Beers v. NH Governor et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. Civil No. 15-cv-454-SM
Jon Fouts, Roderick Greenwood,
Kelly Jardine, Lt. Ernest Orlando,
Keith Forcier, and John Doe #21
REPORT AND RECOMMENDATION
Before the court are the motions for summary judgment (Doc.
Nos. 44, 51) filed by defendants Jon Fouts, Roderick Greenwood,
and Kelly Jardine, joined by defendant Lt. Ernest Orlando, see
Doc. No. 77. Plaintiff, Timothy Beers, has objected (Doc. No.
65) to defendants’ motion for summary judgment (Doc. No. 44),
and the defendants have filed a reply (Doc. No. 74) to that
objection.
Background
In December 2014, in a gymnasium at the New Hampshire State
Prison (“NHSP”), after guests attending a holiday party had been
escorted out, NHSP inmate Beers was subjected to a “visual body
cavity search” in the presence of other inmates and corrections
1The remaining parties named as defendants by plaintiff have
been dropped from this case. John Doe #2 has not been served
personally in this action, and no defendant identified as John
Doe #2 has appeared.
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staff. See Defs.’ Mot. Summ. J. (Doc. No. 44), at 1, 5; Compl.
(Doc. No. 1) ¶¶ 20-21. The group strip-search took place in the
center of the gym floor, immediately after the NHSP’s 2014
holiday party during which approximately 45 inmates had direct
contact with approximately 140 outside guests. Defs.’ Mot.
Summ. J. (Doc. No. 44), at 1-2, 4-5; Compl. (Doc. No. 1) ¶¶ 17-
18. Beers alleges that a female corrections officer, Kelly
Jardine, watched the search from a vantage point in the
gymnasium. Compl. (Doc. No. 1) ¶¶ 22, 36. For the purposes of
this court’s disposition of their motion for summary judgment,
defendants do not dispute Beers’s evidence regarding Jardine’s
presence. Defs.’ Mot. Summ. J. (Doc. No. 44), at 2. It is also
undisputed that the strip search occurred within view of a
prison surveillance camera mounted on the wall of the gym. See
Defs.’ Mot. Summ. J. (Doc. No. 44), at 2, 5; Compl. (Doc. No. 1)
¶ 23. Greenwood, Fouts, Jardine, Forcier, and Orlando were not
personally involved in performing the search. See Defs.’ Mot.
Summ. J. (Doc. No. 44), at 5; Compl. (Doc. No. 1) ¶¶ 8-9, 11,
36-39; Beers’s Interrog. Resp. (Doc. No. 44-3), at 1-2.
Beers grieved claims relating to the strip search through
the prison’s administrative grievance system, and then filed
this action, naming a number of state officers as defendants.
Upon completing a preliminary review of Beers’s pleadings, the
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court allowed a Fourth Amendment unreasonable search claim to
proceed against defendants Fouts, Jardine, Forcier, Orlando, and
Greenwood, who, Beers claims, knew of the circumstances under
which the search occurred and did not stop it or alter its
conditions, with deliberate indifference to the violation of
Beers’s Fourth Amendment rights caused by that search.
Before the court are two motions for summary judgment. The
first of those motions (Doc. No. 44), filed by Fouts, Jardine,
and Greenwood, and joined in by Orlando, seeks summary judgment
on all claims asserted by plaintiff Timothy Beers. The second
summary judgment motion (Doc. No. 51), filed by the same
defendants, seeks judgment as a matter of law on plaintiff’s
claims for damages. Beers has objected to Document No. 44, see
Doc. No. 65, but has not responded to Document No. 51.
Defendants filed a reply to that objection. See Doc. No. 74.
Standard
Summary judgment is warranted where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016). “An issue is ‘genuine’ if it can be resolved in favor of
either party, and a fact is ‘material’ if it has the potential
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of affecting the outcome of the case.” Xiaoyan Tang, 821 F.3d
at 215 (internal quotation marks and citations omitted). At the
summary judgment stage, the court draws “‘all reasonable
inferences in favor of the non-moving party,’ but disregard[s]
‘conclusory allegations, improbable inferences, and unsupported
speculation.’” Fanning v. Fed. Trade Comm’n, 821 F.3d 164, 170
(1st Cir. 2016) (citation omitted), cert. denied, 137 S. Ct. 627
(2017).
