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Pubic Hair Search by Medical Personnel Constitutional

The Court of Appeals for the Eleventh Circuit has overturned a district court's order that held as unconstitutional a Sheriff's policy of searching a prisoner's pubic hair prior to release. PLN previously reported the district court's order. (See: Skurstenis v. Jones , 817 Supp.2d 1228 (ND AL 1999) [ PLN , Jan. 2001]. On remand, the district court allowed the plaintiff to re-file her state law claims in state court.

Sandy Skurstenis was arrested for driving under the influence of alcohol. At the time of the arrest Skurstenis had a .38 Special handgun, for which she had an expired permit, in the floorboard of her car. After being booked in the Shelby County jail, she was strip searched by a female deputy.

The Eleventh Circuit held that Jail policy that each detainee be strip searched without reasonable suspicion does not comport with the requirements of the Fourth Amendment. However, the Court held that possession of a weapon by a detainee provides reasonable suspicion necessary to authorize a strip search. Thus, as Skurstenis' strip search was done in the-least intrusive manner possible, her constitutional rights were not violated.

The Court then turned to the strip search prior to Skurstenis' release the next morning. Skurstenis was taken to the jail infirmary with three other female prisoners and seen by T.O. Richey, a male nurse's assistant employed by Shelby Baptist Medical Center, who contracts with the jail for services. When Richey finished with the other prisoners, he asked them to leave. He then took blood samples from Skurstenis and told her to pull down her pants so he could check for lice. Richey ran his fingers through Skurstenis' head and pubic hair. At no time did he touch her genitalia.

The Court stated the policy of searching for lice is implemented by the Sheriff to fulfill his duty under Alabama law that requires he "exercise every precaution to prevent the spread of communicable disease among the inmates." The Court held that despite the fact the search was done by a person of the opposite sex, it was proper because the searching person was a medical professional. The Court cited several case precedents that hold examination by opposite sex guards are unconstitutional, but permissible if done by trained medical professionals. The Court remanded this case for dismissal of all claims. See: Skurstenis v. Jones , 236 F.3d 678 (11 th Cir. 2000).

On remand, the district court held that the Eleventh Circuit's ruling only disposed of Skurstenis's federal law claims. It was not dispositive of her state law claims. The court noted that Richey had an absolute right to immediately appeal the denial of qualified immunity "but he had no right to appeal from the denial of his motion for summary judgment as against plaintiff's state law claims ..."

The court held that because the appeals court had no jurisdiction over the question of Skurstenis's state law claims, given the procedural posture of the case, it would not dismiss the plaintiff's state law claims. However, the court held that it would decline jurisdiction over the plaintiff's state law claims, which would give her leave to refile her complaint in state court within 30 days without giving the defendants a statute of limitations defense. See: Skurstenis v. Jones , 139 F.Supp.2d 1291 (ND AL 2001).

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Related legal cases

Skurstenis v. Jones

SANDY SKURSTENIS, Plaintiff, v. SHERIFF JAMES JONES, et al., Defendants.



139 F. Supp. 2d 1291; 2001 U.S. Dist. LEXIS 4563

April 5, 2001, Decided

April 5, 2001, Filed, Entered

COUNSEL: [**1] For SANDY SKURSTENIS, plaintiff: Jeffrey W Bennitt, Robyn G Bufford-Bennitt, BENNITT & BUFFORD PC, Birmingham, AL.

For JAMES JONES, defendant: Frank C Ellis, Jr, WALLACE ELLIS FOWLER & HEAD, Columbiana, AL.

For JAMES JONES, defendant: John W Dodson, K Claire White, FERGUSON FROST & DODSON LLP, Birmingham, AL.


For T O RICHEY, defendant: Mark W Lee, Dorothy A Powell, PARSONS LEE & JULIANO, Birmingham, AL.



