Farmer v. Perrill

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 3 2002
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk

DEE DEIDRE FARMER,

Plaintiff - Appellee,

v. No. 00-1395

WILLIAM PERRILL, Warden; J.
GRAHAM, Chief Correctional
Supervisor; DOUGLAS GESNER,
Correctional Officer,

Defendants - Appellants.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 93-D-1255)

Kathleen L. Torres, Assistant United States Attorney (Thomas L. Strickland,
United States Attorney, and Michael E. Hegarty, Assistant United States Attorney,
were also on the briefs) for Defendants-Appellants.

John S. Pfeiffer of Castle Rock, Colorado (Antony M. Noble of Perkins Coie,
Denver, Colorado, with him on the brief) for Plaintiff-Appellee.

Before KELLY and HOLLOWAY , Circuit Judges, and SHADUR , District
Judge. *

The Honorable Milton I. Shadur, Senior United States District Judge for the
*

Northern District of Illinois, sitting by designation.
HOLLOWAY, Circuit Judge.

Plaintiff/appellee Dee Farmer brought suit in 1993 against three individual

officers of the Englewood Federal Correctional Facility (FCI Englewood) in

Littleton, Colorado, alleging that the defendants/appellants had infringed her

constitutional rights by conducting strip searches, and seeking money damages

under Bivens v. Six Unnamed Federal Narcotics Agents, 403 U.S. 388 (1971). 1

Defendant/appellant Perrill was the warden at the institution at the relevant time,

defendant Graham was Chief Correctional Officer and defendant Gesner was an

officer assigned to the property room who conducted one of the allegedly

unlawful searches.

Defendants filed a motion to dismiss or alternatively for summary judgment

which the district court treated as a motion for summary judgment. The district

court determined that defendants had not shown that they were entitled to

qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its

progeny and so denied the motion. Defendants bring this appeal, invoking our

1
The Court held in Bivens that federal officials may be sued in their individual
capacities for violations of Fourth Amendment rights. As the district judge noted in
his Order Affirming and Adopting Magistrate Judge’s Recommendation, Aplt. App.
191, the complaint alleged violations under the Fourth and Fifth Amendments of the
United States Constitution. However, the Fifth Amendment is not argued on appeal
and the case centers on the averments of Fourth Amendment violations.

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jurisdiction under 28 U.S.C. § 1291, which authorizes appeals from final

decisions of the district courts. Defendants contend that the order denying their

motion for summary judgment is appealable under section 1291 as interpreted in

cases such as Mitchell v. Forsyth, 472 U.S. 511 (1985), and Johnson v. Jones, 515

U.S. 304 (1995). As further explained below, we conclude that we do have

jurisdiction and we affirm the orders of the district court.

I

Plaintiff describes herself as a pre-operative, male-to-female transsexual. 2

Although she is biologically male, she prefers to be referred to as feminine, and

we will respect that wish. During the time of the events underlying this appeal,

she was incarcerated in the male population, as apparently she has been at all

times that she has been in the federal prison system. She does not challenge that

classification in this action.

The events at issue occurred while plaintiff was incarcerated in the Special

Housing Unit (SHU) at FCI-Englewood. The SHU is a high security area divided

into an administrative detention unit and a disciplinary detention unit. Plaintiff

had been in both divisions during her time in the SHU. Under the prison’s

2
For an explanation of the term transsexual and the specific history of Farmer,
see Farmer v. Brennan , 511 U.S. 825, 829-30 (1994), and Farmer v. Haas , 990 F.2d
319, 320-21 (7th Cir. 1993).

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policies, prisoners in the SHU who leave their cells to go to the recreation yard

must submit to a “visual search” on return to the cell block. A visual search

requires the inmate to completely disrobe and “present” all areas of the body,

including the genitals and anus, for inspection.

