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Brown v. Polk County

United States District Court, W.D. Wisconsin

August 16, 2019




         While incarcerated at the Polk County Jail, plaintiff Sharon Lynn Brown (neé Smith) was subjected to a body cavity search following reports by other inmates that she had concealed methamphetamine in her person.[1] The cavity search found no foreign objects or materials. Brown is suing the officers allegedly involved in the search, as well as the County, alleging that they violated her Fourth Amendment rights by conducting a body cavity search without probable cause and a warrant.[2] Presently before the court is defendants' motion for summary judgment. (Dkt. #11.) For the reasons set forth below, this motion will be granted.


         A. Background

         A citizen of Minnesota, Brown was incarcerated at the Polk County Jail at all times relevant to this lawsuit. Polk County is located in northwestern Wisconsin. Defendant Janet Lee is a correctional officer at the County Jail. Defendant Steve Hilleshiem also served as a correctional officer at the Jail from January 2003 until mid-July 2018. Defendant Wes Revels was the Jail's chief deputy from June 2016 through March 2018; he also served as the Jail Administrator starting in early 2017.

         B. Policy Governing Cavity Searches

         During the relevant time, Polk County had a policy requiring all body cavity searches be performed by a physician, a Wisconsin-licensed registered nurse, or physician's assistant. Correctional officers could request a cavity search based on “reasonable grounds to believe that the [detained] person is concealing weapons, contraband, or evidence in a body cavity, or otherwise believes that the safety and security of the jail would benefit from a body cavity search.” (Search Policy (dkt. #12-1) 6.) When reasonable grounds exist, a correctional officer was to make the request for a body cavity search by contacting the shift supervisor, who would then “make the proper arrangements for such a search.” (Id.) Additionally, the Jail administrator's prior approval was required. (Id.)

         C. Brown's Incarceration

         Brown was held in custody at the Polk County Jail from May 3-5, 2017. She arrived at the Jail shortly after midnight on May 3, following her arrest for retail theft. On May 3 and 4, Brown was housed in the K Pod with inmates Jacqueline Duke and Amy Nelson. According to Nelson, she had never seen or met Brown before then. (Nelson Decl. (dkt. #15) ¶ 8.)

         On May 4, 2017, Duke approached defendant Hilleshiem during medication pass and reported that Brown was concealing “a large amount” of meth in her body cavity. Duke did not say that she had seen the contraband. On the hand, Officer Hilleshiem had no reason to believe -- or even suspect -- that Duke was lying. At the time, Hilleshiem did not know (1) Duke or her background, (2) why Brown was incarcerated, or (3) if Duke had a relationship with Brown. He also did not inquire into these matters. (Hilleshiem Dep. (dkt. #14) 18:2-13; see also Id. 31:25-32:4 (testifying the reason Brown was incarcerated would not have changed his analysis).) Nevertheless, based on his training and experience, he believed Duke. Hilleshiem then spoke with non-defendants, Jail Nurse Donna Johnson, Sheriff Pete Johnson, and Sergeant Matt Thayer about Brown. Hilleshiem did not speak to Inmate Nelson.

         After talking to Hilleshiem, Nurse Johnson spoke with Nelson, Brown and a third inmate. By May 2017, Nurse Johnson had worked at the Polk County Jail for approximately 20 years, during which time she had daily contact with inmates. She had also been a Certified Correctional Health Professional since at least 1997.[4] Over the course of her time working at the Jail, Nurse Johnson often received written or verbal reports about inmates concealing contraband, hording medication, or acting inappropriately from other inmates. Rarely would these reports result in a formal investigation because through speaking with the inmates involved it often became clear that one inmate was trying to get another in trouble. She drew these conclusions based on her training and experience, her perceived credibility of those involved and the content of the report, such as the detail of the information provided.