OPINION: [*1292]


This court has now received the mandate following the Eleventh Circuit's opinion in Skurstenis v. Jones, 236 F.3d 678 (11th Cir.2000). The court is, of course, obligated to follow that mandate.

When plaintiff, Sandy Skurstenis, first filed her complaint, she invoked 28 U.S.C. § 1331 as her basis for access to this court, claiming that defendants had violated a federal statute, namely, 42 U.S.C. § 1983. T.O. Richey, a later added defendant, is the man in blue jeans and a T-shirt who the Eleventh [**2] Circuit called a "multi-functional technician", but who did not so describe himself to plaintiff when he thoroughly examined her pubic hair for lice as she exited the Shelby County Jail. Pursuant to 28 U.S.C. § 1367(a), plaintiff appended state-law claims to her § 1983 claim against the defendants, including Richey, for alleged invasion of privacy and assault and battery.

Richey filed a motion for summary judgment in which he asserted, first, that his conduct did not violate constitutional norms, but, if it did fail constitutional muster, that he nevertheless enjoyed qualified immunity because he had no reason to believe under then existing law that he had done anything violative of plaintiff's constitutional rights. In his supporting brief Richey argued, inter alia:

Because the Defendant is entitled to summary judgment as a matter of law as to the Plaintiff's § 1983 claim, this Court should decline to exercise jurisdiction over the Plaintiff's state law claims.

This court thereupon simply denied Richey's motion for summary judgment without separating what it thought about the viability of the § 1983 claim from what it thought about the [**3] viability of the state-law claims. This meant, of course, that the case would proceed to trial unless Richey perfected an appeal under Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411(1985). Richey took his appeal as a matter of right from the denial of his challenge to the § 1983 claim, but he neither sought a 28 U.S.C. § 1292(b) certification nor obtained leave of the Eleventh Circuit to appeal from the denial of his motion for summary judgment insofar as the motion can be construed to assert an absolute defense to the state-law claims.

It is quite clear from the opinion of the Eleventh Circuit that to the extent any federal claims were not dismissed by this court before defendants took their interlocutory appeals those federal claims are now due to be dismissed. However, the dismissal of all federal claims does not end the matter, because it does not dispose of the pendent state-law claims against Richey, who, as noted, appealed from this court's denial of his motion for summary judgment only as against the § 1983 claim. Richey had the absolute right to appeal from this court's refusal to recognize [**4] his defense of qualified immunity to the § 1983 claim, but he had no right to appeal from the denial of his motion for summary judgment as against plaintiff's state-law claims, that is, without special dispensation. The fact that his notice of appeal from the denial of his summary judgment motion did not make this distinction did not somehow create appellate jurisdiction over both federal and state claims.

Because the Eleventh Circuit had no jurisdiction over the question of the viability of plaintiff's state-law claims, this court rejects Richey's post-mandate contention [*1293] that the Eleventh Circuit intended to instruct this court to dismiss all of plaintiff's claims against Richey, even the claims for invasion of privacy and assault and battery. This court respectfully declines to construe the Eleventh Circuit's desultory expression on this subject as a dispositive order about something over which that court was never asked to speak. This court refuses to believe that the Eleventh Circuit would purport to address an issue over which it had no jurisdiction. Despite what Richey now urges upon this court, the fact that Richey's conduct vis-a-vis Skurstenis has now passed federal [**5] constitutional muster does not mean that that same conduct cannot constitute an invasion of privacy and/or an assault and battery under Alabama law. When this court denied Richey's motion for summary judgment, this court was holding, rightly or wrongly, that plaintiff's state-law claims are jury triable. At that time this court was assuming pendent jurisdiction over state-law claims. Now that there is no longer any federal question upon which to append plaintiff's state-law claims, what should the court do with them?

