Full opinion text
MEMORANDUM WILLIAM J. HAYNES, JR., District Judge. Plaintiff, Melissa Hearring, as next friend of B.H., a minor, filed this action under 42 U.S.C. § 1983 against the Defendants: Karen Sliwowski, a school nurse who is sued in her individual capacity, and the Metropolitan Government of Nashville Davidson County, Tennessee (“Metro”) that employed Sliwowski as a Metro school nurse. Plaintiff asserts a Fourth Amendment claim for the Defendant Sliwowski’s visual search of B.H.’s labia without parental consent or medical emergency or other emergent circumstances. Plaintiff alleges that the Defendant Metro lacked any policy for strip searches of students that caused Sliwowski’s visual search of B.H.’s labia without justification. Before the Court is the Magistrate Judge’s Report and Recommendation (Docket Entry No. 69), recommending that the Defendants’ motion for summary judgment (Docket Entry No. 26) be granted and that Plaintiffs claims be dismissed. In sum, the Magistrate Judge concluded that B.H.’s Fourth Amendment right, as a minor to be free from a visual search of her labia by a school nurse who had concerns about B.H.’s medical condition, was not clearly established at the time of Sliwowski’s visual search. (Docket Entry No. 69 at 21). Thus, the Magistrate Judge concluded that the qualified immunity doctrine bars any damages claims against Sliwowski. Id. The Magistrate Judge also concluded that Plaintiffs proof was insufficient to support a judgment on Plaintiffs Section 1983 claim against Metro. Id. at 26-28. Plaintiff has filed timely objections, and the Defendants filed their response. Plaintiff asserts multiple objections to the Report and Recommendation that are, in sum: (1) that the Magistrate Judge failed to apply the “common sense” standard for qualified immunity test under Walker v. Davis, 649 F.3d 502 (6th Cir. 2011); (2) that there were not any “legitimate health concerns” to justify Sliwowski’s highly intrusive search of B.H.’s labia; (3) that based upon Plaintiffs expert proof, material factual disputes exist on whether a student search policy can be formulated that preclude an award of summary judgment to Metro; and (4) that the Magistrate Judge erroneously characterized Plaintiffs theory of Metro’s liability, that is, despite an express state policy, Metro lacked any policy to provide guidance to Metro school nurses on student searches that caused the offensive search at issue in this action. In response, Defendants contend that the Magistrate Judge correctly applied the applicable law to the undisputed facts and that his conclusion on Defendant Sliwowski’s qualified immunity is correct. The Defendant Metro asserts that all school nurses are appropriately trained and Plaintiffs proof cannot establish the requisite showing of deliberate indifference to impose Section 1983 liability on Metro. Moreover, Metro’s proof is such a search policy is impossible for all possible searches. For this Report and Recommendation and the objections thereto, the Court is required to conduct a de novo review. Fed.R.Civ.P. 72(b)(3). A. Review of the Record The Magistrate Judge’s Report and Recommendation, found the following facts that are undisputed: In 2009, minor plaintiff B.H. was six years old and a student at Mt. View Elementary School — part of the Nashville Metropolitan School District. (Docket Entry No. 10 ¶ 4.) According to the record, B.H. had a history of bladder and urinary tract infections which would sometimes cause itching or discomfort to her genital area. (Id. ¶¶ 4-5.) In date October of that year, B.H.’s mother, plaintiff Melissa Hearring, notified the school that B.H. was suffering from another bladder/urinary tract infection and was scheduled for an appointment with her physician on October 30. (Id. ¶ 4.) On October 28, B.H.’s teacher called Ms. Hearring to inform her that B.H. had complained during class of itching and discomfort. (Id. ¶ 5.) During the call, Ms. Hearring explained that such symptoms were consistent with B.H.’s condition and reminded the teacher of B.H.’s upcoming doctor’s appointment. (Id.) The next day, October 29, B.H. complained to her teacher again of pain and itching, and the teacher decided to escort B.H. to the school nurse’s office a little before 2:00 p.m. (Docket Entry No. 33 ¶ 14.) However, because the nurse was administering medication to a diabetic student at the time, B.H. waited in the school secretary’s office until the nurse was free. (Docket Entry No. 23 ¶¶ 6-7.) The secretary, Pam Back, tried to reach Ms. Hearring by phone, but was unable to get th[r]ough to her and left Ms. Hearring a voice message instead. (Docket Entry No. 33 ¶ 16.) The school nurse was defendant Karen Sliwowski. (Docket Entry No. 32 ¶ 2.) Defendant Sliwowski had been working as a registered nurse since 1996 (Docket Entry No. 23 ¶ 2.) and had been employed by the Metropolitan Public Health Department as a school nurse since November, 2008. (Docket Entry No. 32 ¶ 6.) Nurse Sliwowski worked at several different schools each day and did not arrive at Mt. View Elementary until around 2:00 p.m. on October 29. (Docket Entry No. 23 ¶ 5; Docket Entry No. 33-2, pg. 8, lines 11-21.) After finishing her scheduled appointment with the diabetic student, Nurse Sliwowski took B.H. to the school health office to examine her. (Docket Entry No. 33 ¶ 14.) Ms. Back explained to Nurse Sliwowski that B.H. had come to the office complaining of pain and itching in her genital area, but Nurse Sliwowski was not aware at the time that B.H. was suffering from a urinary tract infection and did not inquire about B.H.’s medical history. (Docket Entry No. 33-1, pg. 15, line 23 through pg. 16, line 4.) In order to examine B.H., Nurse Sliwowski took her to a restroom normally reserved for teachers. (Docket Entry No. 33 ¶ 14.) At Nurse Sliwowski’s suggestion, Ms. Back accompanied them, so that