Kelsey v. County of Schoharie

(5) of the defendant’s the timeliness once more enable remand the case assistance. a proper to formulate the District Court The Dis- Crosby inquiry. response showing any In the absence of the reasons for should state trict Court un- appearance any or the unfairness past consideration of without response Judge, District part fairness on the regard government practices of reject Timewell’s claim that the case agreements. cooperation the rescission judge to another reassigned should be was error. Should consideration Such Bradley, See United States v. remand. original its sen- determine to revisit court (2d Cir.1987). 774, 782 n. 9 (1) tence, that a it to consider: we ask may district court —but CONCLUSION among sentencing disparity to—consider is remanded to the District This case 3553(a)(6); § under 18 U.S.C co-defendants proceedings for further consistent Frias, States v. United foregoing. with the (2) Cir.2008); the United n. 8 Attorney’s recommended a Office States from the Guide- departure

“substantial” of Timewell’s excel-

lines sentence view signif- and asserted that a cooperation

lent imposed disparity

icant in the sentences Timewell, and Sherrett was

upon Johnson (3) warranted; appropriate- Timothy Wright, John KELSEY of sentence below any ness of reduction individually and both on behalf of governed by the Guidelines should similarly situated, class of others § 5K1.1: provisions set out U.S.S.G. Plaintiffs-Appellees, (a) reduction shall be appropriate court for reasons

determined include, but are not stated SCHOHARIE, The COUNTY OF John to, following: limited consideration of the Jr., individually and S. Bates both capacity as his official Sheriff (1) sig- evaluation of the the court’s Schoharie, and Jim nificance and usefulness of the de- individually Hazzard, both and in assistance, taking fendant’s into capacity as Administrator of the government’s consideration the County Jail, Schoharie Defendants- of the assistance ren- evaluation Appellants. dered; (2) Docket No. 07-0893-cv. truthfulness, completeness, reliability any information Appeals, United States Court of testimony provided by or the de- Second Circuit.

fendant; Argued: Oct. 2008. (3) extent of the de- the nature and assistance; fendant’s May Decided: (4) suffered, injury any danger injury to the defendant

or risk family resulting

or his from his

assistance; Menken, Rozger,

Bruce Jason Beranb- Bierman, LLP, aum Menken Ben-Asher & York, NY, New Plaintiffs-Appellees. III, E. Robert Keach Law Offices of III, P.C., Elmer Robert Keach Amster- NY, dam, for Plaintiffs-Appellees. Johnson, Ferlazzo, Gregg P.C., Girvin & NY, Albany, Defendants-Appellants. JACOBS, Judge, Before: Chief SOTOMAYOR, MINER and Circuit Judges. facility is for the Day-to-day responsibility

MINER, Judge: Circuit administrator. in Lt. Hazzard vested INTRODUCTION Hazzard have established Bates and for the admission procedures implemented Jr., John S. Bates Defendants-appellants facility and state male inmates to York, County, New Sheriff of Schoharie trained all familiarized and have Hazzard, Administrator of and Lt. Jim facility in personnel at the subordinate the “de County (together, Jail Schoharie Included the intake procedures. these fendants”) a Decision and Or appeal from whereby clothing exchange, is a District in the United States der entered distinc- inmates are issued newly admitted New Northern District of for the for their facility clothing tive J.) (Kahn, motion for denying York clothing exchange re- clothes. This street brought in an action summary judgment only to those male quirement applied by plaintiffs-appellees John against them to make bail expected who are not inmates (together, the Kelsey Timothy Wright and in a hous- are to be confined and therefore County Kelsey v. Schohar “plaintiffs”). jail. According to Sheriff ing unit at the 1:04-CV-299, ie, 2007 WL No. Bates, (N.D.N.Y. 2007). Feb.21, County The as a defendant is also named

