311 F.3d 899 (8th Cir. 2002), 01-2574, Hill v. McKinley

Docket Nº:01-2574.
Citation:311 F.3d 899
Party Name:Robin HILL, Plaintiff/Appellee, v. Kevin McKINLEY; Michael Miller; Timothy Shoppe; Barry Thomas; Jennifer Holmes, Defendants/Appellants, Janet Doe; Paul Fitzgerald; Sheriff of Story County, Iowa; Michelle Bahr, Defendants.
Case Date:November 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 899

311 F.3d 899 (8th Cir. 2002)

Robin HILL, Plaintiff/Appellee,

v.

Kevin McKINLEY; Michael Miller; Timothy Shoppe; Barry Thomas; Jennifer Holmes, Defendants/Appellants,

Janet Doe; Paul Fitzgerald; Sheriff of Story County, Iowa; Michelle Bahr, Defendants.

No. 01-2574.

United States Court of Appeals, Eighth Circuit.

November 26, 2002

Submitted: Dec. 14, 2001.

Page 900

[Copyrighted Material Omitted]

Page 901

Christopher L. Bruns, argued, Cedar Rapids, IA, for appellant.

Patricia M. Hulting, argued, Des Moines, IA, for appellee.

Before WOLLMAN,1 Chief Judge, FAGG, and HANSEN, Circuit Judges.

WOLLMAN, Chief Judge.

Robin Hill brought this action under 42 U.S.C. § 1983, alleging that Kevin McKinley, Michael Miller, Timothy Shoppe, Barry Thomas, and Jennifer Holmes, all jail guards, Paul Fitzgerald, Sheriff of Story County, Iowa, and Michelle Bahr, the jail matron, violated her Fourth Amendment right to privacy. Hill also alleged a violation of her privacy rights under Iowa state law. The defendants raised the defense of qualified immunity to the federal claim in their answer, but the district court deferred ruling on this motion until after trial. The jury was given a single charge for both federal and state claims, and it found for Hill on both counts, awarding $2,500 in damages. The district court granted Fitzgerald's qualified immunity claim and dismissed the suit against Bahr based on the statute of limitations. The district court denied the remaining defendants' motions for judgment as a matter of law, qualified immunity, and for a reduction of damages, and granted attorney's fees to Hill. The remaining defendants appeal the rulings adverse to them. We affirm the district court's denial of judgment as a matter of law as to the Iowa state law claim and affirm the jury's award of damages. We reverse the district court's denial of qualified immunity on the federal claim, as well as the award of attorney's fees dependent on that federal claim.

I.

On the evening of August 17, 1996, Hill was arrested for public intoxication while walking home from a bar in Nevada, Iowa. She had consumed a large amount of alcohol—more than three hours after her arrest, her blood alcohol content was measured at .306 g/dL. Michael Miller and Jennifer Holmes were on duty at the jail when a police officer, who is not a defendant in this action, brought Hill to the jail. The officer told them that Hill had assaulted another officer. Hill was uncooperative during the booking process, yelling and cursing at Holmes and Miller. The officers placed Hill in a holding cell, where she pounded and kicked at the door of the cell. After a short period of time, Holmes and Miller decided to place Hill in the jail's padded cell. Hill cooperated with this transfer. Written jail policy states that prisoners placed in the padded cell are not allowed to wear normal clothing but instead must wear a paper gown or nothing at all. Holmes contends that she offered Hill a paper gown before the transfer but that Hill refused to wear it. Hill claims that she was not offered the gown and that Miller observed her remove her clothing. In any case, Hill was naked while in the padded cell. At some times while in this cell, she was quiet, but at other times she yelled and struck at the walls and door. Miller and Holmes claim that they were concerned that Hill was going to hurt herself.