someone would be present to observe the examination. (Id) In the restroom, Nurse Sliwowski asked B.H. to remove her pants and underwear and to squat down. (Id) She further asked B.H. to open her labia so that Nurse Sliwowski could inspect for any redness or irritation. (Id; Docket Entry No. 23 ¶ 12.) Nurse Sliwowski did not touch B.H. during the course of this inspection and claims that she was never closer than one to two feet away. (Docket Entry No. 23 ¶ 12). Finding no redness or irritation, Nurse Sliwowski dismissed B.H. back to class. (Id) After performing the examination, Nurse Sliwowski called Ms. Hearring, but was unable to reach her. (Docket Entry No. 33 ¶ 17.) When she returned home after school on October 29, 2009, B.H. told her parents about Nurse Sliwowski’s examination. (Docket Entry No. 10 ¶ 6). Plaintiffs assert that B.H. was “confused, humiliated, and frightened” by the experience. (Id) The parties agree that Nurse Sliwowski received no training from the Metro Public Health Department concerning whether and under what circumstances examining a student’s genitals is appropriate. (Id ¶¶ 10; Docket Entry No. 33-9 ¶ 1.) The next day, Nurse Sliwowski contacted her supervisor, Stephanie Blansett, to explain what had happened. (Docket Entry No. 24 ¶ 14.) On November 3, 2009, Ms. Blansett issued Nurse Sliwowski a written reprimand for failing to send a note home with B.H. as required by the School Health Clinical Manual in cases when a nurse cannot reach a parent by phone. (Docket Entry No. 24-3.) The reprimand did not criticize Nurse Sliwowski for the examination itself, but did recommend that, in the future, Nurse Sliwowski consult with a supervisor “when you encounter an unfamiliar situation.” (Id) Ms. Blansett further noted, however, that “[tjhere is no question as to your good intentions in this situation. I have no doubt, nor does our director, that you only wanted to help this student receive the appropriate care.” (Id) (Docket Entry No. 69, Report and Recommendation at 2-4). In her objections, Plaintiff cites additional proof that Sliwowski stated that she had not observed B.H. “walking funny,” but she wanted to make sure that B.H. “did not have an injury that I needed to be aware or something that would require emergency care.” (Docket Entry No. 33, Exhibit 10, Cosby Rule 26 Statement at 5; Exhibit 2, Sliwowski Deposition at pp. 9, 12). According to Sliwowski, “child abuse was not my concern in my head when I saw the student.” Id.; Exhibit 2 at p. 19. Sliwowski stated that she “could not diagnose” a urinary tract infection by her visual examination of B.H.’s labia. Id. at Exhibit 2 at pp. 19-20. As to whether Sliwowski’s actions were correct, Sliwowski’s nursing supervisor replied “No.” (Docket Entry No. 33, Exhibit 5, Blansett Deposition at pp. 22-23). Sliwowski did not know if parental permission were necessary to conduct a genital examination of a Metro public school student. Id., Exhibit 10, at 6; Exhibit 1, Sliwowski Deposition at p. 9. Sliwowski lacked access to B.H.’s medical records and citing patient confidentiality, Sliwowski did not request Pam Back, the school secretary who observed Sliwowski’s examination, if B.H. had prior physical problems. Id.; Exhibit 1 at p. 15; Exhibit 2 at pp. 13, 17. Sliwowski also did not make a written record of her examination that is required for a clinic visit nor did Sliwowski send a note home with B.H. after the examination, as required. Id., Exhibit 1 at pp. 10-12, 22-23. According to Kimberly Fowler, the school principal, the school must inform the school nurse of “information that would be beneficial to the nurse and appropriate because as a school we are acting in loco of the parent.” Id., Exhibit 6, Fowler Deposition at p. 6. Plaintiff also cites the expert testimony of Mariann Cosby, a registered nurse, who agreed that Sliwowski could not diagnose a urinary tract infection by examining the child’s labia. (Docket Entry No. 33, Exhibit 10 at 5, 10-12). Cosby cites Sliwowski’s failures: to document her examination of B.H.; to question B.H.; and to check B.H.’s vital signs, temperature, pulse, respirations and blood pressure. Id. at 10-11. These latter measures provide objective data for a diagnosis of a possible urinary tract infection. Id. at 8. Cosby cites Sliwowski’s statement that her examination of B.H.’s labia would not have provided any insight of whether B.H. had a urinary tract infection, id. at 5; Exhibit 2 at pp. 19-20. In Cosby’s opinion, Sliwowski’s examination of B.H.’s labia was improper medical treatment by a school nurse. According to NASN’s School nursing: A Comprehensive Text, those cases where urinary tract infection is suspected, subjective and objective data the school nurse should collect includes the following: Subjective data includes asking the student to describe the discomfort and whether there appears to be blood in the urine. Objective data includes checking for a fever by taking a temperature. Similarly if vaginal discharge is suspected, the school nurse should ask age appropriate questions about the symptoms, make age appropriate observations, and evaluate for signs of fever or underlying systemic disease via history. It is my opinion that Nurse Sliwowski’s omission of attempting to obtain subjective and objective data from the various resources as part of the assessment process, was a critical departure from the practice of nursing in a school setting and contributed to her flawed thinking and nursing judgment. She sidestepped critical elements of the nursing process without giving consideration to her actions. She failed to document any aspect of the incident. She did the visual examination without sound rationale. She did so with disregard for the outcome or the potential ramifications. She did so, without considering the rights of the student or the parent. Therefore, it is my opinion that the visual