771 F.2d 556 (1st Cir. 1985), 84-1736, Blackburn v. Snow

Docket Nº:84-1736.
Citation:771 F.2d 556
Party Name:Ruth BLACKBURN, Plaintiff, Appellee, v. Linwood SNOW, et al., Defendants, Appellants,
Case Date:August 22, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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771 F.2d 556 (1st Cir. 1985)

Ruth BLACKBURN, Plaintiff, Appellee,


Linwood SNOW, et al., Defendants, Appellants,

No. 84-1736.

United States Court of Appeals, First Circuit

August 22, 1985

Argued Feb. 5, 1985.

Rehearing and Rehearing En Banc Denied Sept. 20, 1985.

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Paul J. Sullivan and Francis J. O'Rourke, Boston, Mass., for defendants, appellants.

Jeffrey W. Kobrick, Boston, Mass., with whom Charles R. Capace, Boston, Mass., was on brief, for plaintiff, appellee.

Before BREYER and ALDRICH, Circuit Judges, and PETTINE, [*] Senior District Judge.

PETTINE, Senior District Judge.

At issue in this case is whether the federal Constitution permits a correctional institution to require that all men, women and children wishing to visit inmates at the institution submit to a strip search before doing so. Ruth Blackburn, the plaintiff-appellee in this case, was required to submit to such a search on three occasions in 1977 when she sought to visit her brother at the Plymouth County Jail. The searches were conducted pursuant to an order issued by then-County Sheriff Linwood Snow, one of the defendant-appellants here, which mandated that all visitors be strip searched, whether or not there was any cause to believe they were carrying contraband. Blackburn subsequently challenged the constitutionality of the blanket strip search policy. After the district court entered a temporary restraining order, Sheriff Snow agreed to discontinue the policy permanently. A bench trial on Blackburn's damages claim followed. Ruling that the strip search policy violated the First and Fourth Amendments, the district court entered judgment against Snow and defendant-appellant Plymouth County, and awarded Blackburn $177,040 in compensatory damages, as well as prejudgment interest on that sum. The Sheriff and the County now appeal from that judgment, assigning a host of factual and legal errors. Because we find that the strip searches violated Blackburn's Fourth Amendment rights, we affirm as to liability and compensatory damages, but vacate and remand for specific findings as to whether an award of prejudgment interest was necessary.


Ruth Blackburn's brother, Richard McCarthy, was transferred to the Plymouth County Jail in January, 1977. Prior to April, 1977, when Sheriff Snow issued the order requiring all visitors to be strip searched, Blackburn had, without incident, visited her brother on a weekly basis. She had been virtually his only visitor. During the period from January through March, Blackburn had been fully subject to the security measures in effect before the advent of the strip search rule. These measures included "pat frisks" and metal detector searches, both of which were performed while the visitor was fully clothed. In addition, visitors were required to leave all personal possessions and money with

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officials before entering the visiting area. Once inside the visiting room, separate seating for inmates and visitors was provided. A television camera monitored ninety percent of the visiting area and two roving corrections officials were present in the room. Finally, inmates were strip searched following each visit.

In April, when Blackburn arrived at the Jail, she noticed a new sign announcing that all visitors would be "skin searched." She took the term "skin search" to mean the "pat frisk" to which she had been routinely subject. 1 When she reached the front of the line, however, it became clear that she would have to undress and be strip searched in order to visit her brother. She was taken to a small room, where she removed her clothing. During the search that ensued, a female matron inspected Blackburn by, among other things, examining her armpits, lifting her breasts and crouching to view her anus. Blackburn testified that she was sweating and shaking, and felt nervous and humiliated during the procedure.

When Blackburn next returned to the Jail, she was again required to submit to a strip search--this time performed by a different matron. Responding to Blackburn's inquiry whether this search was "really necessary," the matron stated that it was, if Blackburn wished to see her brother. This second strip search took a longer period of time and Blackburn, in her testimony, indicated that she thought this matron "seemed to be enjoying what she was doing." The matron lifted Blackburn's breasts twice and crouched to spread Blackburn's buttocks with her hands, in order to examine her anus and crotch area with a flashlight. Blackburn testified that she was sweating and shaking more severely this time, had trouble standing, and left sweatprints on the wall she was made to lean against while "spread eagled."