Schoharie in- clothing issue purposes [t]he motion. The joined action and clude, that each inmate has ensuring damages, injunction and plaintiffs seek of infestation and to clothing clean free clothing exchange proce claiming that the clearly that inmates are iden- make sure at the newly admitted inmates dure readily distinguished tifiable and can be County constitutes a Schoharie Jail visitors, public members of the from of the Fourth Amendment search violative inmates, facility- For some staff. suspi without reasonable when executed than the cloth- clothing is better issued defendants, in their official cion. The sued items personal care capacities, base their motion and individual may posi- facility outside the and thus alia, summary judgment, inter on the of mind while tively impact their state qualified immunity. The defense of [jail]. at the The issuance being housed Court, identifying possi a learned District commonly referred to as violation, found “material ble constitutional clothing exchange process. rejected the dispute facts” in and therefore in- clothing exchange, a new Before the qualified immunity, with leave defense booking procedure. He undergoes mate “at proper to reassert the defense sally transported port first from a Kelsey, 2007 at *8. time.” WL containing holding two cells holding area follow, For the reasons reverse booking room. next to a control room and of the District Court Decision Order area, required inmate is holding In the instructions to dismiss and remand with (if any) empty his to remove his coat the action. Thereafter, subjected to a pockets. he is by to a search “pat frisk” and sometimes BACKGROUND detector, all while the in- hand-held metal Exchange According To Clothing I. The According fully mate is clothed. Defendants Sheriff, is author- type no other of search period. The inmate County operated ized the intake The Jail is Schoharie holding cell within Depart- placed Sheriffs then is the Schoharie admitting corree- holding area until the ment under the direction of Sheriff Bates. ready proceed tions officer is with the sends it to laundry room for washing. booking process. area, When holding he returns to the he newly escorts the clothed inmate to the The inmate is next to sit beside appropriate housing unit. protocol The holding a window in the area. The book- does not call for the officer to conduct a ing room is on the other side of the win- personal body inspection search or or to dow, through which the inmate is inter- taking observe the inmate a shower or viewed the corrections officer. The getting Although dressed. there is no officer enters the questions answers written policy specifically addressed computer. questions pertain into a clothing exchange procedure, there is pedigree, such matters as medical informa- policy written entitled “Inmate Process- tion, Next, scars and tattoos. the correc- ing.” policy provision Within that is a for officer in charge booking pro- tions of the screening medical which provides: “A vi- area, holding cedure returns to the where sual analysis of the inmate will be conduct- photographs fingerprints he and in- the throughout ed the process.” admission mate. The inmate remains in his street throughout booking process. clothes the A policy written for strip searches and body cavity only searches has booking It is after the been process is established jail at the under the title completed that the “Control of and clothing exchange Search for place provides takes Contraband.” It those inmates who are to ‘strip/strip “[a] in frisk search’ be confined one of the shall not be housing units. routinely conducted.” Although there Such a search policy is no written for the “[wjhere allowed itself, only clothing exchange the officer has defendants in- made determination that there protocol sist have established a is reasonable suspicion to clothing for the believe that the exchange and in- inmate should have “[wjhere jail all searched” or personnel protocol structed an officer the has suspicion A reasonable to as follows: believe an produces corrections officer inmate is hiding on holding person the area a contraband his property bag mesh and/or the inmate is in possession into which place the inmate is to contraband.” policy provides that clothes. The officer “[w]hen instructs the inmate inmates cooperate in to on x the conduct of strip/strip stand one side of a 42" 48" mason- search, frisk ry half-wall the inmate’s with the officer on will not be the other Body touched.” cavity side. lays jail The officer then out on searches the the half- “[m]ay uniform, only be authorized jail wall the long a 48" circumstances white towel, where compelling there are soap personal and other reasons to be- items. The inmate(s) lieve that the inmate is then to be instructed to searched disrobe and have place rectal/vaginal secreted cavity his street clothes into the bag, mesh contraband, the which is held nature of which open by the officer on consti- the tutes a clear safety other side of threat to the the half-wall. The and secu- inmate rity facility may use the a threat towel for as he dis- and/or safety and being any well preparatory taking person.” robes a required Sheriff Bates dressing jail single “do[es] shower and recall a uniform. [b]ody cavity occasion when a search was showering, While the inmate is the offi- conducted on an inmate during tenure [his] cer takes the inmate’s street clothes to a as Sheriff.” property room hallway across the from the There, holding area. inspects officer put Sheriff Bates has forth the proposi- clothing contraband, it, tags and tion that “the clothing exchange procedure jail Kelsey uniform. asked the put personal intended underwear, administrative if had to remove his inmate rather a brief officer he but in- newly-admitted precedes replied: Everything.” the officer “Yes. process that housing unit.” He transport to a in front Kel- directly The officer stood mates[’] information represented, “[u]pon has during clothing exchange, and Kel- sey belief,” never instructed that “inmates are into a clear sey placed his street clothes mouth, bend, turn, open squat, at the of the officer. garbage bag request body, or in other manipulate their stated that he deposition, Kelsey In his themselves personal manner for a expose clothing ex- asked officer clothing inspection” during the search or change: I have to this here?” and “Do do Administrator av- Hazzard exchange. Jail ‘Tes, you do.” officer answered: jail ers that corrections officers officer’s Kelsey “eyes testified perform prescribed been trained I up my body, so looking were down exchange clothing procedure and my Kelsey genitals.” assume he saw intended simply “[t]he process “embarrassing” found the entire get inmates into the uniform “[hjumiliating.” Kelsey testified way to clothing their street on their secure clothing exchange the he was not However, three he is aware of housing.” around, go- prevented turning from from prescribed procedure occasions when the half-wall the ing using behind the or from occasion, one the was not followed: On the bag towel or the to obscure officer’s area holding corrections officer left the body. his He view of also stated that he change and left inmate to out of alone arms, to required open was lift his to into prison his street clothes and his mouth, expose his or to his to buttocks clothes and to On the other two shower. manipulate any part body. He his did occasions, the corrections officer caused that he touched not indicate was place to take in the in any way. officer holding allowing instead inmate cell Department The Cobleskill Police benefit afforded brought plaintiff Wright the Schoharie to masonry half-wall.

