefore Ordered that within 20 days of the entry of this Order counsel for Plaintiff shall comply with the provisions of this local rule and others related thereto by associating with qualified local counsel. Signed by Judge Robert C. Chambers on 6/14/2010. (cc: attys; any unrepresented party) (skm)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 6 of 20

07/01/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010 08/05/2010 08/05/2010
08/31/2010
08/31/2010 09/02/2010
09/07/2010
09/07/2010 09/10/2010 09/13/2010

27 NOTICE OF ATTORNEY APPEARANCE by Elgine Heceta McArdle on behalf of Michael Cantley (McArdle, Elgine)
28 STATEMENT OF VISITING ATTORNEY from Daniel R. Karon on behalf of Michael Cantley. Local counsel: Elgine McArdle. Fee $50.00. Receipt # 0425−1311118. (Rihn, D.) (Modified on 7/1/2010 to add name of visiting attorney and to correct typographical error) (skh).
29 STATEMENT OF VISITING ATTORNEY from Elmer Robert Keach III on behalf of Michael Cantley. Local counsel: Elgine McArdle. Fee $50.00. Receipt # 0425−1311122. (Rihn, D.) (Modified on 7/1/2010 to add name of visiting attorney and to correct typographical error) (skh).
30 STATEMENT OF VISITING ATTORNEY from Nicholas A. Migliaccio on behalf of Michael Cantley. Local counsel: Elgine McArdle. Fee $50.00. Receipt # 0425−1311129. (Rihn, D.) (Modified on 7/1/2010 to add name of visiting attorney and to correct typographical error) (skh).
31 STATEMENT OF VISITING ATTORNEY from Donna F. Solen on behalf of Michael Cantley. Local counsel: Elgine McArdle. Fee $50.00. Receipt # 0425−1311130. (Rihn, D.) (Modified on 7/1/2010 to add name of visiting attorney and to correct typographical error) (skh).
32 MEMORANDUM OPINION AND ORDER denying 16 MOTION to Dismiss. Signed by Judge Robert C. Chambers on 8/5/2010. (cc: attys; any unrepresented party) (dcm)
33 ORDER AND NOTICE: Rule 26(f) Meeting 8/30/2010. Last day to file report of Rule 26(f) Meeting 9/13/2010. Scheduling Conference at 11:00 AM on 9/27/2010 in Huntington. Entry of Scheduling Order 10/7/2010. Last Day to make Rule 26(a)(1) disclosures 10/12/2010. Signed by Judge Robert C. Chambers on 8/5/2010. (cc:attys; any unrepresented party) (dcm)
34 STIPULATION EXTENDING TIME for defendants Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to file their response to the 1 Complaint to September 3, 2010 by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley (Mincer, David) (Modified for clarity of text and to add additional filer on 9/1/2010) (skh).
RESET DEADLINE: Terry L. Miller and The West Virginia Regional Jail and Correctional Facility Authority answer to the complaint due 9/3/2010 pursuant to the 34 Stipulation. (skh) (Entered: 09/01/2010)
35 CLERK'S ORDER WITHDRAWING AND TRANSFERRING REFERENCE TO UNITED STATES MAGISTRATE JUDGE. The reference of this civil action to Magistrate Judge Mary E. Stanley is withdrawn and this civil action will be referred to Magistrate Judge Cheryl A. Eifert for discovery disputes. Signed by Clerk of Court Teresa L. Deppner on 9/2/2010.(cc: unrepresented parties; non CM/ECF users). (klc)
36 STIPULATION EXTENDING TIME for Defendants to file their response to the 14 First Amended Class Action Complaint to September 10, 2010 by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley (Mincer, David) (Modified for clarity of text, to add link to #14 first amended complaint, to remove link to #1 complaint and to add additional filer on 9/7/2010) (skh).
RESET DEADLINE: Terry L. Miller and The West Virginia Regional Jail and Correctional Facility Authority answer to First Amended Class Action Complaint due 9/10/2010 pursuant to the 36 Stipulation. (skh)
37 ANSWER TO 14 First Amended Class Action Complaint by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority.(Mincer, David) (Modified text to note the answer is to the first amended class action complaint on 9/13/2010) (skh).
38 RULE 26(f) REPORT OF PLANNING MEETING by Michael Cantley, Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority. (Mincer, David)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 7 of 20

09/15/2010 09/22/2010
10/06/2010 10/12/2010 10/12/2010 10/14/2010 10/22/2010 10/25/2010 11/30/2010 01/03/2011 01/03/2011 01/03/2011 01/06/2011

39 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason at 1225 19th Street, NW, Suite 500, Washington, D. C. 20036. Mail resent to Gary E. Mason at 1625 Massachusetts Avenue, NW, Suite 605, Washington, D. C. 20036. (dcm)
40 SCHEDULING ORDER: Joinder of Parties, amended pleadings due by 10/1/2010. The First phase of discovery shall be completed by 12/31/2010, the Defendant shall make the Disclosures by 12/01/2010. Each party shall make its experts available for deposition by 12/31/2010. The Second phase of discovery shall be completed by 11/15/2011 and Plaintiff shall disclose experts by 09/01/2011. The Defendant shall disclose experts by 10/01/2011. Depositions will be completed by 10/28/2011. Class Certification Motions filed by 01/31/2011. Settlement Meeting and Rule 26(a)(3) disclosures by 3/15/2011; Plaintiffs portion of proposed Pretrial Order to defendants due by 4/2/2012, Proposed Integrated Pretrial Order due by 4/16/2012. Pretrial Conference set for 4/30/2012 10:00 AM in Huntington before Judge Robert C. Chambers. Proposed Jury Charge due by 5/15/2012. Final Settlement Conference at 09:30 AM on 5/21/2012 in Huntington. Trial of this action shall commence on 05/22/2012, at 8:30AM in Huntington. Signed by Judge Robert C. Chambers on 9/22/2010. (cc:attys; any unrepresented party) (skm) Modified on 9/23/2010 to add text for clarity (dcm).
41 NOTICE TO TAKE DEPOSITION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority of Michael Cantley on October 26, 2010 at 9:00 a.m. (Boggs, Joshua)
42 CERTIFICATE OF SERVICE by The West Virginia Regional Jail and Correctional Facility Authority, Terry L. Miller for Rule 26(a)(1) Initial Disclosures. (Mincer, David) (Modified on 10/13/2010 to add additional filer) (skh).
43 CERTIFICATE OF SERVICE by Michael Cantley for Rule 26(a)(1) Initial Disclosures. (Rihn, D.)
44 AMENDED NOTICE TO TAKE DEPOSITION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority of Michael Cantley on October 26, 2010 at 09:00 a.m. (Boggs, Joshua)
45 EMERGENCY MOTION by Michael Cantley To Proceed Without the Appearance of the Sponsoring Attorney (Attachment: # 1 Proposed Order)(Rihn, D.) (Modified title of entry to add "emergency" on 10/24/2010) (skh).
46 ORDER granting 45 EMERGENCY MOTION to Proceed without the Appearance of Sponsoring Attorney, and depositions will proceed as scheduled on 10/25/2010, without the presence of the sponsoring attorney. Signed by Judge Robert C. Chambers on 10/25/2010. (cc: attys) (gan)
47 CERTIFICATE OF SERVICE filed by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Defendants' Expert Witness Disclosure (Boggs, Joshua)
48 INCORRECT ENTRY; SEE ENTRY #49. (Modified on 1/3/2011 to remove image and file using the event Proposed Order) (skh).
49 PROPOSED ORDER Stipulation and Order by Michael Cantley, Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority (skh)
NOTICE OF DOCKET CORRECTION re: 48 Stipulation by Michael Cantley. ERROR: Incorrect event selected. CORRECTION: Removed image and filed using the event Proposed Order. (skh)
50 AMENDED SCHEDULING ORDER: The deposition of John King, Executive Director, WVRJA, will be held on 1/5/2011. Expert Witness List by parties bearing the burden of proof due by 1/31/2011, by party not bearing burden of proof due by 3/1/2011; the deadline for Expert Depositions is 03/21/2011; the deadline for Fact of Expert Class Discovery is 03/21/2011. Class Certification Motions due by 4/1/2011, any response shall be filed within 21 days of the filing of the motion, with replies due within 7 days of the filing of the response. Settlement Meeting and Rule 26(a)(3) disclosures by 3/15/2012; Plaintiffs portion of proposed Pretrial Order to defendants due by 4/2/2012, Proposed Integrated Pretrial Order due by 4/16/2012. Pretrial Conference set for 4/30/2012 10:00 AM in Huntington before Judge Robert C.

