UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) DIANNA JOHNSON, et al ., ) ) P laintif fs, )

) v. ) Civil Action No. 02-2364 (R MC) ) GOVERN MENT OF THE DIS TRICT OF COLUMBIA, et al. , ) ) ) Defendan ts. ) )

MEMORAN DUM OP INION
I t is alleg ed that the United States Ma rshal for the S uperior Court of t he District of Columbi a direc ted a blanket policy and/or prac tice wher eby all fema le arr estee s—but not male

arr estee s—were subjected to “drop, squat and coug h” strip sear ches befor e prese ntment to a judicial officia l. Approxim ately

16,000 women who we re arr ested for non-drug and non-violent offe nses, such as traff

ic stops and other minor offen s es , b et we en Dec ember 2, 1999, and April 25, 2003, complain here that this blanket policy and/or prac t i ce v i o l at ed their rig hts to be fre e from

unrea sonable searc hes under the Four th Amendment and their

rig hts to equal protec tion under the Fifth Amendment to the Constit ution. Former Superior Court Marsha l Todd Dillard, sued he re in his individual capa city , asser ts tha t his officia l se arc h policy for the D.C. Superior Court c ellblock

was g ender neutra l; that he intended the policy to apply identically to both male and fema le arr estee s; that he was unawa

re if his policy wer e being contra vened by those conducting the sear ches; and that, in any event, he is entitled to qualified immunit y . I n other litigation, the United States Marsha ls Service formally conce ded that theprac tice at the Superi o r C o u rt ce l l block in 2000 and 2001 was to subject all fema le arr estee s to a

blanket drop, squat and coug h sear ch while m al e ar re s t ees underw ent the same sear ch only upon individualiz ed suspicion. For mer Marsha l Di l l ar d disputes the acc urac y of this conce ssion. The

sear ch practice s at t he Superior Court dur ing the class period are very much contested. Howeve r, in light of the g overnme nt’s past formal admissions and rec ord evidenc e in Clif ton v. U.S. , No. 02-
0578 (D

. D. C

. fi l ed Mar. 26, 2002) and Helton v. U.S. , No. 01-0385 (D.D.C. filed Fe b. 20, 2001), which simil arly involved strip sear ches at the D.C. Superior Court cellblock, and the rec ord befor e this Court, it is evident that during the class period fema le arr estee s wer e s ubjected to a blanket
prac tice of strip sea

rche s while many , if not most, male arr estee s wer e not. Nonetheless, it is now clea r that former Marsha l Dillard is entitled to qualified immunit y from t h e Fo u rth Amendment claims. The Fifth Amendment claims simil arly fail as Plaintiffs proff er no evidenc e that former Marsha l Dillard purposef ully discriminated by

intending a

g ender disparity in searc h proce dures.
I. F ACTS
A. The Searches
Pl a in ti f f s c o mp la in of strip sear ches (“strip, visual body cavit y a n d /o r s q u a t s e a r c h e s ” )
to which they wer e subjected at the District of Columbi a Superior Court cellblock while waiting for
prese ntment befor e a judge or other judicial office r. Second Am. Compl. [Dkt. # 117] ¶ 1. Simi lar strip searc hes we re c omplained of in Clif ton v

. U.S. and Helton v. U.S. , both of which settled with entry of a court order and injunction. Def endant Todd Dillard was the United States Marsha l for the Superior Court of the District of Columbi a from approximately Oc t o b er 1 9 9 0 to 2004, and,

acc ording ly , the Superior Court Marsha l for the periods cover ed by both Clif ton and Helton and the entirety of the Four

th and Fifth Amendment class period, which runs from Dec ember 1999 to April

-2-2003.
As descr ibed by the United Sta t es Marsha ls Service (the “Servic e”) , in 2001 all

prisoners broug ht to the Superior Court cellblock first passed throug h a magn etometer and then underw ent an “i n -c u stody sear ch,” wher eby they remove d the contents of their pockets, had their outer clothing i nspecte d, remove d their shoes, and were t h oroug hly patted down. See Pls.’ Mem. in Supp. of Mot. for Partial Summ. J

. [Dkt. # 233], [Att ach. 82] Marsha l Service I nterrog

. Resp. in Clif ton v

. U.S. ¶ 8. After

the “in-c ustody

sear ch,” ma le detainee s wer e then place d in a cell unless a deta inee pr esente d individualiz ed suspicion that he had contra band on his person or posed other risk, in which eve nt he was he ld aside to be subjec ted to “a mor e thoroug h sear ch.” Id

.

Howeve r, as the Service descr ibed the strip sear ch prac tice that exis ted in 2 0 01, it was marke dly differ ent for f

emale de tainees: After the in-custody sear ch, fema le detainee s are then moved to an enclose d are a separate and apart from male detainees. On l y fema le detainee s or office rs are allowed in this are a; no male detainee s or office rs may inadver

tently or casua lly look into the are a; and there are n o c lose d-circ uit televisions or other video rec ording device s pres e n t. One further step is r equire d for fema le detainee s since the pat-dow n sear ch cannot rea sonably asce rtain whether there are wea pons or contra band sec rete d in the brassier e or the vag ina. The fema le detainee herse lf is asked to g rasp her brassier e th ro ug h h er o uter clothing and move it or shake it in a manner desig n ed t o dislodge any wea

pon or contrab and that may be hidden there

. The detainee is then asked to fac e a wall, lower her pants and underw ear , and “squat and coug h”. The detainee squats by lowering her body from an uprig ht standing position until her upper leg s are para llel to the floor. A female [ office r] observe s this proce d u re , wh ich l asts 2 to 3 seconds, from a distance of about 10 fee t f

rom the detainee

. At no time does the fema le [officer] closely view any detainee ’s orifice s. Fe male detainee s are subjected to this final step primarily beca use of the h i story of discovery of contra band and wea

pons hidden in the

-3-vag ina of women who arr ive in the United States Marsha ls Service ’s cellblock from the District of Columbi a jail or the District o f Columbi a Metropolitan Police Depa rtment, and beca

use of the rela tive ease with which contra band or wea

pons can be secr eted in the vag ina or sanitar

y napkins. Id

. (desc ribing prac tice that exis ted on J u n e 2 9 , 2 0 0 1 ); see also Pls.’ Mem., [Att ach. 73] Marsha l Service I nterrog

. Resp. in Helton v. U.S. ¶ 8 (desc ribing identical prac tice being i n exis tence on Fe bruar y 21, 2000); Second Am. Compl. ¶¶ 133–35 (deta iling the complained of drop, s q u at and
coug h sear ches)

. Thus, when sued in separ ate suits in 2001 and 2002, the Service formally admitted throug h sworn interrog atory response s that the Superior Court Marsha l had a blanket prac tice of drop, squat and coug h sear ches of all fema le prisoners, but not of m al e p ri soners without individualiz ed suspicion.

This case did not proce ed immediately beca use, on April 25, 2003, the parties ag ree d to a tempora

ry standstill t o pursue se ttlement discussions and the Service vowed,
in response to the injunctive relief claims cont ained in the complaint here in and plaintiffs’ motion for a preliminary injunction, the Fe dera l Def endants will have implemented b y Monday , April 28, 2003, new secur ity policies and prac tices that will (i) perm i t “d rop, squat and coug h” sear ches or a strip sear ch only , at t h e l ea s t, upon an individualiz ed finding of rea sonable suspicion, if not probable cause , and with the approval of a super v isor; and (ii) insure that such sear ches will be applied even- handedly to both men and women a rre stees and de tainees.
S ee Consent Mot. to Hold Mots. in Abey ance Pending Settlement Discussions [Dkt. # 24] at 2

. Despite Clif

ton and Helton , Marsha l Dillard insists that he had a blanket policy at the Superior Court throug hout the class period of subjecting all arr estee s, reg ardle ss of g ender , to drop, squat and coug h

sear ches. See Def

.’s Not ice of Dep. Ex cer

pts [Dkt. # 240] (“D ep. Ex cer pts”), [Att ach. 9] Todd

-4-Dillard Dep. (Nov. 20, 2009) at 92–93, 96–98; see also id ., [Att ach. 14] Thomas Hedge peth Dep.

