Christian v. Anderson, et al. 05-CV-356-JD 9/14/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Nicole Corin Christian
v. Civil No. 05-CV-356-JD Opinion No. 2007 DNH 114
Travis W. Anderson, et a l .
O R D E R
Nicole Corin Christian, proceeding pro se, brings federal
civil rights claims under 42 U.S.C. § 1983 and state law claims
against New Hampshire State Trooper Travis W. Anderson, Grafton
County, the Superintendent of the Grafton County House of
Corrections ("GCHC"), and Corrections Officer Roberta Darling.
Christian's claims arose from the circumstances of her arrest and
brief incarceration in October of 2002. The defendants move for
summary judgment. Christian has objected to the Grafton
defendants' motion, but did not file a response to Anderson's
motion, despite being given additional time to do so.
Standard of Review
Summary judgment is appropriate when "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 party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
I. Anderson's Motion for Summary Judgment1
Nicole Christian was driving with her mother from
Massachusetts to Vermont during the evening of October 6, 2002.
Trooper Anderson stopped the car for speeding on 1-89 near
Lebanon, New Hampshire. Anderson asked Christian more than once
for her driver's license, but she refused to comply. Christian
asked what would happen if she did not produce a driver's
license, and Anderson answered that she would be arrested.
Christian then said that she did not have a driver's license and
did not need one to drive through New Hampshire.
Anderson asked Christian several times to get out of the
1Because Christian failed to file any response to Anderson's motion, the properly supported facts he provides in his statement of material facts are deemed to be admitted. LR 7.2(b)(2).
2 car, which she refused to do. When Anderson reached into the car
to unfasten Christian's seatbelt, she and her mother pushed and
grabbed at his arm to prevent him from unfastening the seatbelt.
Because of their interference, Anderson could not get the belt
unfastened and instead again asked Christian to get out of the
car, which she refused to do. Anderson tried again
unsuccessfully to unfasten the seatbelt. He then tried to pull
Christian out of the car, which was also unsuccessful. Anderson
then grabbed and twisted Christian's left wrist to force her to
get out of the car. With that incentive, Christian unfastened
her seatbelt and got out of the car. She then resisted being
handcuffed, forcing Anderson to hold her arms for cuffing.
Once Nicole Christian was out of the car and handcuffed,
Anderson conducted a pat down search for weapons. She complained
that the handcuffs were too tight, and Anderson checked and
adjusted them. Anderson put her in the back seat of his cruiser.
He then arrested Christian's mother, Linda Christian, handcuffed
her, and attempted to put her in the back seat of the cruiser
with her daughter. Nicole, however, interfered by sticking her
feet out of the cruiser. Anderson called for back up. Once both
women were in the cruiser, Anderson drove them to the Lebanon
Police Department.
Nicole requested medical attention for her wrists and was
given an ice pack. Linda testified in her deposition that her
3 daughter's wrists appeared to have abrasions from the handcuffs.
Nicole refused to give Anderson her name, date of birth, or
social security number. When asked where she lived, Nicole
replied, "In my skin." Linda also refused to give an address.
Neither was able to pay a $30 bail for release on personal
recognizance.
A bail commissioner was called to the police station.
Anderson explained that Nicole had been uncooperative and did not
give an address. The bail commissioner set bail at $5000.
Anderson then transported Nicole and her mother to the Grafton
County Detention Center.
Discussion
Christian alleges federal claims that Anderson used
excessive force in violation of the Fourth Amendment and that he
sexually molested her in the course of her arrest in violation of
substantive due process under the Fourteenth Amendment. She
alleges state law claims of assault, harassment, invasion of
privacy, abuse of process, intentional infliction of emotional
distress, negligence, negligent infliction of emotional distress,
and civil conspiracy. Anderson moves for summary judgment on all
of her claims.
4 A. Excessive Force
"To establish a Fourth Amendment violation based on
excessive force, a plaintiff must show that the defendant officer
employed force that was unreasonable under the circumstances."
-- F.3d ---, Jennings v. Jones. 2007 WL 2339195 at *7 (1st Cir.
Aug. 17, 2007). Excessive force claims are evaluated under the
Fourth Amendment's objective reasonableness standard that permits
force to be used only to the extent an officer reasonably, even
if mistakenly, believed that force was necessary. Whitfield v.
