Tynisa Williams v. City of Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0276p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

TYNISA WILLIAMS; SHAWN BEALER, ┐
Plaintiffs-Appellants, │
│
│ No. 13-4162
v. │
>
│
CITY OF CLEVELAND, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:09-cv-02991—Benita Y. Pearson, District Judge.
Argued: October 3, 2014
Decided and Filed: November 10, 2014

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Elmer Robert Keach, III, LAW OFFICES OF ELMER ROBERT KEACH, III, PC,
Amsterdam, New York, for Appellants. Alejandro V. Cortes, CITY OF CLEVELAND
DEPARTMENT OF LAW, Cleveland, Ohio, for Appellee. ON BRIEF: Elmer Robert Keach,
III, LAW OFFICES OF ELMER ROBERT KEACH, III, PC, Amsterdam, New York, Nicholas
Migliaccio, WHITFIELD, BRYSON & MASON, LLP, Washington, D.C., Daniel Karon,
GOLDMAN, SCARLATO, KARON & PENNY, PC, Cleveland, Ohio, for Appellants.
Alejandro V. Cortes, Thomas J. Kaiser, Jennifer Meyer, CITY OF CLEVELAND
DEPARTMENT OF LAW, Cleveland, Ohio, for Appellee.

1
No. 13-4162 Williams, et al. v. City of Cleveland Page 2

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OPINION
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GRIFFIN, Circuit Judge. This appeal boils down to one question: whether a complaint
states a constitutional claim when it alleges that defendant’s jail, instead of using less invasive
procedures, compelled pretrial detainees who were being processed into the facility to undress in
the presence of other detainees and to have their naked genitals sprayed with delousing solution
from a pressurized metal canister. We hold that such allegations plausibly allege a violation of
the Fourth Amendment. We therefore reverse the district court’s contrary conclusion and
remand the case for further proceedings.

I.

Late in 2009, Tynisa Williams filed a putative class action against Cleveland, alleging
that she and other similarly situated pretrial detainees had been deprived of their constitutional
rights when they were subjected to mandatory strip searches and delousing upon entry to the City
of Cleveland House of Correction (the “jail”) without any individualized suspicion that they
were concealing contraband or were infected with lice. Williams requested relief under
42 U.S.C. § 1983, asked for a declaratory judgment that the jail’s practices were
unconstitutional, and sought preliminary and permanent injunctions against the jail’s conduct.
Cleveland filed an answer, and motions practice and discovery ensued, including a motion filed
by Williams for leave to amend her complaint to add an additional class representative.

In mid-2011, however, the United States Supreme Court granted a writ of certiorari to
resolve a circuit split over whether pretrial detainees could be strip searched as a matter of course
upon entry into a correctional facility absent individualized suspicion that each detainee who was
searched was concealing contraband. See Florence v. Bd. of Chosen Freeholders of Cnty. of
Burlington, 131 S. Ct. 1816 (2011). Cleveland moved the district court to stay Williams’s
putative class action until Florence was resolved, and the district court granted its motion.

The Florence decision was handed down in 2012. It answered the question of whether a
blanket policy of strip searching incoming inmates was constitutionally sound, holding that the
No. 13-4162 Williams, et al. v. City of Cleveland Page 3

“undoubted security imperatives involved in jail supervision override the assertion that some
detainees must be exempt from the more invasive search procedures at issue absent reasonable
suspicion of a concealed weapon or other contraband.” Florence v. Bd. of Chosen Freeholders
of Cnty. of Burlington, 132 S. Ct. 1510, 1518 (2012). Shortly after Florence was decided, the
district court lifted the stay of Williams’s putative class action, simultaneously granting
Williams’s pending motion to file an amended complaint to add an additional class
representative.

After filing an answer to the amended complaint, Cleveland moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c), arguing that all of plaintiffs’ claims about
the jail’s delousing intake procedure were foreclosed by the Supreme Court’s holding in
Florence. Opposing Cleveland’s motion, plaintiffs filed a motion asking for leave to file a
second amended complaint that would clarify the distinguishability of Florence.

Plaintiffs’ proposed second amended complaint asserted § 1983 claims on a putative class
basis against Cleveland by two named plaintiffs: Williams and Shawn Bealer. According to the
complaint, Cleveland has a policy of strip searching and delousing every person who enters the
custody of the jail, regardless of whether jail officials have any reasonable suspicion that the
detainee has lice. Detainees must remove their clothing in the presence of a correctional officer,
who then sprays delousing solution from a pressurized metal canister on the detainee’s naked
body, including on the detainee’s exposed genitals. Cleveland officials allegedly referred to this
procedure as the “hose treatment.”