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 8 of 20

01/07/2011
01/12/2011 02/07/2011 03/07/2011
03/11/2011 04/01/2011 04/01/2011 04/04/2011 04/05/2011
04/08/2011 04/22/2011 05/31/2011 06/01/2011

Chambers. Proposed Jury Charge due by 5/15/2012. Final Settlement Conference at 09:30 AM on 5/21/2012 in Huntington. Jury Trial set for 5/22/2012 at 08:30 AM in Huntington before Judge Robert C. Chambers. Signed by Judge Robert C. Chambers on 1/6/2011. (cc:attys; any unrepresented party) (skm) Modified on 1/7/2011 to correct text for clarity (dcm).
51 STIPULATION TO EXTEND TIME FOR DEFENDANTS' RESPONSE TO PLAINTIFF'S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES to 02/07/2011 by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley (Boggs, Joshua) (Modified text to conform to filed document and to add additional filer on 1/9/2011) (skh).
52 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Daniel R. Karon at Goldman Scarlato & Karon, 55 Public Square, Suite 1500, Cleveland, OH 44113. Mail resent to Daniel R. Karon at 700 West St. Clair Avenue, Suite 204, Cleveland, OH 44113. (skm)
53 CERTIFICATE OF SERVICE filed by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Defendants' Answers and Responses to Plaintiff's First Set of Requests for Production of Documents and Interrogatories (Boggs, Joshua)
54 STIPULATION TO EXTEND TIME FOR DEFENDANTS' RESPONSE TO PLAINTIFF'S SUPPLEMENTAL DISCOVERY REQUESTS to March 11, 2011 by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley (Boggs, Joshua) (Modified text to conform to filed document and to add additional filer on 3/7/2011) (skh).
55 CERTIFICATE OF SERVICE filed by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Defendants' Responses to Plaintiff's Supplemental Discovery Requests (Boggs, Joshua)
56 INCORRECT ENTRY; SEE ENTRY #57. (Modified on 4/4/2011 to remove image and file as entry #57) (skh).
57 PROPOSED ORDER Stipulation and Order by Michael Cantley, Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority (skh) (Entered: 04/04/2011)
NOTICE OF DOCKET CORRECTION re: 56 Stipulation by The West Virginia Regional Jail and Correctional Facility Authority. ERROR: Incorrect event selected. CORRECTION: Removed image and filed using the event Proposed Order.
58 STIPULATION AND ORDER The parties hereby stipulate to the following revised schedule for completion of class certification discovery: Disclosure of Defendant's Expert Witnesses due by 04/08/2011; Disclosure of Defendants' Expert Witness Reports due by 04/22/2011; Deadline for Fact or Expert Class Discovery is 05/31/2011; and Deadline for Filing of Motion for Class Certification is 06/15/2011 Signed by Judge Robert C. Chambers on 4/5/2011. (cc: attys; any unrepresented party) (dcm)
59 CERTIFICATE OF SERVICE filed by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Defendants' Amended Expert Witness Disclosure (Boggs, Joshua)
60 CERTIFICATE OF SERVICE by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Second Amended Expert Witness Disclosure. (Boggs, Joshua) (Modified text to conform to filed document on 4/25/2011) (skh).
61 JOINT STIPULATION TO STAY PROCEEDINGS AND PROPOSED ORDER by Michael Cantley, Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority (Rihn, D.) (Modified text to conform to filed document and to add additional filers on 5/31/2011) (skh).
62 JOINT STIPULATION TO STAY PROCEEDINGS AND ORDER The Parties jointly move the Court to stay this litigation in its entirely until such time as the Supreme Court rules in Florence; the one execption to this request will be the Plaintiffs' Motion

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06/06/2011 06/06/2011 06/06/2011 08/04/2011 08/04/2011 08/12/2011 08/12/2011 09/08/2011
09/09/2011
09/09/2011 09/16/2011 12/13/2011 05/16/2012 05/22/2012

to Intervene a New Representative Plaintiff, which is filed contemporaneously with this stipulation. Signed by Judge Robert C. Chambers on 6/1/2011. (cc: attys; any unrepresented party) (skm)
63 MOTION by Michael Cantley for Leave to Amend 14 First Amended Class Action Complaint to Intervene Floyd Teter (Attachment: # 1 Exhibit A)(Rihn, D.) (Modified text to conform to filed document and to add link to #14 amended complaint on 6/6/2011) (skh).
64 MEMORANDUM by Michael Cantley in support of 63 MOTION by Michael Cantley for Leave to Amend 14 First Amended Class Action Complaint to Intervene Floyd Teter (Rihn, D.) (Modified text to conform to filed document and to remove Exhibit A (Attachment #1) as a duplicate of the exhibit attached to entry #63 on 6/6/2011) (skh).
NOTICE OF DOCKET CORRECTION re: 64 Memorandum by Michael Cantley in support of Motion for Leave to Amend Complaint. ERROR: Exhibit A is a duplicate of Exhibit A attached to the 63 Motion. CORRECTION: Removed Exhibit A (Attachment #1). (skh)
65 ORDER granting Plaintiff's 63 MOTION to Amend the Complaint to Intervene Floyd Teter as an additional class representative. Signed by Judge Robert C. Chambers on 8/4/2011. (cc: attys; any unrepresented party) (dcm) Modified text for clarity on 8/5/2011. (ras)
66 SECOND AMENDED CLASS ACTION COMPLAINT by Michael Cantley, Floyd Teter against The West Virginia Regional Jail and Correctional Facility Authority snd Terry L. Miller. (Filed pursuant to the 65 order enterd of even date.) (dcm) Modified text to place parties in correct sequence and to add link to order on 8/5/2011. (ras)
67 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Reconsideration of the 65 Order (Boggs, Joshua) (Modified for clarity of text on 8/13/2011) (skh).
68 MEMORANDUM by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority in support of 67 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Reconsideration of the 65 Order (Boggs, Joshua) (Modified for clarity of text on 8/13/2011) (skh).
69 UNCONTESTED MOTION by Michael Cantley for Extension of Time to File Response to 67 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Reconsideration of the 65 Order to 9/9/2011 (Attachment: # 1 Proposed Order)(Rihn, D.) (Modified for clarity of text and to add link to #65 order on 9/8/2011) (skh).
70 ORDER granting 69 UNCONTESTED MOTION by Michael Cantley for Extension of Time to File Response to 67 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Reconsideration of the 65 Order to 9/9/2011. Signed by Judge Robert C. Chambers on 9/9/2011. (cc: attys; any unrepresented party) (dcm) Modified for clarity of text on 9/13/2011. (ras)
71 RESPONSE by Michael Cantley, Floyd Teter in opposition of 67 MOTION by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority for Reconsideration of the 65 Order (Rihn, D.)
72 REPLY by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority to 71 Response In Opposition. (Boggs, Joshua)
73 ORDER denying 67 MOTION for Reconsideration of 65 Order on Motion to Amend the Complaint. Signed by Judge Robert C. Chambers on 12/13/2011. (cc: attys; any unrepresented party) (dcm)
74 ORDER The parties are directed to file a joint status report informing the Court how the parties plan on proceeding in this matter on or before 05/30/2012. Signed by Judge Robert C. Chambers on 5/16/2012. (cc: attys; any unrepresented party) (dcm)
75 NOTICE OF CHANGE OF ATTORNEY INFORMATION by David J. Mincer (replacing Joshua K. Boggs) on behalf of Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority. (Mincer, David) (Modified text for clarity on