Melendez-Rivera. 431 F.3d 1, 7 (1st Cir. 2005). "Whether the
force used to effect a particular seizure is reasonable 'must be
judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.1" Id. (quoting
Graham v. Connor. 490 U.S. 386, 396 (1989)); see also Pena-
Borrero v. Estremeda. 365 F.3d 7, 12 (1st Cir. 2004). Some
amount of physical coercion is typical during an arrest so that
" / [n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers'" is actionable.
Id. (quoting Johnson v. Click, 481 F.2d 1028, 1033 (2d Cir.
1973) ) .
Christian does not dispute that she failed to comply with
Anderson's direction that she get out of the car. She also does
not dispute that she and her mother interfered with Anderson's
efforts to remove her from the car. Under these circumstances,
5 the very minimal amount of force used by Anderson to get
Christian out of the car, handcuffed, and into the cruiser was
patently reasonable. Therefore, Anderson is entitled to summary
judgment on Christian's excessive force claim.
B. Sexual Assault as a Substantive Due Process Violation
Sexual assault by a police officer acting in that capacity
can constitute a substantive due process violation. See, e.g..
Haberthur v. City of Ravmore. Mo.. 119 F.3d 720, 724 (8th Cir.
1997); see also Poe v. Leonard. 282 F.3d 123, 136-38 (2d Cir.
2002) (holding that substantive due process governs plaintiff's
claim of violation of her constitutional right to privacy). In
this case, however, no sexual assault occurred. To the extent
Anderson touched Christian, the undisputed facts show that he did
so for the legitimate purposes of removing her from her car,
handcuffing her, and conducting a pat down search for weapons or
contraband. Christian provides no factual support for her
allegations of sexual assault.
Anderson is entitled to summary judgment on this claim.
C. State Law Claims
Christian's state law claims against Anderson are addressed
along with the state law claims she brings against the Grafton
6 County defendants after consideration of their summary judgment
motion on her federal claims.
II. Grafton County Defendants' Motion for Summary Judgment
In her second amended complaint, Christian alleges federal
claims against Grafton County, Grafton County Commissioner
Michael Cryans, Steve Pangoulis, and Raymond Burton; Glenn Libby,
Superintendent of the Grafton County House of Corrections
("GCHC"), and Roberta Darling, a former Correctional Officer at
the Grafton County House of Corrections. Her claims are based on
allegations that she was subjected to a strip search at GCHC and
on allegations about the conditions of the cell where she slept.
She asserts that her allegations state violations of the Fourth,
Fifth, Ninth, and Fourteenth Amendments. She also alleged state
law claims of assault, harassment, invasion of privacy, and
intentional infliction of emotional distress against Corrections
Officer Roberta Darling and negligent infliction of emotional
distress and negligence against all of the Grafton County
defendants.
The Grafton defendants move for summary judgment on all of
the claims against them. In response, Christian filed a
"Preliminary Objection," arguing that she has not been able to
complete discovery. Despite Christian's pro se status, she is
7 aware, based on the proceedings in this case, that discovery
disputes must be addressed through a motion to compel. She
cannot avoid summary judgment by asserting incomplete discovery
without complying with the requirements of Federal Rule of Civil
Procedure 56(f). Because Christian has not met those
requirements, she is not entitled to "the prophylaxis of Rule
56(f)." Rivera-Torres v. Rev-Hernandez. -- F.3d , 2007 WL
2510171 at *3 (1st Cir. Sept. 6, 2007).
In addition, the only supporting evidence that Christian
filed with her objection to summary judgment is copies of two
pages from the GCHC "Facility Operations" manual, bearing a
revised date of December 8, 2003. She failed to provide her own
affidavit or other competent evidence in support of her
objection. See Fed. R. Civ. P. 56(e). As a result, all of the
properly supported facts presented by the defendants, which do
not relate to the "Facility Operations" manual, are deemed to be
admitted. LR 7.2(b)(2).
After Christian and her mother were delivered to GCHC,
Christian was taken by Corrections Officer Darling to a secure
room for a clothing exchange. Darling remained in the room with
Christian for the clothing exchange. The room was otherwise
private and did not have cameras or audio communications
equipment. The clothing exchange process required Nicole to
remove all of her own clothing and to put on clothing provided by the GCHC.
