United States District Court, D. Idaho
SUCCESSIVE REVIEW ORDER BY SCREENING JUDGE
Lynn Winmill U.S. District Court Judge
Complaint of Plaintiff Angel Cherie Jensen was conditionally
filed by the Clerk of Court due to Plaintiff's status as
an inmate and her request for in forma pauperis status. (Dkt.
1, 3). In the Initial Review Order, the Court ordered
Plaintiff to file an amended complaint to correct
deficiencies in the complaint if she desired to proceed.
(Dkt. 7.) Plaintiff has filed a letter, which the Court will
accept as a supplement to her Complaint. (Dkt. 12.)
Complaint, Plaintiff asserts that her Fourth and Fourteenth
Amendment privacy rights were violated by the following
On 1/19/19 around 5 pm Deputy Allen, Deputy Shie, Deputy
Luce, Deputy Hughes, Deputy Call, Julie Gulberson all
restrain me in booking area at the Bannock County Jail shower
area. Deputy Hughes and Deputy Luce hold me down while
I'm handcuffed while Deputy Call brings Deputy Allen
scissors to cut off my jumpsuit. Deputy Allen removes my
boxer, Deputy Luce and Hughes stand me up. Deputy Allen and
Julie Gulberson slide my panties half down my thigh and
remove contraband from my vagina.
(Dkt. 1, p. 3 (verbatim)). Plaintiff seeks monetary damages
from Defendant Bannock County Sheriff's Department.
supplement, Plaintiff clarifies that Deputy Allen is a
female, and Sergeant Hughes is a male. Deputy Gulberson
inserted her thumb and index finger into Plaintiff's
vagina and removed a “bullet shaped package of
methamphetamine and musnex [sic] pills.” (Dkt. 12, pp.
1-2.) Plaintiff states that, while the incident was
occurring, she repeatedly requested that no male officers be
present, that she was uncomfortable, that the officers were
violating policies and procedures, and that the officers in
authority were acting negligently and unprofessionally.
Id., p. 2.)
United States Supreme Court has held that whether a search is
reasonable under the Fourth Amendment requires a case-by-case
“balancing of the need for the particular search
against the invasion of personal rights that the search
entails.” Bell v. Wolfish, 441 U.S. 520, 559
(1979). In its analysis the Court is required to consider
four factors: (1) “the scope of the particular
intrusion, ” (2) “the manner in which it is
conducted, ” (3) “the justification for
initiating it, ” and (4) “the place in which it
is conducted.” Id. (citations omitted). In
Wolfish, the Court held that the practice of visual
body-cavity searches of inmates after contact visits with
persons from outside the institution did not violate any
constitutional guarantee. Id. at 559-60.
Florence v. Board of Chosen Freeholders of County of
Burlington, 566 U.S. 318 (2012), the United States
Supreme Court again addressed the issue of intrusive body
searches in jail, this time in the context of pretrial
detainees arrested for minor offenses: “Experience
shows that people arrested for minor offenses have tried to
smuggle prohibited items into jail, sometimes by using their
rectal cavities or genitals for the concealment.”
Id. at 337. In Florence, the Court again
held that the search procedures- which included a visual
inspection of body cavities-“struck a reasonable
balance between inmate privacy and the needs of the
institutions.” Id. at 339.
Byrd v. Maricopa County Sheriff's Department,
629 F.3d 1135 (2011)(en banc), the United States Court of
Appeals for the Ninth Circuit held that a
“cross-gender strip search of Byrd was
unreasonable as a matter of law” where the female
officer touched “Byrd's inner and outer thighs,
buttocks, and genital area with her latex-gloved hand through
very thin boxer shorts, ” and “moved his penis
and scrotum in the process of conducting the search.”
Id. at 1142 (emphasis added).
Plaintiff has not alleged that a male touched her during the
body cavity search, she has alleged that a male was present
and that she asked that he be removed from the setting, but
was not removed. The Court will liberally construe these
additional allegations to state a claim. However,
Plaintiff's pleadings need additional amendment to name
correct defendants. She has not stated a claim against the
only named defendant, the Bannock County Sheriff's
Office. See Monell v. Dept. of Soc. Serv. of New
York, 436 U.S. 658, 694 (1978) (“a municipality
[or entity] can be found liable under § 1983 only where
the municipality [or entity] itself causes the constitutional
violation at issue.”) City of Canton v.
Harris, 489 U.S. 378, 385 (1989). There are insufficient
allegations that the incident occurred as a result of a
government policy or practice, rather than the individual
decision-making of the state actors involved.
the serious allegations in the Complaint and the difficulty
of conducting discoveiy on one's own claims of privacy
violations against a state official, the Court finds it
appropriate to ask the Court's Pro Se Pro Bono
Coordinator to attempt to find pro bono counsel for Plaintiff
If counsel agrees to represent Plaintiff, she shall not
contact counsel, but wait for counsel to contact her.
Plaintiff should continue to search for counsel herself,
whether that be a representation on a contingency basis or a
private pro bono appointment.
Plaintiffs request for appointment of counsel (contained in
the Complaint) is GRANTED. The Clerk of Court shall provide a
copy of this Order to the ...