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 10 of 20

05/30/2012 06/01/2012 06/06/2012 06/06/2012 06/07/2012 06/08/2012
06/22/2012 06/25/2012
06/26/2012
06/27/2012 06/27/2012 07/13/2012 07/23/2012

5/22/2012) (skh).
76 JOINT STATUS REPORT by Michael Cantley, Terry L. Miller, Floyd Teter, The West Virginia Regional Jail and Correctional Facility Authority (Mincer, David)
77 ORDER The Court Denies the request for a Status Conference, and Directs the parties to file brief summaries on or before Thursday, 06/07/2012 of where they believe this case stands. Signed by Judge Robert C. Chambers on 6/1/2012. (cc: attys; any unrepresented party) (skm)
78 STATUS REPORT AND REQUEST FOR BRIEFING SCHEDULE by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority (Mincer, David) (Main Document 78 replaced on 6/6/2012) (dcm). Modified on 6/7/2012 to change title to conform with filed document (dcm).
NOTICE OF DOCKET CORRECTION re: 78 STATUS REPORT (Original image incorrect; image replaced) (dcm)
79 STATUS REPORT by Michael Cantley, Floyd Teter (Keach, Elmer)
80 ORDER The Court lifts the stay of this matter and directs plaintiffs to file a motion to file a Third Amended Complaint on or before 06/22/2012; defendants shall file a response to the motion on or before 07/09/2012 and plaintiffs shall file a reply on or before 07/19/2012; after the Court rules on the plaintiffs' motion to amend, the Court will entertain a motion to dismiss by defendants. Signed by Judge Robert C. Chambers on 6/8/2012. (cc: attys; any unrepresented party) (dcm)
81 CONSENT MOTION by Michael Cantley, Floyd Teter for Enlargement of Time to File a Motion for Leave to File an Amended Complaint to June 26, 2012 (Attachment: # 1 Proposed Order)(Keach, Elmer) (Modified text for clarity on 6/23/2012) (skh).
82 ORDER granting Plaintiffs' 81 CONSENT MOTION for an Enlargement of Time to File a Motion for Leave to Amend their Complaint; directing the following briefing schedule: Plaintiffs' Motion for Leave to Amend Complaint due by 6/26/2012; Defendants' Response to Motion due by 7/13/2012; Plaintiffs' Reply in Support of Motion due by 7/23/2012; the Court will entertain a Motion to Dismiss from the Defendants after ruling on the Plaintiffs' Motion for Leave to File an Amended Complaint. Signed by Judge Robert C. Chambers on 6/22/2012. (cc: attys; any unrepresented party) (mkw)
83 MOTION by Michael Cantley, Floyd Teter for Leave to File Third Amended Class Action Complaint and Add Additional Parties (Attachments: # 1 Affirmation in Support, # 2 Exhibit A −− Proposed Amended Complaint, # 3 Exhibit B −− Redlined Proposed Amended Complaint, # 4 Exhibit C −− WVRJA Rule 30(b)(6) deposition, # 5 Exhibit D − Inmate Admissions Policy, # 6 Exhibit E − WVRJA Strip Search Policy)(Keach, Elmer) (Modified text to conform to filed document on 6/27/2012) (skh).
84 MEMORANDUM by Michael Cantley, Floyd Teter in support of 83 MOTION by Michael Cantley, Floyd Teter for Leave to File Third Amended Class Action Complaint and Add Additional Parties (Keach, Elmer) (Modified text to conform to filed document on 6/27/2012 (skh).
85 CERTIFICATE OF SERVICE by Michael Cantley, Floyd Teter for 83 MOTION by Michael Cantley, Floyd Teter for Leave to File Third Amended Class Action Complaint and Add Additional Parties and 84 Memorandum In Support (Keach, Elmer) (Modified text to conform to filed document on 6/27/2012) (skh).
86 RESPONSE by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority in opposition of 83 MOTION by Michael Cantley, Floyd Teter for Leave to File Third Amended Class Action Complaint and Add Additional Parties (Mincer, David)
87 REPLY by Michael Cantley, Floyd Teter to 86 Response In Opposition. (Attachments: # 1 Reply Memorandum of Law, # 2 Certificate of Service)(Keach, Elmer) (Modified on 7/24/2012 to remove link to #83 motion) (skh).

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 11 of 20

09/14/2012 09/14/2012 09/28/2012 10/02/2012 10/02/2012 10/03/2012
10/04/2012 10/05/2012 10/05/2012 10/23/2012

88 ORDER granting Plaintiffs' 83 MOTION for Leave to File Third Amended Class Action Complaint and Add Additional Parties; directing the parties to conduct a new Rule 26(f) Meeting by 9/28/2012; directing the parties to expedite discovery and the trial date; the report of Rule 26(f) Meeting due by 10/2/2012; Scheduling/status Conference at 11:00 AM on 10/9/2012 in Huntington; the parties shall have to 10/23/2012 make Rule 26(a)(1) disclosures. Signed by Judge Robert C. Chambers on 9/14/2012. (cc: attys; any unrepresented parties) (mkw)
89 THIRD AMENDED COMPLAINT filed with Leave of Court (Docket Number 88) by Michael Cantley, Floyd Teter re: 88 Judge Chambers's Order and Notice. (Attachments: # 1 Certificate of Service)(Keach, Elmer) Modified on 9/17/2012 to remove punctuation dcm). Modified on 9/18/2012 to correct title of filed document (dcm).
90 STIPULATION TO EXTEND TIME FOR DEFENDANTS TO FILE RESPONSIVE PLEADING TO PLAINTIFFS' 89 THIRD AMENDED CLASS ACTION COMPLAINT to October 2, 2012 by Terry L. Miller, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley, Floyd Teter (Mincer, David) (Modified on 9/30/2012 to add additional filers)(skh).
91 RULE 26(f) REPORT OF PLANNING MEETING by Michael Cantley, Joseph A. DeLong, Terry L. Miller, Larry Parsons, Floyd Teter, The West Virginia Regional Jail and Correctional Facility Authority. (Mincer, David)
92 STIPULATION TO EXTEND TIME FOR DEFENDANTS TO FILE RESPONSIVE PLEADING TO PLAINTIFFS' THIRD AMENDED CLASS ACTION COMPLAINT to 10/04/12 by Michael Cantley, Joseph A. DeLong, Terry L. Miller, Larry Parsons, Floyd Teter, The West Virginia Regional Jail and Correctional Facility Authority (Mincer, David)
93 SCHEDULING ORDER: Joinder of Parties, amended pleadings due by 10/15/2012. Discovery requests to be completed by 4/5/2013 and all depositions by 5/20/2013. Expert Witness List by parties bearing the burden of proof due by 3/21/2013, by party not bearing burden of proof due by 4/19/2013, and to solely contradict or rebut evidence due by 5/6/2013. Dispositive Motions except those filed under Rule 12(b) due by 6/10/2013, any response shall be filed within 14 days of the filing of the motion, with replies due within 7 days of the filing of the response. Settlement Meeting and Rule 26(a)(3) disclosures by 7/22/2013. Plaintiffs portion of proposed Pretrial Order to defendants due by 7/29/2013, Proposed Integrated Pretrial Order due by 8/5/2013. Pretrial Conference set for 8/12/2013 10:30 AM in Huntington before Judge Robert C. Chambers. Proposed Jury Charge due by 9/3/2013. Final Settlement Conference at 09:30 AM on 9/9/2013 in Huntington. Jury Trial set for 9/10/2013 at 08:30 AM in Huntington before Judge Robert C. Chambers. The Court further cancels the scheduling conference set for 10/09/2012. Signed by Judge Robert C. Chambers on 10/3/2012. (cc:attys; any unrepresented party) (dcm)
94 STIPULATION TO EXTEND TIME FOR DEFENDANTS TO FILE RESPONSIVE PLEADING TO PLAINTIFFS' THIRD AMENDED CLASS ACTION COMPLAINT to October 5, 2012 by Michael Cantley, Joseph A. DeLong, Terry L. Miller, Larry Parsons, Floyd Teter, The West Virginia Regional Jail and Correctional Facility Authority (Mincer, David)
95 RENEWED MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss 89 Third Amended Complaint (Mincer, David) (Modified on 10/6/2012 to add link to #89 third amended complaint) (skh).
96 MEMORANDUM by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority in support of 95 RENEWED MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss 89 Third Amended Complaint (Mincer, David)
97 CERTIFICATE OF SERVICE by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Rule 26(a)(1) Initial Disclosures. (Mincer, David)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 12 of 20

