Paulette STEWART, Plaintiff-Appellee, v. LUBBOCK COUNTY, TEXAS, et al., Defendants-Appellants. Barbara WILKERSON, on behalf of herself and all others similarly situated, Plaintiffs-Appellees, v. LUBBOCK COUNTY, TEXAS and Delwin Lee (Sonny) Keesee, individually and in his capacity as Sheriff of Lubbock County, Tx., et al., Defendants-Appellants.
Nos. 84-1199, 84-1331 and 84-1406.
United States Court of Appeals, Fifth Circuit.
Aug. 5, 1985.
Hinojosa, District Judge, concurred in part, dissented in part, and filed an opinion.
Jim Bob Darnell, Crim. Dist. Atty., Kay P. Fletcher, Asst. Crim. Dist. Atty., Cecil Kuhne, Lubbock, Tex., for defendants-appellants.
Marvin Rogers, Mark C. Hall, Lubbock, Tex., for plaintiff-appellee.
Marvin Rogers, West Texas Legal Services, Nathan Hult, Mark C. Hall, Lubbock, Tex., for plaintiffs-appellees.
Before JOHNSON, HILL, Circuit Judges, and HINOJOSA , District Judge.
District Judge of the Southern District of Texas, sitting by designation.
ROBERT MADDEN HILL, Circuit Judge:
Lubbock County, Texas, and officials of the Sheriff’s Department, defendants, in these two consolidated cases on appeal allege legal error in the district court’s ruling that the County’s strip search policy was unconstitutional. In the Stewart case, defendants also allege that the district court abused its discretion in refusing to set aside a default judgment for attorney’s fees. We agree with the district court’s ruling that the strip search policy was unconstitutional and affirm the judgments in both cases. We also affirm the award of attorney’s fees in the Stewart case.
FACTS AND PROCEDURAL HISTORY
The policy at the Lubbock County jail prior to the issuance of temporary and permanent injunctions by the district court permitted a strip search of any arrestee. The searches did not depend upon the severity of the charge. Thus, all citizens arrested for misdemeanors punishable by fine only (Class C) were strip searched at the Lubbock County jail pursuant to jail policy. Furthermore, there was no requirement that the arrestee be suspected of possessing weapons or contraband for a strip search to be conducted. These searches, approximately 1000 per month, were conducted before arraignment and before the arrestee had an opportunity to arrange for bail. Thus, persons such as the plaintiffs, Paulette Stewart and Barbara Wilkerson, were subject to strip searches upon arrest for misdemeanors punishable only by fine.
Both plaintiffs sued Lubbock County and county officials in federal district court. In addition to receiving damages, the plaintiffs sought to enjoin the strip search policy in effect. A permanent injunction was issued by the district court in the Stewart case.
Two questions are presented on appeal: whether the district court erred in holding the strip search policy of the Lubbock County Sheriffs Department unconstitutional as a matter of law; and whether the district court abused its discretion in refusing to set aside a default judgment for attorney’s fees against Lubbock County.
ANALYSIS
I. Constitutionality of the Strip Search Policy
Plaintiffs urge that the strip search policy of the defendants is violative of the Fourth Amendment. The Seventh Circuit has provided guidance for the balancing of interests in determining the constitutionality of strip searches under the Fourth Amendment. See Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983). In Mary Beth G. a challenge was made to the strip search policies of the city of Chicago. In finding the policies to be unconstitutional, the court both relied on and distinguished Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). It relied on Wolfish for the standard of determining “reasonableness” of searches:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it 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.
723 F.2d at 1271 (citing Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884). It also distinguished the holding of Wolfish that strip searches may be conducted with less than probable cause by specifying that pre-trial detainees in Wolfish “were awaiting trial on serious federal charges after having failed to make bond and were being searched after contact visits.” 723 F.2d at 1272. The court in Mary Beth G. found that the city of Chicago’s need for strip searching “minor offenders who were not inherently dangerous and who were being detained only briefly while awaiting bond ... when there was no reason to believe they were hiding weapons or contraband on their persons” did not outweigh the personal privacy interest of the detainees. 723 F.2d at 1272. It found the strip searches unreasonable without a reasonable suspicion by the authorities that either weapons or contraband might be concealed on the bodies of the detainees. Id. at 1273.
The Fourth Circuit has also applied and distinguished Wolfish in the case of an arrestee facing a charge of driving while intoxicated who was strip searched without any reasonable suspicion that she might be in possession of either a weapon or contraband. See Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). The court pointed out that although Logan’s offense was “not a minor traffic offense, [it] was nevertheless one not commonly associated by its very nature with the possession of weapons or contraband____” Id. at 1013. It also considered relevant to its conclusion of the unconstitutionality of the strip search policy that “there was no cause in [Logan’s] specific case to believe that she might possess either [weapons or contraband].” Id.
In the cases sub judice, similarly to Mary Beth G., the detainees were arrestees awaiting bond on misdemeanor or traffic violation charges. Lubbock County argues that the strip search policy of the Chicago Police Department which it admits was similar to its own was unreasonable because it was enforced only against female arrestees. While the Seventh Circuit held that such disparity in treatment did violate the equal protection clause of the Fourteenth Amendment, that violation was clearly stated to be an “additional ground” for finding the strip search policy unconstitutional. Mary Beth G., 723 F.2d at 1274. Lubbock County’s argument that Mary Beth G. is inapplicable to the present eases is entirely without merit.
Because Lubbock County’s strip search policy was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband, under the balancing test of Wolfish we find such searches unreasonable and the policy to be in violation of the Fourth Amendment.