County on Septem- Jail at about 3:30 a.m. Clothing According II. To Exchange 5, 2003, Wright’s after arrest ber for driv- Plaintiffs deposition, while intoxicated. In his that, Wright following testified inter- Kelsey Plaintiff arrived the Schoharie jail, placed holding view at the he was 16, 2002, County having Jail October An open. cell with the cell door officer Albany from transported been there uniform, jail brought him a a white then Jail, where he worked a correc- as towel, bag and a mesh for his street tions officer. He been for a had arrested in Wright clothes. sat on a the cell bench Family civil violation of the Act clothing, which he and removed his street a matter. support connection with child proceeded He placed bag. then procedure, in- booking He underwent directed, taking take shower as the towel cluding photographing fingerprinting, him. holding with He returned to the cell required clothing exchange. before the towel, got jail dressed He at his a correc- deposition testified a housing uniform and was escorted to tions officer laid on a out the uniform pro- According Wright, unit. corrections bench in front the half-wall. He in front of him as he ceeded take off in the officer stood removed his street clothes (a area, directed, booking process that took one open as in order his street clothes minute) placed them in the bag exchange, mesh and that policy established Jail provided. When asked what direction permits search only on reasonable undressed, facing he was Wright he suspicion. Defendants also raised the de- testified: “At angle somewhat to [the qualified fense of immunity in the motion. officer], I but can’t recall 100 percent responded Plaintiffs that the clothing ex- way which I facing. was It was like sort change process requires a visual examina- of facing Wright towards the officer.” also tion of each inmate during disrobing and testified that when he dressed in the hold- that such examination constitutes an un- shower, ing cell after the no pres- one was reasonable search for Fourth Amendment ent holding response in the area. to a purposes when conducted without reason- question relating to the mental and emo- suspicion. able suffered, allegedly tional stress Wright de- In a written opinion denying the motion experience scribed his unpleas- as “rather for summary judgment,1 the District Court was, know, ant” you just and stated: “[I]t stated as follows: humiliating a rather kind of—shameful Defendants have not met their burden of, just being kind naked in front of at prove that there is no issue of materi- possibly least one other individual and al fact as to jail’s] whether policies [the the view of others.” practices require COs to observe Wright’s Plaintiff description of the de- inmates as remove their street viations from the clothing exchange pro- However, clothes. question remains: tocol is consistent with deposition tes- if a CO w[ere] to observe an timony Joseph Kenyon, a corrections undress, inmate procedure would this employed officer at the Schoharie constitute an unreasonable search under According Jail. Kenyon, to Officer in- the Fourth Amendment to the United mates are to stand in front of States Constitution? him and face him during the entire cloth- 603406, Kelsey, 2007 WL at *5. ing exchange. He watches the inmates as remove their clothing, the disrob- Consistently characterizing the clothing ing place takes in the “holding cell where exchange as the “Exchange/Strip Search at,” the inmate is option and there is no throughout Process” opinion, its the Dis- in private. disrobe trict Court examined the record and con- cluded that the observation of newly a III. The Motion Summary Judgment for admitted in process inmate of disrob- and the Decision of the District ing is a search for contraband. Id. at *6. Court The District Court also noted the defen- Relying upon affidavits as well depo- as dants’ presence contention that of a sitions and other materials obtained corrections officer a serves as deterrent to discovery, the defendants moved for sum- the transfer or destruction of contraband. mary judgment in the District Court. Id. at *6. The District Court concluded: They contended that the accurate, “If this admission is it can mean search, did not entail a strip only thing: one that the exchange/strip inmates were preserve allowed to process search is meant to serve as a ways various during the search for contraband —even when there is opinion, In the same Kelsey, District Court tion. 2007 WL at *14. granted plaintiffs motion for class certifica- In judgment.”) so.” Id. at the absence of a final suspicion no reasonable do noted, correctly terlocutory appeal a this sort of case “is *7. As the District Court permitted if the district court’s denial suspicion search without reasonable However, summary judgment qualified immu prohibited by precedent. our nity a finding rests on there were pronouncement the court made no final N.Y. dispute.” it had material facts Genas v. constitutionality of the search Servs., Dep’t Corr. grant Court cannot “[T]his identified: Cir.1996). Supreme teaches summary judgment to the Defendants “a conflicting summary judgment evidence district court’s while there is credible that, though regarding ‘qualified the nature of the order entered the record case, immunity’ only question determines observation of inmates as dis- CO’s i.e., sufficiency,’ The District Court thus did not of ‘evidence which facts robe.” Id. not, party may, may prove were un- be able to challenged find that the searches find, however, trial ... appealable.” The court did is not Johnson v. reasonable. Jones, that the defendants were amenable to suit 515 U.S. 115 S.Ct. (1995). individually of their 132 L.Ed.2d 238 consequence “[a]s in the maintenance of [the involvement Despite appealability the bar jail’s] Finally, policies practices.” Id. may provide qual that factual issues in the briefly qualified the court addressed context, immunity ified we have observed immunity defense as follows: ma- dispute regarding There remains a long support as the defendant can terial facts related to the constitutionali- facts, immunity stipulated defense on ty exchange/strip process. accepted purposes ap- facts result, premature As a it would be peal, plaintiffs or the version of the determine whether Defendants Bates facts that court district deemed responsible and Hazzard are for violat- resolution, jury available for an interloc- ing clearly established constitutional law utory appeal is available to assert qual- or are immune from suit under the immunity an defense is established as immunity ified doctrine. Defendants matter of law. may Bates and Hazzard renew their de- fense at the proper time. Proulx, (2d 86, Salim v. 93 F.3d 90 Cir. 1996). accept We plaintiffs’ version Id. at *8. making the facts in our determination ANALYSIS herein, Accordingly, as will be seen. jurisdiction take over the district court’s Appealability Qualified I. Of Immu- summary denial of defendants’ motion for nity judgment to the extent that the motion is It is quali- the District Court’s denial of grounded qualified in immunity, and our immunity fied that permits the defendants Parmley, review is de novo. See Jones v. bring appeal exception to this to us as an (2d Cir.2006). 46, 465 F.3d 55 finality. to the rule of See Mitchell 511, 530, 2806, Forsyth, 472 105 im qualified U.S. S.Ct. Under the doctrine of (1985) (“[A] 411 munity, “government 86 L.Ed.2d district court’s performing officials immunity, denial of a claim qualified discretionary generally functions law, the extent that it turns on issue of civil liability damages shielded from appealable is an ‘final decision’ within the insofar as their conduct does not violate meaning clearly statutory § of 28 1291 U.S.C. notwithstand- established or constitu-

61 cases, person which a rights Supreme tional reasonable [the Court] continuéis] Fitzger- recognize would have known.” Harlow v. it is often beneficial.” ald, 800, 818, 2727, Pearson, 457 U.S. 102 S.Ct. 129 S.Ct. at Accordingly, (1982). In assessing L.Ed.2d 396 an offi- longer we are no required to make a shield, eligibility appro- cer’s for the “the inquiry” “threshold as to the violation of a question objective priate inquiry is the right qualified constitutional immunity context, whether reasonable officer could have but we are free to do so. Id. at lawful, in [his believed actions were] inquiry 821. The is said to appropriate light clearly established law and the in those cases where “discussion why possessed.” information the officer[ ] Wil- the relevant facts clearly do violate 603, 615, son v. Layne, 526 U.S. 119 S.Ct. established law make it apparent that (1999). 1692, Qualified 143 L.Ed.2d 818 in fact the relevant facts do not make out a immunity is also said protect gov- constitutional violation at all.” Id. at 818. ernment “if it ‘objectively officer was rea- This is such a case. The Supreme Court’s him sonable’ for to believe that his actions teaching current is that “the Saucier were lawful at time challenged certainly was correct in noting that Miller, act.” Lennon v. 420 the two-step procedure promotes the de- (2d Cir.1995) (citing Creigh- Anderson v. velopment of precedent constitutional ton, 635, 641, 483 U.S. 107 S.Ct. especially valuable with respect ques- (1987)); L.Ed.2d see also Martinez v. tions that frequently do not arise in cases Simonetti, 633-34 Cir. qualified which a immunity defense is 2000). unavailable.” Id. The development of prece- constitutional II. Inquiry Of the Threshold especially here, dent is important where Until the issuance Supreme (1) spoken this Court has not on the issue Callahan, opinion Court’s in Pearson v. constitutionality of clothing ex- — U.S. —, S.Ct. L.Ed.2d change procedures jails although the (2009), the following inquiry threshold presented issue has been in district courts mandatory:

