UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KARIM KOUBRITI, 

Plaintiff, Civil Action No.

05-CV-74343-DT

vs.

HON. BERNARD A. FRIEDMAN

DEPUTY ROJO, et al., 

Defendants.

____________________/ 

OPINION AND ORDER GRANTING DEFENDANTS’ SECOND MOTION FOR

SUMMARY JUDGMENT (DKT. NO. 29) AS TO COUNT III;

DENYING SUMMARY JUDGMENT AS TO COUNTS I AND IV;

and

DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ SECOND MOTION

FOR SUMMARY JUDGMENT (DKT. NO. 31)

This matter is presently before the Court on Defendants’ Second Motion for Summary

Judgment, pursuant to Federal Rule of Civil Procedure 56(c). Karim Koubriti (“Plaintiff”)

alleges that Defendant Rojo mistreated him—during his confinement at the Wayne County

Jail—because he is a Muslim. Plaintiff had originally claimed that several Wayne County

deputies subjected him to unnecessary strip searches, served him pork, and placed him in a cell

without any time for exercise or recreation. Defendants deny that any mistreatment occurred. In

January 2007, the Court granted summary judgment against Plaintiff as to his pork claim (Count

II) and denied summary judgment as to his other claims (Counts I, III, and IV). The Court also

dismissed the five unknown deputies, which left only Deputy Rojo and Wayne County as

Defendants. 

The Court has had the opportunity to review all relevant materials in this case. Pursuant

to Eastern District of Michigan Local Rule 7.1(e)(2), the Court shall decide this motion without

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1

The indictment was later amended to include terrorism-related activities. Ultimately, the

court dismissed the terrorism charge and ordered a new trial on the fraudulent document charges

because of an apparent non-disclosure of exculpatory evidence. United States v. Koubriti, 01-

CR-80778-DT.

2

Some of the citations in this Opinion and Order use the term “Mot.” This notation

represents the motion at hand, which is Defendants’ Second Motion for Summary Judgment.

3

Defendants are somewhat inconsistent. In their Second Motion for Summary Judgment,

they state that Plaintiff was incarcerated on September 17, 2001. (Defs.’ Br. Supp. Mot., 2-3.) 

However, in their Supplemental Brief, Defendants state that Plaintiff was incarcerated on

September 18, 2001. (Defs.’ Supplemental Br., 2 n.2.)

2

oral argument. The Court will grant summary judgment in favor of Defendants as to Count III

and deny summary judgment as to Counts I and IV. In addition, the Court will deny Plaintiff’s

Motion to Strike Defendants’ Second Motion for Summary Judgment. 

I. HISTORY OF THE CASE

A. FACTUAL BACKGROUND

On September 17, 2001, six days after the terrorist attacks against the United States on

September 11, 2001, Plaintiff was arrested for document fraud.1

 (Defs.’ Br. Supp. Mot., 1; Pl.’s

Br. Supp. Resp., 1.)2

 On that day, he was taken into custody at the Wayne County Jail.3 (Defs.’

Br. Supp. Mot., 3 and Ex. A at 11-12; Pl.’s Br. Supp. Resp., 2.) According to Defendants,

Plaintiff was initially classified as a Level 4 prisoner. (Defs.’ Supplemental Br., 5.) In early

October 2001, Plaintiff was given a protective custody classification. (Id.) In late August 2002,

Plaintiff was given a maximum security classification, pursuant to a request from the United

States Marshals Service. (Id. Ex. 1A at 2.) 

On June 3, 2003, Plaintiff was convicted in the criminal case before Judge Gerald Rosen. 

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Plaintiff states that he was incarcerated at the Wayne County Jail until late August 2003. 

(Pl.’s Supplemental Br., 2.) On the other hand, Defendants state that Plaintiff was transferred

from the Wayne Count Jail to the Clair County Jail on August 1, 2003. (Defs.’ Supplemental

Br., 2 and Ex. 3B.)

5

Plaintiff and Defendants disagree as to the month in which Plaintiff returned to the

Wayne County Jail. According to Plaintiff, he returned to the Wayne County Jail in November

2003. (Pl.’s Supplemental Br., 2.) On the other hand, Defendants assert that Plaintiff returned to

the Wayne County Jail in December 2003. (Defs.’ Supplemental Br., 2 & 2 n.2.) However, it

should be noted that in their Second Motion for Summary Judgment, Defendants state that

Plaintiff’s return to the Wayne County Jail was in November 2003. (Defs.’ Br. Supp. Mot., 4.) 

6

As before, Plaintiff and Defendants disagree about Plaintiff’s release date from the

Wayne County Jail. According to Plaintiff, he was released in July 2004. (Pl.’s Supplemental

Br., 2.) On the other hand, Defendants state that Plaintiff’s incarceration ended on June 28,

2004. (Defs.’ Supplemental Br., 2 n.2.) As before, it should be noted that in their Second

Motion for Summary Judgment, Defendants state that Plaintiff’s incarceration ended in July

2004. (Defs.’ Br. Supp. Mot., 4.)

3

In August 2003, he was transferred to the Clair County Jail.4

 (Id. Ex. 3B at 3; Pl.’s Br. Supp.

Resp., 5.) 