(Jul y 17, 2007) at 220–23 (cor robora ting that officia l policy throug hout class period was that all prisoners wer e to be drop, squat and coug h sear ched)

. Following voluminous discovery , the rec ord

reve als that the prac tice employ ed by Superior Court employ ees in conducting strip sear ches was not
g ender neutra l. Were just the prac tice itself at issue, Mars h al Dillard’s curr ent testimony would 1
need to be evalua ted by a jury , since it is irrec o n ci l ab ly at odds with the Service ’s prior sworn
response s and the instant rec ord. Howeve r, in light of rec ent D.C. Circuit case law, the Court must conclude that Marsha l Dillard enjoy s qualified immunit y from Plaintiffs’ Four th Amendment claims and that, without evidenc e that Marsha l Dillard himself acte d with discriminatory purpose by subjecting male and fema le arr estee s to differ ent strip sear ch proce dures, the Fifth Amendment claims must also be dismissed.

B. Pr ocedural History This lawsuit was initially broug ht ag ainst the District of Columbi a, the United States Marsha ls Service , former Superior Court M arsha l Todd Dillard in his individual capa city , and various J ohn Doe deputy Marsha ls. The parties spent the time betwee n April 2003 and April 2006 attempting to settle. When those eff orts failed, Plaintiffs filed a First Amended Complaint on April 28, 2006. S

ee First Am. Compl. [Dkt. # 58]. On November 14, 2006, the Court denied defe nse motions to dismiss and found that Marsha l Dillard was not entitled to qualified im munity on the
Four th and Fifth Amendme n t const itutional claims. See Orde r Deny ing Def s.’ Mots. to Dismiss

Severa l Deputy Marsha ls testified that they did not consider a drop, squat and coug h sear ch 1 to be a “strip sear ch” since the arr estee did not become completely nude in the sear ch; a woman kept her shirt on, albeit pulled up, and only had to drop her pants and underw ear low enoug h to allow her to squat and coug h. I n this Opinion, as i n t h e b ri ef s and prior case s, the terms “strip sear ch” and “drop, squa t and coug h sear ch” a re use d intercha

ng eably

. -5-[Dkt. # 81] at 3. Plaintiffs filed a Second Amended Complaint on May 24, 2007. See Second Am. Compl. Plaintiffs abandone d their claims ag ainst the various J ohn Doe Deputy Marsha ls in the Second Amended Complaint but added claims ag ainst Marsha l Dillard in his officia l capa city

. See id

. I n 2008, the Court cer tified separ ate Four

th and Fi ft h Am en d ment classes and dismiss ed the Service as a defe ndant, finding that Plaintiffs lacked standing to seek equitable relief from it

. See
Mem. Op. & Orde r [Dkts. ## 158, 159]. The Court also denied Plaintiffs’ reque s t t o cer tify an alterna tive Four

th Amendment class which would have included bot h male and fema le arrestee s. See id

. I n 2008, the Court dismissed the District of Columbi a, finding that it could not be liable to Plaintiffs unde r 42 U.S.C. §§ 1983 and 1988 beca use Marsha l D illard was a fe dera l of ficial acting under the color of fede ral law. See Mem. Op. & Orde r [Dkts. ## 202, 203]. I n 2010, the Court denied Plaintiffs’ motion for lea ve to file a

Third Amende d Complaint. See Orde r [Dkt. # 226]

. On April 5, 2010, following extensive discovery , Plaintiffs moved for partial
summary judgme nt, see Pls.’ Mot. [Dkt. # 233], and Marsha l Dillard cross-move d for judgme nt on the pleading s, or in the alterna tive, fo r s u mmary judgme nt. See Def .’s Mot. for Summ. J

. [Dkt.
# 232]. Ora l arg ument was hear d on September 24, 2010, and October 28, 2010. At oral arg ument

on September 24, 2010, the Court rea ffirme d its finding that Marsha l Dillard had acte d under color of federa l law as the Unit ed S tates Marshal for the Superior C ourt of t he Dist rict of Columbi a for

t h e s am e rea sons outlined in its prior Orde r, see Mem. Op. & Orde r [Dkts. ## 202, 2 0 3 ] , an d dismiss ed all claims under 42 U.S.C. §§ 1983 and 1988 ag ainst Marsha l D illard. Thus, rema ining b ef o re t he Court are claims ag ainst Marsha l Dillard in his persona l capa city alone for alleg ed violations of Plainti ffs’ F ourth and F ifth Amendment rig hts.

-6-II. LEGAL STANDARD Under Rule 56 of the Fe dera l Rules of Civil Procedur e, summary judgme nt shall be
g rante d “if the movant shows that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judge ment as a matter of law.” Fe d. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). “[T] he mere exis tence of some alleg ed fac tual dispute betwee n the parties will not defe at an other

wise prope rly

supported motion for summary judgme nt; the require ment is that there be no genuine issue of material fac t.” Anderson , 477 U.S. at 247–48. Moreove r, summary judgme nt is proper ly g rante d ag ainst a party who “af ter adequate time for discovery and upon motion

. . . fails to make a showing sufficie nt to establish the exis tence of an element essential to that party ’s

case , and on which that party will bear the burden of

proof a t trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

I n ruling on a motion for summary judgme nt, the court must draw all justifiable infere nces in the nonmoving party ’s favo r an d ac cept the nonmoving party ’s evidenc e as true. Anderson , 477 U.S. at 255. A nonmoving party , h o we v er , m u s t establish more than “the mere exis tence of a scintilla of evidenc e” in support of its position. Id. at 252. I n addition, the nonmoving party may not r ely solely on alleg ations or conclusory statements. See Gree ne v. Dalton , 164 F.3d
6 7 1 , 6 7 5 (D.C. Cir. 1999). Rather, the nonmoving party must prese nt specific fac ts that woul d enable a reasonable jury to find in its favor

. Id. at 675. I f the e vidence “is mere ly colora ble, or is
not signific antly probative, summary judgme nt may be g rante d.” Anderson , 477 U.S. at 249–50 (citations omitted); see also M atsushita Elec

. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986) ( noting that when a movant has satisfied his burden unde r Rule 56, the “oppone nt must do more than simply

show that there is some metaphy sical doubt as to the mater ial fac ts”).

-7-III. ANALYSIS
A. F ourth Am endm ent Claim s The F ourth Amendment Class consists of :
Eac h woman who, during the Clas s Period (De cembe r 2, 1 9 9 9, until April 25, 2003), was, (I ) held in the Superio r Court Ce ll B lock; (ii) awa iting pre sentment under a statute of t h e District of Columbi a on either (a) a non-drug , nonviolent traff

ic offe nse; (b) a non-drug , non-violent misdemeanor; or © a non-drug, non-violent felony ; and (iii) subjected to a blanket strip, visual body cavity and/or squat sear ch; (iv) wi t h o ut any individualiz ed finding of rea sonable suspicion or probable cause that sh e was conce aling drug s, wea

pons or other c ontraba

nd.
See Orde r C ertify

ing Class [Dkt. # 15 9 ] at 1

. Fo l l o wing arr est, these women wer e brought to the Superior Court cellblock from any of the seven Metropolitan Police Depa rtment (“MPD”) stations,

s u b s ta tions, traff

ic stations, or MPD’s centr al cellblock for prese ntment befor e a judicial office r . T h e

women wer e arr ested by MPD, the Capitol Police, the P ar k P o lice, or any of the my riad of law enfor ceme nt entities that have authority to arr est in the District of Columbi a. Ty pically , if a person

wer e arr ested befor e three p.m., she would be broug ht to the Superior Court cellblock the same day ; if she we re a

rre sted afte r three p.m., she would g ener ally be take n to the MPD centra l cellblock to spend the night and would be broug ht to the Superior Court cellblock ear ly the following morning

.