10/26/2012
11/14/2012
11/20/2012 04/19/2013 04/30/2013 04/30/2013 05/08/2013
05/08/2013 05/19/2013 05/30/2013 05/30/2013
06/11/2013 06/12/2013

98 STIPULATION TO EXTEND THE TIME FOR PLAINTIFFS TO RESPOND TO DEFENDANTS' 95 MOTION TO DISMISS THE THIRD AMENDED CLASS ACTION COMPLAINT to 11/9/2012 by Michael Cantley, Floyd Teter, The West Virginia Regional Jail and Correctional Facility Authority, Terry L. Miller (Rihn, D.) (Modified text for clarity, to add link to #95 motion and to add additional filers on 10/28/2012) (skh).
99 STIPULATION TO EXTEND THE TIME FOR PLAINTIFFS TO RESPOND TO DEFENDANTS' 95 MOTION TO DISMISS THE THIRD AMENDED CLASS ACTION COMPLAINT to 11/20/2012 by Michael Cantley, Floyd Teter, The West Virginia Regional Jail and Correctional Facility Authority, Terry L. Miller (Rihn, D.) (Modified text for clarity, to add link to #95 motion and to add additional filers on 11/14/2012) (skh).
100 RESPONSE by Michael Cantley in opposition to 95 RENEWED MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority to Dismiss 89 Third Amended Complaint (Rihn, D.)
101 CERTIFICATE OF SERVICE by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Rule 26(a)(2) Expert Testimony Disclosures. (Mincer, David)
102 MOTION AND REQUEST by Michael Cantley, Floyd Teter for a Status Conference with the Court (Keach, Elmer)
103 CERTIFICATE OF SERVICE by Michael Cantley, Floyd Teter for Motion for Status Conference (Keach, Elmer) (Modified text for clarity on 4/30/2013) (skh).
104 MOTION by Michael Cantley, Floyd Teter to Compel Discovery Responses (Attachments: # 1 Exhibit A −− Internet Print Out for Inmate A, # 2 Exhibit B −− Defendants' Response to Plaintiffs' Initial Requests, # 3 Exhibit C −− Order, Bruce v. County of Rensselaer, # 4 Exhibit D −− Transcript of Proceedings, Marriott v. County of Montgomery, # 5 Exhibit E −− Transcript of Proceedings, McDaniel v. County of Schenectady, # 6 Exhibit F −− Portions of Decision, Pritchard v. County of Erie, # 7 Exhibit G −− Protective Order, Marriott v. County of Montgomery, # 8 Exhibit H −− Defendants' Response to Plaintiffs' Supplemental Demands, # 9 Exhibit I −− Inmate Admission Procedure, WVRJA, # 10 Exhibit J −− Deposition of WVRJA Corporate Deponent John King, # 11 Proposed Order)(Keach, Elmer)
MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 104 MOTION by Michael Cantley, Floyd Teter to Compel Discovery Responses (skh)
105 MOTION by Michael Cantley, Floyd Teter for Extension of Discovery Deadline and for Leave of Court to Modify 93 Scheduling Order to Allow for Filing of Motion for Class Certification Before Concluding Merits Discovery (Attachment: # 1 Proposed Order)(Keach, Elmer). (Modified on 5/20/2013 to add motion to modify and link to #93 scheduling order) (skh).
106 ORDER granting 104 MOTION to Compel Discovery Responses; Defendants shall provide full and complete responses to the Plaintiffs' discovery requests within 20 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 5/30/2013. (cc: attys; any unrepresented party) (skm)
107 MEMORANDUM OPINION AND ORDER denying Defendants' 95 RENEWED MOTION to Dismiss Plaintiffs' Third Amended Complaint; granting Plaintiffs' 102 MOTION and REQUEST for a Status Conference with the Court; scheduling a telephone conference to be held on 6/11/2013 at 11:00 a.m. to discuss discovery and scheduling issues; directing counsel for Plaintiffs to initiate the call with counsel for Defendants and the Court. Signed by Judge Robert C. Chambers on 5/30/2013. (cc: attys; any unrepresented parties) (mkw)
108 TELEPHONIC STATUS CONFERENCE held by Judge Robert C. Chambers on 6/11/2013; not reported. (trj)
109 THIRD AMENDED SCHEDULING ORDER: granting in part 105 MOTION by Michael Cantley, Floyd Teter for Extension of Discovery Deadline and for Leave of Court to Modify 93 Scheduling Order to Allow for Filing of Motion for Class Certification Before Concluding Merits Discovery. Discovery requests to be

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 13 of 20

06/13/2013
06/13/2013 06/14/2013 06/14/2013 06/14/2013 06/14/2013 06/17/2013 06/19/2013
07/08/2013 07/08/2013 07/15/2013 07/15/2013 07/16/2013 07/16/2013 07/21/2013
07/21/2013