Plaintiff returned to the Wayne County Jail in late 2003.5 (Defs.’ Supplemental Br., 2

n.2; Pl.’s Supplemental Br., 2.) On December 9, 2003, Judge Rosen issued an order that directed

the Wayne County Jail to keep Plaintiff “separate and apart” from his co-defendants. (Defs.’

Supplemental Br., Ex. 1C.) Plaintiff was incarcerated at the Wayne County Jail until mid-2004.6

(Id. at 2 n.2; Pl.’s Supplemental Br., 2.) 

B. PROCEDURAL HISTORY

Plaintiff filed his Complaint in November 2005, pursuant to 42 U.S.C. § 1983. Plaintiff’s

Complaint included the following counts: (1) unnecessary strip searches in violation of the First

and Fourth Amendments; (2) service of pork products in violation of the First Amendment; (3)

no exercise or recreation in violation of the Eighth Amendment; and (4) improper policies,

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4

practices, and customs by Wayne County. Defendants filed an Answer. 

On July 25, 2006, Defendants filed their first Motion for Summary Judgment. Plaintiff

filed a Response, and Defendants filed a Reply. On January 3, 2007, the Court granted summary

judgment as to Count II (pork products) but denied summary judgment as to the remaining

counts. The Court also dismissed the five unknown deputies.

On March 15, 2007, Defendants filed a Second Motion for Summary Judgment. After

obtaining three extensions of time, Plaintiff filed a Response on May 31, 2007. Defendants filed

a Reply on June 7, 2007. Furthermore, in late June 2007, the Court ordered that the parties file

supplemental briefs, in order to clarify certain issues. Plaintiff and Defendants both filed their

supplemental briefs on July 16, 2007.

In addition, on March 22, 2007, Plaintiff filed a Motion to Strike Defendants’ Second

Motion for Summary Judgment. On April 5, 2007, Defendants filed a Response. 

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The United States

Supreme Court has explained that Rule 56(c) “authorizes summary judgment ‘only where the

moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, .

. . (and where) no genuine issue remains for trial . . . (for) the purpose of the rule is not to cut

litigants off from their right of trial by jury if they really have issues to try.’” Poller v. Columbia

Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321

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5

U.S. 620, 627 (1944)). In other words, if there is a genuine dispute as to a material fact, then

summary judgment should not be granted. 

The party seeking summary judgment carries the initial burden of “demonstrat[ing] the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

When a court determines whether a genuine issue of material fact exists, the court must view the

evidence “in the light most favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970). See Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984)

(stating “[t]he evidence and all reasonable inferences which may be drawn therefrom must be

viewed in the light most favorable to the party opposing the summary judgment motion”). The

Court’s role is not “to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). See 60 Ivy St. Corp. v. R.C. Alexander, 822 F.2d 1432, 1435-36 (6th Cir. 1987) (stating

“[t]he judge’s function at the point of summary judgment is limited to determining whether

sufficient evidence has been presented to make the issue a proper jury question, and not to judge

the evidence and make findings of fact”). A factual dispute is “genuine” when “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.

at 248. Thus, if a court finds that the evidence, when taken in a light most favorable to the nonmoving party, presents a genuine question of material fact, then the court should deny the

moving party’s motion for summary judgment.

III. DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT

A. COUNT I—VIOLATIONS OF FIRST AND FOURTH AMENDMENTS 

(STRIP SEARCHES)

In the first count of his Complaint, Plaintiff alleges that he was repeatedly subjected to

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One of Defendants’ justifications for Plaintiff’s strip searches seems to be based on the

Alert Notice from the United States Marshals Service, which declared that Plaintiff was an

“escape risk” and had “violent tendencies.” (Defs.’ Supplemental Br., Ex. 1B.) However, the

Marshals Service did not issue this notice until December 2003, which means that it would not

apply to Plaintiff’s incarceration during the time period of June 2003 to August 2003. The

Court, though, does recognize that Plaintiff had been cited by the jail’s staff for disruptive and

disrespectful behavior prior to June 2003. 

6

unwarranted and unreasonable strip searches that were conducted to humiliate him because he is

a Muslim. (Pl.’s Compl. ¶ 18.) Plaintiff states that he was strip searched when he returned to the

jail from federal court, and then he was “escorted straight to his cell and forced to strip full

naked again.” (Id. ¶ 17.) Plaintiff asserts that the strip searches were conducted by as many as

six deputies at one time. (Pl.’s Br. Supp. Resp., 9.) Plaintiff argues that “strip searching an

inmate repeatedly and within minutes, while said inmate is handcuffed and under close and

uninterrupted supervision, serves no constitutional purpose.” (Id. at 10.) He argues that the strip

searches violated his First Amendment rights because he was targeted for being a Muslim. He

argues that the strip searches violated the Fourth Amendment because they were unreasonable. 