Arre stees we re ty

pically sear ched a

fewtimes before being broug ht to the Superior Court—usually by the arr esting office r/s at the scene of arr est, ag ain at the MPD district station, and then ag ain befor e being place d on a van to be transporte d by MPD to the Superior Court cellblock. These sear ches wer e g ener ally pat-downs. Arre stees wer e broug ht to the Superior Court c ellblock wher e they would be held until their prese ntment to a judicial office r. Also temporar ily in custody

-8-at the Superior Court c ellblock awa iting a court hearing would have be en convic ted prisoner s and

pre- trial criminal defe ndants transporte d from L orton Correc tional Ce nter (which c losed in 2001), the D.C. J ail, or the Correc tional Treatment Fa cility (collec tively the “jail case s”). Fe male arr estee s and fema le jail case s wer e held in separ ate ce l l s and wer e not co-ming led. Plaintiffs’ Four th and Fifth Ame ndment classes a re ma de up exclusively

of fe male ar

restee s, not female ja il cases.
Arre stees in the Superior Court cellblock wer e sear ched p ri m arily by Detention Enforc ement Offic ers (“D EOs”) and, to a slightly lesser extent, Deputy Marsha ls (“ d ep u t i es”). Supervisors would intermittently assi s t i n the sear ches if nece ssary . Arre stees broug ht into the cellblock would ty

pically pass throug h a mag netometer an d underg o a thoroug h pat-down sear ch befor e (or afte r) being place d in the sear ch room desig nated for their g ender

. Although pat-downs

or lesser- deg ree sear ches could occur in the hallway s or more public are as of the cellblock, fema le

arr estee s were subjected to dr op, squat and coug h sear ches only in the fema le sea

rch r oom. There is no alleg ation that a male was ever prese nt during any of the fema le drop, sq u at an d coug h

sear ches. The Superior Court c ellblock was for temporar y custody only ; if arr estee s wer e not rele ased by a judicial office r direc tly from the courtroom afte r prese ntment, they would be transfe rre d to the D.C. J ail, wher e further body sear ches would occur . J ail cas es s t ay ed in the cellblock only as neede d for their court hear ings and wer e transfe rre d back from whenc e they came by day ’s end. No arrestee or j ail case rema ined i n the S u p erior Court cellblock overnig ht. Whil e the exact statistics over the entirety o f t h e cl as s period wer e not maintained and are contested by Marsha l Dillard, it appea rs that a signific ant portion, i f not the majority , of fema le arr estee s wer e
t y pically rele ased from custody immediately from the courtroom in which they wer e arr aign ed ,
-9-without having to r eturn to the c ellblock. During the entirety of the class period, the standard under which body sear ches wer e to be conduc ted was officia lly g overne d by U.S. Marshals Servic e Policy Direc tive 99-25. Policy
Di re ctive 99-25 was issued Service -wide to “All U.S. Marsha ls Employ ees,” with a cover memo dated J uly 15, 1999. See Def .’s Mem. in Supp. of Mot. for Summ. J

. [Dkt. # 232], [Att ach. 2] Policy Direc tive 99-25. The purpose of the direc tive was to provide “spec ific instructions to U.S. Marsha ls Service (USMS) employ ees for deter mining if, and under what conditions, body sear ches are leg ally permissible and how the y will be conducte d.” Id

. at I . Policy Direc tive 99-25 wa s g ender neutra l and laid out va

rious fac tors an office r could consider in de termining whether rea sonable suspicion exis ted that a prisoner wer e car ry ing contra band or prese nted other risk (i.e. secur ity , esca pe, suicide)
to justify a strip sear ch. Id

. at I V(C)(1)

. Among the fa ct o rs to be considere d wer e the history of discovery of contra

band on an individual prisoner or in a particula r i n s t i t u t i o n , and the ty

pe and

secur ity level of the particula r instit ution in which the prisoner w as held. See id

. Policy Direc tive
99-25 wa s in effe ct from July 15, 1999 to October

6, 2003. Marsha l Dillard asser

ts that the Superior Court sear ch policy in place throug hout the class period was that ever

y prisoner, both male and fema le, arr estee and jail case , was to be subjected
to a blanket strip sear ch. See Dillard Dep. at 92–93, 96–98. The rec ord reve als that during the class period the day -to-day prac tice at the cellblock mirrore d Marsha l Dillard’s asser ted policy only as to fema le ar restee s, who wer e, in fa ct, all subjecte d to drop, squat and c oug h sear ches. 2
Approxim ately fourtee n fema le DEOs and deputies who conducte d strip sear ches of fema le 2 arr estee s at the Superior Court cellblock wer e deposed and uniformly testified that during the class period the prac tice was to subject ever y fema le arr estee to a drop, squat and coug h sear ch. See e,g., Pls.’ Mem., [Att ach. 29] Michelle Alexander Dep. (Aug

. 28, 2007) at 35–38, 45–46 (sea rche s from approximately Fe bruar

y 2002 to Marc h 2003); id ., [Att ach. 70] J acque line Har g rove De p. from

-10-Pla i n t i ffs first alleg e that the blanket drop, squat and coug h sear ches wer e

unrea sonable for women arr ested for non-drug and non-violent offe nses and, there fore , violative of the Four th Amendment. P laintiffs sue Marsha l Dillard in his persona l capa city for these alleg ed 3
violations. A plaintiff may b ri n g a cl ai m for money damag es ag ainst a fede ral officia l in his individual capa city for a violation of t h e p l aintiff’s constitutional rig hts. Bivens v. Six Unknown Named Agents of F

ederal Bureau of Narcotics , 403 U.S. 388, 389 (1971). A fede ral ag ency is not

a proper defe ndant under Bivens

. See FDIC v. Me ye r , 510 U.S. 471, 484–86 (1994); Gabriel v. Corrections Corp. of

America , 211 F. Supp. 2d 132, 137 n.7 (D.D.C. 2003). Marsha l Dillard moves for summary judgme nt that the blanket policy of conducti n g d ro p, squat and coug h sear ches on

arr estee s entering the S uperior Court cellblock did not violate t he Fourth Amendment and tha t, in
any event, he is entitled to qualified immunit y . 4

Clif ton v. U.S. (Sept. 18, 2002) at 8–9 (appr ox imately 199 5 t o S ep t em b er 2002); id ., [Att ach. 49] Penelope Knox Dep. (Oc t. 5, 2009) at 22–26 (appr ox imately October 2000 to 2004); id ., [Att ach. 58] Debor a Seifert Dep. (Aug

. 28, 2009) at 67–69 (appr ox imately Aug ust 1998 to Aug ust 2001); but see Dep. Ex cer

pts, [ At tach. 5] Trac y Br y ce Dep. (Aug

. 16, 2007) at 75–77 (testify ing that she b el i ev ed the blanket drop, squat and coug h sear ches of fema le arr estee s ended around 2000). Marsha l Dillard conc ed es this point, but points to a Four th Amendment class repr esenta tive who could not r eca ll whe ther she rec eived a drop, squat and coug h sear ch for both of her a

rre sts, r ather than for just one. See Def .’s Mem. at 29. The class repr esenta tive did not testify aff irmatively that she was not strip sear ched both times, and it is unclea r whether both of her arr ests occur red during the class period. See Pls.’ Reply [Dkt. # 251] at 2. T h i s p o s s ible incident does not neg ate the consistent prac tice re veale d by the over whelming testimony

. Plaintiffs moved to amend their C o m p l ai n t to add a claim that the non-private setting in 3 which the fema le arr estee s wer e made to drop, squat and c oug h—in a fe male sea rch r oom in front of other fema le arr estee s—was an unrea sonable time, place , and/or manner in which to conduct the s ea rche s under the Four

th Amendment. The Court denied Plaintiffs’ reque st. See Ord er [ Dk t

. # 226]. Marsha l Dillard also moves for dismiss al of all claims by Plaintiff Donna Curtis for failure

4 to prosec ute, as she failed to attend a schedule d deposition, and to dismiss Plaintiffs Dianna J ohnson and Caroly

n Montgome ry , for whom a sug g estion of death has b ee n fi l ed. See Def .’s Mem. at -11-On November 14, 2006, in deny ing the various defe ndants’ motions to dismiss , this

Court ag ree d with Plaintiffs that, if the facts proved to be as alleg ed, a violation of the Four th and Fifth Ame ndments would be shown and Ma rshal Dillard w as not entitled to qualified immunity

. Her e, the First Amended Co m p laint alleg es that U.S. Marsha ls – at the direc tion of and p u rs u ant to a policy develope d by former Marsha l Dillard – subject ed [female a rre stees] to blanket strip sear ches and visual cavit y s e a r c h e s wit h o u t a rea sonable individualiz ed suspicion that [t hey ] wer e concea l i n g weapons or contra band.

. . . [and that] all fema le arr estee s at the D.C. Superior Court wer e subjected to blanket strip sear ches, but simil arly situated male arr estee s wer e not strip sear ched. These alleg ations, if true, adequately alleg e violations of the Four t h and Fifth Amendments. Orde r De ny ing D efs.’ Mots. to Dism iss [ Dkt. # 81] at 2–3.