was circuit, see, e.g., this Marriott v. A court upon to rule Montgomery, 227 F.R.D. 169-70 qualified immunity consider, issue must (N.D.N.Y.2005) (holding that a facili- then, question: this threshold Taken ty’s “change-out” procedure “strip was a light most party favorable search” violation of the Fourth asserting inquiry, do the al- facts Constitution); Amendment to the see also leged show the officers’ conduct violated County Williams v. Niagara, No. 06- of a constitutional right. This must be the CV-291A, 2008 WL *2 initial inquiry. (W.D.N.Y. 2008) Sept.29, (involving a class action question certification where the de- “ If no constitutional right would have alia, argued, fendants inter that a ‘cloth- ” allegations been violated were the estab- ing change-out’ procedure in a “does lished, necessity there is no for further not constitute a strip search and is consti- inquiries concerning qualified immunity. (2) tutional”); the constitutionality of Katz, 194, 201, Saucier v. 533 121 clothing exchange procedures U.S. jails may (2001). S.Ct. 150 272 L.Ed.2d While never be if developed this Court were to it is now “that protocol true the Saucier dispose challenges of all relating to the regarded mandatory should be in all procedures simply because the 62 has a “strip only a an officer made deter- “[w]here established” as “clearly

is not Amend- suspicion the Fourth mination that there is reasonable violative of search” inmate be ment. to believe that the should rea- or an officer has “[w]here searched” addressing the It is said that also suspicion is sonable to believe an inmate only may first constitutional issue hiding person on his the contraband and/or litigation possibility the of drawn-out avoid possession inmate is contraband.” liability, imposition of unwarranted and the body touching There is to be no con clarify to official may also serve but the fails to “cooperate” unless inmate See Sound standards. duct Aircraft higher the search. A much standard is Servs., E. Hampton, Inc. Town v. cavity for required body searches: “[c]om- Cir.1999). (2d that think F.3d We reasons to believe that ... contra- pelling by are served undertak purposes all these constituting] ... a clear threat band in this inquiry the first constitutional safety security facility” the the facts, light viewed in most case. When the cavity. body concealed The version not demon plaintiff, favorable the do at the de- events Schoharie Jail a conduct violated strate an officer’s by plaintiffs scribed do not describe a not fur right, constitutional court need cavity search, body and Sheriff Bates has immunity inqui pursue qualified ther been indicated no such searches have summary ry, “and the officer entitled jail during conducted at the tenure as F.3d judgment.” Repicky, v. Gilles Sheriff. (2d Cir.2007). 239, 244 are used to Various terms describe III. the Fourth Strip Of Searches and body, a inspection of naked the terms Amendment distinguished degrees by of intru- involved in sion the search contraband. undertaking our con threshold “strip generally The term search” is used we first note of inquiry, stitutional take any inspection to describe of the naked long-standing strip precedent covering our Connecticut, body. See N.G. v. arrested misdemean searches those (2d Cir.2003). n. 4 An individual ors: being strip may be searched requires The Fourth Amendment an body ways permit move his in various suspicion individualized “reasonable complete inspection. more A “visual Id. concealing arrestee [a misdemeanor] body-cavity strip is a search” search weapons or other contraband based specific geni- entails the examination particular crime charged, char- anus, any bodily tals and without contact acteristics arrestee and/or Finally, inspector. Id. a “manual circumstances of arrest” before [he] body-cavity search” is lawfully subjected to a examination, includ- involves naked search. anus, ing viewing genitals Gallo, v. Hartline F.3d touching probing with instrument. Cir.2008) Dell, (citing Weber Id. (2d Cir.1986)) (first 796, 802 in alteration Franco, original); see also Walsh v. the Clothing Exchange IV. Of at the Cir.1988). F.2d 68-69 The written Schoharie Jail policy County Jail tracks Schoharie language precedent by provid- purposes the of our For of this appeal, plaintiffs’ description that a conducted the the strip accept Plaintiff clothing exchange procedure, although Wright’s the characterization of the clothing exchange as a search is even appears to deviate more describe According attenuated. to Wright, the respects protocol pur- in from the certain clothing exchange took place holding by the portedly established defendants.2 cell, where he disrobed in one minute as a Salim, F.3d at 90. therefore See We corrections officer stood in front of him. proceed, taking light the facts the most Wright testified he undressed “[a]t to examine the con- plaintiffs, favorable angle” somewhat of an to the officer but question presented. Pear- stitutional See could not percent way “recall 100 which son, 129 S.Ct. at 818. facing.” was As best he could [he] describe plaintiffs We first that the make observe it, was like sort facing “[it] toward the subjected no claim that were to visual Apparently, officer.” a towel was available body cavity or manual searches. Plaintiff disrobed, himto as he and he took the Kelsey testified that a corrections officer towel with him as he went to take a show- during in front of him stood the brief returning er before holding cell with period when he removed his street clothes cell, the towel. Back in the he dressed jail Kelsey the uniform. put on testi- jail According the uniform. to Wright’s fied that he the officer events, “assume[d]” version of no officer present was during that genitals” put jail Also, “saw time. Kel- when [his] he the uniform. sey manipulate body Kelsey, Wright required was not asked to his was not display body any move or his particular in any way any particular or to assume way. position. prevented pro- Nor was he from