On the other hand, Defendants assert that there was no violation of Plaintiff’s

constitutional rights. Defendants state that Plaintiff was not treated any differently than other

prisoners, as all prisoners were “searched upon reentry into the secure perimeter of the jail, and

then again upon entry to their housing unit.” (Defs.’ Br. Supp. Mot., 4.) Defendants claim that

the strip searches were “completely consistent with the application of the Wayne County Jail

Search policies.” (Id. at 8.) Moreover, Defendants state that the strip searches were necessary to

prevent traffic in contraband and to ensure the safety of prisoners and staff. (Id. at 6.) Further,

Defendants state that the strip searches were necessary because Plaintiff was classified as an

escape risk, had violent tendencies, and a history of misbehavior at the jail.7 (Id.)

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In Bell v. Wolfish, the United States Supreme Court held that the “Fourth Amendment

prohibits only unreasonable searches” of “both convicted prisoners and pretrial detainees.” 441

U.S. 520, 558 (1979). In order to determine whether a search is reasonable, the Supreme Court

stated that a balancing test should be used, in order to weigh a correctional facility’s need for

security and penological interests, with a pretrial detainee’s or a prisoner’s right, albeit

diminished, to privacy. The Supreme Court explained the balancing test as follows:

The 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.

Bell, 441 U.S. at 559. The Supreme Court further explained that the balancing test should not

impinge on the federal courts’ deference to prison administrators and their “wide range of

‘judgment calls’ that meet constitutional and statutory requirements.” Id. at 562. The Supreme

Court has warned that a “detention facility is a unique place fraught with serious security

dangers.” Id. at 559. And the Sixth Circuit has echoed such concerns, by stating that it is

reasonable for officers to conduct “particularized searches where objective circumstances

indicate such searches are needed to maintain institutional security.” Masters v. Crouch, 872

F.2d 1248, 1253-54 (6th Cir. 1989). However, a court’s deference to prison administrators

should not prevent or impede a thorough and fair review of a plaintiff’s allegations of

constitutional violations. 

Here, the Court finds that the full strip searches of Plaintiff when he re-entered the jail

were reasonable. Plaintiff was designated as a maximum-security inmate. Plaintiff was a

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Section 14.5 is entitled “Security Inspections (Searches).” (Defs.’ Mot., Ex. I3 at 1.) 

The section refers to “unannounced and irregularly timed security inspections” of physical

locations, such as the housing units, recreation areas, and work areas. The purpose of the

security sweeps are to “detect weapons[,] dangerous and nuisance contraband, to recover

missing, hoarded, or stolen property and to prevent escape.” (Id.) When a security inspection is

conducted, the manual allows for strip searches of prisoners in those physical locations. The

security inspections are to be conducted by an “Inspection Team” that has been “assemble[d] . . .

in the Sergeant’s office” and has been informed “which area is to be inspected and what specific

items, if any, are being sought.” (Id.)

8

defendant in an incredibly high-profile, terrorism-related case. Plaintiff was consistently

traveling between the jail and federal court for trial matters. Thus, it seems reasonable that the

deputies and officers would conduct full strip searches for contraband after each time that

Plaintiff had contact with people from outside the jail. 

However, the Court finds that the strip searches of Plaintiff when he returned to his cell

may have been unreasonable. Defendants do not seem to sufficiently articulate the interest that

is served by the repeated strip searches of Plaintiff, especially when the allegations are taken in

the light most favorable to Plaintiff. Plaintiff alleges that he was ordered to strip completely

naked, sometimes in front of six deputies. Plaintiff further alleges that these strip searches took

place both when he returned to the Wayne County Jail and then again when he returned to his

cell minutes later, even though he was handcuffed and surrounded by law enforcement officers at

all times. 

Defendants explain that the “Wayne County Jail had clear policies outlining that inmates

were to be searched upon reentry into the secure perimeter of the jail, and then again upon entry

to their housing unit.” (Defs.’ Br. Supp. Mot., 4.) Defendants direct the Court to Sections 14.4

and 14.5 of the Wayne County Jail Operations Manual. However, the Court finds that Section

14.5 does not apply to this situation,8

 and that Defendants did not comply with Section 14.4. 

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The Court finds that Section 14.5 does not apply to Plaintiff’s situation. First, Plaintiff’s

allegations do not concern “unannounced and irregularly timed” inspections. Plaintiff is alleging

that he was strip searched every time that he returned to his cell, even though he had just been

strip searched minutes earlier when he re-entered the jail. As such, the strip searches were

routine and regular. Second, the strip searches at issue are not the same type of strip searches

that were conducted during the security inspections. Plaintiff alleges that he was the target of the

repeated strip searches. On the contrary, the security inspections of Section 14.5 target a

physical location, and any prisoners who may be in that specific area. Thus, the regulations

applicable to the security sweeps addressed in Section 14.5 do not apply to the case at hand.

9

Section 14.4 is entitled “Security, Inmate Searches.” (Id. Ex. I2 at 1.) Section 14.4

states:

POLICY:

To prevent the introduction of weapons and contraband into the

facility and to control the possession of weapons and contraband by

inmates during the duration of their confinement, Jail Staff will

conduct appropriate searches of inmates at the time of admission to

the facility, any time an inmate re-enters the secure perimeter of the

facility, any time an inmate leaves or returns to a housing unit and

at other unannounced and irregular times, as deemed necessary to

inhibit inmate traffic in contraband.

