F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES ELLIOTT HARRIS, JR.,
Plaintiff-Appellant,
v. Case No. 97-1020
(D.C. 95-M-1115)
NICKIE ROCCHIO, Officer; (District of Colorado)
ROBERT BUSETTI, Lt.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of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.
Pro se plaintiff-appellant Charles Elliot Harris, Jr. appeals the district
court’s grant of summary judgment in favor of Mr. Rocchio 1 on Mr. Harris’s 42
U.S.C. § 1983 claim. We affirm because, accepting the facts as alleged by Mr.
Harris, Officer Rocchio’s strip search of Mr. Harris was reasonable and was not
so harmful as to be cruel and unusual.
I. BACKGROUND
Officer Rocchio went with Officer Berner, who is not a defendant to this
action, to search Mr. Harris’s cell for a Notice of COPD Charge 2 (“Charge”)
which had erroneously been served on Mr. Harris. 3 See Rec. vol. I, doc. 23,
1
The district court also determined that several minor claims presented by Mr.
Harris did not raise constitutional questions and granted summary judgment in favor of
Lt. Busetti on Mr. Harris’s 42 U.S.C. § 1983 claim that Lt. Busetti assaulted him. Mr.
Harris only raises the judgment in favor of Officer Rocchio in his brief to this court, see
Aplt’s Opening Br. at ¶ 3 (“the plaintiff is alleging the trial court erred when it dismissed
the civil action based upon the defendant’s second motion for summary judgment [the
motion in favor of Officer Rocchio]”). Therefore, he has waived any challenge to the
other decisions of the district court, see State Farm Fire & Casualty Co. v. Mhoon, 31
F.3d 979, 984 n.7 (10th Cir. 1994), and we will only address the claim against Officer
Rocchio.
2
A Notice of COPD Charge is a document given an inmate to inform him that he
is being formally charged by the prison with violating a prison rule.
3
Officer Rocchio’s affidavits state that the officers went to Mr. Harris’s cell to
perform a “routine shakedown.” Rec. vol. I, doc. 23 (Rocchio Aff. of 10/22/95 ¶ 4); id. at
doc. 49 (Rocchio Aff. of 6/21/96 ¶ 4). Although it is unclear whether a search for a
Charge could be considered part of a “routine shakedown,” this lack of clarity is not
enough to raise a factual dispute.
2
Busetti Aff. ¶ 13; id. at doc. 49, Berner Aff. ¶ 3; Aplt’s Opening Br. ¶ 61. In
accordance with cell search procedure, Officer Berner instructed Mr. Harris to
remove all items from his pocket, see Rec. vol. I, doc. 49, Berner Aff. ¶ 3, but
Mr. Harris twice refused. See id. at doc. 49, Berner Aff ¶ 3 and Rocchio Aff. of
6/21/96 ¶ 4; id. at doc. 23, Rocchio Aff. of 10/22/95 ¶ 4. After the second
refusal, Officer Berner told Mr. Harris he would be strip searched. See id. at doc.
49, Berner Aff. ¶ 4 and Rocchio Aff. of 6/21/96 ¶ 4; id. at doc. 23, Rocchio Aff.
of 10/22/95 ¶ 4. Mr. Harris still refused to empty his pocket, and Officer Berner
commenced the strip search with Officer Rocchio watching, in accordance with
regulations. See id. at doc. 49, Berner Aff. ¶ 4 and Rocchio Aff. of 6/21/96 ¶ 4;
id. at doc. 23, Rocchio Aff. of 10/22/95 ¶ 4. Officer Berner told Mr. Harris to
remove his clothing and then directed him “to move his genitals, bend over,
spread his buttocks, and cough.” See id. at doc. 49, Berner Aff. ¶ 5. The entire
strip search took less than five minutes, during which time Officer Rocchio
searched the clothing given him, watched to ensure Mr. Harris did not attack
either officer, and “backed up” Officer Berner. See id. at doc. 49, Berner Aff. ¶¶
5-6 and Rocchio Aff. of 6/21/96 ¶ 5.
