AUDRA LYNN HARRIS, Plaintiff-Appellant, —v.— SGT. MICHAEL MILLER, CORRECTIONS OFFICER ELLA ANDERSON, CORRECTIONS OFFICER VALERIE BRYANT, AND CORRECTIONS OFFICER ROBIN TROTTER, Defendants-Appellees, COMMISSIONER BRIAN S. FISCHER, SUPERINTENDENT SABINA KAPLAN, ELIZABETH WILLIAMS (Former Superintendent), DONALD SAWYER (Director, Central New York Psychiatric Center (Marcy)), RICHARD ROY, DR. CATHERINE MCDERMOTT (Director, Office of Mental Health), MICHAEL CAPRA, CAPTAIN T. FITZGERALD, LARRY ZWILLINGER, JOSEPH JOSEPH, FIDELE FIORE, SGT. RORICK, CORRECTIONS OFFICER L. BELL, CORRECTIONS OFFICER HUNTER, CORRECTIONS OFFICER HARDY, CORRECTIONS OFFICER K. SLADE, CORRECTIONS OFFICER OGLESBY, CORRECTIONS OFFICER M. JORDAN, CORRECTIONS OFFICER K. DERRY, CORRECTIONS OFFICER L. SIMMONS, CORRECTIONS OFFICER K. SMITH, CORRECTIONS OFFICER C. MC NEIL, CORRECTIONS OFFICER H. MALDONADO, CORRECTIONS OFFICER SHARON GRANT, CORRECTIONS OFFICER JOE PLOWDEN, SGT. MICHAEL DRAGOON, SUPERINTENDENT OF MEDICAL DEPARTMENT MARJORIE BYRNES, DR. LORI BETH GOLDSTEIN, NURSE PRACTITIONER ELIJAH STEVENS, LESTER WRIGHT (Commissioner of Medical), CORRECTIONS OFFICER JANE DOE #1, CORRECTIONS OFFICER JANE DOE #2, all sued and in their official capacity (the last two names being fictitious, said individuals being corrections officers of Bedford Hills Correctional Facility who participated in assaulting Plaintiff on April 8, 2010), Defendants.
Docket No. 14-2957
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2015 (Argued: January 15, 2016 Decided: March 15, 2016)
KATZMANN, Chief Judge, KEARSE, Circuit Judge, and SCHOFIELD, District Judge.
* The motions panel ordered the dismissal of the appeal against those listed only as “Defendants.” The Clerk of Court is respectfully directed to amend the caption to conform to the caption above. † The Honorable Lorna G. Schofield, of the United States District Court for the Southern District of New York, sitting by designation.
ARUN S. SUBRAMANIAN, Susman Godfrey L.L.P, New York, NY, for Plaintiff-Appellant.
DAVID LAWRENCE III, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Michael S. Belohlavek, Senior Counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.
PER CURIAM:
Plaintiff-Appellant Audra Lynn Harris is a former inmate of Bedford Hills Correctional Facility. She testified at her deposition that, while incarcerated at Bedford Hills, a male officer and three female officers entered her room to take down cotton that she had removed from her mattress and pasted to her room‘s windows. Thе male officer then demanded to know if Harris had any more cotton. According to Harris‘s testimony, which was not disputed under oath, after she said no, the three female officers grabbed her, threw her to the ground, lifted her smock, and forcibly opened her legs to allow the male officer to visually inspect her genitalia for any additional cotton.
I. BACKGROUND
The following facts are either uncontroverted or construed in the light most favorable to Harris, the nonmovant. Harris was incarcerated at Bedford Hills Correctional Facility in Bedford Hills, New York, from September 30, 2008, to February 14, 2012, for burglary and criminal contempt. Dr. Catherine McDermott-
During her incarceration at Bedford Hills, Harris filed at least 30 grievances against prison staff, at least 11 of them prior to the events at issue in this appeal. Harris alleges that “throughout [her] incarceration, [her] Civil Rights were violated by Bedford Hills Correction‘s Officers and Security staff due to their pattern of ongoing abuse оf authority, fabricated Misbehavior Reports, malicious and calculated cell searches, harassment, retaliation, deliberate indifference, intentional misconduct, as well as verbal and physical abuse and beatings.” J.A. 1191. She further alleges that she “was constantly harassed and retaliated against by officers because [she] wrote grievances when they violated [her] rights and the rules.” J.A. 1192.
