Poe v. Leonard

• Decision Date: 19 February 2002
• Docket Number: Docket No. 00-9024.
• Citation: 282 F.3d 123
• Parties: Peggy POE, Plaintiff-Appellee, v. John LEONARD, Defendant-Third Party-Plaintiff-Appellant, Douglas Pearl, Defendant, State of Connecticut, Third-Party-Defendant.
• Court: U.S. Court of Appeals — Second Circuit

282 F.3d 123

Peggy POE, Plaintiff-Appellee, v. John LEONARD, Defendant-Third Party-Plaintiff-Appellant Douglas Pearl, Defendant State of Connecticut, Third-Party-Defendant.

Docket No. 00-9024.

United States Court of Appeals, Second Circuit.

Argued June 5, 2001.

Decided February 19, 2002.

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Terrence M. O'Neill, Assistant Attorney General, Hartford, CT, on behalf of Richard Blumenthal, Attorney General for the State of Connecticut; Lynn D. Wittenbrink and Gregory T. D'Auria, Assistant Attorneys General, on the brief, for Defendant-Appellant.

Kathryn Emmett, Emmett & Glander, Stamford, CT; Christine Caulfield, on the brief, for Plaintiff-Appellee.

Before: CABRANES, STRAUB, and SACK, Circuit Judges.

STRAUB, Circuit Judge.

Defendant-Appellant John Leonard appeals from an order of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge) denying his motion for summary judgment, which asserted a defense of qualified immunity, and denying his motion in limine to exclude Plaintiff Appellee Peggy Poe's expert witness.

This appeal arises out of alleged misconduct by Douglas Pearl, then a trooper with the Connecticut State Police ("CSP"), who surreptitiously videotaped Poe undressing at the CSP Training Center after asking Poe to appear in a training video. Poe sued Pearl and Captain John Leonard, Pearl's former supervisor, in their individual capacities under 42 U.S.C. § 1983, alleging that, while acting under color of state law, Pearl violated her constitutional right to privacy and Leonard violated her rights by his gross negligence or deliberate indifference in failing to adequately train, supervise, and discipline Pearl.

Both defendants moved for judgment on the pleadings, and the District Court granted the motion on the state law claims of negligence but denied the motion in all other respects. The District Court ruled that Poe had stated a claim for the violation of her constitutional right to privacy under the Fourteenth Amendment in her unclothed body and that this right was clearly established before the incident occurred. See Poe v. Pearl, No. 94 Civ. 2058(AHN), 1997 WL 76576, at *6 (D.Conn. Jan. 29, 1997).

Approximately two and one-half years later, Leonard moved for summary judgment on the basis of qualified immunity. Leonard also moved in limine to preclude the testimony of Poe's expert witness, Dr. Louis A. Mayo. The District Court denied both motions. In its ruling, the District Court clarified that the scope of Poe's claim against Leonard was Leonard's alleged gross negligence in his managing, supervising, training, and disciplining of Pearl. The District Court concluded that genuine disputes of material fact existed as to whether Leonard was grossly negligent and that these disputes precluded finding that, as a matter of law, Leonard's conduct was objectively reasonable.

This appeal again forces this Court to address the often complex subject of qualified immunity, particularly as it relates to the existence of appellate jurisdiction, to a supervisor's responsibility over a subordinate who commits an intentional constitutional tort, and to a plaintiff's constitutional right of privacy in a non-seizure, non-prisoner context. We hold that in order for a supervisor to be held liable under section 1983, both the law allegedly violated by the subordinate and the supervisory liability doctrine under which the plaintiff seeks to hold the supervisor liable must be clearly established. By 1993, it was clearly established that a police officer violates a person's Fourteenth Amendment right to bodily privacy when that officer views, photographs or otherwise records another's unclothed or partially unclothed body, without that person's consent. By 1993, it was also clearly established that a supervisor could be liable if he had actual or constructive notice that it was highly likely that his subordinate, while on duty, might violate another's right to privacy in his or her unclothed body, but the supervisor deliberately or recklessly disregarded that risk by failing to take reasonable action to prevent such a violation, and that failure caused the constitutional injury to the plaintiff.