tecting privacy by turning away from Kenyon, sup- Corrections Officer who undressed, by concealing the officer as he ported testimony plaintiff Wright, the half the lower of his behind the half- indicating least the extent of that the standing, wall in front of which he was clothing exchange place took in a holding by the towel that using (rather was available to half-wall), cell than behind the de- during him clothing exchange. clared that “the purpose clothing event, briefly “seeing” genitals a man’s know, exchange process, as far as I clothing exchange does not simply get inmates into the uniform amount to a search.3 and secure their street clothing.”4 Never- dissent, lawsuit, Although places, 2. ac- several nores the entire basis of this which (on having accepted policy plaintiffs' cuses us of attacks a defendants’ version of facts, facts) compels version of the that is not Most so. arrestees to remove all of plaintiffs’ clothing presence the half dozen “facts” that the dis- their in the of a watchful ignore expressly preparation showering sent claims we consid- officer in assume, opinion, changing prison ered in this as the reader can con- into We attire. as we Moreover, must, firm. third "fact” identified that inmates are to remove Kelsey clothing presence the dissent—that had to walk naked to their in the of an officer. prison obtain his uniform —is a distortion of We nonetheless hold that ex- Kelsey change process, by plaintiffs, the record. testified that he "reached as described n uniform,” “grabbed over" the ... was not an unreasonable search under that he while "walk[ed] naked to obtain Fourth Amendment. undisputed plaintiffs uniform.” It is that the Contrary reading to the dissent's of our entirely deprived were not of the means for opinion, suggest subjec- this does protecting modesty. tive intent corrections officers is to be argues “any supports only 3. The dissent statement considered. It the fact that the constitutionality charged about corrections officers were with effec- tuating clothing exchange. forcing ig- is dicta.” arrestees to This 64 4501918, *2; at