At that point, Harris attempted to use her mattress to block the observation room‘s windows. She explained at her deposition: “I put up my mattress again so I couldn‘t be seen, because I felt humiliated. I felt like I had been raped, and nobody would help me.” J.A. 1072. Harris then ripped open her mattress, which
What occurred after Harris began pasting the cotton to the windows is the focus of this appeal. At her deposition, Harris testified that a male officer, Miller, and three female officers—later identified as Anderson, Bryant, and Trotter—entered her room and started taking down the cotton while Harris stood in the shower. At her deposition, Harris recounted the events that followed:
And [Miller], said you have any more cotton? And I said no. He told me to lift up my smock. And I said, I don‘t have anything. I said, you can‘t do that. You are a man. And then he nodded to the three officers, and they snatched mе on the ground, threw me on the ground, and they started—like I tried to keep my legs closed, and they pulled my legs apart, lift up my smock. And they opened my legs and he at my legs—between my legs. And then they threw my legs down, and then I started screaming. I started screaming. I realized I had a cut.
J.A. 1072. Shortly after this incident, Miller, with the assistance of others, caused Harris to be injected with antipsychotic medication.
Several weeks later, Harris filed a grievance complaining about the April 8, 2010 search. The description she provided in that grievance is consistent with her initial complaint filed in the district court on September 7, 2011, her amended complaint filed on November 29, 2011, her deposition testimony on November 26,
Harris‘s description is also the only evidence in the record detailing the April 8, 2010 search: The Appellees did not offer any evidence contradicting Harris‘s description of the incident, such as an affidavit from Miller stating that the search never happened or explaining that it did not happen as Harris describes. Instead, the Appellees’ only denial that the search occurred was in their briefs filed in the district court. Moreover, the evidence that the Appellees submitted to the district court relating to the incident corroborates much of Harris‘s description, although it is silent on the officers’ conduct. For example, the Appellees submitted an Inmate Misbehavior Report dated April 8, 2010, which states that, on April 8, 2010,
while conducting an 1 on 1 watch with inmate Harris . . . , after discovering she was moving her mattress to the shower, [Anderson] gave her several direct orders to move it. Inmate Harris proceeded to rip a hole in the mattress & place it‘s contents on the floor and the glass (she used water as a paste) blocking [Anderson‘s] view.
J.A. 1131. They also submitted the following entry from Harris‘s medical file, also dated April 8, 2010:
Inmate has been on Infirmary for several days, but today, became combative & irrational, prompting a phone call to OMH – Inmate‘s therapist, Spatarella, attended pt. on the infirmary & requested 1:1 observation in the Infirmary. Upon nurse‘s attempted assessment, inmate verbally abusive, demanding some cream for her arm; but had been pulling apart her mattress, trying to flood her cell, laying in the shower & refusing to come out. At one point, pt. very angry, blоcking her window with her robe, and plastering her window with wet paper towels, blocking CO‘s view. Inmate refused [illegible] ordered stat by MD, and received [illegible] Zyprexa.
J.A. 1097.
II. PROCEDURAL HISTORY
On September 7, 2011, appearing pro se, Harris filed suit in the U.S. District Court for the Southern District of New York. As with many pro se litigants, Harris‘s pleadings are less than clear, naming a plethora of individuals and asserting at least eight claims. On September 16, 2013, following the close of discovery, the defendants moved for summary judgment. On August 1, 2014, the district court granted that motion in its entirety. See Harris v. Fischer, No. 11 Civ. 6260 (CM)(JLC), 2014 U.S. Dist. LEXIS 107503, at *83, 2014 WL 3859242, at *30 (S.D.N.Y. Aug. 1, 2014). Harris timely filed a notice of appeal on August 15, 2014.
