Amanda Sumpter v. Wayne Cty.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0187p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AMANDA SUMPTER, ┐
Plaintiff-Appellant, │
│
> No. 16-2102
v. │
│
│
WAYNE COUNTY, et al., │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:14-cv-14769—John Corbett O’Meara, District Judge.

Argued: March 9, 2017

Decided and Filed: August 18, 2017

Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
_________________

COUNSEL

ARGUED: Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit,
Michigan, for Appellant. Davidde A. Stella, WAYNE COUNTY CORPORATION COUNSEL,
Detroit, Michigan, for Appellees. ON BRIEF: Michael R. Dezsi, LAW OFFICE OF
MICHAEL R. DEZSI, PLLC, Detroit, Michigan, for Appellant. Davidde A. Stella, WAYNE
COUNTY CORPORATION COUNSEL, Detroit, Michigan, for Appellees.

GRIFFIN, J., delivered the opinion of the court in which SUTTON, J., joined. CLAY, J.
(pp. 21–37), delivered a separate dissenting opinion.
 No. 16-2102 Sumpter v. Wayne Cty. Page 2

_________________

OPINION
_________________

GRIFFIN, Circuit Judge. Pretrial detainees must tolerate some invasion of their privacy
in order to accommodate the important government interests necessary for the operation of the
detention facility. For instance, detainees may be subjected to suspicionless strip searches as part
of the jail’s intake process. See Florence v. Bd. of Chosen Freeholders of Cty. of Burlington,
566 U.S. 318, 328 (2012). The issue we face is whether periodically conducting group strip
searches when the number of jail inmates waiting to be processed makes individual searches
imprudent constitutes a violation of clearly established Fourth Amendment law. Under the facts
of this case, we answer that question “no” and therefore hold that the jail official who conducted
the group searches, defendant Terri Graham, is entitled to qualified immunity. In addition, we
affirm the district court’s grant of summary judgment in favor of defendants Wayne County and
the Wayne County Sheriff on plaintiff’s Monell claims and requests for injunctive and
declaratory relief.

I.

In late 2012, plaintiff Amanda Sumpter spent a month in the Wayne County Jail in
Detroit, Michigan.1 During her incarceration, Sumpter underwent four strip searches that she
alleges violated her Fourth Amendment rights.

Three of the searches occurred in the jail’s Registry, where inmates are routinely strip
searched when first arriving to jail or returning from a trip outside. Defendant Corporal Terri
Graham conducted the three Registry searches of plaintiff. No male deputies were present for
these searches. Each time, Graham escorted plaintiff into the Registry with as many as five other
women. Although the door to the room had a window, it was covered with paper, preventing
anyone outside the Registry from observing the searches. Inside, Graham instructed the inmates

1
Following her arrest for multiple felonies arising out of a motor vehicle accident, Sumpter was
incarcerated in the Wayne County Jail from October 10 to November 13, 2012, at which time she was transferred to
the Michigan Department of Corrections to serve a prison term of one-to-five years. On October 29, 2012, she
entered a plea of nolo contendere and was sentenced on November 12, 2012.
 No. 16-2102 Sumpter v. Wayne Cty. Page 3

to undress, and if they were arriving for the first time, she collected their street clothes and
personal effects. She then directed the inmates to perform a series of tasks, including shaking
their hair, opening their mouths, lifting their breasts, and squatting and coughing, while Graham
visually inspected for hidden contraband—an experience plaintiff described as “embarrassing”
and “humiliating.” Afterwards, Graham provided the inmates with jail attire, and escorted the
arriving inmates to see medical personnel while the returning inmates waited to be taken to their
cellblock.

The fourth search occurred in plaintiff’s cellblock, where inmates are housed. After
searching the cells for contraband, an unidentified female guard gathered the inmates in the
common area, lined them up, and conducted a group strip search. According to plaintiff, the
strip search took place in view of the guards’ central command post inside the cellblock,
commonly called the “Bubble.” During this search, plaintiff saw and heard three male guards
inside the Bubble. Although she could not identify their faces because the glass was tinted, she
saw their silhouettes and believed they were facing the common area.

Two years later, in December 2014, plaintiff filed suit against Graham, Wayne County,
and the Wayne County Sheriff, alleging that the searches violated her constitutional rights.
Plaintiff’s complaint alleged two Fourth Amendment claims: first, she complained that
Graham’s three Registry searches were unreasonable because they were conducted in an
unprofessional manner and in front of other inmates; second, she alleged that the group strip
search in her cellblock was unreasonable because male guards were able to watch from the
Bubble. Plaintiff sought monetary, injunctive, and declaratory relief on behalf of herself and all
other similarly situated female inmates at the Wayne County Jail.

Plaintiff also filed motions to certify the class and to preliminarily enjoin the group
searches. Before the district court ruled on these motions, defendants filed a motion for partial
summary judgment. First, Graham argued that she was entitled to qualified immunity on the
Registry-searches claim. Relying on Graham’s affidavit and deposition testimony that she
conducted group strip searches only when the volume of inmates waiting to be processed
required it, defendant Graham argued that no case clearly established that her conduct constituted
a Fourth Amendment violation. Second, defendants Wayne County and the Wayne County
 No. 16-2102 Sumpter v. Wayne Cty. Page 4

Sheriff moved for summary judgment on plaintiff’s cellblock-search claim on the grounds that
plaintiff merely alleged an isolated incident without submitting any evidence showing it was the
product of an official policy or custom. Finally, defendants argued that plaintiff’s requests for
injunctive and declaratory relief were moot because Sumpter did not reside at the jail at the time
she sued.

The district court agreed with defendants on all three fronts. In the same order, it also
denied without prejudice the pending motion for class certification, as well as plaintiff’s motion
to strike an errata sheet that defendants filed as part of their summary judgment motion.2
Following the entry of a final judgment, plaintiff appeals.

II.

We review a district court’s grant of summary judgment de novo. Keith v. Cty. of
Oakland, 703 F.3d 918, 923 (6th Cir. 2013). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “To prevail, the nonmovant must show sufficient evidence
to create a genuine issue of material fact,” which is to say, “[t]here must be evidence on which
the jury could reasonably find for the [nonmovant].” Napier v. Madison Cty., Ky., 238 F.3d 739,
742 (6th Cir. 2001) (citation and internal quotation marks omitted). “We consider all facts and
inferences drawn therefrom in the light most favorable to the nonmovant.” City of Wyandotte v.
Consol. Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001).

III.

A.

The district court granted summary judgment in favor of Graham on the basis of qualified
immunity. That doctrine shields governmental officials from monetary damages as long as “their
actions did not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009).

2
Plaintiff challenges these two rulings on appeal, but her arguments are contingent on success with respect
to at least one of her substantive claims. In light of our decision to affirm the summary judgment in defendant’s
favor, we need not address these claims.
 No. 16-2102 Sumpter v. Wayne Cty. Page 5

To determine whether a defendant is entitled to qualified immunity, we perform a two-part
inquiry, Pearson v. Callahan, 555 U.S. 223, 232 (2009), which we may conduct in either order,
id. at 236. We ask whether the facts alleged or shown “make out a violation of a constitutional
right” and “whether the right at issue was ‘clearly established’” at the time of the incident. Id. at
232 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). A plaintiff must satisfy both inquiries
in order to defeat the assertion of qualified immunity. Wesley v. Campbell, 779 F.3d 421, 428–
29 (6th Cir. 2015).

B.

The Fourth Amendment governs plaintiff’s claim against Graham. As in most Fourth
Amendment contexts, the legal standard in this case requires us to balance the nature of the
intrusion against the need for the particular search, though in the corrections setting we afford
deference in favor of correctional officials’ penological expertise and interests. Florence v. Bd.
of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328 (2012) (“[C]ourts should
ordinarily defer to their expert judgment in such matters.” (citation omitted)).

This deferential balancing test originates from Bell v. Wolfish, 441 U.S. 520 (1979),
where the Court confronted for the first time the issue of strip searches in the corrections context.
In Bell, the Court held that a federal detention center’s blanket policy of conducting visual body
cavity inspections of all detainees returning from a “contact visit” did not violate the Fourth
Amendment. Id. at 558, 560. Along with its holding, the Court set forth “general principles” to
guide the analysis of searches conducted in the corrections setting. Id. at 545.

The Court began by recognizing that pretrial detainees “do not forfeit all constitutional
protections” as a result of their confinement, id., but their rights are necessarily limited by “the
legitimate goals and policies of the penal institution,” id. at 546. Among the legitimate goals of a
penal institution is “maintaining institutional security and preserving internal order and
discipline,” matters that the Court emphasized were within the expertise of corrections officials.
Id. “[T]he problems that arise in the day-to-day operation of a corrections facility are not
susceptible of easy solutions,” id. at 547, the Court said, acknowledging that a given corrections
official will naturally “have a better grasp of his domain than the reviewing judge,” id. at 548.
 No. 16-2102 Sumpter v. Wayne Cty. Page 6

Consequently, corrections officials “should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.” Id. at 547. That is, unless there is
“substantial evidence in the record to indicate that the officials have exaggerated their response
to these considerations[.]” Id. at 548.

