                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                MAY 27 1997
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 CYNTHIA MORTON MORREALE,

                Plaintiff - Appellant,                        No. 96-1220
           v.                                                (D. Colorado)
 CRIPPLE CREEK, CITY OF, a                               (D.C. No. 94-Z-737)
 municipality; PAUL MATTYS, Officer,
 in his capacity as an Officer for the City of
 Cripple Creek and individually; and
 EDWARD STAUFFER, in his official
 capacity as an Officer for the City of
 Cripple Creek,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.


       Cynthia Morton Morreale appeals the district court’s dismissal of her 42 U.S.C.

§ 1983 action against the City of Cripple Creek, Colorado, and certain members of its

police department. She contends that the district court erred by 1) dismissing officers

Evelyn Stauffer and Beth Caddy for failure to obtain service; and 2) granting summary



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
judgment to the remaining defendants. For the reasons stated below, we affirm the

district court’s dismissal of officers Evelyn Stauffer and Beth Caddy, although on

different grounds than those stated by the district court, and we affirm its summary

judgment in favor of the remaining defendants.



                                    BACKGROUND

       According to her deposition, on May 19, 1993, Morreale was a casual tourist

driving with a friend through the mountain town of Cripple Creek, Colorado, when she

entered law enforcement purgatory. Her descent began when police officer Mattys

stopped her for running a stop sign. A standard computer check of Morreale’s current

Florida license revealed that her previous Colorado license had been suspended.1 Mattys

ordered Morreale out of her car, placed her under arrest, and advised her that he would

take her to post bond. Appellee’s App., Tab R at 19. Mattys then asked his assisting

officer Caddy to pat Morreale down and to search her pouch according to standard policy.



       1
        Morreale had moved from Colorado to Florida in 1992. While driving in Florida
on her Colorado license, she received a moving violation citation. A few weeks later, she
surrendered her Colorado license when she obtained a Florida license, and she paid the
Florida ticket and a late penalty. However, in the interval, Colorado received notice of
the unpaid ticket from Florida and entered a license suspension pursuant to the Interstate
Compact. Although Morreale states that the Colorado suspension was outdated, she does
not contend that Mattys lacked probable cause to arrest her. See Arizona v. Evans, ___
U.S. ___, 115 S. Ct. 1185, 1193-94 (1995) (noting that an officer does not violate the
Fourth Amendment when he makes an arrest in reliance on erroneous computer
information).

                                           -2-
The pat down and search revealed no contraband or weapons. Mattys then handcuffed

Morreale with her hands behind her back according to standard procedure, despite

Morreale’s request that she be handcuffed with her hands in front to avoid aggravating a

prior shoulder injury. As part of the handcuffing procedure, Mattys verified that two

fingers’ space remained inside the handcuffs so that blood circulation would not be cut

off, and he double locked the handcuffs so that they would not tighten down. He then

ordered Morreale to get in the back seat of the police car for the fifteen to twenty minutes

it took to verify that her passenger would be able to drive her car. Because the handcuffs

hurt her wrists, Morreale asked to be allowed to stand outside until Mattys was ready to

transport her, but Mattys refused. Mattys then drove Morreale two blocks to the Cripple

Creek police department.

       During the time she was handcuffed, Morreale complained that the handcuffs were

digging into her wrists, but she complied with all Mattys’s orders. She does not assert

that Mattys pushed, shoved, or treated her roughly in any way.2 However, due to the

cramped positioning in the back seat, Morreale had to sit on her hands, which caused the

handcuffs to press into and scratch her wrists and to bruise her buttocks. She alleges that

she continued to complain of the pain in her wrists on the way to the police department,




      In fact, the record indicates that Mattys had very little physical or verbal contact
       2

with Morreale.