On December 2, 2014, a motions panel of this Court appointed pro bono counsel for Harris and directed counsel to brief whether the April 8, 2010 search
III. DISCUSSION
Harris argues that the search violated both her
A. Standard of Review
“We review a district court‘s decision to grant summary judgment de novo, construing the evidence in the light most favorable to the party against which summary judgment was granted and drawing all reasonable inferences in its favor.” Sec. Plans, Inc. v. CUNA Mut. Ins. Soc‘y, 769 F.3d 807, 815 (2d Cir. 2014) (quoting Wachovia Bank, N.A. v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011)). “We will affirm a grant of summary judgment only if there is no genuine issue of material fact and the prevailing party was entitled to judgment as a matter of law.” Id. But “[a] motion for summary judgment must be rejected ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.‘” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
B. The Fourth Amendment
While acknowledging that “the
In considering the second question, courts apply one of two separate but overlapping frameworks. If the inmate‘s
[i]n 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 [1] the scope of the particular intrusion, [2] the manner in which it is conducted, [3] the justification for initiating it, and [4] the place in which it is conducted.
1. The Scope of the Intrusion
We begin by noting that the first Bell factor—the scope of the intrusion—varies with the type of search. Therе are at least three types of searches that implicate an inmate‘s right to bodily privacy:
A “strip search,” though an umbrella term[,] generally refers to an inspection of a naked individual, without any scrutiny of the subject‘s body cavities. A “visual body cavity search” extends to visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touching or probing of body cavities.
Cookish, 945 F.2d at 444 n.5 (quoting Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985)). The scope of the intrusion also varies depending on who searches whom, i.e., whether the search involved an officer of the same gender as the inmate. Each of these factors—the type of search and the person conducting the search—is independently relevant to Bell‘s reasonableness inquiry.
Regardless of who performs the search, a visual body cavity search, such as the one conducted here, is invasive: “A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person‘s body, is a serious invasion of privacy.” Florence v. Bd. of Chosen Freeholders, 566 U.S. --, 132 S. Ct. 1510, 1526 (2012) (Breyer, J., dissenting); see also Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (“[O]ne of the clearest forms of degradation in Western Society is to strip a person of his clothes. The right to be free from strip searches and degrading body inspections is thus basic to the concept of privacy.” (quoting 3 George B. Trubow, ed., Privacy Law and Practice, ¶ 25.02[1] (1991))); Cookish, 945 F.2d at 446 (“[A] ‘severe if not gross interference with a person‘s privacy [] occurs when guards conduct a visual inspection of body cavities.” (quoting Arruda v. Fair, 710 F.2d 886, 887 (1st Cir. 1983))).
b. Who Performs the Search
“[W]hile all forced observations or inspections of the naked body implicate a privacy concern, it is generally considered a greаter invasion to have one‘s
Indeed, best-practice standards in prison management typically discourage cross-gender strip searches. For example, the 2009 National Prison Rape
Here, a male officer visually inspected Harris‘s genitalia, and both the type of search (a visual body cavity search) and the person performing the search (a
2. The Manner in Which the Search Was Conducted
A strip search conducted in a professional manner is more reasonable than one that is not. Cf. Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (emphasizing that “[t]he record indicates that the searches are performed by the female guards in a professional manner and with respect for the inmates“). But see Byrd, 629 F.3d at 1143 (“[W]e have consistently recognized the ‘frightening and humiliating invasion’ occasioned by a strip search, ‘even when conductеd with all due courtesy.‘” (quoting Way v. Cty. of Ventura, 445 F.3d 1157, 1160 (9th Cir. 2006))).