The Supreme Court returned to these principles thirty years later when it revisited the
issue of jail strip searches in Florence. There, the Court confronted whether the Fourth
Amendment required jail officials to have reasonable suspicion before strip searching new
detainees who were arrested for minor offenses and being committed to the jail’s general
population. Florence, 566 U.S. at 330, 338–39; id. at 340 (Alito, J. concurring) (“The Court
holds that jail administrators may require all arrestees who are committed to the general
population of a jail to undergo visual strip searches[.]”).

“In addressing this type of constitutional claim,” the Court said, harkening back to Bell,
“courts must defer to the judgment of correctional officials unless the record contains substantial
evidence showing their policies are an unnecessary or unjustified response to problems of jail
security.” Id. at 322–23. In response to plaintiff’s proposal to require reasonable suspicion
before searching new detainees, the Florence Court held that “[i]t [was] reasonable . . . for
correctional officials to conclude this standard would be unworkable.” Id. at 334. Echoing the
jail administrator’s contentions, the Court observed that the offense of arrest is not a reliable
indicator of dangerousness; and even if it was, there is often insufficient information about each
new detainee’s criminal history in order to make that assessment; and if there was, officers
would “encounter serious implementation difficulties” trying to make those difficult, fact-
intensive assessments under “the pressures of the intake process.” Id. at 334–37. In light of
these considerations, the Court held that the jail’s blanket search policy “struck a reasonable
balance between inmate privacy and the needs of the institutions.” Id. at 339.

Since Florence, our court has decided several cases involving strip searches. Two of
these decisions are argued at length in this appeal.
 No. 16-2102 Sumpter v. Wayne Cty. Page 7

The first is Stoudemire v. Michigan Department of Corrections, 705 F.3d 560 (6th Cir.
2013). In that case, a prison guard subjected the plaintiff to an impromptu strip search while she
was standing in a common area of the prison. Id. at 566. When the plaintiff asked why she was
being searched, the defendant responded, “[b]ecause I can.” Id. at 566–67. The defendant then
escorted the plaintiff to her cell, which was adjacent to a busy hallway. Id. at 567. Inside, with
the window to the hallway open, the defendant conducted a strip search with a smirk on her face.
Id. During the search, the plaintiff could hear people in the hallway and realized that they could
see her. Id. This court found the alleged search to be unreasonable. “[A] strip search is a
particularly extreme invasion,” we said, and “[t]he location of the strip search made it more
invasive,” as did the manner in which the defendant conducted it. Id. at 573. As for any
legitimate penological justification for conducting the search, we concluded that “no special
circumstances” such as an “emergency” or “time or resource constraints” justified “strip
searching Stoudemire where others could see her naked.” Id. at 574. “[T]aking the facts as
Stoudemire alleged them,” and balancing the significant intrusion against the non-existent
penological justifications, we held that “[the plaintiff] has established a constitutional violation.”
Id.

The second case is Williams v. City of Cleveland, 771 F.3d 945 (6th Cir. 2014). The
issue in Williams was “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.” Id. at 947.
Applying Bell’s balancing test, we held such allegations stated a plausible Fourth Amendment
claim. Id. at 952–55. Starting from the premise that visual strip searches conducted in private
are themselves “an offense to the dignity of the individual,” we concluded that intentionally
touching a naked detainee (as the defendants did with the delousing agent) and doing so in the
presence of other detainees only exacerbates the humiliation and injury to personal privacy that
naturally attends strip searches. Id. at 952 (quoting Stoudemire, 705 F.3d at 572–73). In
weighing the “significant incursion into plaintiffs’ privacy rights” against the facility’s need to
conduct the searches, we cautioned, “[a]t this juncture in the analysis, the procedural posture of
this case is important.” Id. at 954. Because the case came to this court at the motion-to-dismiss
 No. 16-2102 Sumpter v. Wayne Cty. Page 8

stage, “plaintiffs were required only to plausibly allege—rather than demonstrate—that the jail
acted unreasonably.” Id. We held that the plaintiffs’ proposed complaint—which alleged that
jail administrators could have allowed detainees to self-apply the delousing agent privately—
accomplished that. Id. Because the plaintiffs alleged the availability of “easily implemented and
significantly less-invasive alternative[s]” to the significantly intrusive searches that were actually
conducted, we held that plaintiffs plausibly alleged a Fourth Amendment claim. Id. at 955–56.

C.

The constitutionality of the searches at issue in this case involves a three-step analysis.
First, we determine the nature of intrusion, “examin[ing] the scope, manner, and location of the
search.” Stoudemire, 705 F.3d at 572. Second, we “evaluate the need for the search, giving due
deference to the correctional officer’s exercise of her discretionary functions.” Id. And third,
“we determine whether the search was reasonably related to legitimate penological interests by
weighing the need against the invasion.” Id.

Nature of the Intrusion. “[A] strip search, by its very nature, constitutes an extreme
intrusion upon personal privacy.” Id. (quoting Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.
1996)); see also Williams, 771 F.3d at 952. The act of a stranger examining the most private
areas of one’s body “is ‘an offense to the dignity of the individual’ that is ‘undoubtedly
humiliating and deeply offensive to many[.]’” Williams, 771 F.3d at 952 (quoting Stoudemire,
705 F.3d at 572–73). Intrusive under ideal circumstances, strip searches are especially
humiliating when they are conducted in front of other inmates: “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.”
Id. at 953. The same applies to strip searches conducted in a discourteous manner. See
Stoudemire, 705 F.3d at 573.

These basic principles teach us that the Registry searches plaintiff endured constituted a
significant intrusion into her bodily privacy. Graham’s visual inspections of plaintiff’s naked
body, though only skin-deep, constituted a profound intrusion into her personal privacy, an
intrusion only magnified by the fact that plaintiff was exposed to several other inmates during
 No. 16-2102 Sumpter v. Wayne Cty. Page 9

each search. Moreover, plaintiff testified that, while she did not believe Graham intended to
humiliate or harass her, Graham made several rude comments about her body odor and hygiene,
saying she “[s]mells like a funky monkey” and telling her she needed to clean herself better.
These comments, while not dispositive of reasonableness, “implicate the dignitary interest
‘inherent in the privacy component of the Fourth Amendment’s proscription against
unreasonable searches.’” Id. (quoting Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 499 (6th
Cir. 2008)). Taken together, the scope, manner, and location of the searches overwhelmingly
support the conclusion that the searches plaintiff endured were especially intrusive.3

Nevertheless, the nature of the intrusion is only part one of the inquiry. An intrusive
search is not necessarily an unreasonable one, especially in the corrections setting, where an
inmate’s interest in being free from privacy invasions must yield to the realities of operating a
safe and effective corrections system. Florence, 566 U.S. at 326–28. In every case, corrections
officials and reviewing courts must balance the intrusion against “the need for the particular
search at issue” to determine whether the search is constitutionally tolerable. Stoudemire, 705
F.3d at 573 (internal quotation marks and emphasis omitted). We proceed, then, to the second
step of the analysis to determine whether defendants have asserted a legitimate penological
justification for conducting the group searches.

Penological Justification. The sort of group searches plaintiff endured were not the norm
in the Registry. According to jail policy applicable during plaintiff’s detention, guards were to
conduct strip searches “out of view of the public and other inmates” “[w]hen possible.”4 And
according to Graham, she followed that policy. “Group searches were the exception,” she said at
her deposition, “not the rule.” Thus, the relevant question is whether Graham had a legitimate

3
Our conclusion is based solely on the evidence pertaining to the three searches of plaintiff. Although
plaintiff presents evidence that other inmates endured similar group searches, that evidence is irrelevant to whether
the specific searches of plaintiff were unreasonable. See Warshak v. United States, 532 F.3d 521, 528 (6th Cir.
2008) (en banc) (stating that questions of Fourth Amendment “reasonableness” involve “case-by-case
determinations”); see also Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (stating that the test
of qualified immunity is whether the “official’s acts violated the plaintiff’s clearly established constitutional right”
(emphasis added) (citation omitted)).
4
Approximately one year after plaintiff left the Wayne County Jail, the facility changed its policy to allow
only individual strip searches; a change defendants insist was taken as a “precautionary measure,” and “not because
the Sheriff’s Office believed that the policy or method of searching was improper.” We confine our qualified
immunity analysis to the time of the contested searches.
 No. 16-2102 Sumpter v. Wayne Cty. Page 10

penological justification for deviating from the general rule. See id. (“We must further determine
‘the need for the particular search’ at issue.” (quoting Bell, 441 U.S. at 559)). She did.

Graham testified that she conducted group strip searches of up to five inmates when the
high volume of inmates demanded it. She explained that when there is a line of twenty or more
women waiting to be processed, conducting one-on-one searches for every inmate “takes a long
time,” which in turn causes a ripple effect on the rest of the registration process. For example,
when the bottleneck peaks during the afternoon shift, “sometimes [inmates] get left over to
midnight shift,” causing additional delays for inmates waiting to see the psychologist who only
works the day shift. Conducting individual searches in those circumstances not only impeded
the facility’s interest in expeditiously processing incoming inmates, it compromised the health
and safety of those inmates caught up in the delay. Again, Graham explained: “I conducted the
strip searches as quickly and efficiently as possible,” not only to find contraband, but “to route
inmates needing medical care, psychiatric care, or special housing as quickly as possible,
because a large number of the female inmates coming into the Jail have mental health issues or
need medical care.”

