William Seltzer-Bey v. Paul Delo Don Roper Donna McCondichie James Reed Charles Gillam Daniel Blair James Amacker
66 F.3d 961
8th Cir.
1995
Check Treatment

*2 HEANEY, Before BOWMAN and Circuit KYLE,* Judges, Judge. District BOWMAN, Judge. Circuit inmate, Seltzer-Bey, William a Missouri appeals the District Court’s of sum- mary judgment to the defendant offi- § cials his U.S.C. 1983 action. We part, part, affirm in reverse and remand proceedings. for further complaint, Seltzer-Bey alleged In his con- by stitutional violations corrections officers at (PCC). Potosi Correctional Center In Count I, Seltzer-Bey alleged that Officer Daniel sexually Blair him in assaulted violation of the Fourth and Fourteenth Amendments. alleged daily He that Blair strip conducted during searches which he made sexual com- Seltzer-Bey’s penis ments about and but- alleged tocks. He also that on March 20 and April strip Blair conducted searches during which he rubbed but- nightstick tocks with and asked him wheth- something. er it reminded him of Seltzer- Bey submitted the affidavit of in- another mate, who attested that he witnessed Blair Seltzer-Bey. “harass” II, Seltzer-Bey alleged that de- fendants James Reed and Charles Gillam violated the Due Process Clause Four- * Kyle, ting by designation. Honorable Richard H. United States Minnesota, Judge District for the District of sit- denied, strip by placing him in a Amendment teenth 6,1992, as a form of L.Ed.2d 403 The court April April 4 to held cell from Depart- state-employed when- a doctor in violation of Missouri takes blood punishment, Regulation investigative IS21-1.2. without an administrative or of Corrections ment purpose, Paul Délo and the doctor’s actions do not consti- alleged that defendants He *3 approved and of the tute a “search” or “seizure” within the mean- Roper Don authorized III, Attson, Seltzer-Bey alleged ing In of the Fourth Amendment. 900 actions. Gillam, Attson, Reed, Roper, and F.2d at 1432-33. Based on that defendants the Dis- subjected Seltzer-Bey and unusual trict him to cruel Court held that failed to Delo Eighth in violation of the state a Fourth Amendment claim because he punishment strip alleged only in by placing satisfy him the cell that Blair acted to his Amendment clothing, bedding, any days personal investigato- without sex desires without for two water, floor, ry running purpose. with a concrete a con- or administrative bed, blowing a and cold air on crete slab for readily distinguishable We find Attson he was forced to eat him. He attested that in from the case at hand. The doctor Attson using washing toilet without after the meals search, purporting was not to conduct a and hands. his question the before the Court was whether non-investigatory his conduct nonetheless summary judg- granted The District Court Seltzer-Bey constituted a search. sufficient- prison officials on these three ment to the ly alleged purporting that Blair was to con- counts,1 complaint, dismissed the and denied searches, has duct and the state not directed Seltzer-Bey’s ap- motion to reconsider. On contrary. any our attention to evidence to the argues that the District peal, Seltzer-Bey however, argues, The state that because not have ruled on defendants’ Court should alleged illegitimate pur- Blair was to have an summary judgment motion when motions pose, his conduct did not constitute state discovery pending still and that the were prison action. hold that authorities and We granting summary erred District Court in. officers are state' actors this situation. See I, II, judgment on the of Counts and merits (8th Gunter, 1258, v. 32 F.3d 1259 .Thomas III. Cir.1994) (holding prison that authorities are de novo a district court’s We review actors). clearly state The fact that Blair’s summary judgment. of See Maitland may per- true motivation have been his own Minnesota, 357, F.3d 360 University v. 43 of gratification exempt him sonal does not from (8th Cir.1994). Summary judgment appro is liability of state for actions taken under color record, light in the priate when the viewed law. nonmoving party, the most favorable to Moreover, accepting allegations as his genuine of mate shows that there is no issue true, Seltzer-Bey a stated constitutional moving party to rial fact and the is entitled Palmer, 517, claim. Hudson v. See Fed. judgment as a matter law. See 530, 82 L.Ed.2d 393 56(e). R.Civ.P. (1984) (noting prisoner that retains constitu- un- remedy for harassment granted sum tional “calculated The District Court Jones, needs”); prison v. prison on both related to Watson mary judgment to the officials (8th Cir.1992) 1165, (holding and 980 F.2d the Fourth Amendment search seizure complaint of sexu- equal pro allegations that in verified the Fourteenth Amendment harassing created a respect ally pat-down searches components of Count I. With tection issue, dispute precluding court material factual to the search and seizure the case to judgment). Thus we will remand a case which a relied on Ninth Circuit proceedings on District Court for further doctor drew a blood government-employed Seltzer-Bey’s I of component of Count sample States v. this for medical reasons. United (9th Attson, Cir.), complaint. cert. 900 F.2d appeal. disposition Court’s of the other 1. The District complaint is not at issue in this counts of the Seltzer-Bey respect equal did not come forward with evi-

