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Doe v. Corrections Corporation of America

United States District Court, M.D. Tennessee, Nashville Division

October 27, 2016

JANE DOE # 1, et al.
v.
CORRECTIONS CORPORATION OF AMERICA, et al.

          MEMORANDUM

          TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendants' Motion for Summary Judgment (Docket No. 105), Plaintiffs'[1] Motion for Partial Summary Judgment (Docket No. 109), and Plaintiffs' Motion to Strike (Docket No. 133). For the reasons stated herein, Defendants' Motion for Summary Judgment (Docket No. 105) is GRANTED in part and DENIED in part, Plaintiffs' Motion for Partial Summary Judgment (Docket No. 109) is DENIED, and Plaintiffs' Motion to Strike (Docket No. 133) is DENIED.

         INTRODUCTION

         Plaintiffs are female individuals who have visited and continue to visit inmates in the South Central Correctional Facility (“SCCF”) in Clifton, Tennessee. Plaintiffs claim that Defendants have required Plaintiffs to undergo humiliating and degrading searches when they have visited SCCF, by forcing Plaintiffs to change their feminine hygiene products in the presence of SCCF staff in small prison bathrooms. Plaintiffs contend that Defendants subjected them to these invasive searches without reasonable suspicion, in violation of Plaintiffs' constitutional rights and resulting in various state law claims. Characterizing these searches as “strip searches, ” Plaintiffs allege that Defendants required Plaintiffs to expose their unclothed genitalia to correction officials to verify that Plaintiffs were menstruating.

         Defendants are Corrections Corporation of America (“CCA”), an entity charged by the State of Tennessee with the authority to maintain SCCF, and individual officers of SCCF, sued in both their individual and their official capacities.

         Defendants claim that SCCF does not conduct “strip searches.” Defendants argue that in light of the prisons' serious concerns about the introduction of contraband to the facilities, SCCF allows inmate visitation privileges only within specified guidelines, including visitors not being allowed to bring in their own feminine hygiene products. Defendants contend that Tennessee Department of Correction (“TDOT”) and SCCF policies allow correctional staff to require female visitors to replace their feminine hygiene products in the presence of institutional staff if there exists individualized reasonable suspicion to believe that contraband is being brought in.

         The parties dispute whether Defendants had individualized reasonable suspicion to believe that Plaintiffs might be bringing in contraband. Defendants assert that they had reasonable suspicion, in light of the Plaintiffs' histories, prior behaviors, appearances, and tips given to the officers, to require Plaintiffs to replace their sanitary pads in the presence of two female officers. Plaintiffs insist that they were “strip-searched” without reasonable suspicion, without a single specific, objective fact tying them to any wrongdoing or suspicion.

         The parties also dispute exactly what happened when Plaintiffs were required to take the challenged actions. Plaintiffs allege that they were required to expose their unclothed genitalia to corrections officers to “verify” that they were menstruating. Defendants maintain that Plaintiffs were required to change their feminine products to be sure there was no contraband, not to verify that they were menstruating. Defendants also contend that Plaintiffs were accompanied by two correctional officers into a restroom, where they were asked to change their feminine products while the officers turned their backs so as not to observe the Plaintiffs. The parties dispute the behavior of both Plaintiffs and the correctional officers before and during this time in the restroom.

         MOTION TO STRIKE

         Plaintiffs ask the Court to strike the Declaration of Charles Fisher, Defendants' expert witness in this case, for three reasons. First, Plaintiffs claim that the Declaration is an untimely-disclosed, new expert opinion. Defendants argue that the Declaration is simply a summary of Mr. Fisher's opinions previously produced to Plaintiffs, not a Rule 26 expert report or supplemental report. The Court has read Mr. Fisher's two reports and Declaration and agrees with Defendants. Any changing in the wording of Mr. Fisher's Declaration from the two reports is minimal and does not constitute “new” information. Moreover, any differences go to the weight to be given his testimony, not its admissibility.[2]

         Secondly, Plaintiffs contend that Mr. Fisher's Declaration contradicts his previous deposition testimony. Again, any discrepancies in the Declaration and the deposition testimony are not sufficient to strike the Declaration and go to the weight to be given his testimony, not its admissibility. In addition, some of the examples Plaintiffs give are not necessarily contradictions.

         Finally, Plaintiffs argue that Mr. Fisher's Declaration attempts to create a “sham” issue of fact. For the same reasons as indicated above, the Court can read Mr. Fisher's Declaration in light of any alleged discrepancies, conclusory statements or legal conclusions and determine the weight it deserves.

         For these reasons, Plaintiffs' Motion to Strike (Docket ...


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