Jeriel Heard, the Chief of Jails and the corrections official who later changed the strip
search policy, see supra n.4, recognized the legitimacy of Graham’s justification:

I understood, also, that there is such pressure on the deputies to get these—
particularly the women inmates—processed because so many of them are flagged
for seeing a medical professional or mental health professional . . . that the
officers may have . . . tried to accelerate the way they could get these inmates . . .
up to the second floor where the doctors and the nurses are.

Heard continued, emphasizing the health-and-safety implications of a delay in the Registry:
“[I]t’s a real challenge to make sure that we get these inmates processed as quickly as possible
. . . some of wh[om], by the way, may have been in lockup . . . two or three days without
psychotropic medication, and they are really acting up.”

Plaintiff gives us no reason to doubt the legitimacy of defendants’ asserted justification.
In this court, she claims in conclusory fashion that there was no legitimate penological need for
the group searches, but she fails to address the justification put forward by defendants. And in
response to defendants’ motion for summary judgment below, plaintiff presented no evidence to
 No. 16-2102 Sumpter v. Wayne Cty. Page 11

dispute their asserted penological justification, much less “substantial evidence” that Wayne
County “exaggerated their response to these considerations.” Bell, 441 U.S. at 548. In addition,
the passage of time appears to have validated Graham. Since moving away from periodic group
searches, the jail has seen an increase in delays in the intake process. According to Graham,
“[T]he incidence of inmate booking ‘spilling over’ into the next shift has increased,” which in
turn has caused an uptick in “incidents of unsearched inmates passing and attempting to pass
contraband to searched inmates[] who are waiting to be processed into the jail.” Graham has
also noticed that “the time it takes to get female inmates to medical [personnel] to treat
conditions like heroin addiction; seizures; colostomy care; assistive devices (canes, crutches,
etc.); mental health treatment; and housing has substantially increased, sometimes by hours.”

For these reasons, and following the Supreme Court’s repeated admonitions in Bell and
Florence, we accord considerable deference to defendants’ assertion that they conducted group
strip searches when the high volume of inmates and concomitant effect of delays on inmate
health and safety demanded it. See Florence, 566 U.S. at 326 (“[C]orrectional officials . . . must
have substantial discretion to devise reasonable solutions to the problems they face.”); Bell,
441 U.S. at 548 (“[C]ourts should ordinarily defer to their expert judgment in such matters.”).

To summarize, on one hand, the group strip searches plaintiff endured in the Registry
were especially intrusive; on the other hand, defendants have asserted a legitimate penological
justification for periodically conducting the searches. Typically, we would proceed to balance
the nature of the intrusion against the penological justification to determine whether the searches
were unreasonable under the Fourth Amendment. However, we need not go that far in order to
determine that Graham is entitled to qualified immunity.

Qualified immunity protects a constitutional tortfeasor from personal liability unless the
contours of the constitutional right she violated “were sufficiently definite that any reasonable
official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014). The dispositive inquiry, “undertaken in light of the
specific context of the case, [and] not as a broad general proposition,” is “whether the violative
nature of particular conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308
 No. 16-2102 Sumpter v. Wayne Cty. Page 12

(2015) (per curiam) (first quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)
and then Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

Nowhere is that specificity as important as in the Fourth Amendment context, where,
under the governing ad-hoc interest-balancing test, “[i]t is sometimes difficult for an officer to
determine how the relevant legal doctrine . . . will apply to the factual situation the officer
confronts.” Id. at 308 (quoting Saucier, 533 U.S. at 205). Because “case-by-case, incremental
decisionmaking of balancing tests . . . infrequently will provide the ‘fair notice’ that qualified-
immunity precedent requires,” Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch.
Dist., 428 F.3d 223, 234–35 (6th Cir. 2005), “[c]ourts generally accord public officials wide
latitude (for qualified-immunity purposes) when the constitutionality of their acts comes down to
the subtleties of interest balancing[.]” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th
Cir. 2016). Thus, it is imperative that plaintiff rely on a decision that “squarely governs” the
outcome of the case. See Brosseau, 543 U.S. at 201. That she cannot do.

Plaintiff claims that Stoudemire and Williams clearly establish the right at issue, but these
decisions come up short for several reasons. First, Stoudemire and Williams were decided after
the events in this case. Thus, the decisions themselves could not have put Graham on notice that
her conduct was unconstitutional. Id. at 200 n.4. Plaintiff responds that Stoudemire held that the
right at issue in that case was clearly established as early as 2007, several years before the events
of this case.5 See Stoudemire, 705 F.3d at 575 (holding that “the state of the law in existence at
the time of the strip search . . . was clearly established”). At best, then, plaintiff’s argument is
one by analogy. But even this argument fails because both Stoudemire and Williams are
distinguishable in one important respect: in both cases, there was no penological justification for
the particular searches at issue. This critical difference makes Stoudemire and Williams poor
templates for declaring the particularized right at issue in this case—freedom from a group strip
search supported by a legitimate penological justification—clearly established. See Brosseau,

5
We note that this response does not save plaintiff’s argument as it pertains to Williams, since Williams did
not involve qualified immunity and thus had no occasion to declare that the right at issue was clearly established by
2012. See generally, Williams, 771 F.3d 945. But even if that were not the case, there is a more fundamental
problem with plaintiff’s reliance on Williams, as explained in the text.
 No. 16-2102 Sumpter v. Wayne Cty. Page 13

543 U.S. at 201 (holding that factually distinguishable circuit precedent “by no means ‘clearly
establish’ that [the defendant]’s conduct violated the Fourth Amendment”).

First consider Williams. The procedural posture of the case required this court to accept
as true the plaintiff’s plausible allegation that the defendants had no legitimate justification for
conducting group strip searches. Williams, 771 F.3d at 949, 956. Thus, we had no occasion to
evaluate any proposed penological justification, let alone weigh it against the nature of the
intrusion. Indeed, Williams itself recognized that its holding did not extend to cases like the one
before us: “[O]f course, the jail may have had good reasons for conducting these procedures in
the particular manner in which it did[,] [b]ut that is a matter for resolution . . . on summary
judgment[.]” Id. at 955 (citation omitted); see also id. (“Whether the particular manner in which
the jail conducted the searches . . . was ‘justified’ depends on the facts[.]”).

Unlike Williams, the present case comes to us at the summary judgment stage, and
Wayne County and Graham have provided a legitimate penological justification for the periodic
group strip searches; a justification that Sumpter has not disputed. As a result, we are obligated
to consider their evidence. Compare id. at 956 (“[T]he district court cannot have opined that the
jail’s conduct was ‘justified’ without examining the evidence—which, of course, it cannot do
when determining merely whether the proposed complaint failed to state a claim.”), with Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] party seeking summary judgment always bears
the initial responsibility of . . . identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” (internal quotations omitted)).

Next consider Stoudemire. The plaintiff in that case presented evidence that there was no
exigency or “time or resource constraints” to justify conducting the search where others could
see the plaintiff naked, which led this court to hold that the search was “devoid of any legitimate
penological justification.” Stoudemire, 705 F.3d at 574–75. In the absence of a governmental
interest, the outcome of the balancing test was obvious, so obvious that any reasonable officer in
the defendant’s position would have known that the search was unreasonable. Id. at 575; see
also Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005) (holding that violation of a
 No. 16-2102 Sumpter v. Wayne Cty. Page 14

“‘clearly established’ constitutional right” occurs “where the violation was sufficiently ‘obvious’
under the general standards of constitutional care”).

In stark contrast to Stoudemire, however, Graham testified without contradiction that she
conducted group searches when time and resource constraints required it. Cf. Stoudemire,
705 F.3d at 574. Thus, the clearly established right recognized in Stoudemire—a public strip
search “devoid” of justification—could not have put a reasonable officer on notice that what
Graham did—a group strip search supported by a legitimate penological justification—was
unconstitutional.

Plaintiff reads Stoudemire differently. According to Sumpter, Stoudemire “identified a
well[-]established right, the right not to be subjected to a humiliating strip search in full view of
several (or perhaps many) others unless the procedure is reasonably related to a legitimate
penological interest”—a right established long before the events in this case. Id. at 575
(emphasis omitted) (quoting Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002)). But
saying “strip searches must be supported by a legitimate justification” is just another way of
saying “searches must be reasonable.” As the Supreme Court has emphasized on multiple
occasions, “that is not enough.” Saucier, 533 U.S. at 202; see also al-Kidd, 563 U.S. at 742
(“We have repeatedly told courts . . . not to define clearly established law at a high level of
generality.”). “[T]he clearly established law must be ‘particularized’ to the facts of the case.”
White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). We do not read Stoudemire as ignoring this command. Rather,
Stoudemire held that the particularized right at issue in that case—freedom from an especially
intrusive public strip search “devoid” of justification—was clearly established because the
outcome of the Fourth Amendment balancing test between weighty privacy interests on one hand
and no governmental interest on the other was obvious. See 705 F.3d at 575 (“[A] reasonable
officer would have been on notice that the search was unreasonable under the circumstances and
devoid of any legitimate penological justification related to security and order.” (emphasis
added)). As discussed above, its holding sheds no light on whether Graham’s actions,
undertaken in wholly different circumstances, were unconstitutional.
 No. 16-2102 Sumpter v. Wayne Cty. Page 15

These differences matter because the existence of a countervailing government interest
necessarily affects the third step in the constitutional analysis, the balancing calculus. And this is
critical for purposes of qualified immunity analysis. Regardless of how the balancing actually
plays out, one thing is clear: Stoudemire and Williams could not have predicted the result since
neither case involved penological justifications to weigh against the nature of the intrusion. To
put it in more descriptive terms: it is easy enough to predict how scales with one hundred apples
on one end will balance out, but it is far more difficult to predict how many oranges must be
added to the other side to bring it to equipoise. Tasked with making that second prediction,
Graham would have found no clues in “apples-only” cases like Stoudemire and Williams.