Neither officer stated that they in fact found anything during the strip
search, but Lieutenant Busetti’s affidavit stated that the Charge was retrieved
from Mr. Harris’s trash can after his cell was searched. See id. at doc. 23, Busetti
3
Aff. ¶ 13. Mr. Harris hotly contests Lieutenant Busetti’s contention that the
Charge was retrieved from his trash can:
Busetti alleges he found the write-up they were looking for in the
trash can. If given the chance Harris would prove he left this writeup
with another inmate to review and they searched the plaintiff’s room
at the exact same time this other inmate had the writeup in his
possession. The other inmate would submit an affidavit to this effect
and the plaintiff as well . . . . The plaintiff states he also still has in
his possession the writeup the authorities were looking for and has . .
. attached it to this opening brief.
Aplt’s Opening Br. ¶ 61. In other hand-written documents submitted with his
appeal, Mr. Harris contends that the strip search occurred after the officers
searched his cell and found nothing. See Rec. doc. 29 at originals of lined, hand-
written sheets ¶ 10. Additionally, attached to Mr. Harris’s brief is a Charge dated
August 15, 1994, the day of the strip search, which has an incorrect date in box
seven. See Aplt’s Opening Br. Ex. A. The reason the prison wanted to retrieve
the Charge from Mr. Harris was that it had an incorrect date. Therefore, this
could in fact be the very Charge the officers were searching for, and, given Lt.
Busetti’s contradictory statements, we seem to be presented with a genuine issue
of material fact as to whether of not the Charge was in Mr. Harris’s cell.
However, for the purposes of his appeal, we will resolve the factual dispute in
Mr. Harris’s favor and accept his contention that the Charge was not in his cell
and was not found in his trash can because even if he can prove the facts as he
has alleged them, the strip search was reasonable.
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II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Thus,
we apply the same standard the district court applied under Fed. R. Civ. P. 56(c).
See Applied Genetics Int’l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241
(10th Cir. 1990). “Summary judgment is appropriate when there is no genuine
dispute over a material fact and the moving party is entitled to judgment as a
matter of law.” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).
We are required to view the record in the light most favorable to the party
opposing summary judgment. See Deepwater Inv., Ltd. v. Jackson Hole Ski
Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
III. DISCUSSION
As an initial matter, we note that the appellees contend that we should not
consider Mr. Harris’s appeal because it was filed out of time. However, Mr.
Harris filed a “Motion for Registry of Actions” in the district court within the
time allotted to file an appeal. It is appropriate to consider this to be the
functional equivalent of a notice of appeal, see Smith v. Barry, 502 U.S. 244,
248-49 (1992) (“If a document filed within the time specified by Rule 4 gives the
notice required by Rule 3, it is effective as a notice of appeal.”), and we do so.
5
Although Mr. Harris’s complaint did not specifically allege the appropriate
constitutional provisions under which he was staking his claims, the magistrate
judge correctly read Mr. Harris’s complaint liberally, see Haines v. Kerner, 404
U.S. 519, 520 (1972), and recognized that Mr. Harris’s arguments and facts
alleged in his strip search implicate Fourth Amendment privacy interests and
Eighth Amendment Cruel and Unusual Punishment concerns. We will discuss
each in turn.
A. Fourth Amendment
Prisoners have a limited constitutional right to bodily privacy, including the
right to be free from unreasonable strip searches. See Bell v. Wolfish, 441 U.S.
520, 558 (1979). When examining whether a prison strip search was
unreasonable, the Supreme Court has stated that:
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 559.
Applying this test to the facts supplied, we conclude that the strip search
conducted by Officer Rocchio was reasonable as a matter of law, and, therefore,
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that the grant of summary judgment in Officer Rocchio’s behalf was proper. As
to the scope of the intrusion, “[t]here can be no doubt that a strip search is an
invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989
F.2d 393, 395 (10th Cir. 1993). However, Officers Berner and Rocchio were
validly seeking the erroneous Charge, which had been labeled by the prison as
unauthorized property and which, according to the facts as Mr. Harris would have
us believe them, they could not find anywhere else in Mr. Harris’s cell. Mr.