inspection of B.H.’s genital area and the opening of her labia was not indicated nor appropriate under the specific circumstances of this case. Nurse Sliwowski should have known that this type of examination was not indicated since child abuse was not suspected and there was no emergency. She should have known that since there was no emergency, implied consent was not applicable. Consistent with parental consent rights regarding health screenings and health care procedures, she should have known that parental permission was needed. (Docket Entry No. 33, Exhibit 10 at 8, 12, 13) (emphasis added). Cosby also cites national and Tennessee educational standards for school nurses that restrict medical examinations of students and prohibit a genital examination of a student absent parental consent or a medical emergency. [NASN’s School nursing: A Comprehensive Text] states, “physical assessment of the genital region is not usually performed in the school setting.” Although not cited in the evidence as one of the resources for school nurses serving the Metropolitan Nashville Public Schools, it is a nationally recognized school nursing resource and is readily available to school nurses. According to another nationally recognized resource by NASN, Quality Nursing Intervention In the School Setting, even in those cases where sexual abuse might be suspected, a “physical inspection of the genital area is generally not done unless there are subjective and objective indicators of emergent bleeding.” The 2007 Guidelines for the Use of Health Care Professionals and Health Care Procedures In a School Setting, defines an emergency as “a serious situation that arises suddenly and threatens the life, limb, or welfare of one or more persons; a crisis.” “An emergency creates a type of implied consent when the individual is unable to consent to treatment that is immediately necessary.” Nurse Sliwowski’s immediate supervisor, Stephanie Blansett RN, testified that based on her review of this definition and both Nurse Sliwowski’s and Pam Back’s November 2, 2009 statements, this definition of an emergency did not fit the writings. Further, she testified that based on the writings alone, she “would not draw the conclusion from these words that there was an emergency.” Once again, Nurse Sliwowski testified that she had heard of this resource, but she never read or reviewed it. The 2007 Guidelines for Use of Health Care Professionals and Health Care Procedures in a School Setting also defines parental consent as: “written consent from a parent/guardian that is required before a student can be administered medication or be a recipient of health care procedures in a school setting.” Parental consent is also discussed in the Tennessee Department of Education School Health Screenings Guidelines. This resource addresses the fact that parental permission is needed in order for the school to perform the vision, hearing, scoliosis and other health screenings that are typically done by school nurses. Id. at 8-9. Metro’s expert proof on the training of school nurses is that nurse training is provided to Metro school nurses who also have school administrators as supervisors and a nurse mentor, but a policy on student searches is “impossible” to define for all circumstances. (Docket Entry No. 36, Bergren Declaration at ¶ 5b-e, i-1). Martha Dewey Bergren, who has a doctorate in nursing and is Metro’s expert, states that: 3. I was asked by the Metropolitan Government of Nashville and Davidson County to evaluate the School Nurse Program operating in the Metropolitan Nashville Public Schools. 4. I reviewed the materials listed in Exhibit 2 in formulating my opinion in this case. 5. Based upon my review of the materials listed in Exhibit 2, my education, and experience, I offer the following expert opinions: a. Metropolitan Nashville Public Schools follow the norm in hiring experienced registered nurses for school nurse positions. The hiring of experienced registered nurses is standard for school districts across the United States. School nursing is an independent practice and the school setting is not amenable to a new nursing graduate lacking clinical experience. b. In a poll conducted by the National Association of School Nurses in 2010, 6% of school nurses reported having a formal orientation to their school nurse position and 10% reported having a scripted orientation with a nurse mentor. Twenty-three percent of school nurses reported their state holds a generic orientation to the school nurse role. Thirty-six percent of school nurses reported they received no orientation to their current position. c. The orientation of school nurses for the Metropolitan Nashville Public Schools exceeds the length and breadth of the average school nurse orientation program in the United States. It is a systematic month long, comprehensive program. Each orientee is provided an experienced mentor and written policies and procedures to guide practice. The content covered by the program is documented. d. School nurses typically are not supervised by a health professional in the school setting. School nurses are most often supervised by an educational administrator. e. In a poll in 2009, 69% of school nurse respondents reported that their supervisor was a non-nurse. The Metropolitan Nashville Public Schools provide school nurses with seasoned school health registered nurse mentors upon hire and are supervised by a master’s prepared registered nurse. f. The Metropolitan Nashville Public Schools provide a typical assortment of published reference materials for school nurses. The combined reference materials provide a comprehensive set of guidelines for school nursing practice. g. Physical assessment is an integral part of the registered nurse role — the four step nursing process is assess, plan, implement and evaluate. Physical assessment is a basic nursing skill