I n 2006, when the Court decide d that Plaintiffs had adequately alleg ed unrea sonable

40–42; see also Sugg estion of Dea th [Dkt. # 215]. Plaintiffs do not oppose dismiss al if it is without prejudice

. See Pls.’ Suppl emental Opp’ n [Dkt. # 244] at 2. Acc ording ly , Plaintiffs D onna Curtis, Dianna Johnson, and Caroly n Montgome ry

will be dismiss ed without prejudice

. I n addition, Marsha l Dillard moves to dismiss Plaintiff Rabbiy ah Muhammad for failure to prosec ute beca

use of her failure to submit timely sworn interrog atory response s, or as a sanction for the same. I t is alleg ed that Ms. Muhammad submitt ed unsigne d interrog atory response s and at her deposition denied that she had ever seen the unsworn responses attribut ed t o her. Def .’s M em. at 42. Her sworn response s wer e not rec eived until afte r h er d eposi tion. Marsha l Dillard arg ues prejudice beca

use he “wa s u n ab l e t o fully addre ss the inconsistencies betwee n the interrog atory response s and Ms. Muhammad’s testimony during her d eposition, and thus was deprive d of the opportunity to impea ch Ms. Muha mmad with contra dictory sworn testimony .” Def .’s Reply [Dkt. # 250] at 44. Ba sed on counsels’ arg uments, it appea rs that any untimeliness on Ms. Muhammad’s part wa s m er e i n adver

tence , and not sufficie ntly delay ed or neg lige nt as to war rant dismiss al for failure to prosec ute. Adjudication of claims on the merits is pref era ble and “‘dismissal is a sanction of l ast resor

t to be applied only afte r l ess di re alternatives have been ex plored without succe ss’ or would obviously prove futile.” Shea v. Donohoe Constr. Co. , 795 F.2d 1071, 1075 (D.C. Cir. 1986) (quoting Trakas v. Quality Brands, Inc., 759 F.2d 185, 186–87 (D.C. Cir. 1985)). Marsha l Dillard has not been prejudice d “so sever ely ” as to war rant the drastic sanction of dismiss ing Ms. Muhammad. See Shea , 795 F.2d at 1074. The motion to dismiss Ra b b i y ah M u h am mad will be denied. -12-sear ches under the Four th A mendment, ten of twelve U.S. Courts of Appea ls had ruled, with only 5 insignifica

nt differ ence s, that the blanket strip sear ch of p re t ri al detainee s, arr ested for minor offe nses and lacking an y individualiz ed suspicion, violated the Four th Amendment. I n 2006, 6
howeve r, the D.C. Circuit ha d not y et spoken to the question. The ten circ uits that had found such

sear ches to violate the Four th Amendment wer e interpre ting and apply ing Bell v. W olfish , 441 U.S.
520 (1979), which established a balanc ing test to d et er mine when a strip sear ch in the context of detention is valid under the Four th Amendment. Bell considere d a challeng e to a Bur eau of Prisons’
po l icy at t he Metropolitan Correc tional Center in New York C ity , wher eby ever y fede ral detainee

was require d to undergo a visual body -ca vity strip sear ch following any contac t visit with an outsider. Bell , 441 U.S. at 558. After acknow ledg ing a body cavity sear ch “instinctively g ives us the most pause,” id

. at 558, the Supreme Court explained, “we deal here with the question whether visual body -ca

vity inspections as contemplated by the [Metropolit an Correc tional Center] rules can

eve r be conducte d on less than probable cause . Ba lancing the signific ant and leg itimate secur ity interests of the instit ution a g ainst the privac y interests of the inmates, we conclude that they can.” Id . at 560. Since this Court’s ruling in 2006, t wo circ uits have re- visited their prior

Ex cluding the U.S. Court of Appea ls for the F eder al Circuit. 5 See, e .g., Roberts v. Rhode Island , 239 F.3d 107, 110 (1st Cir. 2001); W eber v. Dell , 804 6 F.2d 796, 802 (2d Cir. 1986); Logan v. Shealy , 660 F.2d 1007, 1013 (4th Cir. 1981); Stewart v. Lubbock C ounty , 767 F.2d 153, 156–57 (5th Cir. 1985); Masters v. Crouch , 872 F.2d 1248, 1255 (6th Cir. 1989); Mary Beth G. v. Chicago , 723 F.2d 1263, 1273 (7th Cir. 1983); Jones v. Edwards , 7 7 0 F. 2 d 739, 741–42 (8th Cir. 1985); Giles v. Ack erman , 746 F.2d 614, 618 (9th Cir. 1984), overruled on other grounds by Hodgers-Durgin v. De La Vina , 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); Hill v. Bogans , 735 F.2d 391, 394 (10th Cir. 1984); W ilson v. Jo n es , 2 5 1 F.3d 1340, 1343 (11th Cir. 2001). -13-interpre tations of Bell v. W olfish

. Marsha l Dillard holds up Powell v. Barrett , 541 F.3d 1298 (11th Cir. 2008) (en banc) and Bull v. City and County of San Francisco , 595 F.3d 964 (9th Cir. 2010) (en banc)

. I n Powell , the Eleventh Circuit reve rsed course and deter mined that the Four

th Amendment, under its revised interpre tation of Bell , does not prec lude a policy or prac tice “of strip sear ching all

arr estee s as par

t of the proc ess of booking them into the ge nera l population of a detention fac ility ,

even without rea sonable suspicion.” Powell , 541 F.3d at 1300. L ikewise, the Ninth Circuit reve rsed its ear lier interpre tation of Bell and held that a policy “re quiring strip sear ches of all arr estee s classified for custodial housing in the g ener al population was fac ially rea sonable under the Four th Amendment, notwithstanding the lack of individualiz ed suspicion as to the individuals sear ched.” Bull , 595 F.3d at 982. After the par ties filed brief

s in this m atter, the Third Circuit weig hed in f or the first time and s i m i larly found the blanket strip sear ch of arr estee s prior to introduction into a
g ener al jail population did n o t v i o l ate the Four th Amendment. See Florence v. Bd. of Chosen Freeholde rs , 621 F.3d 296 ( 3d. Cir. 2010). 7

Marsha l Dillard arg

ues that these new decisions illust rate that the challeng ed sear ch
prac tice at the Superior Court perf ectly acc orded with Bell v. W olfish and did not violate the Four th Amendment, and/or that he reas o n ab l y could not have known that such sear ches violated the
C o nstitut ion. For rea sons descr ibed below, the Court by passes the question of whether Mar s h al

But see Jimene

z v. W ood County , 621 F.3d 372, 375 (5th Cir. 2010) (re jecting reque st that 7 the ci rcuit revisit its ear lier interpre tation of Bell v. W olfish in light of Bull and Powell and rea ffirming Fifth Circuit prec edent that “a strip sear ch of an individual arr ested for a minor offe nse must be premised on rea sonable suspicion that the detainee is car ry in g we ap o n s or contra

band”) ; Stearns v. Clarkson , 615 F.3d 1278, 1282 (10th Cir. 2010) (finding officia l not entitled to qualified immunit y beca

use under Tenth Circuit prec edent “it is also clea rly established that ‘a detainee who is not pla ced in the g ener al prison population c annot be strip sear ched if the sear ching office r does not at least have rea sonable suspicion that the detainee possesses co n ce aled wea pons, drug s, or contra band’” ) (quoting Archuleta v. W agner , 523 F.3d 1278, 1286 ( 10th Cir. 2008)). -14-Dillard violated Plaintiffs’ Four th Amendment rig hts, addre s s i n g i nstead his rig ht to qualified immunit y , even a ssuming all of Plaintiffs’ a lleg ations are true.