                                            -3-
and Mattys’ response was that she should not move around so much.3 Appellee’s App.,

Tab V at 78. She further states that she complained about the handcuffs’s being too tight

when she first arrived at the police department. Id. at 92. Apparently, however, she did

not complain of shoulder pain while she was handcuffed. Id. at 77-78. As soon as they

arrived at the police department, Mattys took Morreale to a holding cell and took off the

handcuffs. Approximately twenty minutes elapsed from the time Morreale was first

handcuffed until the time the handcuffs were removed.

       Morreale, who is a pianist, complains that as a result of being handcuffed and

awkwardly positioned in the car, she suffered damage to her shoulder and to her radial

nerve at the wrist. That damage has prevented her from pursuing her professional and

recreational piano playing. Morreale makes no claim for any other physical damage or

injury due to any other police conduct related to her arrest and detention.

       According to standard booking procedure, Mattys ordered that Morreale be

photographed and fingerprinted. Mattys also required Morreale to empty her pockets and

to give him the contents, together with her jewelry, her belt, and the shoelaces from her

tennis shoes, and he informed her that she could post bail at the sheriff’s department in

Divide, Colorado. Mattys denies Morreale informed him of her shoulder injury prior to

the handcuffing, although he concedes that she asked to be handcuffed in front and told

him that the handcuffs were uncomfortable. Appellee’s App., Tab R at 22, 37. He



       Morreale states that she was not moving around.
       3



                                            -4-
further concedes that after they arrived at the police department, she complained of a

prior injury, and somewhat later she complained of arm pain. At that time, he asked if

she wanted medical attention, and she refused. Id. at 36.

       Before transporting Morreale to Divide, the transport officer, Evelyn Stauffer,

directed Morreale to the bathroom where, consistent with department policy, she ordered

Morreale to change into a jail jumpsuit. Stauffer testified that she ordered Morreale to

take off her outer clothes. Morreale’s version is that Stauffer’s actual order was “to take

my clothes off.” In any event, as it turned out, Morreale was not wearing undergarments,

so her compliance left her naked to Stauffer’s view as she waited to receive Morreale’s

clothes. Appellee’s App., Tab V at 89. Stauffer allegedly then ordered Morreale to turn

around, and looked her “up and down and all over,” but she did not touch Morreale or

conduct any other inspection. Id. at 89, 143. Stauffer gave Morreale the jumpsuit to put

on. Once Morreale put on the jumpsuit, in accordance with written policy governing the

transport of arrestees, Stauffer shackled her in a belly belt with handcuffs and also in

separate leg irons. By that time, Morreale had been detained at the Cripple Creek police

department about one hour and fifteen minutes.

       The drive to Divide, Colorado, took approximately twenty to twenty-five minutes.

Morreale states that during the trip she complained to Stauffer that her hand hurt from

Mattys’ original handcuffing, but she did not complain about the handcuffs or restraints

used during the transport to Divide.


                                            -5-
         Upon her arrival at the sheriff’s department in Divide, officers unshackled

Morreale and proceeded with intake paperwork. At that time, Morreale continued to

complain of shoulder and arm pain, but indicated she would get medical attention later.

Morreale was then placed in a holding cell for two to three hours while her passenger,

who had met her in Divide, attempted to post bond for her. Unfortunately, the passenger

encountered several obstacles: The only bondsperson would not give a bond to an out-of-

state arrestee and would not accept either Morreale’s or the passenger’s credit cards as

security. Finally, the passenger was able to pay $300 cash to get Morreale released.

According to Morreale, the entire episode from arrest to release lasted about four to five

hours.

         Morreale subsequently filed this civil rights suit claiming, inter alia, that Mattys

used excessive force to arrest her and that certain Cripple Creek policies were

unconstitutional on their face and as applied. Morreale initially named the City of Cripple

Creek, Police Chief Edward Stauffer, Officer Mattys, Jane Doe, and John Doe as

defendants. An amended joint answer was filed by counsel (“primary defense counsel”)

who represented the city and the named defendants in their official capacities,4 and by co-

counsel who had entered a separate appearance for Mattys in his individual capacity.

