Kelly La Gale McSean v. Chris Chamberlain, Head of Security

United States Court of Appeals
For the Eighth Circuit
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No. 24-1674
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Kelly La Gale McSean
lllllllllllllllllllllPlaintiff - Appellant
v.
Chris Chamberlain, Head of Security; Jeff Cunningham, Sally Port Supervisor;
Misty Kindle, Physician; Denise Hacker, COO; William Anderson, Unit Manager;
Adam Cooper, Security; Jeremy Crice, Security Aide
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: July 1, 2024
Filed: August 14, 2024
[Unpublished]
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Before SMITH, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
Kelly McSean, a transgendered civilly committed sex offender in Missouri who
is currently detained on pending state criminal charges, appeals following the
preservice dismissal of her 42 U.S.C. § 1983 action. McSean claimed that a strip

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search performed at the Southeast Missouri Mental Health Center on December 30,
2021--during her civil commitment and prior to the pretrial detention--violated her
constitutional rights. The district court found that McSean failed to state a Fourth
Amendment claim because the search was reasonable, and alternatively that
defendants were entitled to qualified immunity; that the remaining claims were
frivolous; and that, in any event, all of the claims were subject to dismissal for failure
to show a physical injury under 42 U.S.C. § 1997e(e). We affirm in part and reverse
in part.
We conclude that McSean’s allegations, liberally construed, are sufficient to
survive preservice dismissal of her Fourth Amendment claim against all defendants
in their individual capacities, except Chief Operational Officer Denise Hacker. See
Rinehart v. Weitzell, 964 F.3d 684, 687-88 (8th Cir. 2020) (standard of review).
Specifically, while some form of a strip search may have been justified--given that
McSean refused a pat-down search--McSean adequately alleged that the
circumstances of the search were unreasonable. See Serna v. Goodno, 567 F.3d 944,
949, 952-53 (8th Cir. 2009) (to determine whether search of civilly committed person
is reasonable, court balances justification for search against scope of intrusion,
manner in which it is conducted, and place in which it is conducted, citing Bell v.
Wolfish, 441 U.S. 520, 559 (1979)). Although the search took place in McSean’s
room, she alleged that her clothes were forcefully removed while she was restrained,
that multiple individuals were in the room who were not conducting the unshielded
search, and that one defendant made fun of her transgendered status during the search
while others in the room laughed. See Richmond v. City of Brooklyn Ctr., 490 F.3d
1002, 1008-09 (8th Cir. 2007) (strip searches should be performed without any
degrading, humiliating, insulting or abusive acts, comments, or jokes); Jones v.
Edwards, 770 F.2d 739, 742 (8th Cir. 1985) (officials should take precautions to
ensure detainee’s privacy is protected from exposure to others unconnected to
search); cf. Beard v. Falkenrath, 97 F.4th 1109, 1115 (8th Cir. 2024) (transgendered
prisoner’s complaint plausibly alleged Fourth Amendment violation when strip search
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involved use of multiple guards, placement of knee in prisoner’s back, and forceful
removal of her clothes). McSean did not sufficiently allege, however, that Hacker
was personally involved in the incident or failed to supervise. See Beard, 97 F.4th
at 1122 (affirming dismissal of unreasonable search claim against defendants who
were not personally involved in search and did not fail to supervise).
Further, defendants were not entitled to qualified immunity on the face of the
complaint, as McSean adequately alleged that the search was degrading and
humiliating. See Story v. Foote, 782 F.3d 968, 969-70 (8th Cir. 2015) (complaint
may be sua sponte dismissed on preservice screening based on qualified-immunity
defense if it is established on face of complaint); cf. Beard, 97 F.4th at 1115-16
(affirming denial of qualified immunity on unreasonable-search claim because it was
clearly established that a degrading, humiliating, or abusive strip search of an arrestee
violated the Fourth Amendment).
We need not decide whether section 1997e(e) applies to McSean’s claims
alleging injury suffered prior to the criminal charges, as we conclude that, giving
liberal construction to her allegations, she has satisfied section 1997e(e) for purposes
of initial review. See 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought
by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical injury
or the commission of a sexual act (as defined in section 2246 of Title 18)”).
We conclude, however, that the remaining claims were properly dismissed:
McSean did not adequately allege an equal protection claim, as she did not allege she
was treated differently than non-transgendered offenders, see Seltzer-Bey v. Delo, 66
F.3d 961, 964 (8th Cir. 1995); she did not state a claim for procedural due process
violations based on prison policy, see Beard, 97 F.4th at 1116; she did not state
substantive due process or excessive force claims, cf. Glover v. Paul, 78 F.4th 1019,
1021-24 (8th Cir. 2023); and she did not state a claim for deliberate indifference to
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her serious medical needs, see Karsjens v. Lourey, 988 F.3d 1047, 1051-52 (8th Cir.
2021). McSean’s official-capacity claims were also properly dismissed. See Monroe
v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007).
Accordingly, we affirm the dismissal of the action against defendant Hacker,
but we reverse the dismissal of the Fourth Amendment claim as to the remaining
defendants in their individual capacities and remand for further proceedings. On
remand, the district court should also consider whether the complaint sufficiently
alleges state law claims for battery, assault, and sexual assault, and whether the
exercise of supplemental jurisdiction over these claims is warranted. We affirm the
dismissal of the remaining claims.
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