completed by 6/19/2013 and all depositions by 8/5/2013; Dispositive Motions except those filed under Rule 12(b) due by 8/8/2013, responses due by 8/19/2013, replies due by 8/23/2013. Settlement Meeting and Rule 26(a)(3) disclosures by 8/30/2013. Status Conference and Hearing shall be held on 09/09/2013 at 9:30 AM in Huntington; to the extent Plaintiffs' requested different deadlines in their motion, the Court Denies the motion; in addition, in light of these changes, the Court Cancels the Pretrial Conference set for 08/12/2013; the Final Settlement Conference set for 09/09/2013 and the Trial set for 09/10/2013. Signed by Judge Robert C. Chambers on 6/12/2013. (cc:attys; any unrepresented parties) (skm) (Modified on 7/1/2013 to add response and reply deadlines in text) (mkw).
110 NOTICE TO TAKE DEPOSITION DUCES TECUM by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority of Floyd Teter on June 17, 2013 at 9:00 a.m. (Attachment: # 1 Exhibit(s) A)(Mincer, David)
111 MOTION by Michael Cantley, Floyd Teter to Proceed with Discovery without the Appearance of a Sponsoring West Virginia Attorney (Attachment: # 1 Proposed Order)(Rihn, D.)
112 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deponent, Tygart Valley Regional Jail on June 18, 2013 at 9:00 AM (Keach, Elmer)
113 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Corrections Sergeant Dan Cutright on June 17, 2013 at 1:00 PM (Keach, Elmer)
114 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) deponent, North Central Regional Jail on June 18, 2013 at 2:00 PM (Keach, Elmer)
115 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deponent, Northern Regional Jail on June 19, 2013 at 9:00 AM (Keach, Elmer)
116 ORDER OF COURT granting 111 MOTION to proceed with Discovery without the Appearance of a Sponsoring West Virginia Attorney. Signed by Judge Robert C. Chambers on 6/17/2013. (cc: attys; any unrepresented party) (skm)
117 CERTIFICATE OF SERVICE filed by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Defendants' First Set of Interrogatories and Requests for Production of Documents for Each Plaintiff (Mincer, David)
118 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) deponent, Eastern Regional Jail on 7/9/2013 at 10:00 AM (Keach, Elmer)
119 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deponent, Potomac Highlands Regional Jail on 7/9/2013 at 2:00 PM (Keach, Elmer)
120 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deponent, Southern Regional Jail on 7/16/2013 at 10:30 AM (Keach, Elmer)
121 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deponent, Central Regional Jail on 7/16/2013 at 4:30 PM (Keach, Elmer)
122 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deponent, South Central Regional Jail on 7/16/2013 at 9:00 AM (Keach, Elmer)
123 NOTICE TO TAKE DEPOSITION by Michael Cantley, Floyd Teter of Rule 30(b)(6) Deposition, Southwestern Regional Jail on 7/16/2013 at 1:00 PM (Keach, Elmer)
124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a Finding of Contempt of Court (Attachments: # 1 Exhibit A −− Previous Motion to Compel, # 2 Exhibit B −− Court Order, # 3 Exhibit C −− Defendants' Response to Plaintiffs' Discovery Demands, # 4 Exhibit D −− Defendants' Response to Plaintiffs' Supplemental Discovery Demands)(Keach, Elmer)
125 MEMORANDUM by Michael Cantley, Floyd Teter in support of 124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 14 of 20

07/21/2013 07/22/2013 07/23/2013 07/23/2013 07/23/2013 07/24/2013
07/24/2013
07/25/2013 07/25/2013 07/26/2013
07/27/2013
07/29/2013 07/29/2013 07/30/2013

Finding of Contempt of Court (Attachments: # 1 Exhibit A −− Photo of Garden Spray Can, # 2 Exhibit B −− Photo of Spray Bottle)(Keach, Elmer)
MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a Finding of Contempt of Court (skh) (Entered: 07/22/2013)
126 MOTION by Michael Cantley, Floyd Teter for Extension of Discovery Deadline (Attachment: # 1 Proposed Order)(Keach, Elmer)
127 ORDER denying without prejudice Plaintiffs' 126 MOTION for Extension of Discovery Deadline; Plaintiffs may request an expedited hearing on the discovery issue with the Magistrate Judge. Signed by Judge Robert C. Chambers on 7/23/2013. (cc: attys; any unrepresented parties) (mkw)
128 MOTION by Michael Cantley, Floyd Teter for Expedited Briefing and Decision on Motion for Sanctions and Contempt (Keach, Elmer)
MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 128 MOTION by Michael Cantley, Floyd Teter for Expedited Briefing and Decision on Motion for Sanctions and Contempt (skh)
129 ORDER granting Plaintiff's 128 MOTION for Expedited Briefing and Decision on Motion for Sanctions and Contempt; Defendant's shall have through and including 7/26/2013 in which to file a response to Plaintiff's motion for sanctions, and Plaintiff shall have until noon on 7/29/2013 in which to file a reply, a hearing on the motion shall take place on 7/30/2013 at 2:00 p.m. in Huntington. Signed by Magistrate Judge Cheryl A. Eifert on 7/24/2013. (cc: attys; any unrepresented party) (mkw)
SET DEADLINES as to 124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a Finding of Contempt of Court. Responses due by 7/26/2013; Replies due by noon on 7/29/2013; Motion Hearing set for 7/30/2013 at 02:00 PM in Huntington before Magistrate Judge Cheryl A. Eifert. (mkw)
130 NOTICE OF APPEARANCE by Chad P. Shannon on behalf of Michael Cantley. (Shannon, Chad)
131 NOTICE TO TAKE DEPOSITION DUCES TECUM by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority of Richard Pollack on July 26, 2013 at 10:00 a.m. (Mincer, David)
132 STIPULATION TO EXTEND TIME FOR DEFENDANTS TO FILE RESPONSE BRIEF TO PLAINTIFFS' 124 MOTION FOR SANCTIONS to 7/27/13 by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley, Floyd Teter (Mincer, David) (Modified on 7/27/2013 to add link to #124 motion and party filers) (skh).
133 RESPONSE by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority in opposition to 124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a Finding of Contempt of Court (Mincer, David) (Modified on 7/29/2013 to remove link to #125 memorandum) (skh).
134 NOTICE TO TAKE DEPOSITION DUCES TECUM by Michael Cantley, Floyd Teter of Pogos Voskanian on July 29, 2013 at 10:00 AM (Keach, Elmer)
135 REPLY by Michael Cantley, Floyd Teter to 133 Response in Opposition. (Keach, Elmer) (Modified on 7/29/2013 to correct link to #133 response) (skh).
136 MOTION HEARING held by Magistrate Judge Cheryl A. Eifert on 7/30/2013 re: 124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a Finding of Contempt of Court. Court Reporter: Courtflow. (skm)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 15 of 20

07/31/2013 07/31/2013 07/31/2013
08/05/2013 08/05/2013 08/05/2013 08/07/2013 08/08/2013 08/08/2013 08/08/2013