As she undressed, Christian gave Darling the pieces of her
clothing. Christian balked at taking off her underwear, but
Darling told her that it was required by law. Christian stated
in her deposition that she tried to cover her nudity with her
hair but Darling pulled her hair out of the way. Darling gave
her underwear, pants, and a T-shirt to wear. She was allowed to
keep her own shoes. Christian refused to sign the inventory form
for her clothing. She was then put in a cell with her mother.
The next morning they were transported to the Lebanon District
Court for arraignment.
A. Parties
The Grafton defendants contend that they were all sued in
their individual capacities and that the county is not a party.
Christian does not dispute that the defendants were sued in their
individual capacities or that the county is not a party. The
record is less clear, however.
Christian included Grafton County as a party in her
complaints and stated in her second amended complaint that the
individual defendants were sued in their individual and official
capacities.2 The defendants argue that they were "served" in
2Suits against officials or officers in the official capacities are suits against the governmental entity. Kentucky
9 their individual capacities and that although Grafton County was
named as a defendant in Christian's complaints, it "has never
been sued in this action." Given the vagueness of those
assertions, the status of the county in this case is not clear.
The defendants assert, in the alternative, that Christian
cannot prove her federal claims against the county because she
lacks evidence that any of the constitutional violations she
alleges were perpetrated pursuant to a county policy or practice.
"[U]nder § 1983, a municipal government will only be held liable
when the execution of the municipal government's policy or custom
inflicts the injury." Whitfield. 431 F.3d at 9 (internal
quotation marks omitted). A single incident of misconduct,
standing alone, does not show a municipal policy or custom. Id.
at 12.
Christian's theory appears to be that GCHC had a policy to
strip search all detainees, regardless of whether they were
charged with misdemeanors or other crimes.3 The only evidence
she submitted to show a county policy pertaining to her federal
claims is the two-page copy of the Security and Control section
of the Facility Operations manual. That section states:
v. Graham. 473 U.S. 159, 165-66 (1985).
3Her unsupported assertion that the defendants do not deny having an unconstitutional policy does not provide competent evidence that such a policy existed.
10 "Revised December 8, 2003," meaning that policy was not in effect
in October of 2002 when Christian was detained. In addition, the
submitted policy on searches does not show that the county had a
policy in 2003, before or after, that if followed would cause
constitutional injury. Therefore, Grafton County is entitled to
summary judgment on Christian's federal claims.
B. Strip Search
Christian contends that the clothing exchange process
constituted a strip search in violation of her constitutional
rights. It is well-established "that an individual detained on a
misdemeanor charge may be strip searched as part of the booking
process only if officers have reasonable suspicion that he is
either armed or carrying contraband." Wood v. Hancock County
Sheriff's Dep't, 354 F.3d 57, 62 (1st Cir. 2003). The defendants
acknowledge that the circumstances of Christian's detention did
not justify conducting a strip search.
They argue, however, that the clothing exchange process was
not a strip search. A strip search is "an inspection of a naked
individual, without any scrutiny of the subject's body cavities."
Blackburn v. Snow. 771 F.2d 556, 561 (1st Cir. 1985). Inspection
of a naked individual is a search, regardless of the officer's
subjective intent, if an officer focuses his or her attention on
the detainee's naked body and "viewing the naked body was an
11 objective of the search, rather than an unavoidable and
incidental by-product." Wood. 354 F.3d at 65.
Although the defendants maintain that Darling did not intend
to conduct a strip search and did not do so, the circumstances
are too close to call in the context of summary judgment.
Christian testified in her deposition that Darling moved her hair
to expose her body. Darling admits that she "might have" looked
at Christian while she was naked "to see if she was wearing any
jewelry (i.e. earrings, bracelet, necklaces, etc.) or had body
piercings where jewelry was being worn." Given the summary
judgment standard, the defendants have not shown, based on
undisputed facts, that a strip search did not occur.