The dissent starts with the wrong question. It asks whether our case law clearly
establishes Officer Graham’s justification for the group searches as a legitimate one. Infra at 11–
12. But that’s not how qualified immunity works. To overcome an officer’s request for
immunity, the plaintiff must show that the “right” she seeks to vindicate is clearly established,
not that the officer’s justification is not clearly established. Wegener v. City of Covington,
933 F.2d 390, 392 (6th Cir. 1991). The issue is the right to be free from a group strip search
where the officer has an administrative need to process a large quantity of inmates at one time.
The cases fail to address this situation, and so the right is not (and was not) clearly established.
In focusing on only one half of the right at issue, the dissent inverts the burden, leaving the
officer, rather than the plaintiff, in need of clearly established law to succeed. The dissent also
focuses much of its energy on a question we do not address: whether the searches violate the
Fourth Amendment. Its key points—that the jail later changed (or clarified) its policy, that
Officer Graham had other alternatives available to her, and that she could have anticipated the
situation and planned accordingly—all fail to address whether the law at the time clearly
established the searches as Fourth Amendment violations.

The absence of a decision that “squarely governs” this situation is particularly detrimental
to plaintiff’s claim because, when the constitutional test is one of interest-balancing, the point at
which the constitutional shades into the unconstitutional will necessarily be gray. Brosseau,
543 U.S. at 201. Qualified immunity exists to give public officials breathing room to make close
calls when the issue is not black-and-white. al-Kidd, 563 U.S. at 743. And this breathing room
 No. 16-2102 Sumpter v. Wayne Cty. Page 16

is especially appropriate when the legal standard is flexible and heavily dependent on on-the-
ground judgment calls, as it is in this context. See Florence, 566 U.S. at 326 (“[C]orrectional
officials . . . must have substantial discretion to devise reasonable solutions to the problems they
face.”); Bell, 441 U.S. at 559 (“The test of reasonableness . . . is not capable of precise definition
or mechanical application.”); see also Hernandez v. O’Malley, 98 F.3d 293, 297 (7th Cir. 1996)
(“Contextual balancing tests should be worked out prospectively, rather than at the expense of
public officials who guess wrong about future legal developments.”). Strip searches, even when
conducted in the most private circumstances, are intrusive. But in the absence of bright lines and
per se prohibitions, whether and when to subject inmates to increasingly intrusive searches
depends on the facts confronting the corrections official in each particular case.

For these reasons, we need not conduct the Fourth Amendment analysis to its completion
in order to conclude that Graham is entitled to qualified immunity. Neither Stoudemire, nor
Williams, nor any other case, would have put Graham on notice that conducting group strip
searches when the volume of inmates made individual searches imprudent was unreasonable.
Thus, regardless of whether Graham, in fact, violated the Fourth Amendment, no reasonable
officer would have known that at the time. We therefore hold, as the district court did, that
defendant Graham is entitled to qualified immunity.

IV.

The district court also granted summary judgment in favor of Wayne County and the
Wayne County Sheriff in his official capacity on plaintiff’s Fourth Amendment claim regarding
the cellblock search.6 Accepting plaintiff’s testimony that three male guards may have observed
the cellblock search, the district court ruled that “municipal liability cannot be imposed upon the
defendant county based upon a single incident of an alleged tortfeasor’s conduct.”

Plaintiff argues that the district court mistakenly held that her cellblock search was a
“single incident.” She contends that the record contains hundreds of affidavits from former

6
The dissent would also allow Sumpter’s “individual” claim regarding the cellblock search in the presence
of male officers to proceed. Infra at 16. The main problem is that Sumpter has no such claim. Sumpter sued only
one officer individually: Officer Graham. And while Sumpter alleges that Graham participated in the intake
searches, she does not allege that Graham participated in the cellblock search. As to that search, Sumpter sued only
the County and the County’s sheriff (in his official capacity).
 No. 16-2102 Sumpter v. Wayne Cty. Page 17

inmates recounting similar incidents, evidence she contends demonstrates that Wayne County
had a policy of permitting this unconstitutional conduct. Only by turning a “blind eye toward
this record evidence,” plaintiff argues, could the district court hold that hers was an isolated
incident.

The problem with plaintiff’s argument is reflected in her choice of idiom. To “turn a
blind eye” presupposes someone has been given information that he prefers to ignore. See blind,
Oxford Dictionary of English Idioms (3d ed. 2009) (explaining that the phrase is a reference to
Admiral Horatio Nelson, who, after receiving word that his superior officer was signaling him to
stand down at the Battle of Copenhagen, lifted his telescope to his blind eye, “thereby ensuring
that he failed to see his superior’s signal to discontinue the action”). That did not happen in this
case.

The record shows that plaintiff failed to marshal the collection of affidavits in an effort to
establish that the cellblock search was not an isolated incident. Plaintiff insists she did so by
dropping a footnote in response to defendant’s motion and stating that she “relies on, and
incorporates herein, the affidavits . . . in opposition to summary judgment.” But this is the
summary judgment equivalent of “hid[ing] elephants in mouseholes.” See Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001). The context of this offhand reference—during a
separate argument that Graham’s Registry searches were unreasonable—shows that she did not
employ the affidavits in support of her cellblock search claim. In fact, Sumpter did not mention
this Monell claim at all in her response to summary judgment. Her brief refers only to the group
strip search Monell claims, not the cellblock searches in front of male officers, and even then
only in a single offhand remark.7 In short, because plaintiff failed to bring the affidavits to the
district court’s attention in connection with the cellblock claim, it had no occasion to consider
them in that context. Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007)

7
Plaintiff apparently thought defendants were not seeking summary judgment on this claim. At the outset
of her response, she stated, “Defendants are not seeking summary judgment as to Plaintiff’s claims that her strip
search, in the presence of members of the opposite sex, was a violation of her Fourth Amendment rights.” She was
mistaken. The final section of defendants’ motion for summary judgment, entitled “Plaintiff Cannot Establish a
Municipal Liability Claim Under § 1983,” argued, “[E]ven assuming that Plaintiff was searched in the manner
alleged in her deposition testimony, this single instance of male deputies being in the duty station during the search
is insufficient to establish that Wayne County had an unconstitutional policy of forcibly exposing female inmates in
a state of undress to male guards.”
 No. 16-2102 Sumpter v. Wayne Cty. Page 18

(“[T]he opposing party ‘has an affirmative duty to direct the court’s attention to those specific
portions of the record upon which it seeks to rely to create a genuine issue of material fact.’”
(quoting In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)). Nor will we fault the district court for
failing to do so. We have said time and again, district courts cannot be expected to dig through
the record to find the seeds of a party’s cause of action. See, e.g., Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479–80 (6th Cir. 1989). Plaintiff must mark each site, identifying the genuine
disputes of fact that preclude summary judgment on a particular claim. Stiles ex rel. D.S. v.
Grainger Cty., Tenn., 819 F.3d 834, 847 (6th Cir. 2016). The district court had no obligation to
do plaintiff’s work for her, nor do we. We therefore affirm the decision granting summary
judgment in favor of defendants on the cellblock search claim.8

V.

This leaves plaintiff’s claims for injunctive and declaratory relief. The district court held
that these claims were moot because plaintiff was no longer housed at the Wayne County Jail
and the Wayne County Jail formally changed its policy to prohibit group strip searches. We
affirm the decision to grant summary judgment on these claims, though we conclude that the
doctrine of standing, as opposed to mootness, is the correct rationale.

The doctrines of standing and mootness are similar, but they are not the same. See City
of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Standing seeks to ensure the plaintiff has a
“personal stake in the outcome of the controversy” at the outset of litigation. Baker v. Carr,
369 U.S. 186, 204 (1962). Mootness, on the other hand, “is akin to saying that, although an
actual case or controversy once existed, changed circumstances have intervened to destroy
standing.” In re: 2016 Primary Election, 836 F.3d 584, 588 (6th Cir. 2016). The common
refrain that mootness is just “standing set in a time frame” best captures the temporal distinction:
standing applies at the sound of the starting gun, and mootness picks up the baton from there.

8
We also note that, because Sumpter has not shown that the group Registry searches violated clearly
established law, Wayne County cannot be liable for failing to train its officers to avoid them. Municipalities are
liable for a failure to train when the failure amounts to a deliberate indifference to the rights of persons with whom
its officers come into contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). But a municipality cannot be
deliberately indifferent for failing to train officers to avoid constitutional violations that have not been clearly
established as such. Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012); Arrington-Bey v.
City of Bedford Heights, Ohio, 858 F.3d 988, 995 (6th Cir. 2017).
 No. 16-2102 Sumpter v. Wayne Cty. Page 19

See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan,
Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). That
temporal distinction is relevant, at least in relation to the district court’s decision, because
plaintiff’s claims for injunctive and declaratory relief did not present an actual case or
controversy at the time she filed her complaint. Hence, it is more accurate to say she lacked
standing to bring these claims, rather than say they are moot.