137 NOTICE TO TAKE DEPOSITION DUCES TECUM by Michael Cantley, Floyd Teter of Larry Parsons on 7/31/2013 at 10:00 AM (Keach, Elmer)
138 NOTICE TO TAKE DEPOSITION DUCES TECUM by Michael Cantley, Floyd Teter of Joseph DeLong on 7/31/2013 at 1:00 PM (Keach, Elmer)
139 ORDER The Court Holds the 124 Motion in Abeyance pending further production of documents by Defendants and Orders as follows: on or before 08/02/2013, Defendants shall provide Plaintiffs with copies of all reports regarding lice infestations at the regional jails during the period of 06/30/2013 through the present; on or before 08/02/2013, Defendants shall conduct and complete a search at all of the regional jails to locate and collect prior versions of policies previously produced to Plaintiffs and shall either provide Plaintiffs with the prior versions or shall notify Plaintiffs that older versions no longer exist; on or before 08/02/2013, Defendants shall supply Plaintiffs with information from the TAG System database relating to all pre−trial detainees, who were charged with misdemeanors; on or before 08/02/2013, Defendants shall supply Plaintiffs with information from the Tag System database relating to all pre−trial detainees, who were charged with misdemeanors, summary violations, violations of probation, traffic infractions, civil commitments or other minor crimes and were brought to any of West Virginia's regional jails between 06/30/2013 and 07/30/2013; to the extent that any of this information is deemed confidential, the parties shall tender the Agreed Protective Order found on the Court's website to govern its use and disclosure; within 20 days after receipt of the above−described materials, Plaintiffs shall notify the Court if they wish to pursue their motion for sanctions against the Defendants by doing one of the following; if Plaintiffs do not wish to pursue sanctions, they shall file a motion to withdraw the request; if they do seek sanctions, they shall provide the Court with a supplemental memorandum addressing the four factors set out in Belk v Charlotte−Mecklenburg Bd. of Educ. 269 F.3d 305, 349 (4th Cir. 2001), if plaintiffs seek attorney fees and costs, they shall also address the considerations outlined in Robinson v Equifax Info.Servs., LLC, 560 F.3d 235 (4th Cir. 2009) for determining reasonable fees; Defendants shall have 14 days after receipt of Plaintiffs' memorandum to file a responsive brief, and Plaintiffs shall have 7 days to reply; the undersigned will notify the parties if an additional hearing is necessary after receipt of the memoranda. Signed by Magistrate Judge Cheryl A. Eifert on 7/31/2013. (cc: attys; any unrepresented party) (skm)
140 NOTICE TO TAKE DEPOSITION PURSUANT TO FED. R. CIV. P. 30 by Michael Cantley, Floyd Teter of Terry Miller on 8/5/2013 at 11:00 a.m. (Migliaccio, Nicholas)
141 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason at The Mason Law Firm, Suite 500, 1225 19th Street, NW, Washington, DC 20036. Mail resent to Gary E. Mason at The Mason Law Firm, Suite 605, 1625 Massachusetts Ave., Washington, DC 20036. (skm)
142 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason at The Mason Law Firm, Suite 500, 1225 19th Street, NW, Washington, DC 20036. Mail resent to Gary E. Mason, The Mason Law Firm, Suite 605, 1625 Massachusetts Avenue, Washington, DC 20036. (skm)
143 LETTER to Clerk of the Court, from Monica DiCocco dated 8/7/2013, re: address change of Attorney Nicholas A. Migliaccio. (skm)
144 JOINT MOTION by Michael Cantley, Floyd Teter to Amend 109 Third Amended Scheduling Order (Keach, Elmer)
145 PROPOSED ORDER Agreed Order Amending Briefing Schedule by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley, Floyd Teter (Mincer, David) (Modified on 8/8/2013 to add party filers) (skh).
146 ORDER granting the parties' 144 JOINT MOTION for Amended Briefing Schedule; amending the briefing schedule as follows: Defendants' Motion for Summary Judgment is due by 8/12/2013; Plaintiffs' Cross−Motion for Summary Judgment and Response is due by 8/23/2013; Defendants' Response and Reply is due by 8/27/2013; Plaintiffs' Reply, if any, due by 8/30/2013. Signed by Judge Robert C. Chambers on 8/8/2013. (cc: attys; any unrepresented parties) (mkw)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 16 of 20

08/12/2013 08/12/2013 08/12/2013 08/12/2013 08/22/2013 08/23/2013
08/26/2013 08/27/2013 08/27/2013 08/27/2013
08/27/2013

147 EMAIL NOTIFICATION to Gary E. Mason with Notice from Teresa L. Deppner, Clerk, Re: Electronic filing requirements (Attachments: # 1 Clerk's Notice) (jkk)
148 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason at The Mason Law Firm, Suite 500 1225 19th Street, NW, Washington, DC 20036. Mail resent to Gary E. Mason at The Mason Law Firm, Suite 605, 1625 Massachusetts, Washington, DC 20036. (skm)
149 MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Mincer, David)
150 MEMORANDUM by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority in support of 149 MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Summary Judgment (Mincer, David)
151 MOTION by Michael Cantley, Floyd Teter for Extension of Time to Respond to 149 Motion by Defendants for Summary Judgment to August 26, 2013, and Revision of Briefing Schedule (Attachment: # 1 Proposed Order)(Keach, Elmer). (Modified on 8/22/2013 to add link to #149 motion) (skh).
152 ORDER The Court having considered the Plaintiffs' Request for Enlargement of Time and Modification of Briefing Schedule, hereby grants Plaintiffs' 151 MOTION; the Parties shall brief the pending Motion for Summary Judgment as follows: Plaintiffs' Responses and Cross−Motion for Summary Judgment due by 8/26/2013; Defendants; Response and Reply due by 8/30/2013; Plaintiffs' Reply, if any due on 09/03/2013. Signed by Judge Robert C. Chambers on 8/23/2013. (cc: attys; any unrepresented party) (skm)
153 SECOND MOTION by Michael Cantley, Floyd Teter for Extension of Time to Respond to 149 Motion by Defendants for Summary Judgment to August 27, 2013, and Amendment of Briefing Schedule (Attachment: # 1 Proposed Order)(Keach, Elmer) (Modified on 8/26/2013 to add link to #149 motion) (skh).
154 STIPULATION EXTENDING TIME FOR DEFENDANTS TO FILE ANSWER TO PLAINTIFFS' 89 Third Amended Complaint to 08/27/13 by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority, Michael Cantley, Floyd Teter (Mincer, David) (Modified on 8/27/2013 to add party filers) (skh).
155 ANSWER TO 89 THIRD AMENDED COMPLAINT by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority.(Mincer, David) (Modified on 8/27/2013 to add link to #89 third amended complaint) (skh).
156 ORDER granting Plaintiffs' 153 SECOND MOTION for Extension of Time to Respond to Motion by Defendants for Summary Judgment; no further extensions will be granted regarding the Plaintiffs' responding filing and cross−motion; the parties will make their submissions according to the following briefing schedule: Plaintiffs' Response to Motion for Summary Judgment and Cross−Motion due by 8/27/2013; Defendants' Reply and Response to Cross−Motion due by 9/3/2013; Plaintiffs' Reply due by 9/4/2013. Signed by Judge Robert C. Chambers on 8/27/2013. (cc: attys; any unrepresented party) (mkw)
157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment Regarding the Question of Violation of Constitutional Rights by Both Plaintiffs (Attachments: # 1 Exhibit 1 − Initial Complaint, # 2 Exhibit 2 −− First Amended Complaint, # 3 Exhibit 3 −− Defendants' Answer, First Amended Complaint, # 4 Exhibit 4 −− Plaintiffs' Second Amended Complaint, # 5 Exhibit 5 − Plaintiffs' Third Amended Complaint, # 6 Exhibit 6 −− Order Denying Defendants' Motion to Dismiss, # 7 Exhibit 7 −− Defendants' Answer to Third Amended Complaint, # 8 Exhibit 8 −− Order Granting Plaintiffs' Motion for Leave to File Amended Complaint, # 9 Exhibit 9 −− Order Denying Defendants' Renewed Motion to Dismiss, # 10 Exhibit 10 −− Plaintiffs Motion to Compel, with Exhibits, # 11 Exhibit 11 −− Order Granting Motion to Compel, # 12 Exhibit 12 −− Plaintiffs' Motion for Sanctions, without Exhibits, # 13