Appellee’s App., Tab E. Upon determining the identity of officers Evelyn Stauffer and

Beth Caddy, Morreale moved to amend her complaint to name them as defendants. The



         Chief Stauffer was sued in his official capacity only.
         4



                                              -6-
court granted the motion by minute order on September 16, 1994, and on the same date,

mailed notice of its action to all counsel. Appellee’s App., Tab G. Also on September

16, 1994, Morreale’s counsel mailed copies of the motion and amended complaint to

primary defense counsel, referred to waivers of service for officers Caddy and Stauffer

which he had previously sent, and asked counsel to advise him of any problems.

Appellant’s App., Tab 31.

      Apparently, primary defense counsel had not received, or was unaware of, the

correspondence from the court and Morreale’s counsel when she wrote as follows in a

letter dated September 22, 1994: “Please forward me a copy of the Amended Complaint

and Motion to Amend to my office. If the court grants your Motion to Amend, I have

been authorized to accept service on behalf of Officer Caddy and Officer Stauffer.”

Letter from Jennifer Bisset, Esq., to Dennis Hartley, Esq., Appellee’s App., Tab H.5 The

record reveals no further correspondence regarding acceptance or waiver of service. On

October 7, 1994, primary defense counsel and co-counsel filed a joint answer to the

amended complaint. Id., Tab I. Although the heading lists the newly named defendants,

the paragraph which prefaces the answer specifically lists only the originally named

defendants. Id.




      5
         Primary defense counsel states that this letter advised Morreale’s counsel of a
problem with the form of waivers previously sent. Appellee’s Br. at 16. Our review of
the letter indicates no such advice or mention of the waivers.

                                           -7-
       At Morreale’s deposition on October 18, 1994, primary defense counsel identified

herself on the record as follows: “Ms. Morreale, I’m Jennifer Bisset. I represent Officer

Mattys, Officer Caddy, Officer Stauffer and Chief Stauffer in this action, as well as the

City of Cripple Creek.” Id., Tab V at 119. Additionally, on February 15, 1995, officers

Caddy and Stauffer appeared at their noticed depositions. The certified reporter began

each deposition with a full case heading which included Caddy and Stauffer. Pursuant to

Fed. R. Civ. P. 30(b)(4), the certified reporter then included a statement on the record that

identified Caddy and Stauffer respectively as “defendant herein,” and further listed

appearances of co-counsel for Mattys, and of Jennifer E. Bisset “for all other defendants.”

Appellee’s App., Tabs S at 1-2, U at 1-2. Moreover, defense counsel filed a joint motion

for summary judgment dated April 3, 1995, whose heading lists all named defendants,

and whose prefacing paragraph indicates that the motion is being made by “Defendants”

without any limiting specification or naming. Appellant’s App., Tab 9. Further, one of

the incorporated briefs in support of the motion argues on the merits that officers Caddy

and Stauffer are entitled to qualified immunity. Appellee’s App., Tab L at 17-19.

Finally, the prefacing paragraph of the pretrial order which all attorneys drafted and

signed prior to the pretrial conference, states that defendants, without any limiting

specification or naming, appeared by primary defense counsel and co-counsel.

Appellant’s App., Tab 10.




                                            -8-
       With prearranged court approval, Morreale’s counsel did not appear at the pretrial

conference on August 11, 1995.6 The transcript of the pretrial conference indicates that

primary defense counsel entered her general appearance on the record “on behalf of

Defendants,” and co-counsel also specifically stated his appearance on behalf of Caddy.

Appellant’s App., Tab 33 at 2. Nonetheless, primary defense counsel then represented

that officers Caddy and Stauffer had never been served and that no answer had been filed

on their behalf, and she orally moved for their dismissal on that basis. The magistrate

judge indicated that he would recommend dismissing those defendants for lack of service.

