United States District Court, E.D. Kentucky, Central Division, Lexington
REPORT & RECOMMENDATION
A. Ingram, United States Magistrate Judge.
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. 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
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).
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.
Legal Standards-Summary Judgment
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).
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).
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).
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).
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.
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.
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.
9.8, part II, contains the following policy regarding strip
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.
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.
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.
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
B. All inmates shall be subject to a strip search, including
a visual inspection of anal ...