that is taught in the entry level nursing courses prior to graduation and taking the licensure exam. h. In none of the school districts that I served as a school nurse was there a policy barring certain aspects of a physical examination of a student who reports a physical complaint. I am not aware of any school nursing orientation programs that review conducting physical exams. i. In a school nurse orientation program or a school health policy manual, it is impossible to cover every situation that a school nurse will encounter in the course of a day, week, month or year. School nurses are responsible for a large number of students whose age and developmental level range from Pre-K to 12th grade. Many of the students the nurses serve endure multiple social and economic disadvantages and suffer from a wide array of health conditions, both chronic and emergent. j. It is prudent of the Metropolitan Nashville Public Schools to provide each nurse with a mentor and a nursing supervisor to provide guidance for the many circumstances that arise over a nurse’s career that cannot be anticipated in orientation. k. By hiring experienced registered nurses, they target nursing personnel who have the judgment needed for ever changing demands and situations. It is not the norm for school districts to have policies that specify or prohibit specific aspects of assessments. It is not the norm that this type of distinction be included in a school nursing orientation at either the district or state level. 1. The Metropolitan Nashville Public Schools provide school nurses with a comprehensive orientation and skilled health professional supervision that exceeds the United States norm. (Docket Entry No. 36, Bergren Declaration at 1-4) (emphasis added). Stephanie Blansett, a Metro nurse supervisor, provides essentially the same description of the training and supervision of Metro school nurses. (Docket Entry No. 24, Blansett Declaration at 1-3). B. Conclusions of Law “The very reason of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, “district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment: Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary -will not be counted. 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a material fact for Rule 56 purposes as “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). A motion for summary judgment is to be considered after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th Cir.1989). But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). There is a certain framework in considering a summary judgment motion as to the required showing of the respective parties as described by the Court in Celotex Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.... [W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (emphasis deleted). As the Court of Appeals explained, “[t]he moving party bears the burden of satisfying Rule 56(c) standards.” Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir.1986). The moving party’s burden is to show “clearly and convincingly” the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir.1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986)). “So long as the movant has met its initial burden of ‘demonstrating the absence of a genuine issue of material fact,’ the nonmoving party then ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989) (quoting Celotex and Rule 56(e)). Once the moving party meets its initial burden, the Court of Appeals warned that “[t]he respondent must adduce more than a scintilla of evidence to overcome the motion [and] ... must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (quoting Liberty Lobby). Moreover, the Court of Appeals explained that The respondent must ‘do more than simply show that there is some metaphysical doubt as to the material facts.’ Further, ‘[w]here the record taken as a whole could not lead a rational trier of fact to find’ for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent’s claim is ‘implausible.’ Street, 886 F.2d at 1480 (cites omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790 (6th Cir.1990) (“A court deciding a motion for summary judgment must determine ‘whether the evidence presents a sufficient disagreement to require a submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” quoting Liberty Lobby)). If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law. More important for present purposes, summary judgment will not lie if the dispute about a material fact is ‘genuine’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict — ‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ Liberty Lobby, 477 U.S. at 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d at 211-212, 214 (citation omitted and emphasis added). It is likewise true that [I]n ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated. It has been stated that: ‘The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute.... ’ Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, “[a]ll facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion.” Duchon v. Cajon Company, 791 F.2d 43, 46 (6th Cir.1986) app. 840 F.2d 16 (6th Cir.1988) (unpublished opinion) (citation omitted). The Court of Appeals further explained the District Court’s role in evaluating the proof on a summary judgment motion A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim. Rule contemplates a limited marshalling of evidence by the nonmoving party sufficient to establishing a genuine issue of material fact for trial. This marshalling of evidence, however, does not require the nonmoving party to “designate” facts by citing specific page numbers. Designate means simply “to point out the location of.” Webster’s Third New InterNational Dictionary (1986). Of course, the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the nonmoving party relies; but that need for specificity must be balanced against a party’s need to be fairly apprised of how much specificity the district court requires. This notice can be adequately accomplished through a local court rule or a pretrial order. InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989) cert. denied 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Here, the parties have given some references to the proof upon which they rely. Local Rule 56.01(b) and (c) require a showing of undisputed and disputed facts. In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions, and other authorities on summary judgment and synthesized ten rules in the “new era” on summary judgment motions 1. Complex cases are not necessarily inappropriate for summary judgment. 