Following this visit, Blackburn, and a younger brother who accompanied her that day, were leaving the Jail by cutting across a lawn that connected to the road. They were stopped by Sheriff Snow, who admonished them that this lawn was off limits to visitors because of the danger that visitors might use it to make a contraband "drop" for inmates. Following a conversation in which Blackburn protested that she was carrying no contraband, the Sheriff told her that he didn't "want to see her face around here anymore."

The last time Blackburn went to the Jail, she was required once more to submit to a strip search. After the completion of the search, however, she was informed that she had been barred from visiting the Jail. She was not told why. The Sheriff later testified that he had given this order as a result of the incident on the lawn--although he had not so notified Blackburn--because he believed that the plaintiff had made an obscene gesture towards him at the close of their conversation. 2 Shortly thereafter, Blackburn brought suit challenging the legality of the visitor strip search policy.

It was undisputed at trial both that the above-recounted searches had taken place, and that Blackburn, herself, had never been suspected of attempting to secretly bring contraband into the institution. Rather, the Sheriff emphatically stated that Blackburn was strip searched as a matter of routine procedure which, under the terms of his order, applied equally to all visitors--including infants and children. Indeed, the Sheriff believed that it was in

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the very uniformity of the strip search policy in which its fairness inhered; by strip searching all visitors, without regard to any individualized suspicion, the Sheriff felt he could avoid the perception of unfairness, yet effectively check the flow of contraband into the Jail. The Sheriff testified that he had originally issued the visitor strip search order in 1974, but that he learned in April, 1977 that it was not being followed. He discovered this after investigating an incident in which an inmate who obtained the drug Valium had attempted to assault an officer. Although the Sheriff testified that the Valium involved in that incident had never been conclusively linked to any visitor, and that between 1974-1977 there had been only five incidents involving visitors and contraband, he nonetheless felt that the incident underscored the grave danger posed by drugs in the institution. Accordingly, pursuant to his statutory authority as Master of the Jail to fashion policies regarding visitation, he reissued his 1974 strip search order in April, 1977. While, by his own testimony, the Sheriff indicated that he had never heard of another penal institution that strip searched every visitor--a view shared by plaintiff's prison expert, Joseph Cannon--the Sheriff nonetheless believed that he was within his rights to issue the order.

The district court granted a temporary restraining order against the rule in May, 1977, and in January, 1978, the Sheriff agreed permanently to abandon the practice of strip searching all visitors. Nine days of bench trial on Blackburn's claim for damages followed. In an opinion dated May 9, 1984, 586 F.Supp. 655 (D.Mass.1984), and a supplemental opinion dated August 7, 1984, 588 F.Supp. 1386 (D.Mass.1984), the district court ruled that the strip search policy violated the First and Fourth Amendments. The court believed that Blackburn had a First Amendment right to a visit (though not necessarily a contact visit) with her brother and that the search rule was an "unnecessarily broad," 586 F.Supp. at 660, restriction on the exercise of that right. The court also concluded that, because of the highly intrusive nature of the strip searches at issue--body cavity searches which involved not only visual inspection, but manipulation of breasts and buttocks, as well 3--a blanket search rule could not satisfy the Fourth Amendment's reasonableness requirement.

After rejecting the Sheriff's qualified immunity defense and the County's argument that it was insufficiently involved in the administration of the Jail to have been found liable for the strip search policy, the court awarded Blackburn $177,040 in compensatory damages. The damages were based on the court's factual findings that the searches had directly caused Blackburn extensive physical and psychological harm. Because the court also found that an award of prejudgment interest was necessary to compensate Blackburn fully for this harm, it made such an award, which amounted to $151,080. 588 F.Supp. 1386, 1389.

On appeal, Snow and the County press four claims. First, appellants argue that neither the First nor Fourth Amendment prohibits adoption of the strip search policy at issue here. Second, the Sheriff argues that he was entitled to qualified immunity from liability. Third, the County argues that it may not properly be held liable for the Sheriff's actions. Fourth, both appellants challenge the award of compensatory damages as excessive and the award of prejudgment interest as inappropriate under the circumstances.

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