Qualified immunit y is “a defe nse that shields officia ls from suit if their c onduct ‘d[id]
not violate clea

rly established statutory or constitutional rig hts of which a rea sonable person would have known.’” Ortiz v. Jordan , 131 S. Ct. 884, 888 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982))

. “I n developing the doctrine of qualified immunit y , the Supreme Court has soug ht
to strike a balanc e ‘betwe en the interests in vindication of citizens’ constitutional rig hts and in public officia ls’ eff

ective perf

ormanc e of their duties.’” Int’l Action Ctr. v. United States , 365 F.3d 20, 24 (D.C. Cir. 2004) (quoting Anderson v. Creighton , 483 U.S. 635, 639 (1987))

. A fede ral officia l can be liable individually but “that officia l must have violated a constitutional rig ht, and that rig ht must have been ‘cle arly established’ – ‘the contours of the rig ht must be sufficie ntly clea r that a rea sonable officia l would understand what he is doing violates that rig ht.’” Id

. (quoting Anderson , 483 U.S. at 640). Traditionally , looking at the fac ts alleg ed in a light most favor able to the plaintiff, a
court would first decide whether “the fac ts alleg ed show the o ff i ce r’s conduct violated a constitutional right,” a

nd, only if so, “whe ther that rig ht w as clea rly established” at the time of the violation. Saucier v. Katz , 533 U.S. 194, 201 (2001). The Supreme Court has since instructed that

a court can employ its discretion to decide i n which sequenc e to addre ss these two inquiries.
Pearson v. Callahan , 129 S. Ct. 808, 818 (2009). Be cause the D.C. Circuit has very rec ently made “plain that a constitutional rig ht” as alleg ed by Plaintiffs “is not clea rly established,” id. , it is prudent for this Court to procee d direc tly to qualified immunity

. On Marc h 25, 2 0 1 1 , t h e District of Columbi a Circuit issued a decision direc tly on

-15-point. See Bame v. Dillard , No. 9-5330, 2011 U.S. A pp. L EXI S 6207 (D.C. Cir. Ma r. 25, 2011 as amende d Mar. 31, 2011). The Bame plaintiffs, all males, had filed a class a ct i o n ag ainst Marsha l Dillard for strip sear ches, including drop, squat and cough searc hes, conducted i n 2002 following

mass arr ests of peac eful protester s. Plaintiffs arg ued they wer e unconstitutionally sear ched and that Marsha l Dillard was not entitled to qualified immunit y as the unanimity in the circ uits in 2002 made clea r that the Four

th Amendment “prohibited strip s e a rching a person arr ested for a non-violent, nondrug -re lated misdemeanor absent a particula rized rea son to suspect the arr estee wa s conce aling
contra band or wea

pons about his person.” Id

. at *1–2. Under th e p ri n ciple of constitutional avoidanc e, the D.C. Circuit proce eded direc tly t o t h e q uestion of whether the constitutional rig ht invoked by the plaintiffs was clea rly established at t h e t i m e o f t h e sear ches. The Circuit noted: “‘The re are case s in which it is plain that a constitutional rig ht is not clea rly established but far from obvious whether in fac t there is such a rig ht.’ This is such a case .” Id

. at *8 (quoting Pearson , 129
S. Ct . at 818). The D.C. Circuit conclude d that Marsha l Dillard was entitled to qualified immunit y in Bame beca

use “the law in 2002 did not clea rly establish that strip sear ching all male arr estee s prior
to place ment in holding cells at t he S uperior Court violated t he Fourth Amendment.” Id

. at *13.
“T h e go verning prec edent was then, as it is now, Bell v. W olfish , and nothing in Bell requ i re s individualiz ed, rea sonable suspicion befor e strip sear ching a person enter ing a detention fac ility .” Id

. “To the contra

ry , as the Eleventh Circuit would later point out, ‘The Bell decision means that the
Four th Amendment does not re quire re asonable suspicion for this ty pe of strip se arc h in detention fac iliti es.’” Id . (quoting Powell , 541 F.3d a t 1308).

The fac ts alleg ed by Plaintiffs are not sufficie ntly distinguishable from B ame to allow

-16-a differ ent result. The Bame plaintiffs contested blanket strip sear ches of non-violent, non-drug

rela ted misdemeanor arr estee s absent any individualiz ed sus picion at the D.C. Superior Court cellblock, see id

. at *2–3, as do Plaintiffs here

. The D.C. Circui t expli citly dispatched with the 8
app e ll ees’ arg uments—which Plaintiffs repe at here —that: (1) the law was clea r in 2002 that this ty

pe of sea rch w as unconstitutional beca use ten c ircuits had spoken una nimously to that effe ct; and (2) Marsha l Dillard should not be able to rely upon Powell or Bull or other circ uit decisions not decide d until 2008 as evidenc e that the law was insufficiently clea r in 2002. See id

. at *10–13. “Tha t Powell and Bul l came down afte r 2002 is of no moment; those opinions simply acc ord with our understanding that Bell did not establish the unconsti tutionality of a strip sear ch u n d er conditions like those prese nt here .” Id . at *14. 9

Plaintiffs’ additional arg uments far e no better. I t is arg uable that Powell , Bull , and Florence are distinguishable f rom ca ses involving Super ior Court arr estee s, beca use t he prisoners befor e thos e circuits wer e ab o u t to be entered into, or co-mingled with, a gene ral jail or detention fac ility population and most Pl aintiffs her e we re only held t empora

rily at t he D.C. Superior C ourt and then either rele ased from the courtroom the same day or transfe rre d to the D.C. J ail , a true

The Four th Amendment class here includes women arr ested for no n -d ru g, non-violent 8 traff ic offe nses, misdemeanors, and/or felonies, and while the Bame decision spoke of those arr ested for non-violen t , n o n -d rug rela ted misdemeanor offe nses, its holding did not hinge on the ty pe of violation or crime for which a plainti ff was arr ested, but extended t o all persons being introduced into the D.C. Superior Court cellblock, found by the D.C. Circuit to constitute a “dete ntion fac ility .” See id . at *13. But see id

. at *42 (Rog ers , J ., dissenting) (“Ma rshal Dillard’s relianc e on post-2002 9 d ec i s i o ns is doubly flawe d. Under Supreme Court qualified immunit y prec edent, circ uit court o f appea ls decisions since the strip sear ches at issue in 2002 have no bear ing on whether he is entitled to qualified immunit y on the g round that there was no clea rly established law to be followed in 2002. But taken on their own merit the post -2 0 0 2 ca s es are distinguishable on their fac ts and do not demonstrate tha t the law wa s unsettled in 2002, much less afte r.”) (citations omitted). -17-“dete ntion” fac ility in Plaintiffs’ rubric. This very arg ument was reje cted in Bame

. The D.C. Circuit

found the “Court’s rationale in B ell applies equally to any detention fac ility that is ‘fr aug ht with serious secur ity dang ers,’ as was the cellblock at the Superior Court, where o ft en hundreds of

arr estee s wer e proce ssed in a sing le day .” Id

. at *17 (quoting Bell , 441 U.S. a t 559)

. “Contrar

y to the plaintiffs’ contention, nothing whatsoeve r in Bell sug g est s its holding is limit ed to overnig ht detention fac iliti es. . . . [n] or . . . did the Court in Bell any wher e mention, let alone rely upon, such interming ling as a rea son for upholding the strip sear ches.” Id

. “I n any event, arr estee s held at the Superior Court wer e in fac t commingle d with other arr estee s in holding cells; no one sug g ests eac h

arr estee was put in a sepa rate cell.” Id . at *17–18. The D.C. Circuit has spoken unequivoca lly

. Even assuming all fac ts alleg ed by the
Four th Amendment cl as s as t rue, the claims addre ssed in Bame and the instant case cannot be d i s t i n g uished in any meaning ful way . Obviously , the Court must rec onsider and modify its p ri o r ruling that Marsha l Dillard is not entitled to qualified immunity on Plaintiffs’ Four

th Amendment claims, see Orde r Deny

ing Def s.’ Mots. to Dismiss [Dkt. # 81], in light of the D.C. C i rc u i t’s d ecision. Marsha l Dillard is entitled to qualified immunit y ag ainst the claims that he v i o l at ed Plaintiffs’ Four

th Amendment rig hts. Acc ording ly , Plaintiffs’ motion for summary ju d g me n t, w h ic h spoke solely to the Four

th Amendment claims, will be denied, and summary judgme nt will be
enter ed for

Marsha l Dillard.
B. Fifth Am endm ent Claim s The F ifth Amendment Class consists of:
Eac h woman who, during the Class Period (Decembe r 2, 1999, until Ap ri l 25, 2003), was, (I ) held in the Superior Court Ce ll B lock; (ii) awa iting pre sentment under a statute

-18-of the District of Columbi a; (iii) subjected to a blanket strip, visual body cavity and/or squat sear ch; (iv) u nder simil ar circ umstances f

or which ma le ar

restee s were not subjected to a blanket strip, visual body cavity and/or squat se arc h.
See Orde r Certify ing Class at 1. Plaintif fs ar gu e that by no later than J anuar y 1999, “def

endant Dillard had a policy and prac tice in place of requiring all fema le prisoners but not male prisoners to be subjected to blanket drop, squat, and coug h sear che s . ” P l s.’ Reply [Dkt. # 251] at 10. This
g ender -base d prac tice is alleg ed to have violated Plaintiffs’ rig hts t o equal protection. As noted 1 0 above, signific ant evidenc e exis ts tha t both the policy and pra ctice at the Superior Court ce llblock during the class period was that ever y fema le arr estee was s u b j ected to a blanket drop, squat and
coug h sear ch. See supra note 2.