theless, necessary any correc- see also Barber function of 2008 WL (6th Cir.2007) Overton, at all 463 is to inmates v. tions officer observe (“Corrections (Cook, J., concurring) offi times, eating, sleep- whether inmate constant, vigilant recreational cers must be ever and showering, undertaking ing, innovative, activity safety to their engaging any other often threats activity or ” (citation omitted)). “Legitimate of any jail. .... the confines within policies of goals penal and institution” that the incidental observa- conclude We clothing exchanges at intakes support during an arrestee tion of gaze well as the watchful corrections in the manner clothing exchange, required inmates, they over are officers whether is not an unreason- by plaintiffs, described Bell, clothed or not.5 at 99 U.S. Amendment. under Fourth able search S.Ct. Moreover, clothing it seems to that a us points by observed corrections officers The dissent out that inmates are privacy under the circumstances described afforded when shower and “maintaining change prison institu- into the cloth- plaintiffs is attire related security process. and or- the dis- preserving ing exchange tional internal From this discipline!,] goals “rejected” and essential infers that defendants have der sent presence limitation may require or retraction the idea of officers when fur- rights retained constitutional of both con- inmates remove street clothes order, prisoners security, and in the pretrial discipline victed detainees.” thers and 520, 546, best; Wolfish, 441 inference jail. Bell v. U.S. S.Ct. This is strained at (1979). event, objec- L.Ed.2d it is not for us to decide ac- clothing exchange, permitted tives served when officers should to ob- Bates, cording go Sheriff include assurance serve inmates as about activities of (under jail, inmate has is clean clothing daily specify each life Constitution) infestation; free of that inmates times when inmates observes, clearly distinguishable identifiable and be watched. As dissent visitors, from staff and members Jail is a “controlled en- Schoharie vironment,” positive and that a of mind be public; state which inmates have a limit- in each expectation instilled inmate. ed freedom of obligation movement. While we assessing promote need to constitutionality permissi- to set floor interests, foregoing recognize that we conduct, ill-equipped ble we are to define profes- owe “substantial deference to the jail. life in the contours of judgment prison sional administrators” such as Sheriff Bates. issue See Overton The District Court framed the Bazzetta, 126, 132, 539 U.S. 123 S.Ct. thus: a CO to ob- “[I]f w[ere] (2003). undress, ex- proce- 156 L.Ed.2d A serve an inmate this would change jails is a common un- practice dure constitute an unreasonable prisons as is need for corrections offi- the Fourth der Amendment United See, vigilant e.g., cers to be at all Kelsey, times. States Constitution?” WL Marriott, Williams, 169-70; 227 F.R.D. question at *5. Our answer to this right penological 5. The dissent contends that our consideration interests if a constitutional penological interests is inconsistent implicated does mean that a court holding clothing exchange proce- our that the precluded considering from in other cir- them did not dure constitute a Fourth Amendment cumstances. However, search. that a court must examine an instructions to dismiss the action per is not se is that such against of the individual defendants. Be- search violative unreasonable plaintiffs underlying this an cause the lack giving Amendment. Fourth from, deprivation in claim of a of a swer, depart or erode constitutional we do municipal liability the claim of “clearly prece right, established” on the anyway, our County of charged part with a misde of defendant Schoharie is persons dent “that to a local correc to be dismissed as well. See Zahra v. meanor and remanded (2d Southold, ... to be free of Town 48 F.3d facility right tional of Cir.1995). suspicion search absent reasonable carrying contraband or Judge SOTOMAYORdissents Ellison, 273 F.3d weapons....” Shain opinion. separate (2d Cir.2001); see also v. Con N.G. (2d Cir.2004) (stat necticut, 382 F.3d 225 I dissent because has exer- in this has ruled several ing Court jurisdiction it cised where has none and “strip searches not be decisions wrong party’s assumed the version of the adults confined after ar performed upon facts. It has also offered dicta that con- misdemeanors, in of rest for the absence precedent tradicts this Circuit’s and disre- suspicion concerning possession reasonable gards experienced judgment of ad- Shain, (citing 273 F.3d at of contraband” analysis ministrators. Under a correct Herkimer, 62-66; Wachtler v. case, presented this we would be with the (2d Cir.1994); 35 F.3d Walsh v. following question: During the relevant Franco, Cir.1988); 849 F.2d 68-69 period, clearly time did our established 802)). Weber, precedents Our precedent interpreting the Fourth Amend- allegations in this do not control the case. permit ment arrestees for misdemeanors expose private to be forced to parts their only that a for the process We hold here (“COs”) to corrections officers and inmates personal clothing prison suspicion? without reasonable The answer clothing under the observation of a correc- Accordingly, judgment is “no.” manner tions officer described district court should be affirmed. implicate plaintiffs type does not privacy protected by the Fourth Amend- reviewing, Because we are on interlocu- prohibi- nor it fall within the ment does summary tory appeal, judgment a denial of precedents tions established our relat- ground qualified immunity, on the our Plaintiffs were not searches. jurisdiction key ways. is limited two display manipulate First, jurisdiction cannot we assert over Moreover, any way. parts Plain- question sufficiency. of evidence Salim v. deny were tiffs did methods avail- (2d Cir.1996) Proulx, protect viewing able to them to of their (“What may we not do ... is entertain an private parts in the event desired interlocutory appeal which a defendant make use such methods. contends that the district court committed ruling plaintiffs error law V. Conclusion jury evidence was sufficient to create a plaintiffs Because the have been unable issue on the facts relevant to the defen- defense.”). Second, identify any immunity violation dant’s constitutional defendants, may only jurisdiction in- parts of the individual assert over this terlocutory appeal “undisput- District if we use the Decision and Order of the reversed, plaintiffs facts or version of the facts.” and the case is remanded ed (2d Casabella, plaintiffs’ based on version of the facts. v. 284 F.3d Coons Cir.2002) (internal Maj. plaintiffs Kelsey Yet Op. at 63-64. marks omit- quotation that, ted). Wright alleged being have after princi- violates both majority The arrested, respectively, violating child ples: it the district court’s find- dismisses support driving while intoxicat- order and sufficiency plaintiffs’ of ing regarding the ed, they to naked and were forced evidence, and it defendants’ version adopts inspected by officers. {See corrections of the facts. ¶¶ 32-36, 40-43; Compl. Dep. of John Kel- The found that there district court exist (“I sey humiliated.... I 75:22-76:2 was ed of fact as to whether “issue[s] material and, strip me you had another officer down jailj’s practices require policies [the know, naked.”); I staring at when was me to inmates as COs observe remove (“[I]t Dep. Timothy Wright E. 134:10-13 their street what clothes” was, know, you just humiliating rather “strip process.” amounted to of, just being kind of-shameful kind naked Schoharie, Kelsey v. County No. 04-cv- in front of at other least one individual and (N.D.N.Y. 603406, at 2007 WL *5 others.”).) possibly in the view Con- 2007). Feb.21, Rejecting the district trary allegations, majority to these finding, majority court’s re-evaluates implausibly Kelsey concludes that “[plaintiffs record and concludes Wright to naked volunteered and ex- required display were not to ... their pose their to private parts corrections offi- way” parts and that “methods others, cers and several despite opportuni- plaintiffs] were protect the[ available to guard Maj. ties to privacy. Op. See viewing private parts of their the event concluding, majority at 65. so use of desired to make such meth adopting plaintiffs’ defendants’—not —-ver- Maj. Op. majority ods.” at The never Appellants’ sion of the facts. Br. at {See explains authority how it has to re (“This proce- case concerns a specifically weigh the sufficiency the evidence and dure ... that requires change inmates to dispute conclude that there no regarding out of their and into a street clothes facili- precedent material fact. Our is clear ty-issued partial privacy uniform with but interlocutory appeal a qual “[i]n physical presence of a corrections claim, immunity ified parties where the officer.”).) facts, dispute material the issue of whether majority justifies approach The its there is sufficient evidence to support excerpting portions plaintiffs’ deposition plaintiffs version of the material facts is testimony. example, majority For em- within province of the district court.” phasizes responses Kelsey’s questions London, Holeman City v. New that, from defendants’ counsel to the effect (2d Cir.2005); see also Martinez prevented his no one disrobing, him Simonetti, Cir. around, hiding from turning behind a half- 2000) (“[Ijmmediate appeal permit is not area, wall in booking somehow cov- ted if the district denial court’s of sum ering bag himself with a towel or mesh mary judgment qualified immunity while removing Maj. Op. all of his clothes. finding rests on a that there were material statements, however, at 63 These can- ” (internal in dispute facts .... quotation Kelsey, be understood in isolation. omitted)). marks according testimony, to his own did not majority The acknowledging avoids having disposal its recall a towel his when usurpation jurisdic- court’s he removing clothing. district was Nonethe- less, tion purporting analysis conduct an that a assumes towel In order to cell with the arrestee. his dis- Kelsey during was “available” half-wall, Wright would change behind-the Maj. at 63. robing. Op. away walk from the have been oth- or discounts majority overlooks Fifth, the al- holding past cell and CO. testimony deposition in the key details er majority Kelsey and though the plaintiffs and concluded that this case by privacy protected the Fourth Amend expose not were to themselves. 