         As opposed to the frequent, unfounded reports Nurse Johnson received when one inmate was trying to get another in trouble, Nelson's report was very detailed. Nelson informed Johnson that after arriving at K Pod, Brown told Nelson and some of the other inmates that she was concealing between a quarter gram and an eight ball of meth inside her body cavity and asked if they had something else she could conceal the drugs in because she was concerned that: (1) she might absorb the drugs; (2) they were not sealed properly; or (3) they would be found. (Nelson Decl. (dkt. #15) ¶¶ 9-10, 15.) Brown disputes that she told Nelson any of that. (See Brown Dep. (dkt. #17) 101:14-102:8 (testifying that she did not recall speaking with Nelson or Duke but that she “had a couple girls telling [her] like the rules or, you know, the things you can and can't do while you're there”).) However, she does not otherwise dispute what Johnson or Hilleshiem may have heard from Duke or Nelson. (See Defs.' Reply to Pl.'s Resp. to Defs.' PFOF (dkt. #26) ¶¶ 24, 33, 38-42.)

         Because Nurse Johnson found the information provided by Nelson was not typical of an unfounded allegation -- due both to the level of detail and the credibility of the inmates providing the information -- she did not believe that the inmates who provided the information had an ulterior motive. Instead, Nurse Johnson concluded that the report warranted further investigation, including a cavity search. Hilleshiem also concluded a cavity search was reasonable, although he also testified that he would order a body cavity search any time he got a report that an inmate had contraband in their body cavity. (Hilleshiem Dep. (dkt. #17) 19:3-11, 23:2-9.)

         Nurse Johnson and other staff members at the Jail then discussed the situation, including the information obtained, their opinions and recommendations, as well as concerns about safety and security, both Brown's and the other inmates'. Hilleshiem specifically was concerned about Brown's safety, as well as the safety of the other inmates.[5]At the end of that discussion, jail staff collectively concluded that Brown should be sent for a cavity search.

         Hilleshiem then contacted Wes Revels, the jail administrator, for approval, informing him that Brown reportedly told another inmate that she was concealing drugs in a body cavity and two other inmates reported that fact to jail staff. CO Hilleshiem also told Revels that in his view this information met the policy requirements for a cavity search. Purportedly taking Hilleshiem's word for it, Revels agreed and authorized the search. In particular, Revels' understood that Brown was concealing contraband in her vagina, instead of her anus, but did not know the basis for that conclusion. He, himself, did not speak to the inmates who had reported Brown, nor did he speak to Nurse Johnson; he also did not ask Hilleshiem to investigate any further.[6] Revels did, however, pull Brown's jail file or otherwise inquire why she was jailed.

         Following medication pass on May 4, 2017, staff members then returned and asked Brown to exit K Pod, at which point she was escorted to another room and told to wait. After being escorted to yet another room, Jail staff asked Brown if she “had anything” on her. After she answered in the negative, Brown then asked to use the restroom, at which point she was escorted to the bathroom by a female staff member. Consistent with jail protocol, requiring monitoring of an inmate suspected of having contraband when an inmate wanted to use the bathroom, that staff member monitored Brown while she did so.

         After using the bathroom, Brown was then handcuffed, leg shackled, and escorted to the back of a squad car by Polk County Deputy Anthony Lehman, where Brown was informed that she was being transported to St. Croix Hospital for a cavity search. Hearing this, Brown did not respond or ask why, nor was she ever told another inmate had reported that she had contraband. While in the squad car, Brown not only had handcuffs and leg shackles, but possibly a “belly” belt. Defendant Lee was not working nor even present at the Jail when Brown was taken for the cavity search.

         At St. Croix Hospital, Brown and Deputy Lehman waited for about an hour before a nurse brought them into a private room, at which point Lehman removed the handcuffs. The nurse then asked Brown some questions, before providing her with a gown. While Brown changed, Deputy Lehman left the room, returning once Brown was in the gown. At that point, the nurse handed Brown the television remote and advised them that the hospital was very busy, so they would have to wait for the ...

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