I n contra st, ample evidenc e exis ts that, at least in prac tice, many DEOs and deputies did not subject male arr estee s to a blanket drop, squat and coug h sear ch unless there wer e rea sonable, individualiz ed suspi cion t hat t he male arr estee was harboring contra band or prese nted ot h er ri sk. See, e .g. , Pls.’ Mem., [ Attach. 57] Mar k Shealey Dep. (May 8, 2007) at 157, 166–67 (testify ing a s
to prac tice betwee n J anuar y 1999 to summer of 2002 as the a.m. cellblock supervisor) ; id. , [Att ach.

The Fifth Amendment provides that “[no] person shall be . . . deprive d of life, liberty , or 1 0 proper ty , without due proce ss of law.” U.S. C O N S T
. amend. X. The equal protec tion clause of the Four teenth Amendment does not apply to the District of Columbi a, which is a political entity cre ated by the fede ral g overnme nt, but the due proce ss clause of the Fifth Amendment has been held to impose the same equal protec tion restric tions on the fede ral g overnme nt and D.C. as the Four teenth Amendment does on the States. Propert v. District of Columbia , 948 F.2d 1327, 1330 n.5 (D.C. Cir. 1991) (c iting Bolling v. Sharpe , 347 U.S. 497, 499 (1954)) ; Davis v. Passman , 442 U.S. 228, 234 (1979). “To withstand scrutiny under the equa l p r o te c tion component of the Fifth Amendment’s Due Process Clause, ‘cla ssifications by g ender must serve important g overnme ntal objectives and must be subst antially

rela ted to achie vement of those obje ctives.’” Davis , 442 U.S. at 234–35 (quoting Calif ano v. W ebster , 430 U.S. 313, 316–317 (1977))

. “The equal protec tion component of the Due Process Clause thus confe rs on petitioner a fede ral constitutional ri ght to be fre e from g ender discrimination which ca

nnot meet these r equire ments.” Id . at 235–36.

-19-41] Edwar d Eversma n Dep. (Sept. 14, 2 0 09) at 52–54, 72, 77–79, 82 (testify ing that betwee n Fe bruar y 1997 to J une 2000, he never witnessed a blanket prac tice of strip sear ching male arr estee s

nor was he ever instructed by any superior to conduct such strip sear ches) ; id ., [Att ach. 30] Michae l Artis Dep. (Aug

. 16, 2007) at 97–102, 110–12 (explaining that during the class period male arr estee s

wer e only strip sear ched upon individualiz ed suspicion and that out of thousands of male arr estee s he had patted down, with the exception of a male juvenile, he could not rec all one instance of strip

sear ching a male arr est ee ); id ., [Att ach. 33] Robert Br andt Dep. (Jan. 6, 2009) at 53–54, 56, 73 (stating that from 1996 to 2004, he never saw a male arr estee strip sear ched without individualiz ed suspicion nor did any supervisor ever tell him to strip sear ch all male arr estee s as a blanket policy ); id ., [Att ach. 40] Mark Anthony Edg e Dep. (Oc t. 20, 2008) at 44–46 (same prac tice from 1989 to 2008); id ., [Att ach. 32] Ronald Erwin Bolls Dep. (Jan. 21, 2009) at 25–28, 30–31, 33–34, 37 (testify ing as p.m. cellblock supervisor from September 2000 to J anuar y 2002 that male arr estee s

wer e not subject to a bla

nket pra ctice of

drop, squat and c oug h sear ches)

. J ust to confu s e th in g s , th e r e c ord also contains vague and contra dictory testimony that the standard under which a male arr estee m i gh t h av e b een subjected to a drop, squat and coug h

sear ch, i.e., blanket protocol or individualiz ed suspicion, chang ed once or more d u ring the class period. See Pls.’ Mem., [Att ach. 54] Gre g ory Petchel Dep. (Jan. 6, 2009) at 62–73 (testify ing that,

as supervisory deputy from 1996 to 2004, the initial prac tice was to strip sear ch male arr estee s only
upon individualiz ed suspicion; around 2001, the prac tice chang ed to strip sear ches of all male

arr estee s; that prac tice was stopped ag ain, resumed ag ain, and finally ended whe n t h e Of fi ce of
Gene ral Counsel told the Marsha l to cea se around 2003); id ., [Att ach. 59] J onathan Stover Dep. (Oc t. 21, 2008) at 5 3

– 6 2 (t es tify ing that he was not instructed to subject male arr estee s to a blanket

-20-prac tice of drop, squat and coug h sear ches until around 2000, but the prac tice did not last long befor e

it stopped aga i n ); id ., [Att ach. 27] Cly de Afman Dep. (Nov. 10, 2009) at 26, 33–34, 45–49, 82 1 1 (explaining that from his start date in 1 9 96 blanket strip sear ches wer e perf ormed on ever

y male

arr estee but the prac tice wa s discontinued sometime betwee n 1999 to 2001).

Wit hout a fac t-finder to make cre dibilit y deter minations, it can only be said that there
appea r to have been g rea t differ ence s in sear ch pra ct i ce s o f m ale arr estee s at the Superior Court cellblock under Marsha l Dillard, an observa tion that stands in stark contra st to the uniformity with which fema le DEOs and deputies testified that all fema le arr estee s wer e subjected to drop, squat and
coug h sear ches. Even if some DEOs or deputies conducted s t ri p s earche s on male arr estee s on

occa sion, it cannot be said that the rec ord supports Marsha l Dillard’s testimony of a blanket prac tice at the Superior Court c ellblock of drop, squa t and coug h strip searc hes of male arr estee s. 1 2

Plaintiffs filed a Motion for L eave to Addre ss J onathan S t o v er ’s Testimony Offe red in 1 1 Def endant’ s Reply to Plaintiffs’ Motion for Summary J udg ment, see [Dkt. # 262], which in essenc e is a motion for leave to file a surre ply

. The Court allowed Def endant an opportunity to file a response to arg uments raised in this motion. See Def .’s Consolidated Response [Dkts. ## 269, 270]. The motion [Dkt. # 262] will be g rante d. I t woul d t ake a fac t-finder to deciphe r the differ ence s in testimony betwee n Marsha l 1 2 Dillard—who say s that he mere ly continued a pre- exis tin g s ea rc h policy when he beca me U.S. Marsha l f or the Superior Court; that his policy was consistent throug hout the class period; that the manag ers a

nd supervisors in the c hain of c ommand wer e to enf orce his policies; that he discussed inconsistencies and problems arising at the Superior Court with his supervisors at a wee kly meeting ; and that he personally visited th e m al e s ea rc h rooms unannounce d and at random ti mes to ensure compliance with his policies and observe d male ar re s tees subjected to drop, squat and coug h sear ches, see, e .g., Dillard De p. at 50, 52–57, 72, 75–76, 90–92, 95–96, 98, 228; see also id. at 56 (“My instructions w ere that ever y supervisor was to constantly be awa re of what is g oing on in the are a that they

wer e re sponsible for super vising. And the only way y ou could possibly do that is to ey eball it y ourself periodica lly

. I mean, y ou didn’t have to stand there all day , of co u rse, we had other duties. But y ou had to know – to know what was go i n g on, y ou had to see what was g oing on.”), and th e s wo rn answers of the Service in Clif ton and Helton , as well as the testimony of supervisory deputies, deputies, and DEOs that male arr estee s wer e not subjected to a blanket prac tice of strip sear ches. -21-Marsha l Dillard counter s that “the evidenc e that P l ai n t i ff s cite indicates that the

sear ch practice may

have va ried among male and fe male deputies a nd DEOs,” D ef.’ s Reply

[Dkt.
# 250] at 25, but that his policy was clea r and g ender neutra l. See, e.g. , Dillard Dep. 63–69, 92–93,
96–98. M ar s h al Dillard arg ues there is no evidenc e that he intentionally discriminated ag ainst Plaintiffs in violation of their constitutional rights a nd that he ca

nnot be held liable unde r a theory of re spondeat super ior, eve n if any of his subordinates violated the ir rig hts. See A shcroft v. Iqbal , 129 S. Ct. 1937, 1948 (2009); Simpkins v. District of Columbia Gov’ t , 108 F.3d 366, 369 (D.C. Cir. 1997). As to this, he is clear ly corr ect. Although there is abundant evidenc e that simil arly situated male and fema le arr estee s

wer e sea rche d differ ently at t he D.C. Superior C ourt cellblock dur ing the class per iod, the inquiry does not end there