Construing all the facts and drawing all reasonable inferences in Poe's favor, we conclude that Leonard is entitled to qualified immunity because the evidence that Poe asserts should have put Leonard on notice that he needed to supervise Pearl more closely is insufficient as a matter of law to demonstrate that Leonard is liable as Pearl's supervisor under clearly established law. Put another way, Poe fails to adduce enough evidence to establish that Leonard's inaction was reckless or deliberately indifferent to a high risk that Pearl would violate Poe's constitutional rights. Moreover, we conclude that reasonable supervisors in Leonard's position, knowing what he knew, could disagree as to whether his inaction was unlawful. Therefore, we reverse the order of the District Court denying Leonard's motion for summary judgment and remand to the District Court with instructions to dismiss with prejudice the complaint against Leonard.

BACKGROUND

Because this is an appeal from the denial of a motion for summary judgment, we construe the evidence in the light most favorable to Poe, the non-moving party. See, e.g., Goldberg v. Cablevision Sys. Corp., 261 F.3d 318, 324 (2d Cir.2001).

I. Factual Background

A. The Filming of the Trooper Candidate Testing Videos

At some time during the fall of 1992, several administrative officials of the Connecticut State Police ("CSP") and the Connecticut Department of Administrative Services began to revise the testing procedures for trooper candidates at the CSP Training Academy ("police academy"). Captain Leonard, who had just assumed command of the CSP Bureau of Selections and Training,¹ supervised this ongoing project along with Dr. Martin Anderson ("Dr. Anderson"), the Chief Personnel Psychologist for the State of Connecticut. A particular focus of this project was the development of several testing videos, designed to screen out those trooper candidates with poor observational and communicative skills. In essence, trooper candidates would be required to view a videotaped scene of a crime or other representative "real life" scenario that CSP officers typically confront and then to explain what they had observed. As originally planned, the video scenes would include a variety of circumstances: a depiction of a person driving while intoxicated, a man with a weapon who stops and robs a victim, a simple trespass, a "static" crime scene, and a scene with a distraught victim.

During this project, Leonard met with Dr. Anderson and with Pearl, who was the trooper responsible for the production of training and public service videos. Although Pearl had several supervisors at the police academy, Leonard directly supervised Pearl in connection with the testing videotape production.

Pearl, unfortunately, had a history of inappropriate or otherwise problematic behavior with female civilians while on duty. Pearl's personnel file contains four separate improper incidents in a seven-year period, two of which bear mentioning for our purposes. In 1989, Pearl was given an unsatisfactory performance evaluation report for photographing several young women in swimsuits in a private bedroom while filming a public safety announcement. In 1983, a woman filed a formal complaint against Pearl, alleging that he made "numerous unwanted and improper advances" toward her and improperly touched her when he escorted her to and from the hospital following her epileptic seizure. These incidents, however, all occurred well before Leonard assumed command.

Although the incidents were described in Pearl's personnel file, at no time prior to the incident involving Poe did Leonard review Pearl's personnel file.² Leonard was unaware of, and was not informed by his predecessor³ of, any performance or disciplinary issues involving Pearl at any time prior to the incident involving Poe.⁴ In his affidavit, Leonard indicated that it "is not the policy or practice of the CSP for supervisors newly assigned to supervisory positions to review the personnel, disciplinary or internal affairs files of subordinate employees without some justifiable reason to do so." Leonard Aff. ¶ 11. Leonard also testified during his deposition that while outgoing supervisors and their replacements may discuss informally any pending personnel problems, the CSP had no formal policy of outgoing supervisors providing such information to their replacements.

Unaware of Pearl's history, Leonard gave him "blanket permission" to make any arrangement that Pearl saw fit for filming the scenes. Although Leonard did not supervise any of the actual filming by Pearl, he viewed the draft videos Pearl produced. Of particular relevance to this appeal and as pressed by Poe is the static crime scene video, produced before the incident involving Poe. This crime scene features a motel room in disarray, with beer bottles and articles of clothing strewn about, and a gun on the bed. As Pearl, the cameraperson, films the inside of the bathroom, he eventually focuses on bloodstains on the wall and the body of a gagged, female victim in the bathtub with her clothes in disarray.

Poe emphasizes two portions of the video: a focus on a bra on the bed and a lingering shot on the victim's upper thigh region. The entire crime scene lasts for approximately one minute and forty-five seconds on the testing video. During that time, Pearl pans the camera to the bra on the bed for approximately one-half of one second, and later returns to focus on the bra for approximately two seconds. Pearl also focuses on other articles of clothing in the room. For example, he focuses on a pair of men's black socks on the floor for one second. In between the shots of the bra, Pearl films the disorder by the dresser for approximately fifteen...