The dismissal of all federal claims does not automatically deprive the federal court of supplementary jurisdiction over remaining state-law claims. See Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1568 (11th Cir.1994). However, when federal claims are dismissed before trial, the preferred course for a federal court to follow is to decline jurisdiction over the state-law claims, especially when the plaintiff, as in this case, can refile her complaint in the state court within thirty (30) days without exposing her state-law causes of action to a statute of limitations defense. 28 U.S.C § 1367(c) and (d); See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S. Ct. 614, 619 n.7, 98 L. Ed. 2d 720 (1988). [**6] In accordance with the tenets of federalism and of comity, state courts should be the primary deciders of questions of state-law. See Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546, 1553, (11th Cir.1992). This is exactly what Richey himself suggested when he filed his motion for summary judgment. This court now joins Richey in expressing a preference for the state court to pass on Skurstenis's claims of invasion of privacy and assault and battery.

An appropriate separate order will be entered.

DONE this 5th of April, 2001.



Skurstenis v. Jones

Skurstenis v. Jones, 236 F.3d 678, 236 F.3d 678 (11th Cir. 12/28/2000)

[1] U.S. Court of Appeals, Eleventh Circuit

[2] Nos. 00-10122, 00-11469 and 00-10603.

[3] 236 F.3d 678, 236 F.3d 678, 2000

[4] December 28, 2000


[6] Appeals from the United States District Court for the Northern District of Alabama.(No. 98-02295-CV-AR-S), William M. Acker, Jr., Judge.

[7] Before Tjoflat and Birch, Circuit Judges, and VINING *fn* , District Judge.

[8] The opinion of the court was delivered by: VINING, District Judge

[9] These consolidated appeals involve the constitutionality of two strip searches performed on a detainee who had been arrested for driving under the influence of alcohol. The first search, for weapons and contraband, occurred when the detainee was booked into the jail and was conducted by a female deputy; the second search, for lice, took place the following morning and was conducted by a male nurses assistant. The district court held that both searches were unconstitutional but that the sheriff and deputy sheriff were entitled to qualified immunity with respect to the initial search; the district court further held that neither the sheriff nor the nurses assistant was entitled to qualified immunity with respect to the second search. Concluding that both searches were constitutional, we affirm in part, albeit on different grounds, and reverse in part.


[11] On the evening of May 8, 1998, a Shelby County, Alabama, deputy sheriff arrested Sandy Skurstenis for driving under the influence of alcohol. Her blood alcohol registered .18 on the deputy's portable Breathalyzer and registered .15 on an intoxilyzer test administered shortly thereafter. At the time of her arrest, Skurstenis had a .38 special handgun, for which she had an expired permit, in the floorboard of her car.

[12] After her arrest, Skurstenis was taken to the Shelby County Jail, where, because of her blood alcohol level, she was to remain until around 11:00 a.m. the following morning. *fn1 After being booked into the jail, Skurstenis was taken to a restroom adjacent to the booking area by Deputy Stacy Blankenship, a female officer. Skurstenis was told to disrobe, to turn and face the wall, and to squat and cough. After doing this, she was given a jail uniform, was escorted by Deputy Jason Smitherman through an area where other female inmates were sleeping, and was placed in a solitary cell.

[13] The next morning, at approximately 10:30 a.m., Skurstenis was instructed to go to the infirmary, where she encountered three other female inmates and one male, T.O. Richey, a nurses assistant, *fn2 employed by the Shelby Baptist Medical Center. Richey worked part-time at the jail pursuant to a contract between the sheriff's office and the medical center. When he was finished with the other inmates, Richey asked them to leave and then informed Skurstenis that pursuant to the jail's policy, he was required to run certain tests on her. After Skurstenis signed a consent form, Richey took some blood samples from her and then told her to pull her pants down so that he could check for lice. Richey ran his fingers through the hair on her head and also through her pubic hair. At no time did he touch her genitalia. When the examination was completed, Skurstenis left the infirmary and a short time thereafter was discharged from the jail and left with her husband, who had come to get her.