“A party moving for summary judgment must identify for the
district court the portions of the record that show the absence
of any genuine issue of material fact.” Flovac, Inc. v. Airvac,
Inc., 817 F.3d 849, 853 (1st Cir. 2016). Once the moving party
makes the required showing, “‘the burden shifts to the nonmoving
party, who must, with respect to each issue on which [it] would
bear the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in [its] favor.’” Id.
(citation omitted). “This demonstration must be accomplished by
reference to materials of evidentiary quality, and that evidence
must be more than ‘merely colorable.’” Id. (citations omitted).
The nonmoving party’s failure to make the requisite showing
“entitles the moving party to summary judgment.” Id.
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Discussion
I. Qualified Immunity
A government official named as a defendant in a prisoner
civil rights action “‘is entitled to qualified immunity unless
the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.’”
Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014) (citation
omitted); see also Mullenix v. Luna, 136 S. Ct. 305, 308 (2016).
“[T]he clearly established law must be ‘particularized’ to the
facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(citation omitted). The “relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable [official] that his conduct was
unlawful in the situation he confronted.” Rocket Learning, Inc.
v. Rivera-Sánchez, 715 F.3d 1, 9 (1st Cir. 2013) (emphasis in
original) (citations and internal quotation marks omitted). The
standard does not require a case on point but does require “a
case where an officer acting under similar circumstances as [the
defendant] was held to have violated the Fourth Amendment.”
White, 137 S. Ct. at 552.
The “clearly established” inquiry here is the following:
Would it have been clear to a reasonable officer in December
2014 that it was unlawful to subject a prisoner to a “visual
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body cavity search” in a group setting; without privacy screens,
in view of other inmates and staff, including a corrections
officer of the opposite sex, and a prison surveillance camera,
following an event involving contact between inmates and
visitors?
The court in Baptiste v. Foster, No. 16-cv-439-JD, 2017 DNH
098, 2017 WL 2303975, 2017 U.S. Dist. LEXIS 80241 (D.N.H. May
25, 2017), granted a motion to dismiss on grounds of qualified
immunity, with respect to essentially the same Fourth Amendment
claims of another NHSP inmate challenging the same December 2014
group strip search. Citing decisions including Bell v. Wolfish,
441 U.S. 520, 559-60 (1979), for the proposition that prison
“[s]trip searches and body cavity searches must be conducted in
a reasonable manner that is justified by sufficient legitimate
penological interests to outweigh the significant privacy
interests of the inmate,” see Baptiste, 2017 WL 2303975, at *2,
2017 U.S. Dist. LEXIS 80241, at *4, the Baptiste court first
noted that “[i]nmates may be strip searched in the presence of
other inmates who are also being searched when that is necessary
to prevent introduction of contraband into the prison,” id.
(citing Fernandez v. Rapone, 926 F. Supp. 255, 262 (D. Mass.
1996)). The court next considered whether the manner in which
the search was conducted, including the presence of female
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corrections officer Kelly Jardine, rendered qualified immunity
inapplicable:
In [Cookish v. Powell, 945 F.2d 441, 447 (1st Cir.
1991)], . . . the First Circuit held that an officer
of the opposite sex who views a strip search of an
inmate violates his or her constitutional rights
unless the observation was due to an emergency or was
“inadvertent, occasional, casual, and/or restricted.”
As alleged, Jardine, a female officer, was standing on
the gym stairs with a view of the searches. She was
not in close proximity to [the plaintiff], however,
and the circumstances alleged do not suggest
observation that was other than inadvertent or casual.
Therefore, the law was not clearly established that
Jardine’s presence in the gym during [the] strip
search and visual body cavity search would violate
[the plaintiff’s] rights.
Baptiste, 2017 WL 2303975, at *3, 2017 U.S. Dist. LEXIS 80241,
at *6-*7 (citations omitted).
With respect to whether qualified immunity shielded
defendants in Baptiste from claims challenging the lack of
privacy screens during the strip search, the court noted that
“First Circuit has not held . . . that strip searches of inmates
conducted as part of a group violate their constitutional
rights.” Id. The Baptiste court next surveyed cases in other
jurisdictions, and found a lack of consensus on whether group
searches are unconstitutional; the result in each case depended
on the specific circumstances at issue. See id. (citing cases).
The court in Baptiste concluded that dismissal on the grounds of
qualified immunity was appropriate with respect to the
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circumstances alleged as to the December 2014 strip search, as
the law was not clearly established that the manner in which
that search was conducted violated the inmate’s Fourth Amendment
rights. See id.