2. Cases involving state of mind issues are not necessarily inappropriate for summary judgment. 3. The movant must meet the initial burden of showing ‘the absence of a genuine issue of material fact’ as to an essential element of the non-movant’s case. 4. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. 5. A court should apply a federal directed verdict standard in ruling on a motion for summary judgment. The inquiry on a summary judgment motion or a directed verdict motion is the same: ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that the party must prevail as a matter of law.’ 6. As on federal directed verdict motions, the ‘scintilla rule’ applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion. 7. The substantive law governing the case will determine what issues of fact are material, and any heightened burden of proof required by the substantive law for an element of the respondent’s case, such as proof by clear and convincing evidence, must be satisfied by the respondent. 8. The respondent cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ 9. The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. 10. The trial court has more discretion than in the ‘old era’ in evaluating the respondent’s evidence. The respondent must ‘do more than simply show that there is some metaphysical doubt as to the material facts.’ Further, ‘[w]here the record taken as a whole could not lead a rational trier of fact to find’ for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent’s claim is implausible. Street, 886 F.2d at 1479-80. The Court has distilled from these collective holdings four issues that are to be addressed upon a motion for summary judgment: (1) has the moving party “clearly and convincingly” established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to establish all the elements of the asserted claim or defense?; (3) if factual support is presented by the nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment under the applicable law?; and (4) are there any genuine factual issues with respect to those material facts under the governing law? 1. The Qualified Immunity Analysis The qualified immunity doctrine involves “a balance between compensating those who have been injured by official conduct and protecting government’s ability to perform its traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). The Sixth Circuit articulated the rationale for qualified immunity as follows: Qualified immunity accommodates two important competing interests. On the one hand, an action for damages may be “the only realistic avenue for vindication of constitutional guarantees” where officials violate the public trust. Harlow, 457 U.S. at 814, 102 S.Ct. at 2736. Yet, the “threat of liability can create perverse incentives that operate to inhibit officials in the proper performance of their duties.” Forrester v. White, [484] U.S. [219], 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988) (emphasis in original). “[P]ermitting damage suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Harlow, 457 U.S. at 814, 102 S.Ct. at 2736 (“These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.”). Thus, government officials must be given some assurance that they can perform their duties without fear of monetary liability or the diversions inherent in litigation. The doctrine of qualified immunity seeks to achieve this salutary goal. The doctrine reflects the belief “that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated.” Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984). Poe v. Haydon, 853 F.2d 418, 423 (6th Cir.1988) (emphasis added). This doctrine has been addressed in a series of decisions, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), that essentially establishes a two-step analysis that the Supreme Court described in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991): We have on several occasions addressed the proper analytical framework for determining whether a plaintiffs allegations are sufficient to overcome a defendant’s defense of qualified immunity-asserted in a motion for summary judgment. Qualified immunity is a defense that must be pleaded by a defendant official. Harlow, 457 U.S. at 815, 102 S.Ct. 2727, 73 L.Ed.2d 396. Once a defendant pleads a defense of qualified immunity, “[o]n summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred .... Until this threshold immunity question is resolved, discovery should not be allowed.” Id. at 818, 102 S.Ct. 2727, [73 L.Ed.2d 396]. In Harlow we said that “[u]ntil this threshold immunity question is resolved, discovery should not be allowed.” Harlotv, supra, at 818, 102 S.Ct. at 2738 (emphasis added). 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. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits. Id. at 231-32, 111 S.Ct. 1789 (emphasis added). In Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the Supreme Court expressly stated that courts “must first determine whether the plaintiff has alleged the deprivation of a constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the violation.” In 2001, the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) stated: “A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry. In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established.” 