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Lawsuit of the Day: Dude look like a Lady

November 17, 2011

2. Law, 8. Lawsuits

Lawsuit of the Day:  Dude look like a Lady

We discussed 1983 lawsuits here.  Now we can see one in action.

It seems that Jovanie Saldana got busted for “running a house of prostitution.”  Saldana was released on ROR.  It’s not stated, but I suspect the intake profiling was run against open crimes and it took longer to get results than the Preliminary Arraignment.  Saldana was picked up a few days later on Robbery charges.  Saldana was then transported to and incarcerated in a women’s jail.  The problem, of course, is that Saldana has a package – a male package.

And the Philadelphia Corrections Facility in question houses inmates in groups of five, at least in this instance.  And it is a women’s facility.

Whoops.

What I initially find curious – from a legal perspective – is why the claim is brought under the 14th Amendment.  See Paragraph 1 of the lawsuit:

1. This action is brought pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 1983, 1985(3), 1986 and 1988; the First and Fourteenth Amendments to the United States Constitution, other constitutional provisions, federal statutes and state tort laws.

Doing some research, I found this statement (admittedly a bit old):

This is true whether the claim is asserted under the Eighth Amendment (which applies to claims by convicted prisoners) or the Fourteenth Amendment (which applies to claims by pretrial detainees). Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). Please note the distinction between the claims of pretrial and convicted inmates so that you do not erroneously proceed under the incorrect and inapplicable Amendment. See Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401 (1977).

I’m not questioning whether this lawsuit was grounded appropriately, but giving you an insight into lawyering:  You all think we know everything about the law – we don’t.  What we do know, however, is how to research.  I’ll always remember a college professor.  He was Chair of the Accounting Department.  He could probably write out the entire Internal Revenue Code from memory if pressed to do so.  Yet when I sat with him in his office upon several occasions and asked about a specific issue, he would open his IRC book, read or at least glance at the section, and then respond.  He demonstrated to me and left a life-long impression on the difference between intelligence and wisdom.  So what I see above is a lawsuit by inmates grounded in the 14th yet advice that such suits should be grounded in the 8th.  My task in filing a suit on behalf of an incarcerated client would be to understand precisely why there’s a difference and whether both are right or one is wrong.  Back to our story …

It seems that the jail’s policy and procedure is to strip and cavity search at every opportunity – cell shakedowns, before and after transport outside the facility, and before and after visitations.  That’s a lot of probes.  The four female inmates that brought this suit must have been subjected at appropriate times to these searches.  They claim that the searches are a part of routine procedure.  Yet Saldana apparently was not searched.  It’s tough to hide the anatomical differences when naked.  Apparently, as well, Saldana got into a fight with an inmate, and got his ass kicked.  The physical exam afterward was yet another alleged missed opportunity.

His NCIC (criminal record) should have been – and probably was – run at a few points in the process from arrest to incarceration.  That report includes gender.  I’m looking at one now.  Page 1, “Descriptors on file are as follows” – First line, NAME; Second line, SEX, RACE, BIRTH DATE, etc.  Saldana’s NCIC allegedly had a big, fat M under SEX.  Kinda hard to miss.

In all, Saldana was locked up with the girls for 5 or 6 months.

With all of the opportunities to identify Saldana as a dude, the girls allege – as is needed in a 1983 – that the defendants acted with “deliberate indifference.”  Seems fair enough.

Now, if you’re looking at the Complaint, drift to Page 68.  This is where the Claims for Relief begin – this is what they claim is wrong based upon the facts alleged in the dozens of pages before it.

Paragraph 206.j is interesting:  during the time Saldana was housed with Plaintiffs, he subjected them to unwanted threats of violence, touching, sexual harassment, sexual advances and invasion of rights of privacy and bodily integrity.

Let’s play with some facts.  Would it matter if they thought he was just a bull dyke?  What if they found out only after several months that he hung low, and the COs removed him immediately?  That would return us to the searches.  If the searches were done and therefore the defendants knew he was a dude – then the perception of the female inmates would seem secondary.  But if no one knew, then the deliberate indifference standard might block the claim.

Next, if – and that needs to be the stated again – if the girls knew at the time that he stood to pee, the question becomes whether they told a CO about it.  Let’s assume the COs did not know.  The girls did not say anything until someone spoke to an attorney and realized money was on the table.  The lack of searches during the preceding months might be negligent but not deliberate indifference.  The claim could fail.

But now let’s return to the suit.  Go to Page 78, Paragraph 306:  All Defendants repeatedly ignored Plaintiffs’ complaints that Saldana was a man and caused them to suffer unnecessary physical pain and suffering and emotional pain and suffering.

The girls allegedly both knew and told the COs.  Ouch.  That needs to be established in court, of course, but … ouch.  And how would something like that be limited to their cell?  Open-cell, yard, meals, library, and church time are all opportunities to spread the word at the very least to the entire block.

And that is what bothers me about this lawsuit.  I tend to believe that mass conspiracies and bonehead stupidity are exceedingly rare.  My starting point in trying to understand a client’s claim is to avoid those explanations.  I arrive at mass conspiracies and bonehead stupidity only after all other possibilities have been ruled out.

Think about it.  Assume everything alleged in this lawsuit is true – and it very well may be.  Someone is going to get fired, and maybe a lot of someones.  Let’s start with the COs on the block.  They were told Saldana farted and burped too loudly after every meal.  One, they failed to investigate.  Two, they never strip searched him – upon intake or the transport times or the visitation times or shakedowns – and thereby created a security risk.  Three, in the alternative, they were fully aware he was a dude.  And revisit their claim of shakedown searches – are they alleging that they were stripped but he wasn’t?  All of these are career-ending moves.  Paycheck gone, healthcare gone, and pension gone.  For what?  The inside joke of making four females live with a male?  Doesn’t make sense.  The lawsuit may all be true, but whew – it’s an amazing story.

The suit was just filed a week ago.  We’ll keep track of it.  You won’t have to search for updates – I’ll cross-post them.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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