. “[A] plaintiff must plead that eac h Gover nment-off

icial defe ndant, throug h the officia l’s own individual actions, has violated the Constit ution.” Iqbal , 129 S. Ct. at 1948. “Where the claim is invidious discrimination in contra vention of the First and Fifth Amendments, our decisions make clea

r that the plaintiff mus t p lead and prove that the defe ndant acte d with discriminatory

purpose.” Id. (citations omitted). Under extan t prec edent purposeful di scrimination require s more than “i ntent as volition or intent as awa rene ss of conseque nces.” Personnel Ad ministrator of Mass. v. Fee ney , 442 U.S. 256, 279 (197 9 ). I t instead involves a decisionmake r’s underta king a course of action “‘be cause of,’ not mere ly ‘in spite of,’ [t he action’s] adver se eff ects upon an identifiable g roup.” Ibid. I t follows that, to state a cl ai m based on a violation of a clea rly established rig ht, responde nt must plead sufficie nt fac tual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutra l, investiga tive rea son but for the purpose of

discriminating on a ccount of [sex ].

-22-Id. at 1948–49. Thus , the “complaint must at least alleg e that the defe ndant fede ral officia l was

persona lly

involved in the illega l conduct.” Simpkins , 108 F.3d a t 369. 1 3
I t is on this point that Plaintiffs’ claims cann o t s u cc ee d. There is no alleg ation or evidenc e that Marsha l Dillard per sonally conducte d any

of the c halleng ed strip sea rche s. Furthe r, notwithstanding the plethora of evidenc e that male and fema le arr estee s wer e sear ched acc ording to differ ing protocols, Plaintiffs fail to point to any colora ble evidenc e that Marshal Di l l ard purposef ully intended this disparity to exis t as a way to discriminate ag ainst women. Plaintiffs arg ue that a jury could infer from all the evidenc e that Marsha l Dillard chang ed the policy during his tenure specific ally to require that all fema le arr estee s underg o a strip sear ch while male arr estee s wer e only
to be simil arly sear ched upon individualiz ed suspicion; or that even if the officia l policy wer e g ender
neutra l, that Marsha l Dillard direc ted—or, at a m i n i m um, was awa re of—the unequal sear ch
prac tices. Neither arg ument is supported by the record and Marsha l Dillard’s mere knowledge of a disparity

in searc h protocols, eve n if shown, would not suffice to impose personal liability

.

1. No Evid ence That Marshal Dillard Intended a Discrim inatory P olicy
No evidenc e exis ts that Marsha l Dillard implemented a po l i cy which direc ted a blanket prac tice of strip sear ching fema le arr estee s but subjected male arr estee s to strip sear ches only

on individualiz ed susp ic io n . Pl a in ti f f s a ll e g e th at testimony about meeting s betwee n Marsha l Dillard and his supervisors to discus s i m p l em en ting a customiz ed Superior Court sear ch policy could

rea sonably

cre ate a n impression with a jury

that Marsha l Dillard specif ically instit uted a g ender ed

To the extent Plaintiffs attempted to proce ed ag ainst M ar s h al Dillard on a theory of 1 3 delibera te i ndiffer ence , see Second Am. ¶ 232, the theory must fail. See Iqbal , 129 S. Ct. at 1948 (“pur poseful discrimination require s more than ‘int ent as volition or intent as awa rene ss of conseque nces’ ”) (citation omitted). I t appea rs Plaintiffs have abandone d any delibera te indiffer ence theory of liability

. See Def

.’s Reply at 42 n.16.

-23-policy ; Plaintiffs als o ci t e the Clif ton and Helton interrog atory response s as support that such a policy —and not mere ly

an irre g ular pra ctice—e x isted. The mee t i n gs in question are broug ht to light by Michae l Mitchell, who worked at the Superior Court from 1998 to 2003 in various capa cities, but who admittedly was confuse d as to the dates of these meeting s. Mr. Mitchell mentioned a 1999 meeting with Marsha l Dillard and 1 4
Chief Deputy Charles Rowe, second in command, sometime afte r issuance of Policy Direc tive 99-25 by the Service in J uly 1999. Mr. Mitchell reme mbers that Marsha l Dillard said he wanted ever y

arr estee to be subject to a drop, squat and coug h sear ch until a “more customiz ed” approa ch for the Superior Court—being develope d by Chief Rowe—could be implemented in the wake of Policy Direc tive 99-25. Pls.’ Mem., [Att ach. 51] Michae l Mitchell Dep. (Oc t. 7, 2009) at 119–22. At a second meeting , afte r Mr. Mitchell had become an Assistant Deputy Chief in 2000, Mr. Mitchell

re membere d that Chief Rowe was about to “put the district policy out” that would prohibit s t ri p

s ea rc h es wi thout individualiz ed suspicion. Id. at 123–24, 132–33. L ater in his deposition, Mr. Mitchell acknow ledg ed that he w as unsure of the da tes of the meetings and indicated that the f irst meeting could have occur red a s late as 2003. Id . at 128–29, 156–57. Plaintiffs pounce on the lack of cer tainty of such dates, and the evidenc e that men and

wo m en arrestee s wer e trea ted differ ently , to arg ue that a jury could find that Marsha l Di l l ar d implemented a policy in 1999 or 2000 that prohibited blanket strip sear ches of male arr estee s while requiring it o f al l fema le arr estee s. Howeve r, at no point did Mr. Mitchell testify that the new

Mr. Mitchell came to the Superior Court as the a.m. cellblock supervisor in J anuar y 1998, 1 4 continued in that position until J anuar y 1999, was then promoted to Assistant Chief Deputy in 2000, and beca me a Chief Deputy in September 2003, when he left the Superior Court. For his f irst y ear as cellblock supervisor, he testified t hat t he practice was to strip sear ch every male arreste e. P ls.’ Mem., [Attach. 51] Mi chae l Mitchell Dep. (Oc t. 7, 2009) at 18, 83–86. -24-Superior Court policy would call for male and fe m al e ar restees to be trea ted differ ently or that

Marsha l Dillard order ed, or ever mentioned, such a differ ence in trea tment. No matter how confuse d the testimony about dates, there is no testimony that Marsha l Dillard contemplated a policy of g ender discrimination ag ainst women by sear ch pra ctices. 1 5
Simi larly , while the sworn a nswers to int err og atories in Clif ton and Helton , signe d by supervisory Deputy Mark Shealey , indicate a clea r differ entiation in trea

tment of male and fema le

arr estee s, there is no evidenc e ty ing Marsha l Dillard to this differ ence , much less that he order ed it.
I n fac t, Marsha l Dillard testified that he neither rea d nor wrote the interrog atory response s. Dillard Dep. at 119, 144. Fur

ther, Mr. Shealey , in the sworn answe rs, identified Policy Direc tive 99-25 as the g overning policy in 2000 and 2001, thus ref uting Plaintiffs’ arg ument that some unacc ounted for, discriminatory policy had been p u t in place

. Whil e still ag ree ing with the fac tual premise of the interrog atory response s that only fema le arr estee s wer e subjec t to a blanket pra ctice of drop, squat and coug h sear ches, Mr. Shealey testified at depositi o n i n t h i s ca se that he did not know why the
prac tice was to strip sear ch fema le arr estee s, but not male arr estee s, and that he just assumed it was beca use fema les could hide contra band in their vag inas. Shealey Dep. at 158–162. Fur t h er , he testified that no one had ever direc ted him to trea t the g ender s differ ently

. Id. at 1 6 0 , 163–68. Neither of these bits of evidenc e car ries Plaintiffs’ burden to show that Marsha l Dillard purposef ully discriminated ag ainst women ar restee s throug h a Superior Court policy

.
Plaintiffs express g rea t skepticism that the sear ch prac tices could b e as d i s p ara te as the 1 5 interrog atory answe rs and discovery indicate without the intention and/or knowledg e of Marsha l Dillard. The Marsha l’s testimony about his and his supervis o rs ’ attention to cellblock issues supports such skepticism, e s p e c ia ll y w h e n c o n tr a s te d w it

h Marsha l Dillard’s fre quent memory lapses at deposition. Howeve r, the beg inning of the time period in question is more than a deca de ag o and Marsha l Dillard has long since retire d. Gi ven the leg al standards applicable to Plaintiffs’ claims, their skepticism is insufficient to push this matter to a jury