The Fourth Amendment claims in Beers’s case and in Baptiste
are essentially the same, as are the material facts; the same
search is at issue in both cases, and in both cases, the inmate
plaintiffs alleged emotional harm. Both plaintiffs alleged that
the search occurred in view of prison staff, including a female
officer; a surveillance camera; and other inmates, without
privacy screens.2 Plaintiff in Baptiste specifically alleged
that Jardine was present at the top of the stairs on the side of
the gym, viewing the strip search occurring on the gym floor.
Compl., Baptiste, No. 16-cv-439-JD (D.N.H.) (ECF No. 1), at 22,
24, 26. Beers filed declarations of inmates in this case,
including Stephen Baptiste, averring similar facts regarding the
search conditions and Jardine’s presence. See, e.g., Decl. of
Stephen Baptiste, Sept. 29, 2016 (Doc. No. 45-2), at 2. The
Baptiste court considered the plaintiff’s allegations in that
2Beers accuses officers of “voyeurism”; and of watching the
inmates strip for “pleasure,” but his assertions in that respect
are purely speculative and do not give rise to a genuine issue
of material fact regarding defendants’ motivation, purpose, or
intent.
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case, regarding Jardine’s viewing of the event, under the
circumstances, to suggest nothing other than casual or
inadvertent observations that did not make her presence during
the search equivalent to search conditions involving a guard of
the opposite sex that have been deemed to be contrary to clearly
established First Circuit precedent. See Baptiste, 2017 WL
2303975, at *3, 2017 U.S. Dist. LEXIS 80241, at *7 (contrasting
search in Baptiste with circumstances in Baggett v. Ashe, 41 F.
Supp. 3d 113, 120–21 (D. Mass. 2014) (declining to find
qualified immunity in circumstances of strip search of female
inmate “when the male guard was only a few feet away and was
videotaping the search”)).
The allegations in Baptiste as to defendants Fouts,
Jardine, Orlando, and Foncier, are not meaningfully
distinguishable from the material facts in the record in Beers’s
case, regarding a similar set of defendants. There is no
principled reason for avoiding the same result here with respect
to Beers’s claims as to Fouts, Jardine, Greenwood, and Orlando.
Accordingly, the district judge here should follow Baptiste and
grant those defendants’ (first) motion for summary judgment
(Doc. No. 41), on the grounds of qualified immunity.
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II. Motion for Summary Judgment on Damages (Doc. No. 51)
Defendants Fouts, Greenwood, Jardine, and Orlando have also
moved for summary judgment on plaintiff’s claims for damages
(Doc. No. 51). The district judge should deny that motion as
moot, with respect to the claims of those moving parties,
without prejudice to defendant Forcier’s ability to file a
similar motion as to damages, after he appears in this action.
III. Defendants John Doe #2 and Forcier
Defendant John Doe #2 has not been served in this action
within the time allowed for plaintiff to do so under Fed. R.
Civ. P. 4(m). Accordingly, plaintiff’s claims against John Doe
#2 should be dismissed without prejudice, pursuant to Rule 4(m).
Defendant Forcier was the last party named as a defendant
as to whom service was directed. Forcier has not yet appeared.
To move this case towards resolution, and to simplify the
issues, without prejudice to the nonmoving parties’ ability to
litigate any viable claims and defenses available to them,
defendants’ two motions for summary judgment (Doc. Nos. 44, 51)
should be resolved in the manner recommended here only as to the
moving parties, Fouts, Jardine, Orlando, and Greenwood.
Conclusion
For the foregoing reasons the district judge should grant
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defendants Fouts, Greenwood, Orlando, and Jardine’s motion for
summary judgment on grounds of qualified immunity (Doc. No. 44),
in favor of the moving parties, and deny as moot the same
defendants’ motion for summary judgment on damages (Doc. No.
51), without prejudice to Forcier’s ability to litigate similar
motions. All claims in this case against defendant John Doe #2
should be dismissed without prejudice, pursuant to Fed. R. Civ.
P. 4(m).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen day period may be extended
upon motion. Failure to file objections within the specified
time waives the right to appeal the district court’s order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________ ______________
Andrea K. Johnstone
United States Magistrate Judge
June 12, 2017
cc: Timothy Beers, pro se
Francis Charles Fredericks, Esq.
Lynmarie C. Cusack, Esq.
Seth Michael Zoracki, Esq.
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