Williams, according to the proposed complaint, was arrested in late 2009 on non-felony
charges of driving with a suspended license. Allegedly, her license had been suspended because
she failed to pay a traffic ticket. After Williams made arrangements with authorities to pay her
traffic ticket and fines, she was processed into the jail. There, she was instructed to undress and
shower in the presence of not only a corrections officer but also two other female detainees.
Then, in the presence of the other detainees, Williams was subjected to a visual body cavity
search, during which she was instructed to bend at the waist and spread her buttocks. While she
was bent over, an officer sprayed her with delousing solution from an exterminator can all over
her naked body, including into her anus. There was no indication at any time that Williams was
No. 13-4162 Williams, et al. v. City of Cleveland Page 4

harboring lice. Williams was released from the jail the same day, given that her fines had been
paid.

Bealer, alleged the proposed amended complaint, was arrested and placed in the jail
twice: in early 2008 and in early 2009. Both times, Bealer had been arrested on non-felony
charges (his driver’s license, too, had been suspended for failing to pay traffic-related fines), and
both times he was sprayed with delousing solution, despite the fact that he was devoid of any
indication that he was infected by lice. The first time he was processed into the jail, his naked
body was sprayed with delousing solution by a correctional officer. The second time, claims
Bealer, he was sprayed—while naked—with the solution by a fellow inmate, who then kept
Bealer in view during his subsequent shower.

Plaintiffs’ proposed second amended complaint clarified that they “not only complain
about the use of delousing on all detainees, but also about the manner in which the delousing
occurs.” In particular, the proposed filing alleged that Cleveland violated detainees’
constitutional rights by spraying delousing agent all over their naked bodies, “specifically
aim[ing]” it at their genitals, instead of using less invasive delousing methods, such as permitting
detainees to apply the delousing solution to themselves. Plaintiffs also alleged that their
respective strip searches and delousing were unreasonable because they were conducted “in the
presence of other detainees.” Thus, the proposed second amended complaint alleged not only
that the jail lacked justification for the searches and seizures in the first place, but also that the
particular manner in which the jail conducted its compulsory delousing regime was
unreasonable, “given more dignified alternatives.” Based on these allegations, plaintiffs’
proposed amended complaint asserted violations of their Fourth Amendment rights, requesting
damages as well as declaratory and injunctive relief under § 1983.

Despite these new allegations, the district court denied plaintiffs’ motion to file the
proposed second amended complaint “because the amendment would be futile.” In the district
court’s view, the proposed filing did not assert a violation of a constitutional right because it
“simply calls into question the manner in which the delousing occurs”—which, according to the
district court, was inseparable from the inquiry that was precluded by Florence. According to
the district court, the difference between Cleveland’s “hose treatment” and providing detainees
No. 13-4162 Williams, et al. v. City of Cleveland Page 5

with the opportunity to self-apply delousing solution were “de minimus [sic] differences that do
not materially alter the Fourth Amendment analysis.” The district court also held that
“subjecting inmates to delousing in front of other detainees is justified and not a violation of any
individual rights.” Because it believed that granting plaintiffs leave to amend would be to “no
avail,” the district court denied plaintiffs’ motion and granted Cleveland’s motion for judgment
on the pleadings.

Plaintiffs appeal, challenging both the denial of leave to file a second amended complaint
and the entry of judgment on the pleadings.

II.

The dispositive question in this appeal is whether the proposed second amended
complaint stated a claim. The district court’s entry of judgment on the pleadings was predicated
on its denial of plaintiffs’ motion for leave to amend the complaint a second time. The Federal
Rules of Civil Procedure instruct district courts to “freely” grant parties leave to amend “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). We typically defer to a district court’s view of
what equity requires in a specific case, so our review of the denial of a motion for leave to amend
a complaint ordinarily is for an abuse of discretion. Yuhasz v. Brush Wellman, Inc., 341 F.3d
559, 569 (6th Cir. 2003).