65) (Maj. ment” Op. distinguish at and is by majori- Accordingly, statement strip able from per traditional searches of constitutionality of ty forcing about the charged sons with misdemeanors because strip arrestees to naked dicta. conducting the motives of the officers is, however, dicta, puzzling given It this (de procedure. Maj. Op. See at 64 See, precedent strip searches. Circuit’s on (1) scribing testimony purpose CO’s 56, (2d Ellison, e.g., Shain v. 273 F.3d 66 strip procedure merely was to Cir.2001) (“[Pjersons charged with a mis- clothes, (2) observation of arrestee’s to a local demeanor and remanded correc- body as exc “clothing “incidental” facility right ... tional have a to be free of hange”).4 privacy But the pro interests strip search suspicion absent reasonable by tected the Fourth Amendment do not carrying contraband or merely become irrelevant because we use Franco, ”); weapons.... Walsh v. “clothing nomenclature of exchange” (2d Cir.1988) (“[T]he 66, 69 unconstitution- “strip instead of v. search.” See Marriott of a ality policy calling strip blanket 159, 227 Montgomery, F.R.D. of all searches misdemeanor arrestees was (N.D.N.Y.2005) 169 (“Using different ter established.”). clearly explana- Without minology, change-out, such as does tion, the majority dismisses this Circuit’s change the observation of a naked admit- precedent searches as not “con- tee anything other than what it is—a trolling] allegations this case.” search.”). Supreme has As Maj. Op. majority’s at 65. opin- From the explained respect the act of urina however, ion, possible one can infer two (whose tion monitoring visual or aural “im majority’s summary reasons for the state- plicates interests”), privacy “[t]here are ment, neither of which is valid under society few activities in personal our more jurisprudence. Fourth Amendment or private.... people by Most describe it First, euphemisms majority insofar if talk about it at all. It suggests as the is a exposure traditionally performed function private “brief[]” one’s with observation; public indeed, out parts implicate does not the Fourth per its Amendment, 63, Maj. precedent our Op. public generally prohibited formance in support does not that a the notion law as well social custom.” Skin ” majority suggesting 4. To the extent that the tent or motivation of officers involved.’ procedure may the exact same 62, City, Hudson v. New York 68 privacy depend- not amount to an invasion Cir.2001) States, (quoting v. United Scott 436 intent, ing upon subjective the CO’s this is 128, 138, 1717, U.S. 98 S.Ct. 56 L.Ed.2d 168 improper "challenged because searches are (1978)). judged regard underlying 'without in- 69 Ass’n, it accepted 489 *6. If the must on Ry. Labor Executives’ ner v. —as 617, 1402, interlocutory appeal plaintiffs’ L.Ed.2d this ver- 109 S.Ct. 103 U.S. — (internal (1989) facts, marks omit sion of the then it would be com- quotation ted). equally strong applies pelled plaintiffs This rationale to call this what parts. exposure private allege “strip of one’s it to be: a search.” ly to the City, City v. Peachtree See Justice Having erroneously that the concluded (11th Cir.1992) im (“Deeply F.2d implicated, Fourth Amendment is not is the belief that in our culture bedded proceeds argue majority nonetheless expectation have a reasonable people disputed procedure that the is constitution- involuntarily, to be to be unclothed ob ally valid because it is “related to ‘main- ‘private’ to have their unclothed or served security taining preserv- institutional (in by others.” observed or touched parts ” discipline.’ Maj. internal order and quotation marks and alterations ternal Op. (quoting Wolfish, at 64 Bell U.S. Ward, omitted)); F.2d Forts v. cf. 546, 99 S.Ct. 60 L.Ed.2d 447 (2d Cir.1980) (“The in (1979)). only But a court need examine protection concerns the terest entitled penological objectives a constitutional if private parts of of the involuntary viewing right implicated. Safley, is See Turner v. sex.”). opposite the body by members of 78, 89, 107 96 482 U.S. S.Ct. L.Ed.2d Moreover, analyzing purpose the of (“[W]hen (1987) prison regulation 64 im- majority the disrobing procedure, the pinges rights, on inmates’ constitutional fallacy of de- again adopting commits the regulation reasonably the is valid if it is disputed facts. Defen- fendants’ version of legitimate penological related to inter- to this Court that represented dants have ests.”). Accordingly, majority’s analy- procedure of the is “incidental purpose majority’s sis belies its conclusion: of the inmate where the intent observation penological objectives evaluation of is nec- search, perform but to admin- is not essary only contrary majority’s to the if— environ- action in a controlled istrative disrobing procedure impli- conclusion—the 21.) Appellants Br. for at (Reply ment.” type protect- interests cates the proce- They have also asserted ed the Fourth Amendment.5 personal “not to be a dure is intended 6.) Nonetheless, respect it is true that with Br. at The ma- (Appellants’ search.” jails, security “maintaining “incidental institutional jority agrees. It writes of the and internal order and disci- preserving of an arrestee.” observation contrast, may require pline goals al- are essential Maj. Op. plaintiffs at 64. In of the retained objective disrobing limitation or retraction lege that con- (see Ap- rights prison- stitutional of both convicted procedure is to search arrestees Bell, 2) and, 441 according pretrial Br. at ers and detainees.” U.S. pellees’ court, But sug- majority, at 99 S.Ct. 1861. “strongly district the record establish, conceding after that the disrob- implicitly but did not “that the gested],” ing procedure implicates the Fourth exchange/strip the entire purpose behind Amendment, objectives penological invokes process is to search inmates rejected at that defendants have and fails to Kelsey, 2007 WL contraband.” that, Op. majority regardless 64 n. 5. But the fails to majority responds at 5. The justify implicated, explain what circumstances” its right "other whether a constitutional is considering penolog- analysis or how its discussion is relevant to its nothing prevents it from holding. Maj. “in other circumstances.” ical interests goals requiring the cause must “observe inmates at all identify essential re- COs Op. at rights. Maj. Amendment Al- times.” 64. But defendants traction of Fourth omniperci- never claim that COs must be though recognizing “ill-equipped that it jail,” pient. deny existence of Maj. the contours of life Defendants define jail policy requiring blanket arres- Op. majority nonetheless “sub- (See expose Appel- tees to judgment these themselves. stitute[s] [the Court’s] (“This specifically difficult and sensitive matters of institu- lants’ Br. at case security requires ... tional administration and for that concerns a actually change charged who are inmates to out of their street persons running facility-issued with trained in the of such clothes and into a uniform Rutherford, partial privacy physical facilities.” Block v. but U.S. officer.”).) 576, 588, presence L.Ed.2d Ac- S.Ct. corrections (1984) (internal defendants, quotation cording per- marks and cita- are arrestees omitted). example, change For mitted tions behind a half-wall and suggests clothing procedure they may COs that informed use (1) justified in order to “that privacy. They ensure: each towel for further ac- knowledge inmate has clean and free that COs do not the ar- watch infestation;” (2) “that inmates showering are clear- restees into their changing ly not, and distinguishable identifiable from vis- uniforms. Defendants do there- itors, fore, public;” argue staff members of the that COs un- must exercise (3) positive flagging “that a perpetual vigilance state mind be over ev- Maj. ery Nor, in each Op. pore body. instilled inmate.” at 64. of an arrestee’s jail’s But challenging no one is authority majority, contrast do defendants uniforms, require suggest degree privacy detainees wear that some is justify requiring necessarily none of these reasons an jail’s anathema to a internal strip Bell, arrestee to front of a CO. See order or exposure pri- forced (“Courts parts during U.S. at vate a clothing exchange S.Ct. must an scope particular integral part jail security. consider Accord- intrusion, defendants, themselves, ingly, the manner in which it is con- where ducted, justification it, initiating penological conceded that interests are place conducted.”); and the in which it is satisfied in a manner not that does re- Dell, quire Weber v. exposure private F.2d Cir. the forced 1986) (“Deference, however, parts, is not a dis- we an alleged should condone pensation from the requirement infringement upon constitutionally under the pro- Fourth merely Amendment searches be rea- tected interests because sonable.”). Jail administrators have we can imagine alternative adopted means —other than might ex- we consider to more effec- be changes tive. detecting contraband. —of (which particular, jail policy does not I agree it im- majority clothing exchanges) reference allows pat portant vigi- for corrections to be officers searches and searches with hand-held lant clothing exchanges and that can serve upon intake, metal permits detector and it important objectives. Maj. at 64. Op. But strip body cavity searches and searches like the First Circuit and in the absence of upon suspicion to “reasonable believe that suspicion: reasonable the inmate should be searched.” case law on [o]ur misdemeanor arrestees that, suggests effectively also if forcing only holds even justified strip way arrestees to naked comprehensive detecting be- to be search, perform is to contraband the risk of must bear government [Balancing con- items....