To satisfy Article III standing, plaintiff must show, among other things, that she “suffered
an ‘injury in fact,’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted), and
she must do so for each form of relief, Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (“[S]tanding
is not dispensed in gross.”). In the context of claims for injunctive or declaratory relief, “a
plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and
particularized,” and that “threat must be actual and imminent, not conjectural or hypothetical[.]”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “[P]ast exposure to illegal conduct . . .
unaccompanied by any continuing, present adverse effects,” will not suffice to establish “a
present case or controversy.” Lyons, 461 U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S. 488,
495–96 (1974)). Yet, “past exposure to illegal conduct” is precisely what plaintiff alleges here.

Sumpter claims she was subjected to four separate strip searches as an inmate in the
Wayne County Jail between October and November 2012. However, she left the jail in
November 2012, and we can only speculate as to whether she will ever return. At this juncture,
we must assume that plaintiff “will conduct [her] activities within the law and so avoid . . .
exposure to the challenged course of conduct.” O’Shea, 414 U.S. at 497. The likelihood of
future injury is further diminished by the fact that defendants have changed their official policy
to prohibit group strip searches. In the absence of evidence demonstrating a “sufficiently real
and immediate” threat of being subjected to group strip searches at the Wayne County Jail again,
id. at 496, plaintiff has failed to establish standing to seek injunctive or declaratory relief, see
Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (“[P]ast injury [with] no
continuing, present adverse effects . . . cannot establish standing for declaratory and injunctive
relief.”).
 No. 16-2102 Sumpter v. Wayne Cty. Page 20

The foregoing renders plaintiff’s challenges to the district court’s decision moot. She
argues that the district court’s reasoning overlooks cases like Gerstein v. Pugh, 420 U.S. 103
(1975), and Sosna v. Iowa, 419 U.S. 393 (1975), which she claims recognize a special rule in
putative class action cases where the named plaintiff’s claim is mooted before the class can be
certified. But those cases are no help to plaintiff because the complaining parties had a live,
actionable claim for injunctive relief at the time they filed suit—which is to say, they had
standing. See Gerstein, 420 U.S. at 110 n.11; Sosna, 419 U.S. at 402. Plaintiff also insists that
her suit fits the exception for cases that are “capable of repetition, yet evading review.” But that
exception cannot cure lack of standing, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 190–91 (2000), and even in the mootness context, it only applies
when “there is a reasonable expectation that the same complaining party will be subject to the
same action again,” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (bracketing omitted) (emphasis
added) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990)). Again, there is no
indication that plaintiff intends to return to the Wayne County Jail anytime soon. We therefore
affirm the district court’s decision to grant summary judgment on plaintiff’s claims for injunctive
and declaratory relief.

VI.

We do not underestimate the severity of the intrusions plaintiff endured during her
incarceration in the Wayne County Jail. The practice of strip searches “instinctively gives us the
most pause.” Bell, 441 U.S. at 558. However, our task is to determine whether the
particularized right implicated by defendant’s actions was clearly established at the time plaintiff
was searched. For the reasons explained above, we hold that it was not. We further conclude
that the district court properly granted summary judgment in favor of defendants on plaintiff’s
cellblock claim and claims for injunctive and declaratory relief.

We therefore affirm the judgment of the district court.
 No. 16-2102 Sumpter v. Wayne Cty. Page 21

_________________

DISSENT
_________________

CLAY, Circuit Judge, dissenting. This case turns on whether the officer and the county
had a penological justification for strip searching Plaintiff in a group with other inmates. The
entire majority opinion is predicated on the officer’s ambiguous and generalized testimony that
there was an urgent situation which necessitated the group strip searches. There is no basis in the
record indicating that every time Plaintiff was strip searched in a group, there was a special
circumstance at that time. The majority thus incorrectly holds that Defendant Terri Graham is
entitled to qualified immunity and that Plaintiff failed to successfully defend her municipal
liability claim in connection with the cellblock search. The law clearly establishes that the three
group strip searches conducted in the Registry of the Wayne County Jail and the strip search
conducted in the cellblock violated Plaintiff’s constitutional rights. Plaintiff also persuasively
presented her municipal liability claims in connection with the four strip searches.

For the reasons stated below, I respectfully disagree with the majority opinion and would
remand for further proceedings consistent with this dissent and direct the district court to
consider the viability of Plaintiff’s request for class action designation.

BACKGROUND

Because the majority fails to mention many of the facts reflected by the record and as
testified to by Plaintiff, the record needs to be reviewed in order to provide the factual context for
the events giving rise to Plaintiff’s claims.

On August 2, 2012, Plaintiff was involved in a car accident and three of her close friends
were seriously injured. (R. 44, Defs.’ Mot. for Summary Judgment, Page ID # 1455.) Plaintiff
had graduated high school a year prior to the accident and planned to attend college to be a
graphic designer. (R. 44-2, Pl.’s Dep. Tr., Page ID # 1490−91.) On October 9, 2012, Plaintiff
was arrested and charged with reckless driving in connection with the August 2, 2012 accident.
(Id.) Immediately following her arrest, Plaintiff was housed as an inmate in the Wayne County
 No. 16-2102 Sumpter v. Wayne Cty. Page 22

Jail from October 9, 2012, through November 13, 2012. (R. 1, Compl., Page ID # 2.) Prior to
her car accident, Plaintiff had never been incarcerated in jail. (R. 44-2 at 1511.)

During her 34-day stay at the county jail, Plaintiff was strip searched at least four
separate times. (R. 44-2 at 1499, 1501.) Plaintiff was strip searched three times in the Registry,
which is an intake area where the inmates change out of their street clothes into the clothes
provided by the jail. (Id. at 1499.) Plaintiff testified that when she was strip searched in the
Registry, Graham, a female officer, conducted the search and there were at most five other
female inmates in the room with her each time. (Id.) The Registry room had a wall that was
separated by glass. (Id. at 1500.) Graham was inside the room with the inmates, and another
female officer was on the other side of the glass. (Id.)

Although the male officers did not enter the room during these three searches in the
Registry, Plaintiff was able to hear male voices coming from behind the glass on the other side of
the wall of the Registry. (Id.) The voices conveyed to Plaintiff the impression that she was
being viewed by the males on the other side of the glass. In questioning Plaintiff about the male
voices she heard, Defendants sought to have Plaintiff admit that those voices could have been
coming from a room from which Plaintiff would not have been viewed while she was being strip
searched. (Id.) At the very least, a factual dispute exists as to whether the jail permitted Plaintiff
to be viewed by male officers during the three strip searches.

During the searches in the Registry, Graham criticized Plaintiff’s body odor and
cleanliness. Graham deliberately humiliated Plaintiff by telling her that she smells like a “funky
monkey” and that Plaintiff needed to clean herself better. (Id.) Graham also handled those
female inmates who were menstruating in a way potentially hazardous for their health. Plaintiff
witnessed female inmates being strip searched while on their monthly cycle, and described how
menstrual fluid was discarded on the floor in the Registry, which nobody attempted to clean up.
(Id. at 1505, 1512.) Plaintiff further testified that Graham would also light candles and incense
due to the alleged smell caused by the female inmates who were strip searched. (Id. at 1500.)

In October 2012, the fourth search occurred in the unit where the inmates at the county
jail are housed. (Id.) These searches of the housing units, or cellblocks, are conducted to search
 No. 16-2102 Sumpter v. Wayne Cty. Page 23

for contraband. (Id. at 1502.) First, the individual cells are searched. (Id.) Then, once the cells
have been searched, the inmates are ordered out of their cells to form a line along the floor in the
common area. (Id.) The common area is the area with tables, chairs, and a television in the
middle of the floor where the housing units are located. (Id.) Also on this floor is an area called
the “bubble” or duty station, where the officers stand in order to view the cells and common area
on the floor. (Id. at 1502−03.) There is a tinted glass screen around the bubble through which
the officers can see. (Id. at 1504.)

During this fourth search, Plaintiff was ordered to stand in line in front of the cells with
the other female inmates on her floor. (Id. at 1503.) The women were then told to take off each
piece of their clothing, shake the clothing out, lift their breasts, hold out their arms, squat, and
cough. (Id. at 1502.) A female officer was involved in supervising this strip search. Plaintiff
testified that there were three male officers, and one female officer, standing in the bubble during
the strip search. (Id. at 1503.) Although Plaintiff could not see the male officers’ faces because
of the tint on the glass screen, she knew they were men because she heard male voices and saw
silhouettes of “three buff male officers” standing inside the bubble. (Id. at 1504.) Plaintiff saw
the male silhouettes facing in her direction and presumably viewing her and the scene in front of
them. (Id. at 1505.)