(Id. (emphasis added).) Section 14.4 defines “appropriate searches” and when such searches

should be conducted:

A “strip” search will be conducted any time an inmate re-enters

the secure perimeter of the facility, upon a contact visit, during

security inspections and/or reasonable cause to believe an inmate

is involved in trafficking of contraband.

. . . .

A “frisk” or “pat” search is to be conducted any time an inmate

leaves or returns to a housing unit and at other unannounced or

irregular times to inhibit inmate traffic in contraband. 

(Id. at 2,4 (emphasis added).) 

Section 14.4 further defines the procedures for conducting a “strip” search and a “frisk”

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A “strip” search is an unclothed body search. A strip search requires the prisoner to

remove all of his clothing. The officer thoroughly examines the tongue and mouth area; inspects

the chest area; checks the groin; inspects the legs; checks the neck and back area; and checks the

feet and toes. In addition, the prisoner is required to spread his legs and to lift his penis and

scrotum. He is also required to bend over and spread the cheeks of his buttocks. (Defs.’ Mot.,

Ex. I2 at 4-5.)

A “frisk” search is a clothed body search. A frisk search does not require the prisoner to

remove all of his clothing. The officer examines the tongue and mouth area; checks the nostrils;

checks the ears; and checks the hair. In addition, the prisoner is required to spread his legs and

hold out his arms. The officer checks the prisoner’s collar, shoulders and arms, hands, armpits,

chest and waist, back, groin area, buttocks, legs, feet, and toes. (Defs.’ Mot., Ex. I2 at 2-4.)

10

search.9

 In addition, Section 14.4 identifies the circumstances under which a “strip” search is

authorized:

Strip searches can only be conducted . . . under the following

conditions:

a. There is an articulable suspicion that the inmate is

carrying contraband or other prohibited materials.

b. At the time of intake, if the inmate is charged with

a felony or a violent crime and may be concealing

a weapon.

c. At the time of intake, if the inmate has been

arrested for possession of drugs.

d. At the time of intake, if drugs or weapons are

found during the frisk search.

e. At any time that contraband is detected on an

inmate during a frisk search.

f. When authorized to do so in writing because an

inmate has been classified to administrative

segregation or maximum security as an escape risk

and/or for aggressive assaultive behavior.

g. When good cause to believe that a strip search is

necessary.

(Id. at 5-6.) Lastly, Section 14.4 requires that all strip searches are “documented in the

workstation log indicating the inmate’s name and number, the officer doing the search, the

reason for the search and the location of the search.” (Id. at 6.) 

The Court finds that Defendants cannot explain away their repeated strip searches of

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10For instance, the manual states several circumstances “at the time of intake” where a

strip search is required. (Defs.’ Mot., Ex. I2 at 5-6.) However, those circumstances do not apply

to the second strip search of Plaintiff, for the second search occurred after the “time of intake”

and instead when Plaintiff returned to his cell. The manual further lists that strip searches can be

conducted if there is “an articulable suspicion that the inmate is carrying contraband or other

prohibited materials,” or if there is “good cause to believe that a strip search is necessary.” (Id.) 

The Court finds that there is no “articulable suspicion” or “good cause” for a second strip search

of Plaintiff, under these specific circumstances. Lastly, the manual states that strip searches can

be conducted when “authorized to do so in writing because an inmate has been classified . . .

maximum security as an escape risk and/or for aggressive assaultive behavior.” (Id. at 6.) 

Although Plaintiff was classified as a maximum-security prisoner and later as an escape risk,

Defendants have not provided the Court with any written authorization indicating that the

officers should strip search Plaintiff every time that he returns to his cell. Moreover, even if

there were written authorization, Plaintiff would still be able to generate a genuine issue of

factual dispute as to the reasonableness of the second strip search. 

11

Plaintiff by falling back on the language of the Wayne County Jail Operations Manual. The

language of the manual does not allow for the second strip search of Plaintiff. The manual

expressly identifies the circumstances under which strip searches must be conducted. The

manual states that a “strip search will be conducted any time an inmate re-enters the secure

perimeter of the facility,” among other times.10 (Id. at 4 (emphasis added).) However, the

section does not state that a strip search will be conducted when a prisoner returns to his cell. 

The Wayne County Jail Operations Manual expressly authorizes a “frisk” search—not a “strip”

search—every time that a prisoner returns to his cell. (Id. Ex. I2 at 2.) It should be noted that

the section does call for a strip search to be conducted any time there is “reasonable cause to

believe an inmate is involved in trafficking of contraband.” (Id.) As explained above, the Court

finds that there was no reasonable cause to believe that Plaintiff was involved in trafficking

contraband within the jail. He was constantly surrounded by officers and deputies. He was

stripped naked and searched. All the while, he was under intense surveillance, and as

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12

Defendants have explained, “policy dictated that he required additional supervision by

supervisory officers during transport.” (Id. at 7.) Thus, the Court finds that Defendants should

have strip searched Plaintiff—according to the jail’s manual—when Plaintiff re-entered the

secure perimeter of the facility, but not when Plaintiff returned to his jail cell.

The Court understands the purpose for a strip search when a prisoner returns to the jail,

as the prisoner has had contact with outsiders; but, the Court does not understand the interest in

forcing the inmate to again fully undress within minutes after the first search—especially when

the inmate was handcuffed and surrounded by law enforcement officers for the entire time. 