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 17 of 20

08/27/2013
08/27/2013 08/27/2013 08/28/2013

Exhibit 13 −− Order Holding Motion for Sanctions in Abeyance, # 14 Exhibit 14 −− Teter Booking Documents, # 15 Exhibit 15 −− Deposition, Floyd Teter, # 16 Exhibit 16 −− Cantley Booking Documents, # 17 Exhibit 17 −− Deposition, Michael Cantley, # 18 Exhibit 18 −− WVRJA Policy 17001, # 19 Exhibit 19 −− WVRJA Policy 17004, # 20 Exhibit 20 −− Liceall Internet Print Out, # 21 Exhibit 21 −− Photo of Licecall Bottle, # 22 Exhibit 22 − Photo of Liceall Bottle, # 23 Exhibit 23 −− Photo of Liceall Bottle, # 24 Exhibit 24 −− Photo of Ace Hardware Lawn and Garden Spray Bottle, # 25 Exhibit 25 −− Photo of Handheld Spray Bottle)(Keach, Elmer)
158 CONTINUATION OF EXHIBITS, Exhibits 26 − 50 by Michael Cantley, Floyd Teter in support of 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment. (Attachments: # 1 Exhibit 26 −− January 6, 2011 Cox Memorandum to Tygart Valley, # 2 Exhibit 27 − August 2010 Post Order, Tygart Valley, # 3 Exhibit 28 −− Deposition, Daniel Cutright, # 4 Exhibit 29 −− Tygart Valley Deponent, Michael Wayne, # 5 Exhibit 30 −− Pre−2011 Western Western Post Order, # 6 Exhibit 31 −− 2011 Western Post Order, # 7 Exhibit 32 − Western Deponent, CE Aldridge, # 8 Exhibit 33 −− Earlier Potomac Highlands Post Order, # 9 Exhibit 34 − Later Potomac Highlands Post Order, # 10 Exhibit 35 −− January 7, 2011 Collins Memo, Potomac Highlands, # 11 Exhibit 36 −− Potomac Highlands Deponent, Donna Haggerty, # 12 Exhibit 37 −− North Central Prior Post Order, # 13 Exhibits 38 − North Central Revised Post Order, # 14 Exhibit 39 −− January 6, 2011 Trent Email Regarding Temporary Detainees, # 15 Exhibit 40 −− North Central Deponent, Amanda Gump, # 16 Exhibit 41 −− Post Orders, Central Regional Jail, 9−2011, # 17 Exhibit 42 −− Post Orders, Central Regional Jail, August 1, 2013, # 18 Exhibit 43 −− WVRJA Policy 17004, modified by Central Regional Jail, # 19 Exhibit 44 −− Electronic Mail Message, # 20 Exhibit 45 −− Memorandum from Shaver to Security Staff, January 12, 2001, # 21 Exhibit 46 −− Central Deponent, James Shaver, # 22 Exhibit 47 − Post Orders, Northern Regional Jail, # 23 Exhibit 48 −− Northern Deponent, Jason Dalesio, # 24 Exhibit 49 −− Post Orders, Eastern Regional Jail, # 25 Exhibit 50 −− Eastern Deponent, David Bittinger)(Keach, Elmer)
159 CONTINUATION OF EXHIBITS, Exhibits 51 − 73 by Michael Cantley, Floyd Teter in support of 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment. (Attachments: # 1 Exhibit 51 −− Post Orders, Southern Regional Jail, # 2 Exhibit 52 −− Southern Deponent, Jeffrey Clark, # 3 Exhibit 53 −− Post Orders, South Central Regional Jail, January 2013, # 4 Exhibit 54 −− South Central Deponent, Donnie Ames, # 5 Exhibit 55 −− Prior Post Orders, Southwestern Regional Jail, # 6 Exhibit 56 −− Current Post Orders, Southwestern Regional Jail, # 7 Exhibit 57 −− Southwestern Deponent, Chris Napier, # 8 Exhibit 58 −− WVRJA Lesson Plan, Inmate Search Procedures, # 9 Exhibit 59 −− Ronald Casto Deposition, # 10 Exhibit 60 −− John King Deposition, # 11 Exhibit 61 −− Terry Miller Deposition, # 12 Exhibit 62 −− Larry Parsons Deposition, # 13 Exhibit 63 −− Joseph Delong Deposition, # 14 Exhibit 64 −− Liceall Material Safety Data Sheet, # 15 Exhibit 65 −− Pyrethrin Internet Posting, # 16 Exhibit 66 −− Infection Control Forms, Western Regional Jail, # 17 Exhibit 67 −− BOP Clinical Practice Guidelines, Lice, # 18 Exhibit 68 −− Excerpt of Jerry Coleman's Deposition, Florence, # 19 Exhibit 69 −− Expert Report, Richard Pollack, # 20 Exhibit 70 −− Richard Pollack Deposition, # 21 Exhibit 71 −− Anthony Pizon Deposition, # 22 Exhibit 72 −− Vozkonian Deposition, # 23 Exhibit 73 −− Email Exchange Between Counsel)(Keach, Elmer)
160 MEMORANDUM by Michael Cantley, Floyd Teter in support of 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment Regarding the Question of Violation of Constitutional Rights by Both Plaintiffs and MEMORANDUM by Michael Cantley, Floyd Teter in opposition to 149 MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Summary Judgment (Keach, Elmer) STRICKEN PURSUANT TO 164 ORDER (Modified on 9/3/2013 to note that this docket entry is stricken from the docket) (mkw).
161 CORRECTED MEMORANDUM by Michael Cantley, Floyd Teter in support of 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment Regarding the Question of Violation of Constitutional Rights by Both Plaintiffs and in Opposition to 149 MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Summary Judgment (Keach, Elmer)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 18 of 20

08/28/2013 08/29/2013 08/30/2013
09/03/2013 09/05/2013
09/05/2013 09/05/2013 09/06/2013 09/06/2013 09/06/2013

162 CERTIFICATE OF SERVICE by Michael Cantley, Floyd Teter for 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment Regarding the Question of Violation of Constitutional Rights by Both Plaintiffs, 158 Exhibits in Support, 159 Exhibits in Support, 160 Memorandum In Support and In Opposition, 161 Corrected Memorandum In Support and In Opposition (Keach, Elmer)
163 MOTION by Michael Cantley, Floyd Teter for Acceptance of Plaintiffs' 161 Corrected Brief and for Extension of Briefing Schedule (Attachment: # 1 Proposed Order)(Keach, Elmer) (Modified on 8/29/2013 to correct link to #161 corrected brief) (skh).
164 PLAINTIFFS' MOTION FOR ACCEPTANCE OF PLAINTIFFS' CORRECTED BRIEF AND FOR EXTENSION OF BRIEFING SCHEDULE/ORDER granting Plaintiffs' 163 MOTION for Acceptance of Plaintiffs' Corrected Brief in Support of their Cross−Motion for Summary Judgment and For Extension of Time of Briefing Scheduling; the plaintiffs' request for acceptance of their Corrected Brief in Support of their Cross−Motion for Summary Judgment (Docket Number 161 ) is granted; the Court Clerk will remove Docket Number 160 , the Plaintiffs' prior brief, from the docket; the Plaintiff's request for the revision of the briefing schedule is also granted; the parties will complete briefing in this matter as follows: Defendants' Response to Cross−Motion and Reply by 09/04/2013 and Plaintiffs' Reply by 09/05/2013. Signed by Judge Robert C. Chambers on 8/30/2013. (cc: attys; any unrepresented party) (skm)
165 ORDER rescheduling the Status Conference to 9/19/2013 at 10:30 AM in Huntington before Judge Robert C. Chambers; directing the parties to send paper copies of their motions with exhibits as soon as possible if they have not yet been sent. Signed by Judge Robert C. Chambers on 9/3/2013. (cc: attys; any unrepresented parties) (mkw)
166 MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Extension of Deadline to File Reply Brief as to 161 Corrected Memorandum in Opposition and Response to 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment Regarding the Question of Violation of Constitutional Rights by Both Plaintiffs to 09/05/13 (Mincer, David) (Modified on 9/5/2013 to correct links to #161 corrected memorandum and #157 cross motion) (skh).
167 ORDER granting Defendants' 166 MOTION for an Extension of Deadline to File Reply Brief, re: 149 MOTION by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority for Summary Judgment; Responses due by 9/6/2013; Replies due by 9/9/2013. Signed by Judge Robert C. Chambers on 9/5/2013. (cc: attys; any unrepresented parties) (mkw)
168 MOTION by Michael Cantley, Floyd Teter for Extension of Time to Address the Possible Continuance of Plaintiffs' Motion for Contempt to September 18, 2013 (Keach, Elmer)
169 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason at The Mason Law Firm, Suite 500, 1225 19th Street, NW, Washington, DC 20036. Mail resent to Gary E. Mason at The Mason Law Firm, Suite 605, 1625 Massachusetts, Washington, DC 20036. (skm)
170 ORDER granting Plaintiffs' 168 MOTION for Extension of Time to Address the Possible Continuance of Plaintiffs' Motion for Contempt; Plaintiffs are granted through and including 9/18/2013, in which to comply with the Court's Order dated 7/31/2013. Signed by Magistrate Judge Cheryl A. Eifert on 9/6/2013. (cc: attys; any unrepresented parties) (mkw)
171 RESPONSE by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority in opposition to 157 CROSS MOTION by Michael Cantley, Floyd Teter for Summary Judgment Regarding the Question of Violation of Constitutional Rights by Both Plaintiffs and REPY by Joseph A. DeLong, Terry L. Miller, Larry Parsons, The West Virginia Regional Jail and Correctional Facility Authority to 160 Memorandum in Opposition. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P, # 6 Exhibit Q, # 7 Exhibit R, # 8 Exhibit S, # 9 Exhibit T, # 10 Exhibit U, # 11 Exhibit V, # 12 Exhibit W, # 13 Exhibit X, # 14 Exhibit Y, # 15 Exhibit Z, # 16 Exhibit AA, # 17 Exhibit BB, # 18 Exhibit CC)(Mincer, David) (Modified on 9/9/2013 to add link to #160