But there is an exception to this general rule, and it applies in this case. Although the
district court could have denied leave to amend for a variety of reasons, the reason that it gave
for denying plaintiffs’ motion was that the amendment would have been “futile.” When a district
court denies a motion to amend because it concludes that the amendment would be futile, the
basis for its denial of the motion is its purely legal conclusion that the proposed amendment
“could not withstand a Rule 12(b)(6) motion to dismiss.” Riverview Health Inst. LLC v. Med.
Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (citation omitted); see Wade v. Knoxville Utils.
Bd., 259 F.3d 452, 459 (6th Cir. 2001). Our review of that legal supposition—and, therefore, of
the denial of the motion to amend—is de novo. Seaton v. TripAdvisor LLC, 728 F.3d 592, 596
(6th Cir. 2013). As a result, the dispositive question in this case is whether plaintiffs’ proposed
second amended complaint contains “sufficient factual matter, accepted as true, to state a claim
No. 13-4162 Williams, et al. v. City of Cleveland Page 6

to relief that is plausible on its face.” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)
(internal quotation marks omitted).

We hold that it did. The district court’s conclusion that plaintiffs’ proposed filing failed
to state a claim proceeded in two analytic steps. First, the district court concluded that Florence
precluded plaintiffs’ claims that it was unconstitutional to seize and search them for lice absent a
particularized suspicion that they harbored lice. Second, it held that the particular manner in
which plaintiffs alleged that they were seized and searched differed in only insignificant ways
from the practices that were upheld in Florence. The district court was correct with respect to
the first part of its analysis but mistaken about the second.

A.

As Florence recognized, a regulation impinging upon a detainee’s constitutional rights
must be upheld “if it is reasonably related to legitimate penological interests.” Florence, 132 S.
Ct. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). But although such a standard
requires deference to the judgment of correctional officers, “we must not confuse deference with
abdication.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 572 (6th Cir. 2013). Even
“convicted prisoners do not forfeit all constitutional protections by reason of their conviction and
confinement in prison,” and “pretrial detainees, who have not been convicted of any crimes,
retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.”
Bell v. Wolfish, 441 U.S. 520, 545 (1979).

Among these rights are the Fourth Amendment’s guarantee of “reasonable expectations
of privacy.” Stoudemire, 705 F.3d at 572 (citation omitted). Although the jailhouse setting
necessarily involves a significantly reduced expectation of privacy, the treatment of a detainee
must still be reasonable under the circumstances in order to comport with the Fourth
Amendment. Bell, 441 U.S. at 558. Any given search or seizure of a detainee may not
arbitrarily or needlessly encroach upon the detainee’s privacy rights but must instead be
“reasonably related to legitimate penological interests.” Stoudemire, 705 F.3d at 572.

The touchstone of whether a given search or seizure is reasonable is whether the jail’s
“need for the particular search” outweighs “the invasion of personal rights that the search
No. 13-4162 Williams, et al. v. City of Cleveland Page 7

entails.” Bell, 441 U.S. at 559; Stoudemire, 705 F.3d at 572. To this end, “[c]ourts 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 is conducted.” Bell, 441 U.S. at 559. If a
correctional institution possesses no readily available alternative other than to engage in the
particular conduct at issue, its conduct likely is reasonably related to its legitimate penological
interests. Turner, 482 U.S. at 90. But where a particular search or seizure involves significant
intrusion into a detainee’s privacy interests, the existence of “obvious, easy alternatives . . . that
fully accommodate[] the prisoner’s rights at de minimis cost to valid penological interests”
suggests that the institution’s need to proceed in its chosen manner does not outweigh the
burdens it imposes upon the detainee and is therefore unreasonable. Id. at 90–91.

Florence, far from recanting the principle that “[t]he need for a particular search must be
balanced against the resulting invasion of personal rights,” in fact reiterated it. 132 S. Ct. at
1516. In Florence, the plaintiff alleged that the jail’s decision to strip search him was
unreasonable not because it was conducted in an unreasonable manner but because it lacked
sufficient justification; namely, that it was conducted absent individualized suspicion that he was
concealing contraband. See Bell, 441 U.S. at 559 (noting that “the manner in which [the search]
is conducted” and “the justification for initiating it” are two different aspects of whether a
particular search is reasonable). In Florence, the plaintiff was subjected to a visual strip search
(conducted by correctional officers “[a]pparently without touching the detainees”) and was
required “to shower with a delousing agent.” 132 S. Ct. at 1514. The Florence majority rejected
the plaintiff’s assertion that individualized suspicion was necessary to submit him to the
compulsory shower and visual strip search, ruling that the institutional “security imperatives” for
conducting visual strip searches of everyone admitted to its facility without exception
outweighed the intrusion into the detainees’ rights. Id. at 1518.