533 U.S. at 201, 121 S.Ct. 2151 (citing Siegert, 500 U.S. at 232, 111 S.Ct. 1789). After criticisms of some circuits and others, the Supreme Court has since held that “judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In doing so, the Court recognized that in some instances, unnecessary costs can be imposed under the Saucier test. In deciding to forego the first step of Saucier1 s analysis, the Magistrate Judge referred to those costs in declining to address both steps in the qualified immunity analysis. (Docket Entry No. 69 Report and Recommendation at 6-7 citing “Judges Sutton and Gibbons of the Sixth Circuit openly questioning] the ‘rigidity’ of Saucier's requirements and whether it makes sense to force lower courts to answer the constitutional questions first ‘no matter the costs, no matter the ease with which the second question might be answered.’”) (internal citations omitted). In Pearson, the Supreme Court identified those costs concerns that may warrant the declination of the two-step analysis: As a result, several courts have identified an “exception” to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witmer, 526 F.3d 104, 109-111 (3rd Cir.2008); accord, Tremblay v. McClellan, 350 F.3d 195, 200 (1st Cir.2003); Ehrlich v. Glastonbury, 348 F.3d 48, 57-60 (2d Cir.2003). Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier’s first prong, whether the defendant’s conduct violated the Constitution, these courts have observed that Saucier’s “underlying principle” of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future “is not meaningfully advanced ... the precise factual basis for the plaintiffs claim or claims may be hard to identify.... [B]riefing of constitutional questions is woefully inadequate. See Lyons, supra, at 582 (Sutton, J., concurring) * * * Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant’s right to appeal the adverse holding on the constitutional question may be contested. * * * Adherence to Saucier’s two-step protocol departs from the general rule of constitutional avoidance and runs counter to the “older, wiser judicial counsel ‘not to pass on questions of constitutionality ... unless such adjudication is unavoidable.’” Scott, 550 U.S., at 388, 127 S.Ct. 1769. Id., at 238, 239, 240, 241,129 S.Ct. 808. Later, in Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), the Supreme Court eliminated one cost concern in adopting a policy to consider an appeal to that court by a winning party on a qualified immunity ruling. The Supreme Court’s rationale included that: We think just such a reason places qualified immunity eases in a special category when it comes to this Court’s review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opinions.” [California v.] Rooney, 483 U.S. [307] at 311, 107 S.Ct. 2852[, 97 L.Ed.2d 258 (1987) ] (internal quotation marks omitted); see Bunting [v. Mellen ], 541 U.S. [1019], at 1023, 124 S.Ct. 1750[, 158 L.Ed.2d 636 (2004)] (SCALIA, J., dissenting from denial of certiorari) (stating that such a determination is “not mere dictum in the ordinary sense”). They are rulings that have a significant future effect on the conduct of public officials — both the prevailing parties and their co-workers — and the policies of the government units to which they belong. See supra, at 2028-2030. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity — and observance — of constitutional rules. We describe in more detail below these features of the qualified immunity world and why they came to be. We hold that taken together, they support bending our usual rule to permit consideration of immunized officials’ petitions. But we have long recognized that this day may never come — that our regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo ... Indeed, for some time we required courts considering qualified immunity claims to first address the constitutional question, so as to promote “the law’s elaboration from case to case.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). More recently, we have left this matter to the discretion of lower courts, and indeed detailed a range of circumstances in which courts should address only the immunity question. See Pearson, 555 U.S. at 236-242, 129 S.Ct. 808. In general, courts should think hard, and then think hard again, before turning small cases into large ones. But it remains true that following the two-step sequence — defining constitutional rights and only then conferring immunity-is sometimes beneficial to clarify the legal standards governing public officials. Id. at 2030, 2031-32 (emphasis added). Moreover, despite its recognition of cost concerns, the Supreme Court in Pearson reiterated the value of Saucier’s two-step process. Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the “clearly established” prong. “[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.” Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir.2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. 555 U.S. at 236,129 S.Ct. 808. The Court respectfully concludes that here the circumstances and the cited cost concerns do not counsel avoidance of Saucier’s two step test. First, the parties have completed discovery and developed a full factual record of the controversy. Second, there are not any unsettled or ambiguous state law issues. Third, with the Magistrate Judge’s legal analysis, the parties’ memoranda and responses to the Report and Recommendation, the issues are well briefed. Fourth, the determination of the first step of the Saucier test is akin to ruling on a motion to dismiss for failure to state a claim that courts often do. Fifth, with any qualified immunity ruling, there is an immediate appeal as of right to the aggrieved party. Moreover, as described in Camreta, here, uncertainty exists on whether the Fourth Amendment protects a public school student from highly invasive searches without parental consent or a bona fide medical emergency. This uncertainty is in the context of likely recurring controversies, given Metro’s expert proof that in Metro schools “Physical assessment is an integral part of the registered nurse[’s] role.” (Docket Entry No. 36, Bergren Declaration at ¶ 5g). An application of Saucier’s two step analysis can provide some guidance for school nurses in future cases aside from the resolution of Sliwowski’s qualified immunity defense. Moreover, as the Supreme Court has repeatedly observed: “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, 500 U.S. at 232, 111 S.Ct. 1789, and that “ ‘it often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.’ ” Pearson, 555 U.S. at 236, 129 S.Ct. 808 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir.2005) (Sutton, J., concurring)). Finally, on this issue, a prerequisite for Metro’s liability is a determination of whether Sliwowski’s acts violated Plaintiffs federal rights. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”) (emphasis in original). The Court fails to discern here any costs considerations that counsel against the application of Saucier’s two step analysis. Under these circumstances, the Court concludes that conducting the Saucier two step analysis is appropriate. 2. The Fourth Amendment Right As to whether B.H. has a Fourth Amendment right to be free from a visual search of her labia, the Court reviews Fourth Amendment precedents that specifically address searches of public school students, including case law on physical examinations of public school students. In New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), involving a search of a 14 year old female’s purse for cigarettes, the Supreme Court stated: “A search of a child’s person or of a closed purse or other bag carried on her person ... is undoubtedly a severe violation of subjective expectations of privacy.” In Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Supreme Court set Fourth Amendment standards for urine drug testing of public school students absent individual suspicion. The Vemonia Court upheld a school’s system policy of randomly drug testing student athletes even in the absence of individualized suspicion based upon: (1) the “nature of the privacy interest upon which the search ... intrudes” that society recognizes as “legitimate”, (2) “the character of the intrusion that is complained of’, and (3) “the nature and immediacy of the governmental concern at issue.” Id. at 654, 658, 660, 115 S.Ct. 2386. In Vemonia, the Court concluded that as student athletes, the tested students had a decreased expectation of privacy given their voluntary participation in sports; that the students were clothed and were not observed while providing the urine sample; and that deterrence of drug use by students was an important, if not compelling interest. Id. at 654-65, 115 S.Ct. 2386. In Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009), decided on June 25, 2009, more than four months prior to the search of B.H., the Supreme Court held that school officials’ search for pills that involved a strip search of a 13 year old middle school student, including “exposing her breasts and pelvic area to some degree” violated the student’s Fourth Amendment rights. Id. at 2638. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Id, at 23a. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, App. to Pet. for Cert. 135a, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6-14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can “result in serious emotional damage”). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be, see, e.g., New York City Dept, of Education, Reg. No. A-432, p. 2 (2005), online at http://docs. nycenet.edu/docushare/dsweb/Get/ Doeument-21/A-432.pdf (“Under no circumstances shall a strip-search of a student be conducted”). The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T.L.O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U.S., at 341, 105 S.Ct. 733 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342,105 S.Ct. 733. * * * In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable. Id. at 2641,2642-43 (emphasis added). In this Circuit in 1984, the late Honorable Harry Phillips, a distinguished jurist from Tennessee, authored Tarter v. Raybuck, 742 F.2d 977, 979-80 (6th Cir.1984) that addressed school officials directing a high school student to submit to a search of his person by removing his shirt and pants. The Sixth Circuit stated: We hold that a school official or teacher’s reasonable search of a student’s person does not violate the student’s fourth amendment rights, if the school official has reasonable cause to believe the search is necessary in the furtherance of maintaining school discipline and order, or his duty to maintain a safe environment conducive to education. Cf. Horton v. Goose Creek, supra, 690 F.2d [470] at 480 [(1982)]; State in the Interest of T.L.O., supra, [94 N.J. 831], 463 A.2d [934] at 941 [ (1983) ]; State v. McKinnon, 88 Wash.2d 75, 81, 558 P.2d 781, 784 (1977) (search reasonable if school official has reasonable grounds to believe search is necessary in the aid of maintaining school discipline and order). We note that not only must there be a reasonable ground to institute the search, the search itself must be reasonable. Thus, for example, the authority of the school official would not justify a degrading body cavity search of a youth in order to determine whether a student was in possession of contraband in violation of school rules. There the fourth amendment and privacy interests of the youth would clearly outweigh any interest in school discipline or order which might be served by such a search. In Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980) cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) the court noted: “[i]t does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency.” “We suggest as strongly as possible that the conduct herein described exceeded the ‘bounds of reason’ by two and a half country miles.” 