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.

Travis W. Anderson, et a l .

O R D E R

Nicole Corin Christian, proceeding pro se, brings federal

civil rights claims under

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,

(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..

(1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See

.

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.

(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.

(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"

(quoting

Graham v. Connor.

(1989)); see also Pena-

Borrero v. Estremeda.

(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.

(quoting Johnson v. Click,

, 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..

(8th Cir.

1997); see also Poe v. Leonard.

(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 ,

(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.

(internal

quotation marks omitted). A single incident of misconduct,

standing alone, does not show a municipal policy or custom.

.

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.

(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,

(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.

(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.

.

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

,

(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.

. 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.

.

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."

. 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.

. 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."

.

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.

(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,

,

the court declines to exercise supplemental jurisdiction over her

state law claims.

(c); Marrero-Gutierrez v.

Molina.

(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

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