Class Certified to Sue for Jailhouse Delousing

     WILKES-BARRE, Pa. (CN) – A federal judge certified a class claiming that a jail’s blanket policy of submitting new inmates to a delousing regime unconstitutionally violates their 14th Amendment right to refuse medical treatment.



     “It cannot be said that these detainees were deloused pursuant to any sort of individualized [medical] determination,” U.S. District Judge Richard Caputo wrote, adding that a class is best suited for a case like this that pertains to uniform policy. Roneld Logory filed the federal class action against Susquehanna County Correctional Facility (SCCF) in July 2009. He said he was “humiliated and degraded” at his treatment in lockup for the misdemeanor offense of driving under the influence. After a strip search in which jail officials inspected the inside of his buttocks and around his testicles, “a correctional officer sprayed plaintiff with a delousing agent on his genitals” and then forced him to take a supervised shower, according to the complaint.
     “Susquehanna County has instituted a blanket policy of delousing, showering and strip-searching all individuals who enter the custody of the [SCCF] regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband,” Logory added.
     The case his a bump in September 2010 when the 3rd Circuit upheld blanket search policies of arrestees as consistent with the Fourth Amendment in Florence v. Bd. of Chosen Freeholders of Burlington.
     Logory countered by proposing two new classes for certification: “The Fourth Amendment Class – All persons who have been placed into custody of the Susquehanna County Jail as pre-trial detainees who were deloused upon their entry into the Susquehanna County Jail” and “The Fourteenth Amendment Class – All persons who have been placed into custody of the Susquehanna County Jail after being sentenced or as pre-trial detainees who were deloused upon their entry into the Susquehanna County Jail.”
     Caputo ruled last week that Logory satisfied the numerosity requirement for certification since the prison admitted that all of its “detainees who were strip searched were subjected to delousing procedures,” that the “delousing procedure is, in fact, part of its strip search process,” and that it subjected more than 170 pretrial detainees charged with summary offenses and misdemeanors to strip searches between June 2007 to March 25, 2010.
     The judge disagreed, however, with Logory’s claim that his Fourth Amendment Class differed from the claims dismissed by the 3rd Circuit. Logory had claimed that “delousing was unreasonable in that a determination of whether a strip search should be conducted on a pre-trial detainee has no bearing on whether a particular individual is a carrier of lice,” according to the court. He also tried “to play up the differences between the two procedures, that Florence utilized a self-applied shampoo followed by a supervised shower while the instant case concerns a delousing spray followed by an unsupervised shower.”
     But Logory failed to show how delousing further aggravated the strip-search deemed acceptable in Florence, Caputo ruled. “The delousing procedure itself does not inherently increase the exposure or duration of a strip search, and while [Logory] never specifies, the court is hard-pressed to determine exactly how delousing functionally exaggerates the scope of the approved strip search,” he wrote. “While perhaps a medical treatment, to characterize delousing as an extension of the strip search appears redundant.”
     Caputo certified the 14th Amendment Class that “a common, if not identical, set of facts [applied] to each member of this class, comprised of detainees who were automatically subjected to a delousing ‘regardless of whether there is reason to believe that detainees have a medical condition that would benefit from this medical treatment and without advising detainees of the scope of the medical procedure or providing them with the opportunity to decline to undergo the procedure.'”
     Logory’s claim is “highly typical of those of the class” and there “is no evidence that he, or any detainee entering the facility, was deloused based on any particularized determination of necessity,” according to the 23-page decision.
     “From the factual record, it is evident that each detainee who was strip searched was wholesale deloused, including those who evidently did not require the procedure,” Caputo added, while discussing satisfaction of the predominance requirement.
     The court also agreed with Logory that “the class is likely to ‘contain poor and marginalized class members who are unlikely to be able to litigate these cases individually, especially when the prosecution of delousing cases generally requires expensive testimony from medical doctors.”
     “To allow this to proceed as a class action would not be removing claims from the hands of the class members, but would instead afford them an opportunity to pursue them,” Caputo wrote.
     Logory is represented by Charles J. LaDuca and Alexandra C. Warren of Cueno Gilbert & LaDuca. Beverly Steinberg-Sporn and Daniel Levin of Levin Fishbein Sedran & Berman are designated as class counsel.
     The U.S. Supreme Court heard oral arguments Wednesday on Florence, after agreeing to take up the case in April.

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