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George v. Rector

United States District Court, E.D. Kentucky, Central Division, Lexington

February 1, 2018

LEXINGTON JAMES EDWARD GEORGE, JR., Plaintiff,
v.
JOHN RECTOR, et al., Defendants.

          REPORT & RECOMMENDATION

          Hanly A. Ingram, United States Magistrate Judge.

         Plaintiff James Edward George, Jr., is a state prisoner currently housed at the Eastern Kentucky Correctional Complex. D.E. 23. In December 2016, he filed a pro se prisoner civil rights lawsuit under 42 U.S.C. § 1983 in case number 5:16-CV-482-KKC. In January 2017, Chief Judge Caldwell, having conducted a preliminary review, severed certain claims and dismissed others with prejudice. George v. Ballard, No. 5:16-CV-482-KKC, D.E. 6. A handful of the severed claims became this case, which was assigned to District Judge Hood.[1] The issues now under consideration include Plaintiff's claims for damages against defendants John Rector, Michael Long, Scott Gordon, Phillip Andrews, Stephen Boles, Chris Toelke, Christopher Goode, Landon Leishner, and Julie Thomas “related to strip searches, pat down searches, disciplinary reports arising from such searches, and the restriction of [Plaintiff's] visitation privileges.” Id.

         On February 1, 2017, the Court received Plaintiff's Amended Complaint, accompanied by hundreds of pages of exhibits. D.E. 10. The Amended Complaint contains very little factual development, but Plaintiff's grievances that are filed in the record add some factual flesh to the bones of his claims. See D.E. 10-2, 10-3. On April 7, 2017, Judge Hood referred the matter to the undersigned for a recommendation on any dispositive motions. D.E. 20. The claims at issue in this action are found on pages 16 to 21 of the Amended Complaint (D.E. 10) and the one-page accompanying “Statement” (D.E. 10-1).

         On October 16, 2017, Defendants moved for summary judgment, and attached numerous affidavits and other exhibits. D.E. 38. Defendants characterize this action as part of a “systematic scheme to harass the Defendants.” D.E. 38-1 at 2. Plaintiff has responded. D.E. 41. On December 19, 2017, Defendants replied. D.E. 42. With no material issues of fact being disputed, the undersigned recommends granting summary judgment in favor of Defendants.

         I. Legal Standards-Summary Judgment

         Defendants have moved for summary judgment under Rule 56 and rely upon documents and declarations extrinsic to the pleadings. Fed.R.Civ.P. 12(d). A motion under Rule 56 challenges the viability of the other party's claim by asserting that at least one essential element of that claim is not supported by legally sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). If the moving party demonstrates that there is no genuine dispute as to any material fact and that he is entitled to a judgment as a matter of law, he is entitled to summary judgment. Kand Med., Inc. v. Freund Med. Prods., Inc., 963 F.2d 125, 127 (6th Cir. 1992).

         The moving party does not need his own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and discovery which demonstrates that a factual question remains for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003). “A trial court is not required to speculate on which portion of the record the non-moving party relies, nor is there an obligation to ‘wade through' the record for specific facts.” United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993).

         The Court reviews all of the evidence presented by the parties in a light most favorable to the responding party and draws all reasonable factual inferences in his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). The Court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

         II. Background

         The claims in this case are based on a series of strip searches, a series of disciplinary write-ups, a patdown search, a phone conversation, and an erroneous visitation restriction-each of which occurred while Plaintiff was housed at Northpoint Training Center. D.E. 1; see also George v. Ballard, No. 5:16-CV-482-KKC, D.E. 6 (identifying the claims that were transferred into this action).

         A. Strip Searches

         The facts concerning the three strip searches are very similar. The searches occurred on June 26, July 2, and December 3, 2016. Plaintiff alleges that the June 26 and December 3 searches violated his “4th Amendment right to privacy” and his “8th Amendment right to be free from sexual harassment.” D.E. 10 at 16; D.E. 10-1. He alleges the July 2 search violated his “8th Amendment right to be free from sexual harassment.” Id. at 17.

         Each search followed a contact visit. D.E. 10 at 16-17. For each search, Plaintiff was taken to the dressing room and asked to bend over for a visual inspection of his anal opening. Id. Each time, he initially objected, but eventually complied. Plaintiff does not allege that he was touched during any of these searches. D.E. 41 at 13, 27. Instead, he argues that the searches were inappropriate and did not comply with institutional policies. Id. at 1-8. According to Plaintiff, a visual inspection of the anus may be conducted only when accompanied by reasonable suspicion. Id. at 5-8. Plaintiff filed a grievance following each of the strip searches, and his grievances were denied on the basis that officers acted within policy guidelines. See D.E. 38-1 at 3-5.

         Plaintiff relies on two documents concerning strip-search policies, but he misinterprets both. Kentucky Corrections Policies and Procedures (“KCPP”), policy number 9.8, contains the following relevant definitions. First, “‘Body cavity search' means a manual or instrument inspection of a person's anal, vaginal or other body cavity by a trained medical professional.” D.E. 38-17 at 1. Second, “‘Strip search' means a body search during which a person is required to remove his clothing, and during which a person is subject to visual inspection of the genital and anal area, as well as other body cavities.” Id. To be clear, Plaintiff is not currently alleging that he was subject to a body cavity search. D.E. 41 at 13, 27. The parties agree that the three relevant searches were “strip” searches. And, according to the policy manual's definition, “strip” searches include “visual inspection” of Plaintiff's “anal area.” D.E. 38-17 at 1.

         KCPP 9.8, part II, contains the following policy regarding strip searches:

c. All inmates shall be subject to a strip search if
(1) Entering or exiting an institution,
(2) Entering or exiting the visiting area, or
(3) Entering or exiting a controlled area, the Prison Industries area, boiler room area, or other area to which inmate access is limited.
d. Inmates[] who do not fall into one of the strip search categories above, may be strip searched if reasonable suspicion exists that the inmate is carrying contraband.

D.E. 38-17 at 2.

         Under a plain reading of KCPP 9.8, the challenged strip searches complied with departmental policy. At each occasion, Plaintiff was “exiting the visiting area.” According to the policy, “[a]ll inmates” who are “exiting the visiting area” “shall be subject to a strip search.” Id. On each occasion, Plaintiff was thus “subject to a strip search.” And, by definition, during a “strip search, ” the prisoner “is subject to visual inspection of the genital and anal area, as well as other body cavities.” Id. at 1.

         Plaintiff argues, based on subsection II.d, above, that strip searches should only be done “if reasonable suspicion exists that the inmate is carrying contraband.” D.E. 41 at 4-8. He denies that reasonable suspicion existed. Id. But here, Plaintiff erroneously transposes language from subsection II.d and applies it to subsection II.c. By its language, II.d applies only to prisoners “who do not fall into one of the strip search categories [of subsection II.c], ” which subsection includes prisoners exiting the visiting area. To be clear, because Plaintiff was “exiting the visiting area” during each of the three searches, he was “subject to a strip search, ” which included visual inspection of his “anal area.” Nothing in the record suggests that corrections officers conducted the three strip searches in violation of departmental policy.

         The second relevant policy document is Northpoint Training Center's Inmate Handbook, filed at Docket Entry 38-18. The language in this document related to strip searches is very similar:

B. All inmates shall be subject to a strip search, including a visual inspection of anal ...

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