Defendants contend that there is a high possibility for the introduction of contraband in the

registry area of the jail because there were hundreds of prisoners in that area. (Defs.’ Br. Supp.

Mot., 6.) If there were such a high possibility of contraband exchange in the registry area, the

manual should have plainly required a second “strip” search every time that a prisoner leaves the

registry area and returns to his jail cell. Furthermore, the Court wonders why Plaintiff—of all

people—would have been allowed to mix with hundreds of prisoners, given the fact that Plaintiff

was a maximum-security prisoner in a high-profile, terrorism-related case.

In sum, the Court finds that—under these circumstances—a second strip search may have

been unreasonable. That is not to imply that a frisk search conducted when Plaintiff returned to

his cell would have been inappropriate. However, when viewing the evidence in the light most

favorable to Plaintiff, the deputies repeatedly conducted full-nude strip searches of Plaintiff,

even though Plaintiff had been continuously supervised and surrounded by law enforcement

officers. It seems questionable that Plaintiff—re-clothed and cuffed after having been stripped

fully naked, thoroughly searched, and constantly under watch—would somehow be able to pick

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11The Court opines whether a reasonable alternative would have been a second strip

search at Plaintiff’s cell, where Plaintiff was allowed to retain his underwear or boxer shorts.

12It should be noted, again, that the Court is not suggesting that a second search was

unreasonable. The Court only finds that, when taken in the light most favorable to Plaintiff, a

fully naked second strip search—under these specific circumstances—may have been

unreasonable.

13

up a piece of contraband (while surrounded by officers and deputies) and maneuver it into his

underwear as he made his way back to his cell.11 While the Wayne County Jail Operations

Manual allows for a frisk search at Plaintiff’s cell, a second strip search—under these

circumstances—does not seem permissible. At the very least, Plaintiff has generated a genuine

dispute as to whether the second strip search was reasonable under the circumstances. Thus, the

Court finds that there is—especially when taken in the light most favorable to Plaintiff—a

genuine issue of material fact about the reasonableness of the second strip search at Plaintiff’s

cell.12 As such, summary judgment will be denied as to Count I.

B. COUNT III—VIOLATION OF EIGHTH AMENDMENT 

(MAXIMUM-SECURITY CONFINEMENT)

In his Complaint, Plaintiff alleges that he was confined to a “maximum security cell[ ] for

23 hours a day without opportunity for exercise or physical activity.” (Pl.’s Compl. ¶ 30.) 

Plaintiff asserts that such confinement was “cruel and unusual punishment” and therefore

violated his Eighth Amendment rights. (Id. ¶ 29.) In his Supplemental Brief, Plaintiff clarifies

that he “is claiming that he was denied any exercise/recreation for the time period he was

incarcerated at the Wayne County Jail following his conviction on June 3, 2003.” (Pl.’s

Supplemental Br., 2 (emphasis added).) In particular, Plaintiff claims that he was denied any

exercise or recreation from June 2003 until August 2003, and from November 2003 until July

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13Plaintiff limits his Eighth Amendment claim to the time period after his conviction on

June 3, 2003. The Eighth Amendment is not applicable to pretrial detainees, as it provides

constitutional protection against “cruel and unusual punishments” after “a formal adjudication of

guilt.” Spencer, 449 F.3d at 727 (quotations omitted). The “claims of pretrial detainees” should

“rel[y] on the Due Process Clause rather than the Eighth Amendment.” Bell, 441 U.S. at 537

n.16. Thus, in assessing whether there exists a factual dispute as to a possible Eighth

Amendment violation in this case, the Court will consider the conduct during Plaintiff’s postconviction confinement.

14The Sixth Circuit has explained that “[t]he deliberate-indifference requirement is

satisfied ‘only if [the official] knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it.’ The Supreme Court has

explicitly acknowledged that ‘a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.’” Spencer, 449 F.3d at 729 (quoting

Farmer v. Brennan, 511 U.S. 825, 842, 847 (1994)).

14

2004.13 (Id.) During these time periods, Plaintiff states that he “was never taken to the

gymnasium or the recreation area in the Wayne County Jail” and that he “was never taken

outside for any recreational purposes or for the purpose of getting fresh air.” (Id.) 

The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. CONST. amend.

VIII. The United States Supreme Court has ruled that “[i]t is undisputed that the treatment a

prisoner receives in prison and the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). The Sixth Circuit

has explained that “[a]n Eighth Amendment claim comprises an objective and a subjective

component.” Rodgers v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995). When a plaintiff alleges that

the conditions of his confinement constitute a constitutional violation, the plaintiff must satisfy

both prongs of analysis under the Eighth Amendment. The Sixth Circuit has stated:

First, the deprivation alleged must be, objectively, sufficiently

serious; a prison official’s act or omission must result in the denial

of the minimal civilized measure of life’s necessities. Second, the

prison official’s state of mind [must be] one of “deliberate

indifference”14 to inmate health or safety.

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15

Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir. 2006) (quotations and citations omitted). 

Thus, summary judgment should only be granted if the evidence, when viewed in the light most

favorable to Plaintiff, shows that prison officials committed a severe deprivation while

possessing a culpable state of mind. Rodgers, 43 F.3d at 1086.