Harris knew the whereabouts of the Charge they were looking for but refused to
tell them it was with another prisoner. Instead, Mr. Harris disobeyed their direct
orders while they were trying to locate the document. Therefore, Mr. Harris
himself created the justification for the strip search. By purposefully subjecting
himself to a strip search, which he could have avoided by telling the officers
where they could find the Charge, Mr. Harris essentially consented to the search
and cannot be heard to complain now. We will not reward him for becoming his
own victim.
Although prison guards should use strip searches as a last resort because of
their invasive and degrading nature, it is clear that this search was not “devoid of
penalogical merit and imposed simply to inflict pain.” Harris v. Ostrout, 65 F.3d
912, 916 (11th Cir. 1995); and see Hudson v. Palmer, 468 U.S. 517, 530 (noting
7
that a prisoner has a constitutional remedy for “calculated harassment unrelated to
prison needs”). The strip search was reasonable under the Fourth Amendment.
B. Eighth Amendment
Mr. Harris does not allege that he suffered any physical pain from the strip
search. He does claim that the officers, in response to a query about what they
were doing, stated they were “looking up Harris’ ass hole [sic.].” Aplt’s Opening
Br. at ¶ 20. Insensitive words do not amount to an Eighth Amendment violation.
See Adkins v. Rodriguez, 59 F.3d 1034, 1037-38 (10th Cir. 1995)); see also
Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (holding that verbal
harassment in prison is not sufficient to state a constitutional deprivation under §
1983). For this reason, we agree with the district court that the strip search was
not conducted in a manner which was so harmful as to be cruel and unusual in
violation of Mr. Harris’s Eighth Amendment rights.
C. Conflicting Magistrate Recommendations
One final non-substantive point needs to be raised because Mr. Harris
makes much of it in his appeal. With the defendants’ first motion for summary
judgment, Officer Rocchio filed an affidavit in which he admitted participating in
the strip search of Mr. Harris. See Rec. vol. I, doc. 23, Rocchio Aff. of 10/22/95
8
¶ 4 (“I was the observing officer in a strip search of the Plaintiff Harris. The
actual search was performed by Officer Berner.”). However, in his
Recommendation, the magistrate judge concluded that Officer Rocchio’s affidavit
denied that the strip search occurred. See Rec. vol. I, doc. 30, at 5 (“[Mr. Harris]
claims that [the strip search] occurred and was done to humiliate him. Defendant
Rocchio claims that it did not occur at all. . . . [T]here is a dispute of fact that
cannot be resolved through a motion for summary judgment.”) (emphasis added).
Faced with what he erroneously believed were two directly contradictory
statements of fact regarding the strip search’s occurrence, the magistrate judge
concluded that there was a genuine dispute as to a material fact. The district
court entered an order in accordance with the magistrate’s recommendations,
leaving Officer Rocchio as the sole defendant and the strip search claim as the
sole claim.
Officer Rocchio responded to the district court’s order by filing his second
motion to dismiss and two affidavits: his second affidavit (almost identical to his
first) and an affidavit from Officer Berner. Both reiterated that the officers had
strip searched Mr. Harris. See Rec. vol. I, doc. 49, Rocchio Aff. of 6/21/96 ¶ 4
and Berner Aff. ¶ 4. After reviewing this material, the magistrate judge issued
his second recommendation determining that there was no longer a factual dispute
and recommending a dismissal of Mr. Harris’s final claim. The district court
9
accepted the magistrate judge’s recommendations and dismissed the claim with
prejudice.
On appeal, Mr. Harris makes much of the fact that the magistrate judge
initially concluded that there was a factual dispute and then, without having any
new facts or law before him, changed his mind. Suffice it to say that the
magistrate judge made a mistake by misreading Officer Rocchio’s first affidavit
and that there never was a factual dispute as to whether a strip search had, in fact,
occurred. When the magistrate judge recognized his mistake, he rectified it by
holding that there were no genuine issues of material fact and granting summary
judgment in favor of Officer Rocchio. Although the magistrate judge could have
been more explicit in confessing his error, it was obvious upon a review of the
record, and, regardless, it does not present a ground for appeal.
III. CONCLUSION
We affirm. The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
10