When Morreale’s counsel learned of the recommendation for dismissal, he moved for

reconsideration and filed timely objections, noting primary defense counsel’s acceptance

of service and her representation of the defendants throughout the proceedings. Primary

defense counsel responded that she was never provided proper waivers to sign,7 and she

further represented that “[a]t no time has undersigned counsel entered an appearance or

accepted jurisdiction of the court on behalf of Beth Caddy or Evelyn Stauffer.”

Appellee’s App., Tab N at ¶ 10. The motion to reconsider was denied. The district court




       6
        Counsel was at a CLE seminar and had arranged to call in from the seminar.
However, long lines to the only available phones prevented him from calling until after
the short pretrial conference was concluded. Appellant’s App., Tab 12 at ¶ 1.

       Counsel contends that the waivers should not have been drafted for the
       7

defendants’ signatures, but should have been drafted for her signature as attorney for
defendants.

                                           -9-
adopted the magistrate judge’s recommendation, and a further motion to reconsider which

noted counsel’s representation and defendants’ appearances was denied.

        Thereafter, the magistrate judge considered the defendants’ earlier motion for

summary judgment and recommended the dismissal of the remaining defendants based on

lack of personal participation and qualified immunity. The district court adopted the

recommendation, and Morreale brought this appeal.



                                        DISCUSSION

A.      Dismissal for Lack of Service

        We review a dismissal for lack of service for abuse of discretion. Espinoza v.

United States, 52 F.3d 838, 840 (10th Cir. 1995). The district court found that officers

Caddy and Stauffer had not been served within 120 days after the filing of the amended

complaint as required by Fed. R. Civ. P. 4(m), and therefore dismissed the action as to

them.

        As noted, the record shows that primary defense counsel made numerous

appearances on behalf of all defendants and specifically stated her appearance and

representation of officers Caddy and Stauffer in this action on the record of Morreale’s

deposition. The record also shows that the named officers participated in the proceedings

by making voluntary appearances as “defendants” at their noticed depositions and by

submitting summary judgment arguments on the merits in their behalf. It is well settled


                                           - 10 -
that lack of personal jurisdiction is a privileged defense that can be waived “by failure to

assert it seasonably, by formal submission in a cause, or by submission through conduct,”

Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 168, (1939); see also Federal Deposit Ins.

Corp. v. Oaklawn Apartments, 959 F.2d 170, 176 (10th Cir. 1992) (noting that

“‘defendant may [not] halfway appear in a case, giving . . . the impression that he has

been served, and [later] pull failure of service out of the hat like a rabbit’” (quoting

Broadcast Music, Inc. v. MTS Enters., Inc., 811 F.2d 278, 281 (5th Cir. 1987))); Ziegler

v. Akin, 261 F.2d 88, 92 (10th Cir. 1958) (holding that voluntary appearance cures any

defect in service).

       Accordingly, because the defendants made appearances in their own behalf and

through counsel, the district court abused its discretion in dismissing the action.

However, inasmuch as both defendants should be dismissed on substantive grounds, no

remand is necessary.8

B.      Summary Judgment

       We review de novo the grant of summary judgment, applying the same legal

standards used by the district court under Fed. R. Civ. P. 56(c), and viewing the record in



       8
         Morreale’s counsel has conceded that Caddy should be dismissed for substantive
reasons. Appellee’s App., Tab M at 12 (“[C]ounsel for the Plaintiff would agree that
Officer Beth Caddy should be dismissed from this lawsuit, because she did not participate
in the unconstitutional conduct.”) We agree. Moreover, as discussed infra, Morreale has
failed to allege facts which constitute a constitutional violation as to Evelyn Stauffer, so
she also should be dismissed on substantive grounds.

                                            - 11 -
the light most favorable to the nonmovant. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th

Cir. 1996). If there is no disputed issue of material fact, we determine if the district court

correctly applied the substantive law.

       1. Summary Judgment in Favor of Officer Mattys

       Morreale claims that Mattys violated the Fourth Amendment by using excessive

force in handcuffing her. In the proceedings below, Mattys moved for summary

judgment, asserting that he was protected from suit by qualified immunity.