The majority believes that the evidence presented in this case fails to raise a genuine
dispute of material fact as to Plaintiff’s claims. I disagree. The record lacks any indication that
Defendants acted lawfully towards Plaintiff and the other female inmates housed at the county
jail. Plaintiff was repeatedly humiliated and embarrassed as a direct result of Defendants’
actions in this case. Although never having been convicted of a crime, at no point during her
incarceration was Plaintiff informed of the jail’s policies or protocols regarding strip searches
and her rights in connection with such searches. (Id. at 1504−05.) Defendants argue that the
record is not sufficient to hold them accountable for their actions, and the majority obviously
agrees.

For the reasons that follow, I respectfully dissent.
 No. 16-2102 Sumpter v. Wayne Cty. Page 24

DISCUSSION

A. Qualified Immunity

Title 42 U.S.C. § 1983 establishes “a cause of action for deprivation under color of state
law, of any rights, privileges or immunities secured by the Constitution or laws of the United
States.” Horn v. Madison Cty. Fiscal Court, 22 F.3d 653, 656 (6th Cir. 1994). To succeed on
this claim, a plaintiff must show “(1) the deprivation of a right secured by the Constitution or
laws of the United States (2) caused by a person acting under the color of state law.” Dominguez
v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Sigley v. City of Parma Heights,
437 F.3d 527, 533 (6th Cir. 2006)). However, “[t]he doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).

“[W]hether an official protected by qualified immunity may be held personally liable for
an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of
the action,” “assessed in light of the legal rules that were ‘clearly established’ at the time it was
taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citation omitted). To determine
whether a government official is entitled to qualified immunity, we apply a two-prong test:
(1) whether the facts, when taken in the light most favorable to the party asserting the injury,
show the official’s conduct violated a constitutional right; and (2) whether the right violated was
clearly established such “that a reasonable official would understand that what he is doing
violates that right.” Anderson, 483 U.S. at 640.

In determining whether a constitutional right was clearly established, “[t]he key
determination is whether a defendant moving for summary judgment on qualified immunity
grounds was on notice that his alleged actions were unconstitutional.” Grawey v. Drury,
567 F.3d 302, 313 (6th Cir. 2009). “Qualified immunity ordinarily applies unless it is obvious
that no reasonably competent official would have concluded that the actions taken were
unlawful.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (citation omitted).
 No. 16-2102 Sumpter v. Wayne Cty. Page 25

The Supreme Court has admonished that in most situations, prison officials “should be
accorded wide-ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain institutional
security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). “To ensure that courts afford appropriate
deference to prison officials, [the Supreme Court] ha[s] determined that prison regulations
alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive
than that ordinarily applied to alleged infringements of fundamental constitutional rights.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).

The Supreme Court has articulated the following standard: “[W]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). A correctional
officer’s discretionary actions are reviewed under the same deferential standard. Florence v. Bd.
of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326 (2012). Despite the deference
given to prison official’s actions, the Supreme Court has instructed that “federal courts must take
cognizance of the valid constitutional claims of prison inmates.” Turner, 482 U.S. at 84.

The Supreme Court advises the federal courts that, where a prisoner alleges an
unconstitutional search,

[t]he test of reasonableness under the Fourth Amendment . . . . 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 is conducted.

Bell, 441 U.S. at 559.

In other words, we first examine “the scope, manner, and location of the search—as well
as the justification for initiating it—in order to assess the degree to which it invaded the
prisoner’s right to privacy.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 572 (6th Cir.
2013). Next, we “evaluate the need for the search, giving due deference to the correctional
officer’s exercise of her discretionary functions.” Id. Lastly, we “determine whether the search
was reasonably related to legitimate penological interests by weighing the need against the
invasion.” Id.
 No. 16-2102 Sumpter v. Wayne Cty. Page 26

First and foremost, the record in this case and our jurisprudence clearly demonstrate that
the three strip searches conducted in the Registry violated Plaintiff’s constitutional rights.
The penological justification given by Graham fails to outweigh the invasion of Plaintiff’s
privacy rights. Jail personnel must be held to a certain standard of human decency and civility.
Although detainees, otherwise known as inmates, enjoy less privacy rights than non-detainees,
they still have privacy rights. Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“[A]
convicted prisoner maintains some reasonable expectations of privacy while in prison . . . even
though those privacy rights may be less than those enjoyed by non-prisoners.”)

We held that it was clearly established at least since 2007 “that strip searches performed
in view of other inmates without a legitimate penological justification violates inmates’ clearly
established Fourth Amendment rights.” Salem v. Mich. Dep’t of Corr., 643 F. App’x 526, 530
(6th Cir. 2016); see also Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001), and Iskander v.
Village of Forest Park, 690 F.2d 126, 129 (7th Cir. 1982). We held in Stoudemire that although
an officer may have a valid reason for searching an inmate, “no special circumstances provided
additional justifications for strip searching Stoudemire where others could see her naked.”
705 F.3d at 573−74. In Williams v. City of Cleveland, we reiterated the ruling in Stoudemire that
there needs to be “exigent circumstances” compelling the officer to strip search an inmate in
view of other inmates. 771 F.3d 945, 955−56 (6th Cir. 2014).

In this case, Graham would have been justified in strip searching Plaintiff one-on-one in
order to search her for contraband when she initially entered the jail and when she left and came
back from court appearances. However, Graham’s justification for strip searching Plaintiff as a
part of a group must be akin to an emergency in order to satisfy the Fourth Amendment’s
prohibition on warrantless searches. Stoudemire, 705 F.3d at 574 (finding that “no emergency
made such a search necessary . . . . [because] there were no time or resource constraints that
supported the need for such a[] [public] search”). Graham’s justification for strip searching
Plaintiff in a group setting on a number of occasions was not akin to an emergency. Graham
justified her actions by claiming that there was an influx of 20 to 25 inmates that needed to be
processed before the end of the day, otherwise—according to Graham—those inmates with
medical cards would have to wait overnight to be seen by a medical professional. At this early
 No. 16-2102 Sumpter v. Wayne Cty. Page 27

stage of the litigation, Plaintiff has had little opportunity to verify Graham’s self-interested
assertions with regard to the justification for the jail’s procedures—which in this case would
involve reviewing the availability of the jail’s personnel and funding resources for the conduct of
strip searches.

Graham cannot justify group strip searches such as those to which Plaintiff was subjected
merely because there were some female inmates who may or may not have been found to need
immediate medical treatment. One of the reasons why this processing of inmates was not akin to
an emergency is because this influx of 20 to 25 inmates was not something that happens once in
a while. Plaintiff was subject to three group strip searches in the Registry over the course of her
brief 34-day stay at the county jail. At a minimum, this non-exigent situation could be
anticipated and planned for in advance by the proper allocation of county resources. By the
county’s own reckoning, this circumstance occurred once every ten days.

The frequency of this occurrence mitigates against characterizing the influx of inmates as
“special,” “akin to an emergency,” or “exigent.” It is extremely unlikely that there were special,
exigent, or emergency-like circumstances every time the officer publicly and openly strip
searched Plaintiff in a group in the Registry. The reason given by the officer was not so much
about a special circumstance, but concerned a regular occurrence at the jail. Arguably, the jail is
always going to have an influx of inmates needing to be processed. The officer testified that the
reason she would strip search the women in groups was because “if we have to search them one
at a time, it takes a long time.” (R. 44-4, Graham Dep., Page ID # 38 (testifying that the average
number of female inmates to be processed each day might be 20 or 25, which therefore suggests
that this “influx” of inmates did not occur infrequently but rather all the time).) A possible
explanation for the group strip search procedure is that Graham and other jail personnel resorted
to the procedure not out of necessity, but because they desired to conduct the strip searches
quickly to accommodate their own personal convenience.

The proper course of action Graham should have taken during these alleged “influxes”
would have been to process and strip search those inmates with medical cards first, and one at a
time, before processing the inmates without medical cards. Graham even testified that the
medical cards, or medical flags, are usually given before the strip searches occur. Thus, Graham
 No. 16-2102 Sumpter v. Wayne Cty. Page 28

would know prior to conducting the strip searches which inmates needed to immediately see a
medical professional and which inmates did not. This proposed system of prioritizing those with
medical cards first is one way that would have solved Graham’s problem without violating any
inmate’s constitutional rights. The majority undiscerningly accepts Graham’s justification
without considering less intrusive and offensive means by which the female inmates could have
been processed. Such shocking and opprobrious searches of a person’s most intimate body parts
in front of on-lookers with a blanket explanation that whenever the county jail has to process a
lot of female inmates, they can be publicly strip searched in groups, cannot be justified.
Stoudemire and Williams both emphasize that these circumstances need to be “special,” or
“exigent,” and “akin to an emergency.” As discussed above, all three of these circumstances are
lacking in this case.

The majority also fails to construe all reasonable inferences from the evidence in the light
most favorable to Plaintiff as the non-moving party. See Ciminillo v. Streicher, 434 F.3d 461,
464 (6th Cir. 2006). The evidence as recited by the majority paints a picture at odds with the
actual events that transpired in this case. The majority fails to mention that the group strip
searches were not authorized by any policy the county jail affirmatively approved, nor were the
searches carried out in an objective way. Graham admits in her testimony that the reason she
searched inmates in groups of 5 rather than in groups of 6 or 7 was due, in part, to the 5:1 ratio
for “transporting” prisoners. (R. 44-4 at 1538.) She also admits that there was no policy
approving of group strip searches, and that the number 5 is something that she arbitrarily came
up with herself. (Id.) The takeaway from the officer’s testimony is simple: the group strip
searches Plaintiff endured were carried out according to the subjective and arbitrary whims of the
officer on duty at the time. This part of Graham’s testimony, which the majority conveniently
fails to mention, should be reason enough for us to find that the group strip searches endured by
Plaintiff were unconstitutional.