As the Supreme Court stated in Bell: “[O]n occasion a security guard may conduct the search in an abusive fashion. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner.” Bell, 441 U.S. at 560 (citations omitted). Here, it is unclear from the record, viewed in the light most favorable to Harris, why the visual body cavity search was conducted in such a violent and forceful manner, much less why it was conducted by a man when
3. The Justification for Initiating the Search
It is difficult to assess the Appellees’ justification for the search here because they provided no evidence controverting Harris‘s description of events; instead, they provided in their briefs a blanket denial that thе search ever occurred and, in the alternative, a vague justification, assuming the search occurred as Harris describes. For courts to be able to assess the reasonableness of an intrusion on an inmate‘s constitutional rights, Supreme Court precedent suggests that officers must provide a justification that is supported by record evidence. Cf. Florence, 132 S. Ct. at 1518 (“[D]eference must be given to the officials in charge of the jail unless there is substantial evidence demonstrating their response to the situation is exaggerated. Petitioner has not met this standard, and the record provides full justifications for the procedures used.” (citation and quotation marks omitted)); Turner, 482 U.S. at 98 (“[W]ith respect to the security concern emphasized in petitioners’ brief—the creation of ‘love triangles‘—
Circuit courts have similarly required a justification for inmate searches that is supported by record evidence. See, e.g., Byrd, 629 F.3d at 1137 n.2 (noting that officer‘s trial testimony “d[id] not specifically address the availability of the male officers to conduct the search[]” of the male plaintiff); id. at 1143 (“[A]lthough valid reasons to search the inmates existed generally, there was no justification given for conducting a cross-gender strip search.“); id. at 1142 (reversing district court‘s decision that the cross-gender strip search did not violate the plaintiff‘s Fourth Amendment rights, and ruling “that the cross-gender strip search of Byrd was unreasonable as a matter of law“); Hayes v. Marriott, 70 F.3d 1144, 1148 (10th Cir. 1995) (vacating summary judgment that was based on unsworn statements by prison officials as to the circumstances of the challenged search); Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir. 1980) (“[Bell] should not be extended to the facts of this case without a showing that there is some risk that contraband will be smuggled into Marion [Penitentiary] during non-contact, supervised visits, or that some other risk within the prison will be presented.“).
The circumstances here demonstrate the point. Because the defendants supplied only a vague justification for the search in their motion papers and did not provide evidence supporting any justification, the district court resorted to supplying its own hypothetical justification:
Plaintiff was creating a security risk by tearing apart her mattress and trying to use its contents to shield herself from the view of corrections officers who had a legitimate right to observe her. Ascertaining that Plaintiff did not have the means to obstruct their view is a legitimate penological goal, which fully justifies the brief visual inspection of Plaintiff‘s genitalia.
Appellees advance an alternative theory that “the alleged visual body-cavity search would have been justified by the legitimate penological interest of ensuring that a potentially suicidal inmate not possess any object by which she might harm herself or others.” Appellees’ Br. at 10. Appellees have not cited any record evidence, however, that Harris, who was restrained by three female officers at the time of the search, was in such imminent danger of harming herself that the search had to be conducted immediately by the male officer at the scene.
As these inconsistent theories demonstrate, it is difficult, if not impossible, for courts to determine the reasonableness of a visual body cavity search without record evidence supporting the officer‘s justification for initiating the search. Cf. Byrd, 629 F.3d at 1149 (Smith, J., concurring in part, dissenting in part) (“It is appropriate to begin the analysis by looking at the justification for initiating the search, because, in the absence of a proper justification, even the most unintrusive search is unreasonable.“).4 And, as the above discussion indicates, there are at least disputes of fact concerning whether the search occurred and the Appellees’ justification that should have precluded summary judgment in their favor.
Courts have arrived at different conclusions as to what makes the place in which the search was conducted more or less reasonable. Some courts have found that searches conducted in the presence of other inmates are more reasonable because there is less chance for abuse. See, e.g., Byrd, 629 F.3d at 1143 (“Byrd was searched in the day room, a cоmmon area. Other inmates were present, making it less likely that improper conduct would occur.“).5 Other courts have found that searches conducted outside the presence of other inmates are more reasonable. See, e.g., Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988) (finding merit to inmate‘s argument that “strip searches should be conducted within the privacy of prisoners’ cells rather than out in the hallway“). Because the
We reitеrate that inmates retain a limited right of bodily privacy under the
C. Qualified Immunity
On appeal, Appellees advance a qualified immunity defense to Harris‘s Fourth Amendment claim. Qualified immunity is an affirmative defense that may be waived if, as here, the defendants failed to move for summary judgment on
“[W]e nevertheless have the power to consider” the defense. Fabrikant v. French, 691 F.3d 193, 212 (2d Cir. 2012). “We have exercised this discretion where the argument presents a question of law and there is no need for additional fact-finding.” Id. (quoting Dean v. Blumenthal, 577 F.3d 60, 67 n.6 (2d Cir. 2009) (per curiam)). But because of the factual disputes concerning whether the search occurred and the officers’ justification for the search, we leave it to the district court to evaluate this defense in the first instance. Cf. Ford v. McGinnis, 352 F.3d 582, 598 (2d Cir. 2003).