As the district court recognized, Florence precludes any claim that the Cleveland jail’s
conduct was unconstitutional due to lack of individualized suspicion. And Cleveland is correct
to observe that most of plaintiffs’ protestations that the delousing procedure was unnecessary are
beside the point. Florence clearly held that “[t]he danger of introducing lice or contagious
infections . . . is well documented,” such that a correctional facility’s adoption of uniform
No. 13-4162 Williams, et al. v. City of Cleveland Page 8

delousing procedures is an acceptable prophylactic measure that may be administered even in the
absence of individualized suspicion that any particular detainee is infected with lice. 132 S. Ct.
at 1518.

But nothing in Florence upends the long-standing rule that a search of a detainee, even if
it does not need to be based upon individualized suspicion, still “must be conducted in a
reasonable manner.” Bell, 441 U.S. at 560. See also United States v. Fowlkes, F.3d , 2014
WL 4178298, at *6 (9th Cir. Aug. 25, 2014) (observing that an otherwise justified strip search
must be performed in a reasonable manner); Evans v. Stephens, 407 F.3d 1272, 1281 (11th Cir.
2005) (en banc) (“While searches need not be delicately conducted in the least intrusive manner,
they must be conducted in a reasonable manner.”). Put another way, the Fourth Amendment
contemplates a discrete search; the reasonableness analysis may not interrogate abstractions but
must center upon “the particular search” that has been or will be conducted. Stoudemire,
705 F.3d at 573 (citation omitted). See also Bell, 441 U.S. at 559 (“The test of reasonableness
under the Fourth Amendment is not capable of . . . mechanical application.”).

Recognizing this principle, Florence took pains to emphasize that its holding applied
only to the blanket policy before it, which required a visual strip search and a compulsory
shower with self-applied delousing solution. 132 S. Ct. at 1523. Florence specifically declined
to decide whether any other particular mode of carrying out a blanket search policy would
violate the Constitution. Id. The court observed, for example, that if an officer “engag[ed] in
intentional humiliation [or] other abusive practices,” the search of a particular detainee could be
unreasonable, even if conducted pursuant to a uniformly applicable policy. Id. Further, noted
the court, “[t]here also may be legitimate concerns about the invasiveness of searches that
involve the touching of detainees”—a recognition that even a blanket search policy may be
unreasonable if it calls for searches that are needlessly invasive. Id.; see also id. at 1523
(Roberts, C.J., concurring) (“[I]t is important for me that the Court does not foreclose the
possibility of an exception to the rule it announces.”); id. at 1524 (Alito, J., concurring)
(emphasizing that the majority held only that “jail administrators may require all arrestees who
are committed to the general population of a jail to undergo visual strip searches not involving
physical contact by corrections officers.” (emphasis deleted)).
No. 13-4162 Williams, et al. v. City of Cleveland Page 9

Thus, as Cleveland implicitly recognizes, Florence does not stand for the proposition that
every search conducted pursuant to a jail’s uniformly applicable search policy is impregnable
from attack on that basis alone. A strip search is “a particularly extreme invasion” of a
detainee’s Fourth Amendment rights, and holding that all detainees may be subjected to
suspicionless visual strip searches upon entry into a correctional facility does not mean that the
strip searches may be conducted in any manner whatsoever that the facility chooses. Stoudemire,
705 F.3d at 573. Simply “to say that [correctional officers] had a legitimate justification for
searching, or even strip searching, [plaintiffs] does not conclude our inquiry.” Id. Instead, if the
search is conducted in a particularly invasive manner, despite the lack of exigent circumstances
that necessitate the degree of invasion to which the detainee is subjected, then the search may be
unreasonable by virtue of the way in which it is conducted. See id. at 574 (“[A]lthough [the
defendant] had a valid reason for searching [the plaintiff], no special circumstances provided
additional justifications for strip searching [the plaintiff] where others could see her naked.”).

B.

As evidenced by the foregoing, to the extent that the district court believed that plaintiffs’
proposed filing failed to state a claim because it “simply calls into question the manner in which
the delousing occurs,” it was proceeding from a false premise. At most, Florence stands for the
proposition that every inmate who will be admitted to the general jail population may be (1)
subjected to a visual strip search for contraband and (2) required to self-apply delousing agent
even without individualized suspicion that she is concealing contraband or harboring lice.
Florence, 132 S. Ct. at 1523. But about searches that are more invasive than those, Florence
said nothing.