[14] Skurstenis subsequently filed this action against Sheriff James Jones, Chief Jailer Captain Wayne Watts, Deputies Jason Smitherman and Stacy Blankenship, and T.O. Richey in their individual capacities, and asserted claims under 42 U.S.C. § 1983 for constitutional violations *fn3 and under state law for invasion of privacy, assault, and battery. *fn4

[15] In ruling on the defendants' motions for summary judgment, the district court granted summary judgment to Captain Watts and Deputy Smitherman on the basis that they had no real connection to the strip search that occurred when Skurstenis was booked into the jail and that her complaint, therefore, failed to state a claim against them. The district court further held that the initial strip search violated the Skurstenis's constitutional rights but that Sheriff Jones and Deputy Blankenship were entitled to qualified immunity. Finally, the district court held that the infirmary search violated Skurstenis's constitutional rights, that Sheriff Jones was not entitled to qualified immunity, that Richey had no standing to assert qualified immunity, and that, even if he did, he would not be entitled to qualified immunity. *fn5 Recognizing that only the denials of qualified immunity would be appealable as a matter of right, the district court certified its order pursuant to 28 U.S.C. § 1292(b), and this court granted permission for Skurstenis to appeal those portions of the district court's order which granted qualified immunity.


[17] A district court's grant or denial of summary judgment is subject to de novo review by this court. Hamilton v. Allen-Bradley Co., 217 F.3d 1321 (11th Cir.2000).

[18] In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court held that routine strip searching of pretrial detainees was not a per se violation of the Fourth Amendment prohibition against unreasonable searches and seizures. In articulating the balancing test applicable to such searches, the Court stated:

[19] The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it occurred. Id. at 559, 99 S.Ct. at 1884.

[20] The Bell balancing test for reasonableness requires, at a minimum, that the facts upon which the intrusion is based be capable of measurement against an objective standard. Although one appellate court initially suggested that probable cause might be required to justify a strip search, Tinetti v. Wittke, 620 F.2d 160 (7th Cir.1980) ("The searches were conducted despite the absence of probable cause to believe that the detainees were concealing contraband or weapons on their bodies."), the courts of appeal now recognize that "reasonable suspicion" may justify a strip search of a pretrial detainee. See, e.g., Swain v. Spinney, 117 F.3d 1 (1st Cir.1997); Warner v. Grand County, 57 F.3d 962 (10th Cir.1995); Weber v. Dell, 804 F.2d 796 (2d Cir.1986) Stewart v. Lubbock County, Texas, 767 F.2d 153 (5th Cir.1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983). Indeed, in upholding the strip search of a juvenile, this court specifically held that law enforcement officers "may conduct a strip search of a juvenile in custody, even for a minor offense, based upon reasonable suspicion to believe that the juvenile is concealing weapons or contraband." Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir.1992).

[21] It is undisputed that Policy Number B-103 of the Shelby County Jail requires that each inmate be strip searched by a same sex jail staff member before being placed in a cell or detention room. This policy, which does not require any reasonable suspicion, does not comport with the requirements of the Fourth Amendment. This court thus joins every other circuit which has had occasion to review a similar policy and holds such policy to be unconstitutional. See Chapman v. Nichols, 989 F.2d 393 (10th Cir.1993) (citing cases from other circuits holding same).

[22] Because of one significant factor, however, this holding does not mean that the initial strip search performed on Skurstenis was ipso facto unconstitutional. When she was arrested and taken into custody, Skurstenis had a .38 special handgun in her possession. Recognizing, as did the Bell court, that a detention center is a place "fraught with serious security dangers," Bell, 441 U.S. at 559, 99 S.Ct. at 1884, and, because of the deference that should be afforded in matters of institutional security, see, e.g., Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), this court holds that possession of a weapon by a detainee provides the "reasonable suspicion" necessary to authorize a strip search.