missing some needs rights and institutional

stitutional that, present- in situations

may require concealment, risk of only a remote perfect law enforce- less than accept procedures.

ment Dep’t, Hancock

Wood Sheriffs (1st Cir.2003); N. see 65 n. 13 (“[I]n decisions,

G., at 232 several searches ruled that

we have after adults confined upon performed misdemeanors, in the absence

arrest concerning possession suspicion

reasonable contraband.”). If, plaintiffs’ ver under facts, arrestees for misdemean

sion of the private protected could have

ors agreed I would have exposure, from

parts majority that Fourth Amendment

with the implicated and vio would not be

interests the case before us. But that is not

lated. facts plaintiffs’ version of the

Because of a a constitutional violation

indicates Fourth right under the

clearly established unreasonable against

Amendment

searches, affirm the district we should summary judgment.

court’s denial America,

UNITED STATES

Appellee, SAVOY, Defendant-

Demetric

Appellant.

Docket No. 08-4900-cr. Appeals, States Court

United

Second Circuit.

Argued: March 2009. (M. Parker, May on the Decided: Todd Susan J. Walsh LLP, Walsh, brief), Moskowitz, Book & N.Y., York, Defendant-Appellant. New notes the that undermine Kelsey Wright a stood in front of Wright testified that CO plaintiffs, majority’s conclusion major- changing, the them while were admission, protected could have own their that, fully the fact ity consider does turning their backs privacy the CO was according parties, to both or CO,1 themselves towel wrapping plaintiffs-had to holding bag the into which booking the a half-wall in hiding behind they removed their clothes as deposit First, acknowledges majority the area. nearly it This would have made them. that one of the COs disregards then but arrestee to turn his impossible either Wright testified may have observed who successfully deposit his back to the CO and “required to stand were that arrestees bag. in the clothes him the entire him and face front of majority assumes that the Finally, the exchange and that the clothing exchange,” stripping occurred amidst free- obligatory or the half-wall place take near did not dialogue jail guards and spirited between private.” “option the to disrobe provide (as arrestees, defendants ac- instead of Second, majority the sim- Maj. Op. at 59. environment,” knowledge) in a “controlled he Kelsey testified that ignores that ply Kelsey Wright both described which in full view of a to disrobe was forced In one “[hjumiliating.” as the instance inmate, who that contained an holding cell (who a Kelsey when worked as corrections Kelsey. It is laughing standing was jail) questioned at another the CO officer have Kelsey could whether questionable disrobing procedure, Kelsey the regarding the as well as those eyes avoided the CO option.3 that he had no other was informed Third, majority dis- of the inmate. that, majority compounds its errors in- Kelsey’s testimony because misses jurisdiction standard-of-review sup- volving jail uniform into which he was this by offering dicta that contradicts Cir- was located on a bench posed change reach, precedent. Although concluding had walk while cuit’s outside of his he plain- available to the[ that “methods were to obtain the uniform.2 Under naked pri- of their circumstances, protect any viewing tiffs] it is unclear how Kel- those majority parts,” Maj. Op. at privacy maintained his be- vate sey could have disrobing Fourth, suggests that Wright testified that nonetheless hind a wall. of, would be constitutional because procedure or immedi- forced to inside he was of, cell, “briefly ‘seeing’ genitals during a man’s a in front ately gate holding at the not amount to a deposi- clothing exchange does During which stood CO. tion, Maj. Op. at 63. Then the confirmed that he search.” one of the COs majority seems to retreat from this state- exchanges in the hold- clothing conducted assumption, Kelsey testified as follows: “I had asked Despite majority’s it is not 3. 1. privacy C.O.], interests clear that an individual’s [do] ‘Do I this here?' [the him ex- preserved if he were forced to here,’ would be get changed and he said 'Do I have to ” pose his naked backside to CO. 'Yes, you do.' that, to reach the Kelsey testified in order bench, exactly "I had to move. I don't know many steps.” how writes, only prolonged thorough when it hold here need be “[w]e ment process personal “strip for the termed a search.” See N.G. Con necticut, clothing under the ob- prison 228 n. 4 Cir. F.3d (“ 2004) of a officer ‘Strip servation corrections is often search’ used as does by plaintiffs manner described applies inspec umbrella term that to all type protected by individuals.”). implicate tions of naked Maj. Op. Fourth at 65. Amendment.” Second, majority suggest seems to fact, discussed, has disrobing at issue accepted version of the defendants’ facts this implicate type case “does not

Case Details

Case Name: Kelsey v. County of Schoharie

Court Name: Court of Appeals for the Second Circuit

Date Published: May 22, 2009

Citation: 567 F.3d 54

Docket Number: Docket 07-0893-cv

Court Abbreviation: 2d Cir.