Alternatively, the Grafton defendants argue that they are
entitled to qualified immunity. Courts in the First Circuit use
a three-part analysis for qualified immunity: (1) whether the
plaintiff alleged a constitutional violation, (2) if so, was the
asserted constitutional right clearly established at the time of
the alleged violation, and (3) would an objectively reasonable
officer in the same circumstances have believed that the action
taken violated the asserted right. Carter v. Lindgren. -- F.3d
, 2007 WL 2570135 at *3 (1st Cir. Sept. 7, 2007). As noted
above, Christian alleges that she was strip searched in violation
of the Fourth Amendment. The defendants argue, however, that the
12 definition of what constituted a strip search was not so clearly
defined in October of 2002, when Christian was arrested and then
detained at the GCHC, that a reasonable officer would have known
that the clothing exchange constituted a strip search.
The court agrees that the definition of a strip search was
not clearly defined in October of 2002. In Wood, the plaintiff
who was charged with a misdemeanor alleged that he was
unconstitutionally searched three times while being detained at
the Hancock County (Maine) Jail. Wood. 354 F.3d at 58. Two of
the challenged searches occurred in the process of a "clothing
search" which required the plaintiff to remove all of his
clothing so that the clothing could be searched. Id. at 59.
The defendant asserted that the clothing searches were not
strip searches, despite the requirement that the detainee remove
all of his clothing. At trial, the district court defined strip
search for the jury as "a deliberate, visual inspection of the
naked body of a prisoner which includes the examination of the
mouth and armpits." Id. at 62. On appeal, the First Circuit
held that the district court erred in defining strip search too
narrowly by requiring the inspection to be deliberate and by
including inspection of the mouth and armpits. Id. at 63. As is
stated above, the appellate court provided a broader definition
that depends on "whether viewing the naked body was an objective
of the search, rather than an unavoidable and incidental by
13 product." Id. at 65.
Wood was decided on December 31, 2003, more than a year
after Christian's detention in October of 2002. Until the court
clarified the definition of strip search in Wood, the scope of
what constituted a strip search was not clearly established, as
is evidenced by the district court's jury instruction and the
appellate court's analysis of the issue. Therefore, the
defendants are entitled to qualified immunity as to Christian's
claims based on her allegations that she was strip searched in
the process of the clothing exchange.
C. Other Federal Claims
In their motion for summary judgment, the Grafton defendants
note that Christian cited Fourth, Fifth, Ninth, and Fourteenth
Amendment violations but did not clearly state her claims beyond
those based on the alleged strip search. Because Christian
alleged that her cell was dirty and she had to walk barefoot on
the cell floor, the defendants surmise that she intended to claim
that the conditions of her confinement violated the Fourteenth
Amendment. They analyze the claim under the substantive due
process clause.4
4The claim would more appropriately be considered a challenge to the conditions of confinement under the liberty interests protected by the Fourteenth Amendment. See Surprenant v. Rivas. 424 F.3d 5, 18 (1st Cir. 2005).
14 In her response and her surreply, Christian focuses
exclusively on her strip search claims. She makes no effort to
support or even argue any other claims. Therefore, to the extent
she alleged a claim that the conditions of her detention violated
the Fourteenth Amendment, or any other constitutional right, the
defendants are entitled to summary judgment on those claims.
D. State Law Claims
Similarly, Christian has not pursued her state law claims in
opposing summary judgment. Because all of Christian's federal
claims are resolved against her and this court's jurisdiction is
based upon the existence of a federal question, 28 U.S.C. § 1331,
the court declines to exercise supplemental jurisdiction over her
state law claims. 18 U.S.C. § 1367(c); Marrero-Gutierrez v.
Molina. 491 F.3d 1, 7 (1st Cir. 2007). Therefore the state law
claims are dismissed without prejudice.
Conclusion
For the foregoing reasons, the defendants' motions for
summary judgment (documents nos. 67 and 77) are granted. Summary
judgment is granted in favor of the defendants as to all of the
plaintiff's federal claims, and her state law claims are
dismissed without prejudice for lack of jurisdiction.
The clerk of court shall enter judgment accordingly and
15 close the case.
SO ORDERED.
(X (j^vCu?,(k._ vjjoseph A. DiClerico, Jr. United States District Judge
September 14, 2007
cc: Charles P. Bauer, Esquire Lisa Lee, Esquire Daniel J. Mullen, Esquire Frank H. Olmstead, Esquire Nancy J. Smith, Esquire Nicole Corin Christian, pro se