       Once a defendant official raises a qualified immunity defense, the plaintiff must

show that the official’s conduct violated the law, and that the law was clearly established

when the alleged violation occurred. Hinton v. City of Elwood, 997 F.2d 774, 779 (10th

Cir. 1993). “A necessary concomitant to the determination of whether the constitutional

right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation of a constitutional right at

all.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). If the plaintiff has not alleged facts

which would constitute a constitutional violation, the defendant is entitled to summary

judgment. Id. (“Decision of this purely legal question permits courts expeditiously to

weed out [unwarranted] suits.”)

       We apply Fourth Amendment standards of objective reasonableness to analyze

constitutional claims of excessive force. Graham v. Connor, 490 U.S. 386, 396-97 (1989)

Thus, we inquire whether the officer’s actions were “objectively reasonable” in light of


                                             - 12 -
the facts and circumstances confronting him, without regard to their underlying intent or

motivation. Id.; Dixon v. Richer, 922 F.2d 1456, 1462 (10th Cir. 1991). In assessing the

reasonableness of force used by a police officer making an arrest, we consider the severity

of the crime, whether the subject posed an immediate threat to the officer’s safety, and

whether the subject was resisting arrest. Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir.

1995) (“Wilson I”).

       Attempting to demonstrate that Mattys used excessive force, Morreale argues that

she was a minor traffic offender who presented no threat or resistance. Therefore, she

contends that, in light of her stated injury and repeated complaints that the handcuffs were

digging into her wrists, Mattys’ handcuffing her behind the back and requiring her to

remain handcuffed in the cramped backseat of the patrol car for twenty minutes

constituted excessive force under the circumstances.9 For purposes of summary

judgment, we accept Morreale’s version of events. Significantly, however, Morreale does

not contend that Mattys used force which was substantial or abusive, nor does she dispute

Mattys’ claim that he took steps to assure that the handcuffs were not too tight. Lacking

such allegations, she has made no claim for excessive force.10 See Hannula v. City of

       9
         The Cripple Creek policy provides exceptions to standard handcuffing procedure
if the arrestee has an injury or physical condition that does not permit handcuffing in
back. Appellant’s App., Tab 26 at 236.
       10
         In Hannula v. City of Lakewood, 907 F.2d 129 (10th Cir. 1990), we noted that
the plaintiff had presented “no evidence of contusion, lacerations or damage to the bones
or nerves of her wrists.” Hannula, 907 F.2d at 132. We also noted that Hannula had “not
                                                                             (continued...)

                                           - 13 -
Lakewood, 907 F.2d 129, 132 (10th Cir. 1990); cf. Palmer v. Sanderson, 9 F.3d 1433,

1436 (9th Cir. 1993) (denying qualified immunity for abusive handcuffing tight enough to

cause bruising that lasted for several weeks, combined with officer’s refusal to loosen

handcuffs when arrestee complained of pain).

       Accordingly, while we do not applaud the type of police insensitivity which

Morreale alleges, those allegations standing alone do not establish a constitutional

violation in this circuit.11 Therefore, the district court did not err in dismissing Morreale’s

action as to Mattys.

       2.     Summary Judgment as to Certain Policies Implemented by Chief Edward
Stauffer and the City of Cripple Creek

       Chief Stauffer was not present when the alleged constitutional violations occurred,

and he has been joined solely because of his supervisory role. A supervisor cannot be

held liable under § 1983 on a respondeat superior theory. Monell v. Department of Social

Serv., 436 U.S. 658, 691-95 (1978); Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir.