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 19 of 20

09/13/2013 09/18/2013 09/19/2013 09/23/2013 10/01/2013
10/04/2013 10/04/2013
10/09/2013 10/09/2013 10/10/2013 10/11/2013 10/21/2013 10/28/2013 11/05/2013
11/06/2013

memorandum in opposition) (skh).
172 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason at The Mason Law Firm, Suite 500, 1225 19th Street, NW, Washington, DC 20036. Mail resent to Gary E. Mason at The Mason Law Firm, Suite 605, 1625 Massachusetts, Washington, DC 20036. (skm)
173 MAIL RETURNED AS UNDELIVERABLE. Mail sent to Gary E. Mason, at The Mason Law Firm, Suite 500, 1225 19th Street, NW, Washington, DC 20036. Mail resent to Gary E. Mason at The Mason Law Firm, Suite 605, 1625 Massachusetts, Washington, DC 20036. (skm)
174 MOTION HEARING held by Judge Robert C. Chambers on 9/19/2013; Court Reporter: Teresa Ruffner. (trj)
175 LETTER to Clerk of Court, from Monica DiCocco dated 9/18/2013, re: advising of new address for Gary E. Mason, Plaintiff's counsel in this case. (mkw)
176 ORDER re: 124 MOTION by Michael Cantley, Floyd Teter for Sanctions Against the West Virginia Regional Jail and Correctional Facility Authority for Failure to Obey a Discovery Order and for a Finding of Contempt of Court; notifying the Plaintiffs that they have through and including 10/08/2013 in which to provide the supplemental memoranda and other information requested by the Court. Signed by Magistrate Judge Cheryl A. Eifert on 10/1/2013. (cc: attys; any unrepresented party) (mkw)
177 MEMORANDUM OPINION AND ORDER granting 149 Defendant's MOTION for Summary Judgment; denying Plaintiff's 157 MOTION for Summary Judgment; the Court Dismisses this case from the docket of the Court. Signed by Judge Robert C. Chambers on 10/4/2013. (cc: attys; any unrepresented party) (skm)
178 JUDGMENT ORDER In accordance with the accompanying Memorandum Opinion and Order, the Court Grants Defendant's Motion for Summary Judgment; Denies Plaintiffs' Motion for Summary Judgment and Orders that this case be dismissed and stricken from the docket of this Court. Signed by Judge Robert C. Chambers on 10/4/2013. (cc: attys; any unrepresented party) (skm) (Modified on 10/21/2013 to replace incorrect image with correct image) (mkw).
179 NOTICE OF APPEAL WITH FEE PAID by Michael Cantley, Floyd Teter as to 178 Judgment Order, 177 Memorandum Opinion and Order. Filing Fee $455. Receipt # 0425−2703335. (Keach, Elmer)
180 STATUS REPORT REGARDING MOTION FOR SANCTIONS by Michael Cantley, Floyd Teter (Keach, Elmer)
181 TRANSMITTAL OF NOTICE OF APPEAL TO 4CCA via NOTICE OF APPELLATE ACTION re: 179 Notice of Appeal to the 4CCA. (mkw)
182 NOTICE OF APPELLATE CASE OPENING BY 4CCA re: 179 Notice of Appeal to the 4CCA in 4CCA Case No. 13−7655. Case Manager: Jeffrey S. Neal. (skm)
NOTICE OF DOCKET CORRECTION re: 178 JUDGMENT ORDER. Error: Judgment order was signed with an incorrect date. Correction: Replaced incorrect image with correct image containing the correct date signed by the Judge. (mkw)
183 TRANSCRIPT ORDER ACKNOWLEDGMENT with Forms Attached in 4CCA Case Number 13−7655. Transcript due on 1/3/2014. (mkw)
184 APPEAL TRANSCRIPT FILED for dates of September 19, 2013, before Judge Robert C. Chambers, Court Reporter Terry Ruffner, Telephone number 304−528−7583. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Does this satisfy all appellate orders for this reporter? − Yes. Notice of Intent to Redact due 11/15/2013. Redaction Request due 11/26/2013. Redacted Transcript Deadline set for 12/6/2013. Release of Transcript Restriction set for 2/3/2014. (tmr)
185 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for pro se and non−electronic filers re 184 Appeal Transcript for proceeding held September 19, 2013. (klc)

Case: 3:09-cv-758 As of: 03/20/2016 06:36 PM EDT 20 of 20

11/14/2014 11/14/2014
11/14/2014 12/02/2014 12/15/2014 12/23/2014

186 4CCA OPINION re: 179 Notice of Appeal to the 4CCA in 4CCA Case No. 13−7655. (mkw)
187 4CCA JUDGMENT re: 179 Notice of Appeal to the 4CCA in 4CCA Case No. 13−7655. In accordance with the decision of this court, the judgment of the district court is affirmed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (mkw)
188 NOTICE OF JUDGMENT as to 179 Notice of Appeal to the 4CCA filed by Floyd Teter, Michael Cantley in 4CCA Case Number 13−7655. (mkw)
189 4CCA NOTICE − STAY OF MANDATE UNDER FRAP 41(d)(1) in 4CCA Case No. 13−7655, dated 12/2/2014. (mkw)
190 ORDER OF 4CCA as to 179 Notice of Appeal to the 4CCA denying the petition for rehearing en banc in 4CCA Case No. 13−7655. (mkw)
191 MANDATE re: 179 Notice of Appeal to the 4CCA in 4CCA Case No. 13−7655. The judgment of this Court, entered 11/14/2014, takes effect today. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (mkw)