Cleveland nonetheless argues—and the district court found—that the particular acts about
which plaintiffs complain differed from the contact-free delousing procedures and visual strip
searches at issue in Florence in only irrelevant ways.

We disagree. As indicated, although Florence permits the jail to conduct a suspicionless
search of plaintiffs upon their entrance to the jail, the search must be conducted in a manner that
is reasonably related to the jail’s legitimate objectives in discovering contraband and preventing
the introduction of lice to the facility. Stoudemire, 705 F.3d at 573, 575; see Bell, 441 U.S. at
No. 13-4162 Williams, et al. v. City of Cleveland Page 10

560. Because the focus must be on the jail’s interest in carrying out the search and seizure in the
particular manner that it chose, see Florence, 132 S. Ct. at 1516, the analysis in this case must
balance the detainees’ privacy rights against the jail’s specific interest in spraying them with
delousing agent from a pressurized canister while they crouched naked in the presence of other
detainees instead of using less invasive procedures to achieve the same end.

1.

The district court, in dismissing plaintiffs’ assertions as alleging conduct that was not
relevantly different than the visual strip searches at issue in Florence, underappreciated how
much more invasive the jail’s conduct actually was. First, unlike in Florence, plaintiffs here
allege a contact seizure rather than merely a visual search. Cleveland downplays the “hose
treatment” as not involving physical touching by corrections officers themselves, but the
distinction is unconvincing. Both Williams and Bealer allege that the corrections officers caused
the spray to touch their genitals, even—in Williams’s case—penetrating her anus. A visual strip
search is “an offense to the dignity of the individual” that is “undoubtedly humiliating and
deeply offensive to many,” Stoudemire, 705 F.3d at 572–73 (citations omitted), and courts have
uniformly recognized that a search in which officers intentionally contact a naked detainee
causes still deeper injury to personal dignity and individual privacy. See, e.g., Florence, 132 S.
Ct. at 1515 (emphasizing that “[t]here are no allegations that the detainees here were touched in
any way as part of the searches”); Fowlkes, F.3d , 2014 WL 4178298, at *5 (noting that a
search involving contact is much more invasive than a visual cavity search); Watson v. Sec’y Pa.
Dep’t of Corr., 436 F. App’x 131, 136 (3d Cir. 2011) (same); Leverette v. Bell, 247 F.3d 160,
165 n.3 (4th Cir. 2001) (distinguishing between visual searches and contact searches).

The degree of humiliation suffered by plaintiffs should not be minimized solely on the
basis that the officers touched plaintiffs with an intermediate object (a stream of liquid) rather
than directly with their hands. See, e.g., Evans, 407 F.3d at 1281 (use of baton to search
plaintiff’s anus and genitals did not keep the search from being “disturbing”). According to
plaintiffs, corrections officers intentionally caused physical contact to plaintiffs’ naked genitals.
The contact seizures here are substantially more invasive than the visual searches at issue in
Florence, and the district court erred in eliding the differences between them.
No. 13-4162 Williams, et al. v. City of Cleveland Page 11

Second, the proposed second amended complaint alleges that both Williams and Bealer
were strip searched and sprayed in the presence of other detainees. We have already observed
that “a strip search is more invasive when it is performed where other people can see the person
being stripped.” Stoudemire, 705 F.3d at 573 (strip search was performed without covering jail
cell’s window, meaning that passersby could see the plaintiff naked). The wider an audience for
a strip search, the more humiliating it becomes, especially when the stripped individual is
exposed to bystanders who do not share the searching officers’ institutional need to view her
unclothed. See Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002) (opining that “the right
not to be subjected to a humiliating strip search in full view of several (or perhaps many) others”
is “well established”); Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001) (“Whether the strip
search was conducted in private is especially relevant in determining whether a strip search is
reasonable under the circumstances.” (citation and alterations omitted)).

Instead of following Stoudemire, the district court reached out-of-circuit to Powell v.
Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc), which it believed stood for the proposition
that “subjecting inmates to delousing in front of other detainees is justified and not a violation of
individual rights.” But Powell held no such thing, given its observation that “Plaintiffs do not
challenge the manner of the strip searches.” Id. at 1301. In fact, the same en banc court
previously hewed to the commonplace observation that non-private strip searches are relatively
more invasive than searches conducted in private. See Evans, 407 F.3d at 1281 (noting that
“[l]ittle respect for privacy was observed” where the plaintiff was strip searched in view of
others).