D. Eighth Amendment
Harris also asserts that the April 8, 2010 search violated her
“First, the prisoner must allege that the defendant acted with a subjectively ‘sufficiently culpable state of mind.‘” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992) (hereinafter “McMillian“)). “The subjective component of the claim requires a showing that the defendant ‘had the necessary level of culpability, shown by actions characterized by “wantonness“’ in light of the particular circumstances surrounding the challenged conduct.” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). For excessive force claims, as contrasted with other actions or inactions that rise to the level of Eighth Amendment violations, the test for wantonness “is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
To determine whethеr defendants acted maliciously or wantonly, a court must examine several factors including: the extent of the injury and the mental state of the defendant, as well as “the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.” Id. (quoting Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)).
We note that the factual dispute concerning the Appellees’ need for the use of force greatly affects the Eighth Amendment analysis. For example, the need for the application of force to carry out a visual body cavity search may be weak if the search itself was unreasonable. Likewise, the relationship between that need and the amount of forcе used may be disproportionate to any legitimate penological goal if, once again, the search was unreasonable. The factual dispute regarding the Appellees’ need for the use of force also makes it difficult, if not
[S]ubjective intent . . . , unless admitted, has to be inferred rather than observed; judges and jurors are not mind readers. The plaintiff alleges that he complained vociferously to the defendant about the pat down and strip search while they were going on, to no avail. We don‘t see how the defendant‘s conduct if correctly described by the plaintiff could be thought a proper incident of a pat down or search, and the defendant doesn‘t contend that it could be; his defense rather is that his conduct has been misdescribed.
Washington v. Hively, 695 F.3d 641, 643–44 (7th Cir. 2012) (hereinafter “Hively“). Because Appellees deny that the search ever occurred, and because of the shifting explanations and limited support for the Appellees’ need for the use of force, assuming the search occurred, there exists a genuine dispute of material fact concerning the subjective component of Harris‘s Eighth Amendment claim.
2. Objective Inquiry
“Second, [the inmate] must allege that the conduct was objectively ‘harmful enough’ or ‘sufficiently serious’ to reach constitutional dimensions.” Crawford, 796 F.3d at 256 (quoting McMillian, 503 U.S. at 8, 20). “The objective component of the Eighth Amendment test is also context specific, turning upon ‘contemporary
We cannot discern from the district court‘s аnalysis whether it adequately considered the possibility that the search alleged to have occurred here—in which female officers grabbed Harris, threw her to the ground, and forcefully spread her
Moreover, the district court appears to have focused on Harris‘s refusal to allow a male officer to inspect her genitalia rather than the amount of force the officers used in carrying out that search. See Harris, 2014 U.S. Dist. LEXIS 107503, at *33, 2014 WL 3859242, at *12 (“[T]here is no evidence that the use of force was anything but de minimis given Plaintiff‘s refusal to cooperate with the direct orders of prison officers.“). The Supreme Court recently reminded us that the de minimis exception covers, for example, “[a]n inmate who complains of a ‘push or shove’ that causes no discernible injury.” Wilkins, 559 U.S. at 38 (quoting
3. Eighth Amendment Conclusion
We readily admit that the evidence in this case is difficult to parse. But where, as here,
a prisoner‘s allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically, our Court has reversed summary dismissals of Eighth Amendment claims of excessive force even where the plaintiff‘s evidence of injury was slight and the proof of excessive force was weak.
CONCLUSION
For the reasons stated herein, we VACATE so much of the district court‘s order and judgment as dismissed Harris‘s constitutional claims relating to the visual body cavity search performed by Appellees on April 8, 2010, and we REMAND for further proceedings consistent with this opinion. For the sake of completeness, we note that, per the motions panel‘s prior order, Harris‘s other claims as to all other defendants remain dismissed. Finally, we suggest that, on remand, the district court consider appointing pro bono counsel for Harris and pеrmitting the parties to take further discovery. See, e.g., Willey v. Kirkpatrick, 801 F.3d 51, 71–72 (2d Cir. 2015).