[23] Having concluded that the search was justified, the court must now consider the other Bell factors, viz., the manner in which the search was conducted and the place in which it was conducted. Skurstenis was taken to a bathroom and was observed only by Deputy Blankenship, a female officer; no body cavity search was undertaken. Under similar facts, this court concluded, "Without a doubt, the officers conducted the strip search in the least intrusive manner." Justice, 961 F.2d at 193. Consequently, this court concludes that Skurstenis's constitutional rights were not violated by the strip search performed when she was booked into the jail.

[24] The court now turns to the strip search performed on Skurstenis by T.O. Richey, the morning after she was incarcerated. A sheriff in Alabama "has the legal custody and charge of the jail in his county and all prisoners committed thereto." Alabama Code § 14-6-1 (1975). Thus, for purposes of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the sheriff is the final decision maker with respect to jail policy.

[25] The Alabama legislature has mandated that sheriffs "exercise every precaution to prevent the spread of disease among the inmates." Alabama Code § 14-6-95. Pursuant to this mandate, the Shelby County jail instituted a policy of searching all inmates who have been admitted to the general jail population for communicable diseases at the earliest possible time during their incarceration. Because of the prevalence of head and body lice among inmates and because of the difficulty in sanitizing an area after lice have been found, one of the prime objectives of this search is to determine if an inmate has such lice.

[26] The Shelby County Commission contracted with the Shelby Baptist Medical Center ["SBMC"] to provide medical services within the Shelby County jail. Under this contract, SBMC provided a nurses assistant and a registered nurse to the jail; those individuals generally worked Monday through Friday from 7:00 a.m. to 2:00 p.m. In exchange for these services, Shelby County reimbursed SBMC on an expense reimbursement basis, consisting of the salaries of the nurses assistant and registered nurse, supplies purchased by SBMC, and any services provided directly by SBMC. SBMC is a not-for-profit corporation, and the contract between SBMC and Shelby County was performed on a not-for-profit basis.

[27] Although Sheriff Jones has adopted a policy requiring inmates to undergo a body search for communicable diseases at the earliest possible time, he has not promulgated any regulations with respect to how this search is to be performed. Instead, the manner in which this kind of search is to be conducted is controlled by procedures promulgated by SBMC and conveyed by SBMC to its employees. Under these procedures, when there is a body search for lice, cranial and pubic hair both are examined, but there is no unnecessary contact with the inmate, nor are the inmate's genitals touched.

[28] As with the booking search, this court applies the Bell balancing factors of scope, manner, justification and place with respect to this communicable disease search. *fn6 Bell, 441 U.S. at 559, 99 S.Ct. at 1884. The search took place in the infirmary, with no one present except Skurstenis and the nurses assistant. The intrusion was minimal, and, because of the threat of the transmission of body lice among inmates, the search was certainly justified. This leaves only the consideration of the manner in which the search was conducted. It was this factor which was of the greatest concern to the district court, and it found the search highly offensive because it was conducted by a male upon a female. The district court failed to give proper weight, however, to the fact that the male was part of the medical staff of a hospital and was a nurses assistant.