Graham also testified that in late 2013, she received a directive which clarified the strip
search policy for jail personnel. The November 2013 directive circulated by the county jail
management instructed all jail personnel to strip search female inmates “one inmate at a time in
the dress room” by an officer of the same gender and out of view of persons of the opposite
 No. 16-2102 Sumpter v. Wayne Cty. Page 29

gender. (See R. 44-6, Wayne County Divisional Directive, Page ID # 1557.) The directive also
instructed the jail personnel to “be professional at all times.” (Id.) The directive fails to specify
appropriate circumstances under which jail personnel are permitted to depart from the policies.
This directive is especially relevant to our analysis because of what it says and when it was
circulated. In August 2012, a few months prior to the circulation of the directive, a female
inmate filed an action against the Wayne County Jail, alleging claims of group strip searches
being conducted, similar to Plaintiff’s, in a humiliating and derogatory manner, sometimes in the
presence of male officers. The fact that the directive was circulated to all jail personnel, and that
it specifically emphasized how jail personnel are not to strip search female inmates in groups,
supports Plaintiff’s contention that such group strip searches are unconstitutional and contrary to
the jail’s policy. The timing of when the directive was circulated also supports the contention
that the group strip searches were not only inappropriate and against jail policy, but would not be
tolerated by the jail administration. Whether or not group strip searches were actually against the
jail’s policy at the time she was strip searched, Plaintiff nevertheless has a viable claim. This is
evidence that the majority omits from its analysis.

Additionally, there is evidence in the record that even the person in charge of managing
the intake process at the county jail was unaware, and shocked to discover, that officers were
conducting group strip searches of female inmates. Jeriel Heard, Director of Population
Management at the Wayne County Jail, testified that he was not aware that female inmates were
openly strip searched in groups. (R. 44-8, Jeriel Heard Dep., Page ID # 97−98.) He stated that:

Officers get caught up in the exigency of dealing with . . . 25 [inmates].
Sometimes we have booked in 40 to 50 females in a day, and we have two female
officers there.
So, you know, that is the reason, you know, that you have to reiterate directives
and policies because officers will feel under duress or stress and do things that
they are – they know they shouldn’t be doing. And, first of all, it’s not safe for
them to do it. I mean, I would object because I wouldn’t want one officer to be
strip searching five inmates at the same time.

(Id. at 98.)

Heard’s testimony clearly demonstrates that Graham conducted the group strip searches
in contravention of the jail’s policy and in a manner that put the officer’s and inmates’ safety at
 No. 16-2102 Sumpter v. Wayne Cty. Page 30

risk. The officer responsible for processing female inmates into the jail required a more
compelling justification for strip searching female inmates in groups other than that it would take
less time. There were other, less intrusive solutions to the officer’s concern for efficiency that
would have been consistent with our jurisprudence on this issue.

Graham provides little evidence demonstrating that every time she strip searched Plaintiff
in a group, there was an exigent circumstance at that time. The evidence presented by Graham is
ambiguous and generalized, and not specific as to what happened on those specific dates. Heard
and Graham only testified to the intake process at the jail in general and the estimated number of
inmates that would have caused the purported influx. We still do not know, on those days
Plaintiff was strip searched, whether the number of inmates that needed to be processed reached
20 to 25. The officer’s justification, or lack thereof, is not sufficient to indicate a special,
exigent, or emergency circumstance necessitating group strip searches.

Graham further testified that the “ripple effect” of conducting individual strip searches is
that “sometimes [the female inmates] get left over to midnight shift,” and inmates who cannot
get processed in the afternoon shift are processed during the next shift, or midnight shift. (R. 44-
4 at 76.) Thus, the amount of time that an inmate would be waiting to get processed could be a
difference of hours. There is no indication, nor has any evidence been provided by Graham, that
such a delay would have subjected any of the inmates being processed to a health risk.

The issue as the majority frames it is whether our cases clearly establish that a group strip
search conducted to expedite access to medical treatment violates the Fourth Amendment.
However, that is definitively not the issue in this case. Rather, the true issue is whether the
justification provided by Graham sufficiently demonstrates a special, exigent, or emergency
circumstance which necessitated that such an invasive and humiliating jail intake process be
conducted in the presence of others who had no reason to view such things.1

1
With regard to its citation of Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991), the
majority makes the baffling claim that Plaintiff seeks to misapply the qualified immunity doctrine by seeking to
show that the officer’s justification is not clearly established, rather than that Plaintiff’s constitutional right, which
was violated, was clearly established. Under many factual scenarios, both issues are bound up together when, by
way of example, a plaintiff is able to demonstrate that her clearly established constitutional rights were violated but
the accused officer attempts to establish a justification that might arguably excuse the violation.
 No. 16-2102 Sumpter v. Wayne Cty. Page 31

Furthermore, the majority’s interpretation of the relevant case law on this issue is
completely flawed. In Stoudemire, we considered, along with numerous other factors, the lack of
evidence of any time constraints justifying the need for the public strip search. 705 F.3d at 574.
This finding, however, does not render Stoudemire inapplicable for purposes of our
determination in this case. Stoudemire emphasizes a key point, which is that the test for
analyzing prison inmate searches is a balancing test, and “not capable of . . . mechanical
application” as suggested by the majority opinion. Bell, 441 U.S. at 559. The lack of time
constraints in Stoudemire does not make it irrelevant for our purposes. The point is that it does
not appear that the officer in this case was under any emergency-like time constraints during any
of the particular searches in the Registry; certainly, the record below fails to indicate any such
time constraints. Thus, like Stoudemire, this factor weighs in favor of Plaintiff.

Stoudemire also supports Plaintiff’s argument given the scant documentation of the
alleged “exigent circumstance” offered by Graham. The exigent circumstance, as argued by the
officer, is that the inmates needed to be speedily strip searched so that they could be provided
medical treatment as soon as possible. Despite Graham’s assertion, she has not provided
sufficient evidence as to why there was such an “exigent circumstance” at the time the group
strip searches were performed on Plaintiff. It is clear from Graham’s and Heard’s testimony that
the group strip searches in the Registry were not conducted in accordance with the jail’s policy,
and that they were likely conducted in accordance with Graham’s personal preferences or to suit
her personal convenience. Additionally, Graham is not clear as to the specifics surrounding the
three Registry group strip searches. In Stoudemire, the search and the specifics surrounding that
particular search were clearly documented by sufficient evidence in the record. It was clear in
Stoudemire that the jail personnel had no special time constraints or other justifications for
conducting the strip search in view of the other inmates. Conversely, the record in this case is
bereft of the details surrounding the three Registry group strip searches. In Bell, the Supreme
Court explicitly stated that the courts are tasked with the responsibility to determine “the need
for the particular search” at issue. 441 U.S. at 559 (emphasis added). We are unable to do that
in this case with the deficient record presented to us on appeal.
 No. 16-2102 Sumpter v. Wayne Cty. Page 32

Despite the majority’s claim, Williams also offers guidance for our determination. In
Williams, we held that the plaintiffs’ claims involving group strip searches should survive the
defendant’s motion to dismiss. Although Williams did not involve a motion for summary
judgment, we nevertheless asserted propositions of law regarding the justification the defendant
provided at the time. We stated in Williams that “[g]iven the significant incursion into plaintiffs’
privacy rights caused by the jail’s preferred method of searching and delousing [plaintiffs], 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.” 771 F.3d at 954. In response to the defendant’s
purported justification for delousing the plaintiffs’ genitals with a spraying agent, we stated that
“there is no question that permitting self-application of the delousing solution would be less
humiliating and invasive than the ‘hose treatment.’” Id. at 955. Similar to Williams, there is no
question that prioritizing the inmates in need of medical care with medical cards ahead of the
other inmates would have solved Graham’s alleged timing problem, and more importantly,
would have been significantly less intrusive and embarrassing than the group strip searches.

Likewise, our decision in Dufrin v. Spreen supports Plaintiff’s proposition that Graham
conducted unconstitutional strip searches and that Graham was on notice when she conducted the
searches that such group strip searches were unconstitutional. 712 F.2d 1084, 1089 (6th Cir.
1983). In Dufrin, we held that the strip search of an inmate was not unconstitutionally invasive
because “the search actually conducted was visual only, and was carried out discreetly and in
privacy.” 712 F.2d at 1089. Specifically, we concluded that the strip search in Dufrin was not
unconstitutionally invasive because it was visual only, conducted by a female attendant, “was
conducted in the privacy of a room in which only the jail matron could observe the prisoner. . . .
[and] [t]here [wa]s no claim of offensive behavior on the part of the matron or of anyone else in
connection with the search, beyond that inherent in the nature of the inspection itself.” Id. at
1087.