       10
          (...continued)
proven that the amount of force was substantial.” Id. In concluding that Hannula had not
established excessive force, we considered the weight of cases which establish that “while
loosening tight handcuffs may be the most compassionate action, the failure to do so does
not rise to a clearly established constitutional violation.” Id.
       11
          But see Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir.1993). In a
situation similar to Morreale’s, Walton upheld the denial of qualified immunity to an
officer who handcuffed a woman with a shoulder injury behind her back. Although the
officer did not apply abusive force in effecting the handcuffing procedure, the Sixth
Circuit found that there was a dispute of fact whether the officer knew of the arrestee’s
injury and, hence, whether he used excessive force under the circumstances.

                                            - 14 -
1996) (“Wilson II”). In order to establish Chief Stauffer’s liability, Morreale must

establish some "affirmative link" between the alleged constitutional violation and

personal control by Chief Stauffer. Gagan v. Norton, 35 F.3d 1473, 1476 n.4 (10th Cir.

1994) (citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)). Likewise, a

municipality can be found liable under § 1983 only where the municipality itself causes

the constitutional violation. Board of the County Comm’rs of Bryant County, Okla. v.

Brown, No. 95-1100, 1997 WL 201995, at *4 (U.S. Apr. 28, 1997) (citing Monell, 336

U.S. at 694). That is, a municipality has § 1983 liability only if the constitutional injury

results from action pursuant to its policy or custom, or from the municipality’s “deliberate

indifference” as to known or obvious consequences of its actions. Id. at **4, 6 (citing

Canton v. Harris, 489 U.S. 378, 388 (1989)). In any case, we must first consider whether

the plaintiff has alleged facts which constitute a constitutional violation. Cf. Siegert, 500

U.S. at 232.

       a.      Strip Search

       Morreale alleges that her Fourth Amendment rights were violated when she was

“strip searched” pursuant to the following Cripple Creek police department policy, which

Chief Stauffer drafted:

       After being searched and prior to being placed in the holding cell, ALL
       prisoners will be stripped of clothing, down to their undergarments, and will
       be placed in a CCPD prisoner jumpsuit. This will prevent prisoners from
       bringing any items into the cell area without the knowledge of the arresting
       officer.


                                            - 15 -
Appellee’s App., Tab Q at 3.

       The record indicates that Morreale was arrested on a minor traffic violation, and

that she was never to be placed in a general jail population. We agree with Morreale that

any policy mandating a strip search in those circumstances is clearly unconstitutional

under the Fourth Amendment.12 Chapman v. Nichols, 989 F.2d 393, 399 (10th Cir.

1993). In striking down such searches, we have applied the following balancing test:

       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.

Id. at 395 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)) (emphasis added in

Chapman). Thus, we have noted the indisputable “feelings of humiliation and

degradation associated with forcibly exposing one’s nude body to strangers for visual

inspection.” Id. at 396 (quoting Thompson v. City of Los Angeles, 885 F.2d 1439, 1446

(9th Cir. 1989)). Moreover, we have observed that “jails can meet the minimal security

concerns they may have with minor offenders by means of a ‘less intrusive pat-down

search.’” Id. at 397 (quoting Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985)).

Concluding that “a strip search is an invasion of personal rights of the first magnitude,”


       12
         “Courts have consistently recognized a distinction between detainees awaiting
bail and those entering the jail population when evaluating the necessity of a strip search
under constitutional standards.” Cottrell v. Kaysville City, Utah, 994 F.2d 730, 735 (10th
Cir. 1993).

                                           - 16 -
we have found that policies which mandate blanket strip searches of all minor traffic

offenders are constitutionally offensive, even if no body cavity search is involved. “[N]o

objectively reasonable person would believe that a strip search of a minor offense

detainee would be constitutional simply because the search did not involve a more

obtrusive viewing of the detainee's naked body.” Id. at 398. However, all our previous

holdings speak to policies which require arrestees to completely disrobe; they do not

reach the situation in which the arrestee retains his or her undergarments.

       Thus, we have never considered a practice requiring detainees to disrobe to their

undergarments in order to change into jail garb for transport and transfer to another

facility, nor can we find other authority on the issue. While we appreciate the insult that

persons who are arrested on minor traffic charges may feel at being subjected to such a

policy, obviously, the invasion of personal rights in such cases is not as extreme as the

invasion entailed in a strip search policy which requires the detainee to strip naked.