II. Attorney’s Fees
Lubbock County argues in the Stewart case that the district court abused its discretion by not setting aside a default judgment for attorney’s fees under 42 U.S.C. § 1988. The court had received an application for an award of attorney’s fees on March 9, 1984. Under Local Rule of Practice 5.1(e) defendants had 20 days to respond to the motion. Further, the court entered an order 3 days later, on March 12, stating that any opposing briefs shall be filed within 20 days of the order. On April 4. after the deadline in the order, the court granted Stewart’s application for attorney’s fees. Thereafter, defendants filed a motion to vacate judgment. It is the denial of this motion that defendants now appeal.
The standard for review is whether the district court abused its discretion. See, e.g., Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir.1969). The district court, in its order granting attorney’s fees in the amount requested, noted that defendants had not responded in any way to the court’s earlier order setting the time for their response, and it concluded that the defendants therefore agreed that Stewart’s request was reasonable as to the number of hours expended and to the per hour fee requested. The district court applied the standards of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and considered the factors specified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). The court found that the hours expended and the hourly rate were reasonable. Further, relying on Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) it found that the defendants, having failed to submit any evidence, had waived their right to an evidentiary hearing.
In their motion to vacate judgment, defendants asserted that they had been unable to find a copy of the March 12 briefing order in any of their files, and requested relief for “mistake, inadvertence, ... or excusable neglect” under Fed.R.Civ.P. 60(b)(1). The district court, relying on the requirement of Local Rule of Practice 5.1(e) that a response be filed within 20 days of the filing of a motion, denied defendants’ motion to vacate judgment. Thus, defendants’ reliance on their inability to find the March 12 order informing them of the 20 day requirement is misplaced: the order was merely a reminder of the response requirement contained in the local rules (although it extended the 20 day period to respond by starting it from the date of the order).
We find no abuse of discretion in the district court’s failure to set aside the award of attorney’s fees and to grant an evidentiary hearing on the issue of the reasonableness of amount of the award of such fees. The award of attorney’s fees in the Stewart case is affirmed.
AFFIRMED.
. Paulette Stewart had been arrested for public intoxication and Barbara Wilkerson had been arrested on an outstanding warrant for issuing a bad check after a routine traffic stop.
. Stewart sued for damages under 42 U.S.C. § 1983 for injuries received in a scuffle during her strip search and was awarded $1 in nominal damages. Wilkerson also sued for damages under § 1983 for her strip search and was awarded $15,000 in damages.
. The injunction issued by the district court is not before us on appeal. Accordingly, we do not determine whether injunctive relief was appropriate in this case, nor do we reach the merits of the injunction. We note, however, that in light of City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), we would raise sua sponte the question of plaintiffs’ standing to seek injunctive relief were the injunction before us on appeal. See Brown v. Edwards, 721 F.2d 1442, 1446 (5th Cir.1984). Plaintiffs may not be able to show that they would again be arrested and therefore be again subject to the unconstitutional strip search policy of the Lubbock County Sheriffs Department. See Lyons, 461 U.S. at 102, 103 S.Ct. at 1665; Brown, 721 F.2d at 1447. But see Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir.1984) (plaintiff with standing to bring damages action has standing to obtain injunctive relief in addition to damages). Cf. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1266 (7th Cir.1983) (class action: injunction by agreement and stipulation). In the present case, on appeal appellants pray only that the trial court’s ruling of law that the strip search policy is unconstitutional and that Wilkersoris $15,000 damage award be reversed. No relief from the permanent injunction is sought.
The dissent would consider the injunction which is not before us on appeal and dismiss it on jurisdictional grounds (J. Hinojosa, dissenting). The dissent argues primarily that we may consider the injunction because we may and indeed must raise jurisdictional issues sua sponte. We agree completely that this Court could and should raise sua sponte any questions concerning jurisdiction in matters properly before this Court. However, we find that only the judgments regarding damages are before us on appeal and that the permanent injunction which the dissent would dismiss is not part of this appeal.
The cases cited by the dissent in support of the proposition that we should raise the issue of jurisdiction sua sponte even if not raised by the parties involved injunctions and other matters actually before the appellate court. See Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (Supreme Court sua sponte raised standing of some class members released from jail after contempt proceedings to seek injunctive relief; finding that other class members had standing, the Supreme Court reached the merits concerning the applicability of Younger principles); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) (Supreme Court noted that it may reexamine jurisdiction of the district court to enjoin an order of the National Labor Relations Board although not raised by the parties); Brown, 721 F.2d at 1446 (this Court considered sua sponte Brown’s standing to seek equitable relief in appeal of dismissal of section 1983 action for damages and injunctive relief); Save the Bay, Inc. v. United States Army, 639 F.2d 1100 (5th Cir.1981) (this Court in the appeal of an order in part granting injunctive relief considered sua sponte whether the order was appealable); United States v. Rochelle, 363 F.2d 225 (5th Cir.1966) (this Court sua sponte raised question of the jurisdiction of the district court in a suit involving bankruptcy and income tax). These cases require only that the jurisdiction of this Court or a district court over matters before this Court be raised by us even when the parties did not raise it and the district court did not consider it. In fact, in Brown, this Court considered jurisdiction separately for the damage claims and injunctive relief, although in Giles, the Ninth Circuit found that jurisdiction over damage claims would also sustain jurisdiction over any additional (injunctive or declaratory) relief sought.
We observe, further, that were we to reach the merits as to the injunction, we would vacate section F of the injunction and remand to the district court for a revision of the injunction to clearly permit misdemeanor and traffic violation arrestees to be strip searched even while awaiting bond if reasonably suspected of possessing weapons or contraband.
. The right of the people to be secure in their persons, homes, papers and effects; against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV.
. Section 1988 provides in part:
In any action or proceeding to enforce a provision or section [ ] ... 1983 .... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of costs.
. This rule provides:
Any response to a motion shall be filed within 20 days from the date of filing of the motion.