The strip search at issue in Dufrin was a proper example of a constitutional strip search
because the inmate was searched in private, without onlookers, and was conducted without the
officer making offensive and harassing comments. Graham did not conduct the search in the
manner outlined by our decision in Dufrin even though she was on notice that such outrageous
 No. 16-2102 Sumpter v. Wayne Cty. Page 33

and offensive conduct would not be tolerated. Graham strip searched Plaintiff in view of
numerous other female inmates and made offensive and harassing comments about Plaintiff’s
alleged smell and lack of cleanliness, and used the derogative term “funky monkey” to describe
Plaintiff. Although Graham’s offensive and insulting remarks do not render the strip search per
se unconstitutional, see Roden v. Sowders, 84 F. App’x 611, 613 (6th Cir. 2003) (“Even if [the
prison officer] did laugh, the strip search is not rendered constitutionally invalid thereby[,]”), the
comments may, in context, suggest personal animus and implicate the dignitary interest ‘inherent
in the privacy component of the Fourth Amendment’s proscription against unreasonable
searches,’” Stoudemire, 705 F.3d at 573 (quoting Brannum v. Overton Cty. Sch. Bd., 516 F.3d
489, 499 (6th Cir. 2008)).

Because the three Registry group strip searches violated Plaintiff’s clearly established
Fourth Amendment rights, I would hold that Graham is not entitled to qualified immunity.

Furthermore, Plaintiff’s claim that Defendants violated her constitutional rights by
forcibly exposing her to male officers while she was being strip searched in the cellblock should
have survived summary judgment. At the very least, a factual dispute exists as to whether the
jail permitted Plaintiff to be viewed by male officers during the cellblock search. Plaintiff
presented evidence, which Defendants failed to rebut, that demonstrated at least three male
officers viewed her while she was being strip searched in the cellblock.

Our precedent clearly establishes that an inmate has a valid Fourth Amendment privacy
claim when he or she alleges that members of the opposite sex viewed them during a strip search
without a penological justification. See Cornwell, 963 F.2d at 916. Plaintiff noted in her
response to the motion for summary judgment that “Defendants are not seeking summary
judgment as to Plaintiff’s claims that her strip search, in the presence of members of opposite
sex, was a violation of her Fourth Amendment rights.” (R. 49 at 1614 n.1.) The majority briefly
addressed this claim and held that Plaintiff was mistaken to have thought Defendants were not
challenging this claim. The majority misinterprets the record. With regard to Plaintiff’s
individual constitutional claims, Defendants only challenged Plaintiff’s claim in connection with
the three group strip searches in the Registry. (See R. 44 at 1451 (listing the statement of the
issues and only challenging one of Plaintiff’s individual constitutional claims—the group strip
 No. 16-2102 Sumpter v. Wayne Cty. Page 34

search claim in the Registry).) Thus, Plaintiff was correct in stating that Defendants did not
challenge this claim in their summary judgment motion.

The majority also contends that Plaintiff has no individual claim regarding the cellblock
search because she failed to sue an officer other than Graham in their individual capacity for
partaking in this search. The majority fails to view this claim in its proper context. Plaintiff was
incapable of recalling the names of the male officers that viewed her that day because their
identities were concealed behind the tinted glass in the bubble. Not unless every male officer
who worked that day was deposed and the officers who viewed her admitted to such conduct
would Plaintiff have been able to name the officers individually in her complaint. Additionally,
Plaintiff was not given the opportunity to amend her complaint to address this issue. Discovery
on this issue was thus insufficient. It would therefore be beneficial to remand the case in order to
give Plaintiff an opportunity to conduct more discovery so she can identify the individual
officers, both male and female, who were involved in the cellblock search. In this regard, the
district court should be instructed on remand to permit the parties to address the issue of whether
discovery should be reopened for purposes of identifying both the female officers who conducted
the cellblock strip search and allowed the male officers to view the female inmates, as well as the
male officers who viewed the cellblock search.

Because the cellblock group strip search violated Plaintiff’s clearly established Fourth
Amendment rights and because Graham failed to challenge this claim on summary judgment, I
would hold that Graham is not entitled to qualified immunity. I would instruct the district court
on remand to allow Plaintiff an opportunity to amend the complaint to permit further discovery
to be conducted on this claim.

B. Municipal Liability

Also problematic is the majority’s holding that Plaintiff’s municipal liability claim fails
because she failed to incorporate the other inmates’ affidavits in connection with her cellblock
strip search claim. The district court granted summary judgment in favor of the county on
Plaintiff’s municipal liability claim because it determined that Plaintiff could not demonstrate
that the county’s policy was responsible for male officers viewing her unclothed and other
 No. 16-2102 Sumpter v. Wayne Cty. Page 35

female inmates being strip searched in the cellblock. (R. 58, District Court Op’n, Page ID #
1715−16.) The district court specifically held that because Plaintiff alleged only one instance in
the cellblock where male officers allegedly viewed her while she was being strip searched, her
municipal liability claim must fail. (Id.) The majority agrees with the district court’s rationale
and further adds that Plaintiff failed to mention the cellblock municipal liability claim at all in
her response to the motion for summary judgment. The majority insists that Plaintiff only
mentioned her municipal liability claim as it relates to the group strip searches in the Registry,
not the cellblock, and that this mention was brief and failed to include the other inmates’
affidavits.

The majority has again improperly framed the issue. Plaintiff properly defended her
municipal liability claim as it relates to the cellblock search. Plaintiff argued in her response to
the motion for summary judgment that “[t]he manner in which Graham conducted these strip
searches compels the denial of her claim to qualified immunity, and also supports Plaintiff’s
Monell claims against Wayne County.” (R. 49, Pl.’s Resp. to Mot. for Summ. J., Page ID #
1621.) Plaintiff’s pluralization of “claims” in her response signifies that she was referring to
both of her Monell claims as alleged in her complaint: (1) the group strip searches in the
Registry; and (2) the cellblock search. The majority failed to acknowledge that Plaintiff alleged
numerous grounds for the county’s Monell liability in her complaint, including her cellblock
search where male officers inappropriately viewed her.

Even if Plaintiff’s cellblock Monell claim could have been more extensively argued in
her response to the motion for summary judgment, Plaintiff was certain that male officers were
in the bubble viewing her and the other female inmates being strip searched, and alleged as
much. There is no evidence in the record that forecloses the possibility that male officers were
actually in the bubble. The district court erroneously held that, “[e]ven if plaintiff was searched
in the manner alleged in her deposition testimony, a single instance of male deputies being in the
duty station during the search is insufficient to establish that Wayne County had a policy or
custom of exposing female inmates in a state of undress to male [officers].” (R. 58 at 1715−16.)
The majority agreed with the district court.
 No. 16-2102 Sumpter v. Wayne Cty. Page 36

The majority further added that the district court did not err in deciding not to consider
identical allegations in the affidavits from other female inmates because Plaintiff did not bring
them to the court’s attention in connection with the cellblock claim. The majority is wrong. In
Plaintiff’s response to the motion for summary judgment, she expressly stated that she “filed
with the Court hundreds of affidavits of inmates testifying as to the unreasonable manner of their
strip searches, either in the registry room, or in the presence of men, or both” and that she “relies
on, and incorporates herein, the affidavits filed at Docket 30-1 in opposition to summary
judgment.” (R. 49 at 1618, n.2.) In this same response, Plaintiff directs the district court’s
attention to specific affidavits in the record that recount occasions when male officers were
present during their strip searches. (R. 49 at 1620−21.) The affidavits from the other female
inmates depict countless occasions where they were forcibly exposed to male officers during
strip searches. (See R. 30-1, Affidavits from Similarly Situated Female Inmates.) The district
court erred by granting summary judgment in the county’s favor on this claim because Plaintiff
expressly directed the district court’s attention to specific affidavits in the record that
corroborated Plaintiff’s Monell claim that the jail had a policy or custom in practice of forcibly
exposing female inmates to male officers during strip searches.

Likewise, Plaintiff’s Monell claim as it relates to the group strip searches in the Registry
was sufficiently defended in her response to the summary judgment motion. Plaintiff noted in
her response that the hundreds of affidavits of female inmates detailing “the unreasonable
manner of their strip searches . . . in the registry room” support her opposition to the summary
judgment motion. (R. 49 at 1618, n.2 (citing to the hundreds of affidavits which detail countless
instances of group strip searches).) Thus, Plaintiff properly put forth evidence creating a genuine
dispute of a material fact as it relates to her municipal liability claim in connection with the
group strip searches in the Registry. This genuine dispute thus forecloses summary judgment in
the county’s favor. Even without considering the affidavits of the other female inmates, Plaintiff
alone alleged three different instances where she was strip searched in a group.

Thus, I argue that Plaintiff can demonstrate not only an individual constitutional violation
as to the group strip searches conducted in the Registry and the strip search conducted in the
cellblock, but also a genuine dispute of a material fact in connection with the county’s custom or
 No. 16-2102 Sumpter v. Wayne Cty. Page 37

practice of allowing these group strip searches to occur and forcibly exposing female inmates to
male officers during strip searches.

CONCLUSION

As articulated above, the analyses utilized by the majority in connection with its qualified
immunity and municipal liability discussions are plainly wrong. Specifically, I disagree with the
majority’s holding as it pertains to the finding of qualified immunity for Graham and the finding
that Plaintiff failed to raise municipal liability claims against Wayne County. Accordingly, I
respectfully dissent and would remand for further proceedings and direct the district court to
consider the viability of Plaintiff’s request for class action designation.