Plaintiff protested that the strip searches were unnecessary because the

recreation yard was secure and the inmates were closely supervised there. She

also alleged that the searches were conducted in an open area where she was

viewed by a number of other inmates, in spite of the Bureau of Prisons’ own

regulation (28 C.F.R. § 552.11) requiring visual searches to “be made in a manner

designed to assure as much privacy to the inmate as practicable.” Her

administrative complaints were fruitless, and she commenced this lawsuit in 1993.

II

The defendants’ motion for summary judgment was referred to a magistrate

judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

72(b). The magistrate judge recommended that the motion be denied. The district

judge subsequently agreed with all key portions of the magistrate judge’s

recommendation and denied the motion. The judge also denied defendants’

motion for reconsideration.

The district judge began his analysis by noting that the Supreme Court has

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mandated that a balancing approach be applied because the reasonableness of

various limitations on inmates’ constitutional rights is not capable of precise

definition. Thus, the district judge sought to balance “the need for the particular

search against the invasion of personal rights that the search entails.” Bell v.

Wolfish, 441 U.S. 520, 559 (1979). The judge noted that the Court in Bell found

that body cavity searches of detainees on less than probable cause after contact

visits may be reasonable. The court further noted that since Bell v. Wolfish,

courts have approved strip searches that were conducted every time prisoners in

administrative segregation, such as plaintiff, left their cells for any purpose. 3

Defendants asserted in their brief in support of their motion that the

searches were conducted in the privacy of a shower stall, but plaintiff responded

with affidavits maintaining that the searches were conducted in an open area in

full view of all other inmates and a number of staff. The district judge

acknowledged that in certain circumstances searches conducted in conditions even

less private than those alleged by the plaintiff have been held not to have violated

inmates’ constitutional rights. The court concluded, however, that these

authorities were insufficient to demonstrate that the defendants in this proceeding

were entitled to qualified immunity because

3
The district court’s order cited Arruda v. Fair , 710 F.2d 886 (1st Cir. 1983);
Franklin v. Lockhart , 883 F.2d 654 (9th Cir. 1989); and Michenfelder v. Sumner , 860
F.2d 328 (9th Cir. 1988).

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 those cases turned on a showing that important security
considerations made it necessary to conduct the searches in a less
than private area, and that no reasonable alternatives existed. In
other words, the law is clear that, although strip searches of prisoners
may be reasonable under the Fourth Amendment, they must be
conducted in such a manner as to protect inmates’ privacy rights to
the extent possible given legitimate institutional security interests.

Order at 4, Aplt. App. 194.

The judge went on to find that there were disputed issues of fact about

whether the searches were conducted in an open area. He also held that the

defendants had not “satisfactorily shown” that there were legitimate penological

reasons for the manner in which the searches were conducted.

III

A

This court is authorized under 28 U.S.C. § 1291, to review “final decisions”

of the district courts. Orders denying qualified immunity to public officials come

within the meaning of “final decisions” to the extent that they present only issues

of law for review:

Orders denying qualified immunity before trial are appealable to
the extent they resolve abstract issues of law. A determination that
the law allegedly violated by the defendant was clearly established at
the time of the challenged actions is an abstract issue of law that is
immediately appealable. A determination that under either party's
version of the facts the defendant violated clearly established law is
also immediately appealable. However, government officials cannot

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 appeal pretrial denial of qualified immunity to the extent the district
court's order decides nothing more than whether the evidence could
support a finding that particular conduct occurred. An order denying
qualified immunity on summary judgment is not appealable if it
merely determines the facts asserted by the plaintiff are sufficiently
supported by evidence in the record to survive summary judgment.

Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997) (citations omitted).