If plaintiffs are to be believed—and, at this point in the proceeding, they must be—they
were ordered to crouch naked on the floor with several strangers in the room while corrections
officers (and a fellow detainee, in Bealer’s case) hosed off their intimate body parts. Plaintiffs’
circumstances are far removed from those at issue in Florence, given that “[p]ublic exposure of
the genitalia accompanied by physical touching is far more intrusive than directing an arrestee to
remove her clothing in private for the purpose of ‘visually inspecting’ the arrestee’s genitalia.”
Amaechi, 237 F.3d at 363. See also Roberts v. State of R.I., 239 F.3d 107, 113 (1st Cir. 2001)
(noting that a prison’s strip search policy was reasonable where “the search is generally
No. 13-4162 Williams, et al. v. City of Cleveland Page 12

conducted in private” and “is entirely visual”). The district court’s cursory dismissal of
plaintiffs’ allegations that their delousing involved physical touching and that they were forced
to disrobe in the presence of other detainees substantially underestimated the gravity of the
intrusion into their privacy that the jail’s conduct perpetrated.

2.

Given the significant incursion into plaintiffs’ privacy rights caused by the jail’s preferred
method of searching and delousing them, the jail’s need to perform the searches in this particular
manner must be unusually dire before it can outbalance the affront to plaintiffs’ privacy.
Florence, 132 S. Ct. at 1516. In this respect, again, the pertinent question is not whether the jail
has a general need to prevent the introduction of lice into its facility (obviously, it does) but
whether the jail’s selection of the particular procedures to which it subjected plaintiffs is
reasonably related to that legitimate end. Stoudemire, 705 F.3d at 573. At this juncture in the
analysis, the procedural posture of this case is important. To state a claim, plaintiffs were
required only to plausibly allege—rather than demonstrate—that the jail acted unreasonably. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007). And that is what plaintiffs’ proposed filing did: It plausibly alleged that, given the
alternatives, it was unreasonable for the jail (1) to spray them with delousing solution instead of
permitting them to self-apply it, and (2) to conduct the strip searches and delousing in groups of
detainees (or with one detainee spraying another) instead of individually.

Despite the indisputable underlying interest in searching or seizing a detainee in
furtherance of a legitimate penological objective (such as preventing the dissemination of lice), a
correctional institution will have little need to conduct the search or seizure in a particular
manner if there are “obvious, easy alternatives . . . that fully accommodate[] the prisoner’s rights
at de minimis cost” to the institution’s valid penological interest underlying the search in the first
place. Turner, 482 U.S. at 90–91. Plaintiffs here have plausibly alleged the existence of such
alternatives. Instead of the “hose treatment,” they suggest that Cleveland could permit detainees
to self-apply delousing solution. Plaintiffs assert that several other penological facilities permit
the self-application of delousing solution in the manner that they request. See, e.g., Florence,
132 S. Ct. at 1514; Russell v. Richards, 384 F.3d 444, 446 (7th Cir. 2004).
No. 13-4162 Williams, et al. v. City of Cleveland Page 13

Although Cleveland vociferates that such a practice would be impracticable, and although
Cleveland’s jail may be operating under constraints not applicable to other institutions that have
implemented less invasive procedures, those factual disputes are appropriately resolved through
discovery, not on the pleadings. See, e.g., Russell, 384 F.3d at 448 (noting that the evidentiary
record did not suggest “that significant numbers of inmates ignore the instruction to use the
delousing shampoo, that they rinse the shampoo out of their hair too quickly to have any impact
on head lice, or that they are much more likely to be infected with lice elsewhere on their body
than they are on their heads”); Cantley v. W. Va. Reg’l Jail & Corr. Facility Auth., 2013 WL
5531855, at *13 (S.D. W. Va. Oct. 4, 2013) (resolving the issue on summary judgment); Logory
v. Cnty. of Susquehanna, 277 F.R.D. 135, 142 (M.D. Pa. 2011) (same). In the absence of some
evidence suggesting frequent noncompliance or an unreasonable drain on jail resources, it is not
obvious that it would be impracticably onerous for the jail to permit self-application of the
delousing solution while reserving the “hose treatment” for instances where individual detainees
misapply or refuse to properly apply the provided solution.