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Defendants Michelle Bahr, Tim Shoppe, Kevin McKinley, and Barry Thomas arrived shortly before the scheduled 11:00 p.m. shift change. Together with the newly arrived officers, Miller and Holmes decided to remove Hill from the padded cell and place her on a restraining board. The defendants claim that the decision was made for Hill's safety and that they decided to make the move at that time in part because the transfer required a greater number of guards than were on duty for each shift. Jail policy required the guards to quickly move prisoners from the padded cell to the restraint board, and the practice was to do so without regard to the prisoner's state of dress. Thomas and McKinley testified that they had previously been injured by prisoners they were attempting to restrain. Prior to moving Hill, the officers closed windows and food slots on nearby cells. The officers then removed Hill from the cell, walked her down a hall into another room, and strapped her to the restrainer board face-down, naked, and in a spread-eagle position. No one other than the defendants observed Hill while she was naked. She remained strapped to the board for approximately three hours. At some point, Bahr covered Hill's buttocks with a towel, although the parties dispute how long Hill was on the board before this was done. After Hill was released from the board, she was given a prison uniform to wear.

II.

Defendants argue that the district court should have granted them judgment as a matter of law on the Fourth Amendment claim based on qualified immunity. This case is unusual in that the determination of the question of qualified immunity was first decided after a trial on the merits. The Supreme Court has emphasized repeatedly that qualified immunity is an "entitlement not to stand trial," and rulings on the issue should be made early "so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Like absolute immunity, the defense of qualified immunity "is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Therefore, denials of qualified immunity are immediately appealable under 28 U.S.C. § 1291, "notwithstanding the absence of a final judgment." Id. at 530, 105 S.Ct. 2806. The defendants raised the qualified immunity defense in their answer to Hill's third amended and substituted complaint, but did not file a motion for summary judgment, as is the usual practice. Although the defendants did not receive the benefit of an early resolution to their claim of qualified immunity, the defense is not waived by failure to assert it by motion prior to trial. Goff' v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999). On appeal from a post-trial rejection of a qualified immunity defense, we consider the evidence in a light favorable to the prevailing party. Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999); Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997). The issues of whether the evidence, when viewed in this light, establishes a constitutional violation and, if so, whether the right violated was clearly established at the time are questions of law that we review de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994).

A.

The threshold inquiry in a qualified immunity analysis decided on a motion for summary judgment is whether the plaintiff has alleged facts sufficient to establish a constitutional violation. Hope v. Pelzer, — U.S. —, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).

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This inquiry is made first so that even if the right asserted is not clearly established, a determination that it was violated might "set forth principles which will become the basis for a holding that a right is clearly established." Saucier, 533 U.S. at 200, 121 S.Ct. 2151 (2001). In reviewing this posttrial denial of qualified immunity, we examine the evidence presented at trial in a light favorable to Hill to determine if the evidence was so one-sided that defendants were entitled to prevail as a matter of law. Thompson, 110 F.3d at 721. Hill argued that her privacy rights were violated in three particular ways: 1) she was required to disrobe in the presence of a male officer; 2) she was required to walk through the jail nude in the presence of male officers; and 3) she was restrained nude on a restrainer board in the presence of male officers.

With respect to Hill's first claim, the parties dispute which guard required Hill to disrobe when she was placed in the padded cell. Hill testified that it was Miller, and Holmes testified that she had required Hill to undress. The jury was entitled to credit Hill's testimony that it was a male guard who required her to disrobe. Even if it was a male guard, however, we cannot say in light of precedent that it is a violation of a prisoner's Fourth Amendment privacy rights for a male guard to require a loud and violent female prisoner to disrobe in his presence before placing her in a padded cell for her own safety. Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990) (opposite sex surveillance performed on the same basis as same-sex surveillance not unreasonable where justified by safety and equal employment concerns); Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir. 1989) (visual body cavity searches conducted in view of other prisoners upheld absent substantial evidence that it was an exaggerated response to security concerns); see also Lee v. Downs, 641 F.2d 1117, 1120-21 (4th Cir. 1981) (upholding search of inmate's vagina by a female nurse in the presence of two male guards).

Regarding Hill's second claim, there is no dispute that Hill was unclothed when she was taken from the padded cell to the exercise room where the restrainer board was located. Defendants followed their ordinary practice in moving a prisoner who is unruly enough to justify removal from a padded cell to restraints. Because there were not enough female guards available to transfer Hill, both male and female guards participated in the transfer. No one other than the defendants saw Hill naked as she walked from the padded cell to the exercise room. In light of these circumstances, we hold that use of male guards in an otherwise justified transfer of an unruly and naked female prisoner is not a violation of the Fourth Amendment. Timm, 917 F.2d at 1102; Franklin, 883 F.2d at 656-57.

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