The constitutional inquiry under the Eighth Amendment is fact-based. A court must

conduct a case-by-case analysis in order to consider an individual prisoner’s situation. Some

facts to be considered are: “the size of the cell, opportunity for contact with other inmates, time

per day expended outside the cell, justifications for denial of the right to exercise, physical or

psychological injuries resulting from a lack of exercise or a particularized need for exercise.” 

Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983). 

The Sixth Circuit has found that “[i]t is generally recognized that a total or near-total

deprivation of exercise or recreational opportunity, without penological justification, violates

Eighth Amendment guarantees. Inmates require regular exercise to maintain reasonably good

physical and psychological health.” Id. That said, the Sixth Circuit has held that every prisoner

is not entitled to the same amount of exercise per day, nor is there an across-the-board

constitutional minimum of daily exercise for prisoners. Rodgers, 43 F.3d at 1086-88. In fact,

the Sixth Circuit has explained that it has “addressed restrictions on a prisoner’s leeway to

exercise[,]” but that it has not “set a minimum amount of exercise required in order to avoid

violating the Eighth Amendment[.]” Id. at 1086. Moreover, the Sixth Circuit has stated that it

has “stopped far short of endorsing [a specific] amount, or indeed any amount, as a constitutional

requirement.” Id. at 1087.

1. June 2003 to August 2003

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15The common area is often referred to as the “ward” or the “rock.” (Pl.’s Supplemental

Br., 2; Defs.’ Mot., Ex. J.)

16

Plaintiff alleges that he was denied any exercise or recreation from June 2003 to August

2003. Plaintiff states that he was “never taken to the gymnasium or the recreation area in the

Wayne County Jail” and that he was “never taken outside for any recreational purposes.” (Pl.’s

Supplemental Br., 2.) As such, Plaintiff asserts a complete deprivation of any exercise or

recreation. On the other hand, Defendants state that Plaintiff was provided adequate exercise

and recreation.

Here, the Court finds that Plaintiff’s confinement did not amount to “cruel and unusual”

punishment under the Eighth Amendment. As explained above, an Eighth Amendment violation

requires a plaintiff to meet both an objective prong and a subjective prong. In this case, Plaintiff

fails to satisfy either prong. 

First, Plaintiff fails to satisfy the objective prong, as he has not shown that he was

deprived of a “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S.

337, 347 (1981). Plaintiff admits that during the time period from June 2003 until August 2003,

he was housed in a cell that was 5 feet 8 inches by 7 feet 6 inches. (Pl.’s Supplemental Br., 2.) 

The cell, along with two other identical cells, was attached to a common area that was

approximately 18 feet 6 inches by 9 feet.15 (Id.; Defs.’ Mot., Ex. J.) Thus, the common area was

approximately 167 square feet. The common area contained a bench and a television. (Pl.’s

Supplemental Br., 2; Defs.’ Mot., Ex. J.) Plaintiff states that he was held in his cell for 23 hours

per day, but he was allowed in the common area for one hour each day. (Pl.’s Supplemental Br.,

2.)

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17

The Court does not find such confinement to be a total or near-total deprivation of

exercise and recreation. The time period in question—June 2003 to August 2003—is about three

months. During that time, Plaintiff had access to a common area that was approximately 167

square feet, which is sufficiently spacious for indoor exercise. Furthermore, Plaintiff admits that

he had access to the common area every day. Such a daily opportunity for exercise or recreation

exceeded the other Level One Maximum Security prisoners, who were only allowed “one hour

per day, three days per week” of exercise/recreation. (Defs.’ Mot, Ex. C. at 1.) Moreover,

Defendants explain that the common area contained a “television, checkers, chess, and reading

material[,] as well as weekly movies broadcast to the televisions.” (Defs.’ Br. Supp. Mot., 5;

Defs.’ Supplemental Br., Ex. 3A.) Further, when describing “these conditions and how it

affected him,” Plaintiff states that he felt “bad” and that his “face was full with bumps.” (Pl.’s

Br. Supp. Resp., 13.) Such allegations do not amount to a showing of significant physical or

mental injuries. Plus, Plaintiff did not state a particularized need for exercise. Moreover, it

appears that Plaintiff had visual and audio contact with prisoners on neighboring wards. (Defs.’

Supplemental Br., 6.) Under these circumstances, the Court finds that Plaintiff has not satisfied

the objective prong of the Eighth Amendment. 

However, even if Plaintiff were to have met the objective prong of an Eighth Amendment

claim, Plaintiff would still fail to satisfy the subjective prong. The subjective prong requires a

plaintiff to show that a defendant exhibited a “deliberate indifference” to the plaintiff’s health or

safety. Plaintiff has not submitted any evidence showing that Defendants possessed such a state

of mind. Moreover, Plaintiff was classified as a maximum-security prisoner in protective

custody, and he was confined accordingly. As with the objective prong, Plaintiff fails to satisfy

the subjective prong of the Eighth Amendment. Thus, Plaintiff has not created a genuine issue

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18

of material fact as to his alleged violations of the Eighth Amendment, and the Court will grant

summary judgment against Plaintiff as to Count III.