And there is no question that permitting self-application of the delousing solution would
be less humiliating and invasive than the “hose treatment.” Not only would such a policy avoid
officers’ intentional physical touching of a detainee’s intimate body parts, but it would also
preserve a detainee’s ability to exercise one of the most basic of human qualities: the faculty of
choice. Giving a detainee the opportunity to self-apply the delousing agent permits her to weigh
the alternatives and choose the option that enables her to comply with the delousing requirement
while protecting her self-dignity. Simply spraying the detainee with a hose as if she was an
object or an animal treats her as if she does not have the capacity to make that choice.

If the same principle was extended to other aspects of the jail’s intake process, its
dehumanizing effects would be obvious. The jail’s mandatory shower requirement, for example,
would be significantly more denigrating to detainees if they were pressure-washed by officers en
masse instead of first being given an opportunity to shower themselves. The same could be said
for the removal of detainees’ clothes: Strip searches would be even more humiliating if, instead
of giving detainees a chance to remove their own clothing, corrections officers simply did it for
them. Absent a good reason for the jail to do so, its decision to adopt the far more invasive of
No. 13-4162 Williams, et al. v. City of Cleveland Page 14

two equally available options would be a needless intrusion into the detainees’ constitutional
rights.

In short, plaintiffs have identified an alternative delousing regimen that is much less
invasive than the “hose treatment” and have plausibly alleged that it could be readily
implemented at the jail without compromising the jail’s interest in preventing lice infestations.
Because plaintiffs have plausibly alleged that the jail has little or no need to spray the detainees
rather than to permit self-application of the delousing solution, their proposed filing states a
constitutional claim. See Iqbal, 556 U.S. at 678.

The same analysis applies to the jail’s decision to strip search and delouse plaintiffs in
full view of other detainees or—in Bealer’s case—to have one detainee spray delousing solution
on another naked detainee. The obvious alternative is to have corrections officers (not other
detainees) conduct the searches and seizures in private rather than in the presence of other
detainees. Stoudemire, 705 F.3d at 573. Again, plaintiffs’ proposed filing plausibly alleged that,
given an easily implemented and significantly less-invasive alternative, the particular manner in
which the jail conducted the strip searches and delousing was unreasonable. Turner, 482 U.S. at
91. The district court therefore erred in concluding that the proposed second amended complaint
failed to adequately allege a constitutional violation and in deciding to disallow the amendment
on that basis.

In the final analysis, of course, the jail may have had good reasons for conducting these
procedures in the particular manner in which it did. See, e.g., Cantley, 2013 WL 5531855, at
*10. But that is a matter for resolution either at trial or on summary judgment, not on the
pleadings. The district court, which opined that delousing naked inmates in a group “is
justified,” jumped the gun. Whether the particular manner in which the jail conducted the
searches and seizures at issue here was “justified” depends on the facts, such as “whether any
exigent circumstances compelled [the officers] to strip search [plaintiffs] in view of other
inmates” or to disallow plaintiffs an opportunity to apply the delousing solution to themselves.
Stoudemire, 705 F.3d at 573–74. In view of plaintiffs’ plausible allegations of readily available
and less-invasive alternatives, the district court cannot have opined that the jail’s conduct was
“justified” without examining the evidence—which, of course, it cannot do when determining
No. 13-4162 Williams, et al. v. City of Cleveland Page 15

merely whether the proposed complaint failed to state a claim. We decline Cleveland’s
invitation to make the same mistake.1

III.

Because the basis for the district court’s denial for leave to amend the pleadings was
erroneous, its decision to enter judgment on those pleadings was likewise erroneous. We
therefore reverse the judgment of the district court and remand for further proceedings. On
remand, plaintiffs shall be granted leave to file the proposed second amended complaint.

1
Plaintiffs appear to have abandoned any argument with respect to the second cause of action noted in their
proposed second amended complaint, which alleges that the jail’s delousing procedure is unconstitutional because it
does not actually prevent lice. Cf. Florence, 132 S. Ct. at 1518 (noting the undoubted interest in eradicating lice and
approving use of delousing solution); Russell, 384 F.3d at 448 (upholding an institution’s use of delousing solution
despite evidence that it was only imperfectly useful at killing lice because “the fit between the jail’s legitimate
interests and its policy need not be perfect in order to survive scrutiny, it need only be rational”).