288 F.3d 1254 (10th Cir. 2002), 00-1395, Farmer v. Perrill

Docket Nº:00-1395
Citation:288 F.3d 1254
Party Name:Farmer v. Perrill
Case Date:May 03, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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288 F.3d 1254 (10th Cir. 2002)

Dee Deidre FARMER, Plaintiff-Appellee,


William PERRILL, Warden; J. Graham, Chief Correctional Supervisor; Douglas Gesner, Correctional Officer, Defendants-Appellants.

No. 00-1395.

United States Court of Appeals, Tenth Circuit

May 3, 2002

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[Copyrighted Material Omitted

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

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

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

HOLLOWAY, Circuit Judge.

Plaintiff/appellee Dee Farmer brought suit in 1993 against three individual officers of the Englewood Federal Correctional Facility (FCI Englewood) in Littleton, Colorado, alleging that the defendants/appellants had infringed her constitutional rights by conducting strip searches, and seeking money damages under Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 1 Defendant/appellant Perrill was the warden at the institution at the relevant time, defendant Graham was Chief Correctional Officer and defendant Gesner was an officer assigned to the property room who conducted one of the allegedly unlawful searches.

Defendants filed a motion to dismiss or alternatively for summary judgment which the district court treated as a motion for summary judgment. The district court determined that defendants had not shown that they were entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and its progeny and so denied the motion. Defendants bring this appeal, invoking our jurisdiction under 28 U.S.C. § 1291, which authorizes appeals from final decisions of the district courts. Defendants contend that the order denying their motion for summary judgment is appealable under section 1291 as interpreted in cases such as Mitchell v. Forsyth, 472 U.S. 511,

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105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). As further explained below, we conclude that we do have jurisdiction and we affirm the orders of the district court.


Plaintiff describes herself as a pre-operative, male-to-female transsexual. 2 Although she is biologically male, she prefers to be referred to as feminine, and we will respect that wish. During the time of the events underlying this appeal, she was incarcerated in the male population, as apparently she has been at all times that she has been in the federal prison system. She does not challenge that classification in this action.

The events at issue occurred while plaintiff was incarcerated in the Special Housing Unit (SHU) at FCI-Englewood. The SHU is a high security area divided into an administrative detention unit and a disciplinary detention unit. Plaintiff had been in both divisions during her time in the SHU. Under the prison's policies, prisoners in the SHU who leave their cells to go to the recreation yard must submit to a "visual search" on return to the cell block. A visual search requires the inmate to completely disrobe and "present" all areas of the body, including the genitals and anus, for inspection.

Plaintiff protested that the strip searches were unnecessary because the recreation yard was secure and the inmates were closely supervised there. She also alleged that the searches were conducted in an open area where she was viewed by a number of other inmates, in spite of the Bureau of Prisons' own regulation (28 C.F.R. § 552.11) requiring visual searches to "be made in a manner designed to assure as much privacy to the inmate as practicable." Her administrative complaints were fruitless, and she commenced this lawsuit in 1993.


The defendants' motion for summary judgment was referred to a magistrate judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The magistrate judge recommended that the motion be denied. The district judge subsequently agreed with all key portions of the magistrate judge's recommendation and denied the motion. The judge also denied defendants' motion for reconsideration.

The district judge began his analysis by noting that the Supreme Court has mandated that a balancing approach be applied because the reasonableness of various limitations on inmates' constitutional rights is not capable of precise definition. Thus, the district judge sought to balance "the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The judge noted that the Court in Bell found that body cavity searches of detainees on less than probable cause after contact visits may be reasonable. The court further noted that since Bell v. Wolfish, courts have approved strip searches that were conducted every time prisoners in administrative segregation, such as plaintiff, left their cells for any purpose. 3

Defendants asserted in their brief in support of their motion that the searches were conducted in the privacy of a shower

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stall, but plaintiff responded with affidavits maintaining that the searches were conducted in an open area in full view of all other inmates and a number of staff. The district judge acknowledged that in certain circumstances searches conducted in conditions even less private than those alleged by the plaintiff have been held not to have violated inmates' constitutional rights. The court concluded, however, that these authorities were insufficient to demonstrate that the defendants in this proceeding were entitled to qualified immunity because

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

Order at 4, Aplt.App. 194.

The judge went on to find that there were disputed issues of fact about whether the searches were conducted in an open area. He also held that the defendants had not "satisfactorily shown" that there were legitimate penological reasons for the manner in which the searches were conducted.



This court is authorized under 28 U.S.C. § 1291, to review "final decisions" of the district courts. Orders denying qualified immunity to public officials come within the meaning of "final decisions" to the extent that they present only issues of law for review:

Orders denying qualified immunity before trial are appealable to the extent they resolve abstract issues of law. A determination that the law allegedly violated by the defendant was clearly established at the time of the challenged actions is an abstract issue of law that is immediately appealable. A determination that under either party's version of the facts the defendant violated clearly established law is also immediately appealable. However, government officials cannot appeal pretrial denial of qualified immunity to the extent the district court's order decides nothing more than whether the evidence could support a finding that particular conduct occurred. An order denying qualified immunity on summary judgment is not appealable if it merely determines the facts asserted by the plaintiff are sufficiently supported by evidence in the record to survive summary judgment.

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

Defendants have framed the issues on appeal in light of these principles, accepting for purposes of this appeal the plaintiff's evidence that the searches were conducted in the open. 4 In other words, we have for review a "determination that under [the plaintiff's] version of the facts the defendant[s] violated clearly established law ...." Id. Therefore, we have jurisdiction over these issues. 5

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Our standard of review for such issues is well established:

We review the district court's resolution of qualified immunity issues on summary judgment de novo. When a § 1983 defendant raises the defense of qualified immunity on summary judgment, the plaintiff must show the law was clearly established when the alleged violation occurred and must come forward with sufficient facts to show the official violated that clearly established law. The defendant bears the normal summary judgment burden of showing no material facts that would defeat the qualified immunity defense remain in dispute. For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must be as plaintiff maintains.

The contours of the right must be sufficiently clear that a reasonable...

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