2. November/December 2003 to June/July 2004

Plaintiff alleges that he was denied any exercise or recreation from late 2003 until mid2004. As above, the Court finds that Defendants did not violate Plaintiff’s constitutional rights

under the Eighth Amendment. First, Plaintiff was housed in the same type of multi-room ward

as he had been from June 2003 to August 2003. (Pl.’s Supplemental Br., 2.) As before, Plaintiff

admits that he “had access to the ward [common area].” (Id.) However, this time, Plaintiff does

not indicate that his access to the common area was limited to only one hour per day. (Id.) In

fact, Defendants explain that Plaintiff had access to the common area—and to the other two

cells—for 16 hours per day. (Defs.’ Supplemental Br., 6-7; Pl.’s Br. Supp. Resp., 6.) In other

words, Plaintiff had access, for 16 hours each day, to a total area of almost 300 square feet. 

(Defs.’ Mot., Ex. J; Pl.’s Br. Supp. Resp., 6.) Therefore, the Court finds that Plaintiff was

provided an adequate opportunity and sufficient space for exercise and recreation. 

Moreover, on December 11, 2003, the United States Marshals Service sent an Alert

Notice to the Wayne County Jail that Plaintiff was an “escape risk”; had “violent tendencies”;

and was involved in “terrorist related” charges. (Defs.’ Supplemental Br., Ex. 1B.) The Alert

Notice instructed the Wayne County Jail to separate Plaintiff from his co-defendants. (Id.) 

Furthermore, Judge Rosen issued an order that Plaintiff and his co-defendants were to be “kept

separate and apart” and “that they have no contact with each other while they are in the custody

of the Wayne County Jail.” (Id. Ex. 1C.) The Notice Alert and Judge Rosen’s order further

show why Plaintiff was kept separated from the others. As explained above, Plaintiff has failed

to create a genuine issue of material fact regarding his Eight Amendment claim. Therefore, the

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19

Court will grant summary judgment against Plaintiff as to Count III. 

C. COUNT IV—WAYNE COUNTY

The last count of Plaintiff’s Complaint is directed at Defendant Wayne County. Plaintiff

asserts that the mistreatment was the result of Defendant Wayne County’s policies, procedures,

and customs. (Pl.’s Br. Supp. Resp., 14.) 

Title 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983 (2003). A sufficient claim for a violation of Section 1983 must show that: “(1)

a person, (2) acting under the color of state law, (3) deprived him of a federal right.” Sutherland

v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003). The United States Supreme

Court has held that municipalities and local governments are considered “persons” under Section

1983, so they can therefore be liable for constitutional deprivations. Monell v. Dep’t of Soc.

Servs. of N.Y., 436 U.S. 658, 690 (1978). 

Municipal liability for constitutional deprivations can arise “when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury that the government as an entity

is responsible under § 1983.” Id. at 694. A municipal government, though, cannot be held liable

solely on the basis of a respondeat superior theory. Id. at 691. See also Bd. of County Comm’rs

v. Brown, 520 U.S. 397, 403 (1997) (“We have consistently refused to hold municipalities liable

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20

under a theory of respondeat superior.”) In other words, a city government is not liable for

“every misdeed of [its] employees and agents.” Garner v. Memphis Police Dep’t, 8 F.3d 358,

363 (6th Cir. 1993). A city government is only liable when the custom or policy is the “moving

force” behind the deprivation of a plaintiff’s constitutional rights. Monell, 436 U.S. at 694. In

order to show such “moving force” liability under Section 1983, the Sixth Circuit has ruled that a

plaintiff must “(1) identify the municipal policy or custom, (2) connect the policy [or custom] to

the municipality, and (3) show that his particular injury was incurred due to execution of that

policy [or custom].” Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005) (quoting Alkire

v. Irving, 330 F.3d 802, 815 (6th Cir. 2003)).

A “policy” is often a formal or expressly stated rule or regulation, whereas an informal

policy—a “custom”—“is a legal institution that is permanent and established, but is not

authorized by written law.” Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993)

(emphasis added). In order to create municipal liability based on a custom, the “custom must be

‘so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.’” Id.

(quoting Monell, 436 U.S. at 691). For instance, a city government “may be sued for

constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom

has not received formal approval through the body’s official decisionmaking channels.” Monell,

436 U.S. at 690-91. In such a case, the plaintiff must show that “the relevant practice is so

widespread as to have the force of law.” Brown, 520 U.S. at 404. 

Here, when the facts are taken in the light most favorable to Plaintiff, he has established

municipal liability regarding his allegations that the repeated strip searches violated his rights

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16The Court does not consider the question of municipal liability as to Count III, in which

Plaintiff alleges that Defendants violated his Eighth Amendment rights. As explained above, the

Court has already found that there has been no violation of Plaintiff’s Eighth Amendment rights. 

As such, there cannot be a viable Section 1983 cause of action against Defendant Wayne County

based on those allegations.

17It should be noted that the Court does not find that Plaintiff has established municipal

liability based on a written policy. As explained above, the Wayne County Jail Operations

Manual does not expressly authorize a strip search every time that Plaintiff returns to his housing

unit. Thus, the repeated strip searches were conducted pursuant to practice or custom, not

written policy.