631 F.2d at 93. Id. at 982-83 (emphasis added). Later, in Beard v. Whitmore Lake School Dist., 402 F.3d 598 (6th Cir.2005) public school officials searched 25 high school students for stolen money that included 15 female students who had to pull up their shirts and pull down their pants, but were never touched and were not required to remove their underwear. Id. at 602. The Sixth Circuit held: The scope of the searches in the instant case, however, viewing the facts in the light most favorable to the plaintiffs, does not pass constitutional muster.... In light of the factors set forth in Vemonia, the searches performed on the male students in this case were in violation of the Fourth Amendment. First, the privacy interest here was great. Students of course have a significant privacy interest in their unclothed bodies. See T.L.O., 469 U.S. at 337-38, 105 S.Ct. 733 (noting that a “search of a child’s person ... is undoubtedly a severe violation of subjective expectations of privacy”) ... However, the scope of the search did exceed what would normally be expected by a high school student in a locker room. As alleged by the plaintiffs, the boys were individually and directly examined as they unclothed. Moreover, unlike in Vernonia, the students did not “voluntarily subject themselves to a degree of regulation ... higher than that imposed on students generally.” 515 U.S. at 657,115 S.Ct. 2386.... Second, the character of the intrusion was far more invasive than the character of the urinalyses in Vernonia, where students remained fully clothed. Also unlike in Vernonia, the searches were likely to disclose much more than the limited information (presence of drugs) at issue in Vernonia. The boys were required to lift their shirts and to remove both their pants and underwear. The highly intrusive nature of the searches, the fact that the searches were undertaken to find missing money, the fact that the searches were performed on a substantial number of students, the fact that the searches were performed in the absence of individualized suspicion, and the lack of consent, taken together, demonstrate that the searches were not reasonable. Accordingly, under T.L.O. and Vernonia, the searches violated the Fourth Amendment. Id. at 604-05. In Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir.2008), the Sixth Circuit held videotaping middle school age male and female athletes in various stages of undressing in a school locker-room violated the students’ Fourth Amendment rights. The Sixth Circuit found: In Beard, we considered the constitutionality of a strip search conducted by the school officials when a student reported that she was missing some money. The male and female students were separated and taken to different places in the school. The female students, while in full view of the others and the school officials, were required to lift up their shirts and pull down their pants without removing their undergarments. The males, on the other hand, were forced to remove their outer clothing and pull down their undergarments for inspection by the school official. We found that the character and scope of this search was unreasonably intrusive upon the students’ privacy. Beard, 402 F.3d at 605-06. In this case, the scope of the search consisted of the video recording and image storage of the children while changing their clothes. In Vernonia, procedural safeguards were put into place to protect the students’ privacy, but in this case, the school officials wholly failed to institute any policies designed to protect the privacy of the students and did not even advise the students or their parents that students were being videotaped. Likewise, as the female students in Beard were inspected while in their undergarments, the students here were also observed in their undergarments while they were in the school locker rooms. We believe that the scope of the secret surveillance in this case, like the strip search in Beard, significantly invaded the students’ reasonable expectations of privacy. Given the universal understanding among middle school age children in this country that a school locker room is a place of heightened privacy, we believe placing cameras in such a way so as to view the children dressing and undressing in a locker room is incongruent to any demonstrated necessity, and wholly disproportionate to the claimed policy goal of assuring increased school security, especially when there is no history of any threat to security in the locker rooms. Some personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion. Surreptitiously videotaping the plaintiffs in various states of undress is plainly among them. See Poe v. Leonard, 282 F.3d 123, 138-39 (2d Cir.2002); see also York v. Story, 324 F.2d 450, 455 (9th Cir.1963). We therefore conclude that the plaintiffs have adequately alleged a Fourth Amendment violation of their constitutional right to privacy because the students had a reasonable expectation of privacy and the invasion of the students’ privacy in this case was not justified by the school’s need to assure security. Id. at 497, 498, 499. As to whether, under these decisions, Plaintiff states a Fourth Amendment violation for the search of B.H., the Court concludes that the nature of the privacy interest here, the exposure of a 6 year-old girl’s labia, is 'far greater than the students’ privacy interests in T.L.O., Safford, Beard and Brannum. The nature of the search was B.H.’s pulling down her pants and underwear as well as the separation of her vaginal area before a nurse and also a school official that resulted in embarrassment and humiliation to B.