Defendants have framed the issues on appeal in light of these principles,

accepting for purposes of this appeal the plaintiff’s evidence that the searches

were conducted in the open. 4 In other words, we have for review a

“determination that under [the plaintiff’s] version of the facts the defendant[s]

violated clearly established law . . . .” Id. Therefore, we have jurisdiction over

these issues. 5

B

Our standard of review for such issues is well established:

4
Appellate jurisdiction in cases of this type is clear when the defendant does
not dispute the facts alleged by the plaintiff. Alternatively, as here, if the defendant
does dispute the plaintiff’s allegations “the defendant must nonetheless be willing
to concede the most favorable view of the facts to the plaintiff for purposes of the
appeal.” Berryman v. Rieger , 150 F.3d 561, 563 (6th Cir. 1998).
5
There is an argument that a “motion to reconsider” is not effective to suspend
the time for taking an appeal from an order denying summary judgment on qualified
immunity grounds. See Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999). But
this circuit is committed to the other view. See Hubbert v. City of Moore, 923 F.2d
769, 771 (10th Cir. 1991) (previous appeal, commenced during pendency of motion
to reconsider, had been dismissed as prematurely brought); see also Farmer v.
Perrill, 275 F.3d 958 (10th Cir. 2001) (jurisdiction exercised without question;
procedural history virtually identical to that presented in the instant case).

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 We review the district court's resolution of qualified immunity
issues on summary judgment de novo. When a § 1983 defendant
raises the defense of qualified immunity on summary judgment, the
plaintiff must show the law was clearly established when the alleged
violation occurred and must come forward with sufficient facts to
show the official violated that clearly established law. The defendant
bears the normal summary judgment burden of showing no material
facts that would defeat the qualified immunity defense remain in
dispute. For the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must be as plaintiff
maintains.
The contours of the right must be sufficiently clear
that a reasonable officer would understand that what he
is doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful, but it is to say that in the light of preexisting
law the unlawfulness must be apparent.

Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997) (quoting V-1 Oil Co. v.

Means, 94 F.3d 1420, 1423 (10th Cir. 1996)) (internal citations omitted).

We begin with the premise that inmates retain some right to privacy:

“Although the inmates’ right to privacy must yield to the penal institution’s need

to maintain security, it does not vanish altogether.” Cumbey v. Meachum, 684

F.2d 712, 714 (10th Cir. 1982). A second well established premise is 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).

In the context of prisoners’ civil rights litigation, the Supreme Court has

instructed that

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 when a prison regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legitimate
penological interests. . . . . Subjecting the day-to-day judgments of
prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems and to
adopt innovative solutions to the intractable problems of prison
administration.

Turner v. Safley, 482 U.S. 78, 89 (1987). These statements by the Court were

made in its opinion upholding the validity of prison regulations of correspondence

between state prisoners while invalidating restrictions on marriage by such

prisoners. Id. at 81. The Court declared in 1979, fourteen years before the

searches at issue here, that determination of the constitutionality of a strip search

“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.” Bell v. Wolfish, 441 U.S.

520, 559 (1979) (emphasis added). 6

Following that decision, we held that a strip search of a motorist detained

for a minor traffic offense, which was conducted in a lobby area in view of ten to

twelve persons, violated his constitutional rights because there was neither a

6
The search at issue in Bell was a body cavity search even more intrusive than
the searches at issue here. We do not think that this fact negates the relevance of the
general standard quoted in the text.

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sufficient security justification for the search, nor any justification for conducting

the search in a public area. Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984). We

said there that Bell v. Wolfish requires courts “to consider the scope of the

particular intrusion and the manner and place in which it is conducted.” 735 F.2d

at 394 (emphasis added).

Thus, we conclude that plaintiff has identified a well established right, the

right not to be subjected to a humiliating strip search in full view of several (or

perhaps many) others unless the procedure is reasonably related to a legitimate

penological interest. We also conclude that the identified right of the plaintiff

was clearly established at the time of the May 1993 search in question so that a

reasonable officer would have known that a decision to subject inmates to

demeaning searches in public requires justification. All of the principles were

established in cases we have cited which were decided well before the May 1993

conduct in question.

The defendants contend that the district court erred in denying their motion

for summary judgment because the challenged searches were reasonably related to

legitimate penological interests as required by Turner v. Safley. More

specifically, defendants challenge the district court’s assertion that “the law is

clear that, although strip searches of prisoners may be reasonable under the

Fourth Amendment, they must be conducted in such a manner as to protect

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inmates’ privacy rights to the extent possible given legitimate institutional

interests.” Order at 4, Aplt. App. 194. Defendants contend that this is an

incorrect statement of the law because the Court expressly rejected a “least

restrictive alternative” test in Turner, 482 U.S. at 90-91.