[29] Although courts seem virtually unanimous in condemning strip searches conducted by prison personnel of the opposite sex except in the most extreme of circumstances, they are not so outspoken when it comes to strip searches by medical personnel. Indeed, on those rare occasions when courts have discussed strip searches by medical personnel, it is to point out that body cavity searches should be performed by medical, not jail, personnel. The sex of the medical person conducting the search is either not identified or is mentioned only for informational purposes. See, e.g., Torres v. Wisconsin Department of Health and Social Services, 859 F.2d 1523 (7th Cir.1988) (en banc) (recognizing, in a Title VII suit brought by male officers challenging a decision to permit only female officers in the living units of an all-female prison, that the Wisconsin Administrative Code requires strip searches to be performed "in private by an officer of the same sex" and that "[b]ody cavity searches are only performed by medical personnel in emergencies"); Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986) (finding body cavity searches by prison officers unconstitutional and noting that the officers conducting the searches "did not follow prison instructions that required internal examination of body cavities to be conducted by medical personnel"), overruled on other grounds, Unwin v. Campbell, 863 F.2d 124 (1st Cir.1988); Daughtery v. Harris, 476 F.2d 292 (10th Cir.1973) (upholding rectal searches "carried out by trained paraprofessional medical assistants"); Tribble v. Gardner, 860 F.2d 321 (9th Cir.1988) (holding that prison officials were not entitled to qualified immunity when digital rectal searches were not reasonably related to legitimate penological concerns and were conducted for punitive purposes but also noting that the searches were conducted by a "physician's assistant"); Hurley v. Ward, 584 F.2d 609 (2d Cir.1978) (holding visual searches of the anal and genital areas of prisoners without probable cause to be unconstitutional but quoting New York law as follows: "If there is reasonable cause to believe contraband has been concealed in a body cavity, the inmate shall be immediately examined and/or x-rayed by a facility health staff member").

[30] Holding that it is not inappropriate for medical personnel to conduct a strip search of an inmate of the opposite sex and determining that the examination of Skurstenis for body lice was otherwise reasonable, this court concludes that Sheriff Jones and Richey did not violate Skurstenis's constitutional rights. Consequently, the district court's orders denying them summary judgment are reversed.


[32] In these consolidated appeals, Skurstenis has alleged that her Fourth Amendment rights were violated by the booking and infirmary strip searches performed on her while she was a detainee in the county jail following her arrest. Having found that Skurstenis's constitutional rights were not violated by either the booking search or the infirmary search, this court AFFIRMS, although on different grounds, the district court's order granting summary judgment to Sheriff Jones, Captain Watts, Deputy Blankenship, and Deputy Smitherman with respect to the booking search; this court AFFIRMS the district court's order granting summary judgment to Captain Watts as to the infirmary search; and this court REVERSES the district court's order denying qualifying immunity to Sheriff Jones and Richey with respect to the infirmary search and directs that Skurstenis's claims against them with respect to the infirmary search be dismissed with prejudice on remand.

[33] AFFIRMED in part; REVERSED and REMANDED in part.


Opinion Footnotes


[34] *fn* Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation.

[35] *fn1 Individuals arrested for driving under the influence cannot be released on bond but must be detained in jail for a number of hours, depending on the degree of intoxication. Alabama Code § 31-5A-191 (1975).

[36] *fn2 His official title is "multi functional technician."

[37] *fn3 In her complaint Skurstenis alleged that her Fourth and Fourteenth Amendment rights were violated. Since she did not contend that any procedural due process rights were violated, the district court correctly analyzed her claims as being under only the Fourth Amendment. The Supreme Court has held that, where an enumerated constitutional right specifically applies to a claimed violation, the claim should be analyzed only as a possible violation of that enumerated right, not under the generalized notion of substantive due process. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

[38] *fn4 Skurstenis also sued Shelby County and Shelby Baptist Medical Center. The district court, however, dismissed Skurstenis's claims against those entities, and those dismissals are not challenged in this appeal.

[39] *fn5 The district court also granted summary judgment to Captain Watts with respect to the infirmary search, since the claim against him was based on the fact that he was the chief jailer. The district court correctly noted that under Alabama Code § 14-6-1, the sheriff, not the jailer, is the person given legal responsibility for the legal custody of inmates and that, consequently, the sheriff, not the chief jailer, is the final decision maker about jail policy.

[40] *fn6 Both Skurstenis and the district court emphasized that this search was conducted a short time before Skurstenis was released from the jail, intimating that the search was some kind of "exit" search. However, the search was conducted at the first opportunity by medical personnel and was conducted the morning that Skurstenis was released only because the medical personnel did not arrive until that time. The fact that the search preceded Skurstenis's release from custody by just a few minutes was merely coincidental.