. -25-2. No Evidence Mar shal Dil lard Direc ted a Discr im inatory P ract ice There is no colora

ble evidenc e in the rec ord that Marsha l Dillard knew of the prac tice of sear ching the sexes differ ently , let alone that such a prac tice was direc ted by him. Plaintiffs arg ue it is i ncre dible to believe Marshal Dill ard did not know of the disparate se arc h prac tices g iven the prolific nature of these prac tices—which may have exis ted for y ear s—and that Marsha l Dillard had
superv i s o rs wh o wer e supposed to be repor ting to him on failure s of Superior Court personne l to follow his policies. The arg ument fails to car

ry the point. Marsha l Dillard’s mere knowledg e of, or
acqu i es cenc e in, his subordinates’ potentially discriminatory prac tices would not constitute purposef ul discrimination on his part. See Iqbal , 129 S. Ct. at 1949 (re jecting ar gu m en t that superiors may be liable for their “knowledg e and acquie scenc e in their subordinates’ use of discriminatory

criter ia to make c lassification dec isions among de tainees” ). Marsha l Dillard’s rec ollection was hazy but he testified to observing male arr estee s being strip sear ched on those occa sions that he ins pecte d male sea rch r ooms. Dillard Dep. at 76. Plaintiffs contend that Marsha l Dillard m u s t have observe d and implicitl y approve d a differ ent

sear ch policy for male arr estee s than for women since he say s he observe d strip sear ches in the male

sear ch room but other deposition t es t i m o n y indicates a lack of a blanket policy on strip sear ching male arr estee s. Acc ording to Plaintiffs, this vary ing testimony “cr eate s an infere nce that defe ndant Dillard k n ew ab o ut the sear ch prac tices and approve d them.” Pls.’ Opp’n [Dkt. # 243] at 15.
Howeve r, both deputies and DEOs t es t i fi ed t h at they rar ely , if ever , saw Marsha l Dillard in the cellblock or had any contac t with him, see, e.g., Def .’s Mem., [Att ach. 6] Supp l

. I n t er ro gatory Responses, Answer s to Question # 5; Shealey Dep. at 284 (testify i n g t h at he only rec alled seeing Marsha l Dillard in the cellblock on September 11, 2001); Stover Dep. at 61, 9 1 (“ I can’ t rec all

-26-[whether Marsha l Dillard ever observe d any strip sear ches]. Marsha l [Dil lard] hardly ever came to

the cell block”) , and the Marsha l’s testimony alone does not car ry the infere nce Plaintiffs seek, even if an infe renc e alone satisfied Plaintiffs’ burde n.

To be sure, Marsha l D illard procla imed that it was his job as a supervisor to e nsure his policies wer e being followed, that his supervisors should have known if there wer e any deviation from these policies, and that any such deviation would have been discussed at wee kly supervisors’ meeting s. See Dillard Dep. at 68, 73. Marsha l Dillard insists that he would have “re lieved [a supervisory deputy ] immediately , if not soone r,” id. at 197, if he had hear d that he told a cellblock
DEO or deputy not to s u b j ec t m ale prisoners to a blanket drop, squat and coug h sear ch. These protestations notwithstanding, Plaintiffs have no evidenc e that Mar shal Dillard actua lly knew that his alleg ed sear ch policy was not being evenly enfor ced, let alone any evidenc e that Marsha l Dillard intended or direc ted such disparity as a way to purposef ully discriminate ag ainst women arr estee s. 1 6

The rec ord sug g ests many rea sons why prac tices may have varie d, not l ea s t of which 1 6 appea rs to have been a singula r lack of direc tion or oversig ht by those in comm an d. See, e.g., Mitchell Dep. at 71–74, 87–88 (explaining that when he beg an at the Superior Court he was never instructed by Marsha l Dillard or Chief Rowe how sear ches wer e to be conducte d, but simply copied the prac tices of those around him); B olls De p. at 32, 39–42, 60, 62–63 (testify ing that as cellblock supervisor he never had any conver sations or instructions, nor was awa re of written policies, on how to sear ch arr estee s, nor was this topic broac hed at any supervisors’ meeting s he attended) ; Pls.’ Mem., [Att ach. 20] Thomas Hedg epeth Dep. (Jul y 18, 2007) at 82 (expressing that Marsha l Dillard was a hands-of

f manag er) ; Hedg epeth Dep. (7/17/07 ) at 2 2 5–27 (ac knowledg ing that cellblock personne l did not like strip sear ching male arr estee s and avoided doing so); Stover Dep. at 58 (noting that when supervisors wer e not around, he and other DEOs or deputies would often stop blanket strip sear ches of male arr estee s beca use of their dislike of the prac tice); id. at 99 (“I t’s not something that, y ou know, I wanted to do. I didn’t think it made any sense, persona lly

. ”) ; Br an d t Dep. at 69 (explaining that neither he nor his fellow DEOs or deputies would conduct blanket strip sear ches of male arr estee s beca

use “I expressed my opinion that it wasn’t an appropr iate sear ch and they did not do the sear ches when I was there

. . . I didn’t say , ‘Don’t y ou do it’ [t o the other men]. I said, ‘I don’t think it’s a g ood prac tice,’ and my rec ollection is people that wer e there wit h me ag ree d and perf ormed reg ular in-custody search es . ”); Def .’s Dep. Ex cer

pts I I [Dkt. # 248], [Att ach. 20] Carl Eug ene Tee ter Dep. (Jul y 23, 2008) at 87–88, 124 (noting that male arr estee s not all strip sear ched -27-Plaintiffs arg ue that all the contested evidenc e ma k e s it to ta lly incre dible that Marsha l Dillard did not at least know of the disparities in sear ch prac tices, and that cre dibilit y is an issue for

a jury to decide

. See Jones v. Bernanke , 557 F.3d 670, 681 (D.C. Cir. 2009 ). Marsha l Dillard defe nds on the basis that “no one has testified that Marsha l Dillard instructed them to sear ch males and fema les differ ently , and no one who admits [t o strip sear ching women but not men]

. . . claims
to have even informed Marsha l Dillard of that prac tice.” Def .’s Reply [Dkt. # 250] at 16. The defe nse amounts to “ig noranc e is bliss,” which is usually insufficient to avoid a jury trial. But when it comes to holding a fede ral employ ee, acting within the scope of his employ ment, persona lly liable for a violation of the Fifth Amendment’s rig ht to equal protec tion, a plaintiff must show purposef ul and persona l action to discriminate (in this case on g ender ). As a result, it would not be dispositi ve

even if Marsha l Dillard knew of the discrimin at o ry s ea rch prac tices (which is not shown). Mere knowledg e of or delib er ate indiffer ence to unequal trea tment is not enoug h and despite the voluminous rec ord cre ated in this litigation, there is no circ umstantia l o r d ir ect evidenc e that Marsha l Dillard purposef

ully direc ted that women an d men be sear ched differ ently at the Superior Court cellblock. Summary judgme nt is proper ly g rante d ag ainst a party who “af ter adequate time for discovery and upon mot i on . . . fails to make a showing sufficie nt to establish the exis tence of an element essential to that party ’s case , and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. Marshal Di llard is entitled to summary judgme nt on Plaintiffs’ Fifth

beca use of sheer num b er s i n v o l v ed); Shealey Dep. at 166–67 (explaining that the ratio of men to women proce ssed into the cellblock was approximately 4 to 1, so it was impractica l to strip sear ch ever y male arr estee : “I f the numbers [of DEOs/deputies to arr estee s] wer e equal, and the manpower and the time re straints were enoug h wher e we could strip ever y body , we’ d strip ever

y body ”). -28-Amendment cla ims.
IV. CONCLUSION
For the rea sons stated above, Plaintiffs Donna Curtis, Dianne J ohnson, and Caroly n Montgome ry will be dismiss ed without pr ejudice. Summary judgme nt w ill be denied to Plaintiffs

on their Four

th Amendment claims and g rante d to Marsha l Dillard o n t h e Fo urth and Fifth Amendment claims. Marsha l Dillard’s Motion for Orde r to D ece rtify Class, see [Dkt. # 258], will be denied as moot. Acc ording ly , this case will be dismiss ed. A memorializing Orde r acc ompanies this Memorandum Opinion.
Dated: Apr il 21, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

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