Defendants are correct that the Court in Turner rejected a least restrictive

alternative test. However, we conclude that the quoted language from the district

court’s order, when taken in context, does not indicate the application of a least

restrictive alternative test. We believe instead that the district court’s holding

was only that the defendants cannot altogether ignore plaintiff’s privacy rights

whether or not compelled to do so by valid and important penological interests.

This is the crux of the matter, as we see it. The district court found that

there was an issue of fact as to where the searches were conducted. We

emphasize that in this appeal we are assuming that the searches were conducted in

an open area visible to a number of other inmates and staff. Defendants do not

appear to contend that strip searches may be conducted without regard for privacy

without justification. We would be forced to reject that contention. As shown

above, it is clear that we must consider the justification for conducting the

searches in the open.

The court did not resolve the issue of the defendants’ need to conduct the

searches in an open area. Defendants offered evidence on the issue, and plaintiff

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offered her own evidence attempting to call into question the justifications

proffered by the defense. Plaintiff also suggested alternatives to the strip

searches. 7 The district judge merely held that there were genuine issues of

material fact precluding summary judgment on the justification for conducting

searches in the open area. The judge said: “I agree with Magistrate Judge

Borchers that there are disputed issues of fact about whether the strip searches

were conducted in an open area. Further, I agree with the Magistrate Judge that

Defendants have not satisfactorily shown that there were legitimate penological

reasons . . . to conduct searches in this manner . . . .” Aplt. App. at 194. It is not

the function of this court to resolve such disputed issues of fact in this appeal.

Defendants argue, however, that the district court erred by placing the

burden on them to justify their policy, rather than placing the burden on plaintiff

to identify “an alternative that fully accommodates her rights ‘at de minimis cost

to valid penological interests.’” Appellants’ Opening Brief at 21 (quoting Turner,

482 U.S. at 91). 8 We are not persuaded that the district judge erred. We reiterate

7
Plaintiff repeats her arguments on these factual points on appeal. We do not
deal with her arguments for the same reason that we do not deal with defendants’
factual justification for conducting the searches in an open area. The district judge
did not resolve these factual disputes, and it is not our function to do so. As noted,
our jurisdiction in this appeal is limited to issues of pure law.
8
We note that defendant’s contention appears to distort the Turner analysis
somewhat. The judge said that a plaintiff’s identification of an alternative could be
considered as evidence that the prison’s practice does not satisfy the reasonable
(continued...)

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that the district judge held only that genuine issues of material fact precluded

summary judgment on the defendants’ legitimate, penological need for conducting

the searches in an open area. We do not agree with defendants that the district

judge misallocated the burden of persuasion. Defendants proffered evidence of

their justification, the plaintiff disputed that evidence, and the district judge found

that the matter could not be resolved at the summary judgment stage. That is all.

IV

As noted at the outset of our analysis, determining the constitutionality of

the searches at issue requires a balancing of the rights of the inmates and the

needs of the prison’s administration. On one hand, infringements on prisoners’

constitutional rights must not be “arbitrary or irrational,” nor an “exaggerated

response” to security needs. Turner v. Safley, 482 U.S. at 90. On the other hand,

courts have been extremely deferential to the decisions made by prison

administrators, recognizing that

[r]unning a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and
executive branches of government. Prison administration is,
moreover, a task that has been committed to the responsibility of

8
(...continued)
relationship standard, but did not say that a plaintiff must in all cases identify such
an alternative.

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 those branches, and separation of powers concerns counsel a policy
of judicial restraint.

Id. at 84-85.

The record here is not sufficient for making the ultimate determination.

Our disposition does not indicate, nor even suggest, any view on whether the

searches will eventually pass muster. We decide only what is before us now, just

as the district court did.

The orders of the district judge are

AFFIRMED.

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