21

under the First and Fourth Amendments.16 The municipal liability is based on a practice or

custom by Defendant Wayne County.17 Plaintiff was strip searched every time that he re-entered

the jail and then again when he subsequently returned to his jail cell. As Plaintiff often traveled

back and forth between the jail and federal court, his allegations involve more than just one

instance of an alleged constitutional violation. The facts show that there was a pattern of

repeated and regular strip searches at Plaintiff’s cell, even though Plaintiff had just been

stripped fully naked and thoroughly searched when he re-entered the jail. Although the Wayne

County Jail Operations Manual did not expressly authorize a second strip search at Plaintiff’s

cell, it seems that city officials and supervisory personnel were surely aware about the practice of

repeatedly strip searching Plaintiff—Plaintiff was in the Wayne County Jail for almost three

years, and Defendants themselves admitted that Plaintiff “required additional supervision by

supervisory officers during transport.” (Defs.’ Br. Supp. Mot., 7.) At the very least, there is a

question as to whether such officials and supervisors were aware of such conduct. 

As such, there is a genuine issue of material fact as to whether Defendant Wayne

County—either by its inaction or approval—was the moving force behind the repeated pattern of

unconstitutional strip searches. As the Eastern District of Michigan has previously explained,

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22

“[t]he existence of a governmental custom, its parameters, and whether a custom was practiced

in an individual case are determinations left for the trier of fact—in this case, the jury.” 

Barcume v. City of Flint, 819 F. Supp. 631, 655 (6th Cir. 1993). Thus, Defendant Wayne

County may be liable for the pattern of repeated strip searches that violated Plaintiff’s First and

Fourth Amendment rights. Therefore, summary judgment will be denied as to Count IV.

IV. QUALIFIED IMMUNITY

Government officials, such as a sheriff’s deputy, can be shielded from liability for their

actions when those actions are done in the performance of their official duties. Thomas v.

Whalen, 51 F.3d 1285, 1289 (6th Cir. 1995). In Saucier v. Katz, 533 U.S. 194 (2001), the

United States Supreme Court laid out a two-prong test to determine whether a government actor

is protected from liability by qualified immunity. The Sixth Circuit has directly described this

two-part test as follows:

The first prong is a threshold question, namely: “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?” If the

answer is in the negative, then the inquiry ends. If a violation

could be established, the second prong requires an examination of

whether “the right was clearly established” at the time of the

events at issue. In order for the right to be clearly established,

“[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates

that right.” The inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposition.” 

As the Court explained, “[t]he relevant dispositive inquiry in

determining whether a right is clearly established is whether it

would be clear to a reasonable officer that this conduct was

unlawful in the situation he confronted.”

Weaver v. Shadoan, 340 F.3d 398, 406-07 (6th Cir. 2003) (quoting Saucier, 533 U.S. at 201-02) 

(citations omitted).

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18As the Court has not found a constitutional violation of the Eighth Amendment, the

Court does not reach the issue of qualified immunity as to Count III.

23

Here, Defendant Rojo is not entitled to qualified immunity as to Count I.18 As explained

above, the factual allegations—when taken in the light most favorable to Plaintiff—show that

Defendant Rojo violated Plaintiff’s constitutional rights to be free from unreasonable searches. 

In addition, the Court finds that Plaintiff’s constitutional rights were clearly established at the

time of the events. A reasonable deputy would have known that repeatedly conducting strip

searches of Plaintiff—under these specific circumstances—was a violation of Plaintiff’s rights. 

Further, a reasonable deputy would be familiar with the Wayne County Jail Operations Manual. 

As such, a reasonable deputy would have known that the manual does not authorize a repeated

full-body strip search at Plaintiff’s cell. Rather, the manual authorizes only a frisk search in this

specific situation. Therefore, Defendant Rojo is not protected by qualified immunity.

V. CONCLUSION

Based upon the record established and documentary evidence presented, the Court will

grant summary judgment as to Count III. On the other hand, the Court finds that genuine issues

of material fact exist as to Counts I and IV. Therefore, the Court will deny summary judgment

as to Counts I and IV. Accordingly, 

IT IS ORDERED that Defendants’ Second Motion for Summary Judgment is

granted as to Count III.

IT IS FURTHER ORDERED that Defendants’ Second Motion for Summary

Judgment is denied as to Counts I and IV. 

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19Plaintiff asks the Court to interpret Defendants’ Second Motion for Summary Judgment

as an untimely motion for reconsideration regarding the Court’s ruling on January 3, 2007. The

Court disagrees with Plaintiff and will not construe the motion at hand as a motion for

reconsideration. Defendants have filed a Second Motion for Summary Judgment. The Federal

Rules of Civil Procedure do not prohibit such a motion. And, Defendants were timely in their

filing.

24

IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendants’

Second Motion for Summary Judgment is denied.19

_____s/Bernard A. Friedman___________

BERNARD A. FRIEDMAN

CHIEF UNITED STATES DISTRICT JUDGE

Dated: July 27, 2007

Detroit, Michigan

 

I hereby certify that a copy of the foregoing document 

was served upon counsel of record by electronic and/or first-class mail.

s/Carol Mullins 

Case Manager to Chief Judge Friedman

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