Furthermore, we cannot categorically say that pat down searches are the only course of

action which the Constitution permits for meeting security concerns. In this case,

Morreale was taken to a private room, accompanied by an officer of the same sex, under a

policy which provided that she would take off her outer clothes only. Balancing the

security need against the invasion of personal rights that the Cripple Creek policy entails,

we cannot conclude that it violates the Constitution.




                                           - 17 -
       b.     Shackling

       In a conclusory claim, Morreale contends that the policy mandating that she be

hand and foot shackled for transport violated her constitutional rights. The Cripple Creek

shackling policy, which Chief Stauffer drafted, provides that the transport person shall

“search person/s before leaving holding cell [and] belly cuff and leg cuff” them for

transport. Appellee’s App., Tab Q at 4.

       We have never addressed whether it is constitutionally permissible, for purposes of

transport, to fully shackle persons arrested on minor traffic offenses, and we have been

unable to locate any authority on the issue. Morreale summarily contends that her Fourth,

Fifth and Fourteenth Amendment rights were violated by the policy, Appellant’s Br. at

12, but she fails to distinguish or to elaborate the applicable standards under the cited

amendments. In any event, we note that the standard applied to an excessive force claim

arising from an arrest may not apply to this claim, since Morreale was a pretrial detainee

at the time she was shackled. See, e.g., Graham, 490 U.S. at 395 n.10; United States v.

Johnstone, 107 F.3d 200, 205 (3rd Cir. 1997); Weimer v. Schraeder, 952 F.2d 336, 340

(10th Cir. 1991). Regardless, whether we apply a Fourth or Fourteenth Amendment

standard, we cannot conclude that the policy is either unreasonable or that it shocks the

conscience or that it improperly imposes punishment. Thus, although we observe that




                                            - 18 -
transport officers can be protected by lesser means,13 the policy does not violate the

Constitution.

       Accordingly, because we conclude that the policies in question are constitutional,

we affirm the district court’s summary judgment dismissing the City of Cripple Creek and

Chief Stauffer.

       3.       Conduct of Evelyn Stauffer

       Even if the policy requiring arrestees to change into jail garb is constitutional,

Morreale argues that it was unconstitutionally applied to her. Thus, she contends that

Evelyn Stauffer did in fact strip search her. Notably, however, Morreale does not claim

that Evelyn Stauffer acted outside the parameters of the Cripple Creek policies. Rather,

Morreale specifically alleges that Stauffer acted pursuant to Cripple Creek police

department policy. Amended Complaint, Appellant’s App., Tab 6 at 6; Pretrial Order, Id.,

Tab 10 at 3; Summary Judgment Memorandum, Appellee’s App., Tab M at 9. Hence, we

must consider Stauffer’s conduct in light of our previous finding that the underlying

policy does not violate the Constitution. In the ordinary situation in which a suspect is

wearing undergarments, we would not conclude that a visual inspection for weapons or

contraband is unconstitutional. The fact that Morreale was not wearing undergarments



       13
         In fact, the policy makes an exception for juveniles who are not a danger to
themselves or others. However, “[t]he reasonableness of any particular government
activity does not necessarily or invariably turn on the existence of alternative ‘less
intrusive' means.” Illinois v. Lafayette, 462 U.S. 640, 647 (1983).

                                             - 19 -
when she was ordered to change into the jumpsuit, and that she was therefore fortuitously

subjected to a visual inspection while naked, does not convert a permissible action into a

constitutionally impermissible one. Accordingly, Morreale has not alleged a

constitutional violation, and the action must be dismissed as to Stauffer.

       For the reasons stated, the judgment of the district court is AFFIRMED.

                                                    ENTERED FOR THE COURT


                                                    Stephen H. Anderson
                                                    Circuit Judge




                                           - 20 -
