Moser v. Anderson

• Court: District Court, D. New Hampshire
• Decided: April 9, 1998
• Docket: CV-93-634-B
• Status: Published

Opinion

Moser v. Anderson CV-93-634-B 04/09/98

UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pamela L. Moser, et al.

v. C-93-634-B

Carole A. Anderson, et a l .

O R D E R

Pamela Moser, Nathan Strout, and Sharon Wieprecht have

brought this class action complaint against the Merrimack,

Strafford, and Carroll County houses of correction, claiming that

they were illegally strip searched. The named plaintiffs

represent a class of "all persons who were held in the

defendants' jails in protective custody or for an offense no

greater than a misdemeanor or a violation, which did not include

the possession of weapons or contraband as an element of the

offense, and who were subject to a strip search pursuant to the

defendants' custom, practice, or policy after December 3, 1990 in

Merrimack County House of Correction and after February 15, 1992

in Strafford and Carroll County [h]ouses of [c]orrection."

Plaintiffs have filed a motion for partial summary judgment

seeking a declaration that the defendants each had in place an

unconstitutional strip-search policy during the class period. Defendants concede that each defendant had a strip-search

policy in place during the class period that required jail

officials to strip search all detainees upon admission. Further,

as I previously held in denying Strafford County's motion for

summary judgment, in most cases, the Constitution bars jail

officials from strip searching an inmate detained in protective

custody or for a minor violation unless the person conducting the

search has a reasonable suspicion that the inmate is concealing

weapons or contraband. See Order dated November 25, 1996.

Because the authority for this conclusion is overwhelming, I

stand by my earlier ruling. See, e.g., Wachtler v. County of

Herkimer, 35 F.3d 77, 81 (2d Cir. 1994); Chapman v. Nichols, 989

F.2d 393, 395 (10th Cir. 1993); Act Up!/Portland v. Bagiev, 988

F.2d 868, 871-72 (9th Cir. 1993); Watt v. City of Richardson

Police Dep't, 849 F.2d 195, 197 (5th Cir. 1988); see also Wood v.

Clemons, 89 F.3d 922, 929 (1st Cir. 1996) (applying same standard

to stip searches of prison visitors); United States v.

Uricoechea-Casalias, 946 F.2d 162, 166 (1st Cir. 1991) (applying

same standard to border searches).

Defendants have produced evidence suggesting that some of

the plaintiff class members eventually were transferred from

protective custody into the general inmate population. A few

- 2 - courts in other jurisdictions have suggested that an inmate who

faces an imminent transfer to the general population may be strip

searched irrespective of whether jail officials have a reasonable

suspicion that the inmate is concealing weapons or contraband.

See, e.g., Dobrowolskvi v. Jefferson County, Kv., 823 F.2d 955,

958-59 (6th Cir. 1987); Cottrell v. Kavsville City, Utah, 994

F.2d 730, 735 (10th Cir. 1993) (dictum); Fuller v. M.G. Jewelry,

950 F.2d 1437, 1448 (9th Cir. 1991) (dictum). Relying on this

authority, defendants contend that their strip-search policies

were constitutional.

I am unpersuaded by defendants' argument. Defendants'

strip-search policies reguired all detainees to be searched

without regard to whether they were to be held in the general

population. Even if I assume, as defendants claim, that strip

searches of inmates who are about to be moved into the general

inmate population can be justified by defendants' heightened need

to prevent detainees from passing weapons and contraband to other

inmates, that concern could be addressed by strip searching

inmates only if and when they are to be transferred. Defendants'

concern could not possibly justify their more troubling practice

of strip searching all inmates without regard to whether they

would, in fact, be transferred into the general population.

- 3 - Accordingly, I reject defendants' argument.

Plaintiffs' Phase I Motion for Summary Judgment (document

no. 120) is granted.

SO ORDERED.

Paul Barbadoro Chief Judge

April 9, 1998

cc: James P. Loring, Esg. Dort S. Bigg, Esg. Joseph L. Hamilton, Esg. William G. Scott, Esg. Donald E. Gardner, Esg. Malcolm McNeill, Jr., Esg.

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