With claim, properly any injury the District Court that protection dence he suffered or adverse Seltzer-Bey not a consequences that did state as a his concluded health result of con- any finement, Seltzer-Bey allege not facts claim. did or that the defendants knew and differently treated from disregarded to show that he was an excessive risk to his health or belonged pro because he safety. other inmates He did not show that the named Department tected class. Divers personal See knowledge defendants had (8th Cir.1990) Corrections, 921 F.2d any conditions of his confinement or knew of curiam) (holding plaintiff must (per safety. excessive risk to health or his “invidiously treatment dis show he received these circumstances the officials are inmates”). by other similar to that received clearly qualified immunity, entitled to summary judg grant of The District Court’s properly granted the District Court thus *4 component of equal protection ment on the summary judgment on Count III. I affirmed. Count is Finally, we that hold the District Turning Seltzer-Bey’s II of to Count Court acted within its discretion when it complaint, the we note that Due Process summary decided the judgment defendants’ give liberty an a Clause does not inmate compelling motion without the defendants to general remaining popula interest in in the comply Seltzer-Bey’s discovery with re Seltzer-Bey tion. has not directed our at not, quests. Seltzer-Bey by did affidavit or any regulations or that tention to statutes otherwise, identify what facts he could have liberty create such a interest. See Sandin v. through discovery obtained that would have — Conner, U.S. —, —, 2293, 115 S.Ct. helped oppose summary him judgment. See (1995) 2300, (noting that 132 L.Ed.2d 418 924, Corp., v. Waible McDonald’s 935 F.2d liberty pro may state interest due create for (8th Cir.1991) curiam) (per (holding 926 that protection “atypical significant and cess from summary judgment ruling need not be de hardship”). regulation Seltzer-Bey cit layed by pending compel discovery to motion ed, IS21-1.2, Dep’t Reg. Mo. of Corrections discovery sought prevent if entry would not interest, liberty creates no and our research summary judgment); of see also Fed. any up has not turned relevant Missouri 56(f). R.Civ.P. regulations. Therefore statutes or the Dis reasons, foregoing For the we affirm the properly granted judg trict Court summary judgment in favor of the defendant against Seltzer-Bey ment on Count II. I, prison II, III, officials on Counts III, Seltzer-Bey In Count raised a except part alleges that of Count I that challenge to conditions he the encountered of violation the Fourth Amendment. On that segregation PCC’s administrative unit. The portion only, I Count we reverse the sum- prison District Court held that the officials mary judgment and remand this case to the qualified immunity. were entitled to To es proceedings. District Court for further tablish that his conditions of confinement vio Amendment, Eighth Seltzer-Bey lated the HEANEY, Judge, concurring. Circuit (1) alleged deprivation must show that the is agree majority’s “ I with the discussion of sufficiently serious that it denies mini ‘the Seltzer-Bey’s ” I complaint. Count I also necessities,’ mal civilized measure of life’s agree prison that the officials were entitled (2) prison deliberately the officials were qualified immunity to on III indifferent ‘“an excessive risk to inmate complaint and that the district court did not Delo, safety.’” health or v. 49 Williams compelling abuse its discretion in not (8th Cir.1995) 442, (citing F.3d 445 Farmer v. comply Seltzer-Bey’s defendants to with dis- — Brennan, —, —, U.S. covery requests. 1970, (1994)). 1977, 128 L.Ed.2d 811 We Eighth II, respect have held that the Amendment does agree With to Count I with the absolutely placing not majority Seltzer-Bey bar an inmate in a cell has failed dem- bedding. without clothes See Johnson v. onstrate the existence of a state-created lib- Boreani, (8th Cir.1991). erty believe, however, 946 F.2d interest. I that on to the must be limited the case this issue circumstances, the In other presented.

facts Seltzer-Bey in placement of

prison officials’ “atyp an likely constitute strip cell would hardship on the inmate significant

ical and ordinary incidents of to the

relation departure be a “dramatic

life” and would basic conditions”

from the confinement, process giving rise to due thus — Conner,

protections. Sandin U.S. —,

—, 115 S.Ct.

L.Ed.2d *5 SHERBERT, Appellee,

Timothy R. CORPORATION,

ALCAN ALUMINUM

Appellant.

No. 95-1219. Appeals, States Court

United

Eighth Circuit. Sept. 1995.

Submitted 4, 1995.

Decided Oct.