782 F.3d 968 (8th Cir. 2015), 13-2834, Story v. Foote

Docket Nº:13-2834
Citation:782 F.3d 968
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:Kendrick C. Story, Plaintiff - Appellant, v. Maxcie Foote, Major, Randall Williams Unit, ADC; John Lowe, Deputy Warden, Randall Williams Unit, ADC; Larry May, Chief Deputy Director, Randall Williams Unit, ADC; John Herrington, Captain, Randall Williams Unit, ADC, Defendants - Appellees
Attorney:For Kendrick C. Story, Plaintiff - Appellant: Tory H. Lewis, FRIDAY & ELDREDGE, Little Rock, AR. Kendrick C. Story, Plaintiff - Appellant, Pro Se, Tucker, AR. For Maxcie Foote, Major, Randall Williams Unit, ADC, John Lowe, Deputy Warden, Randall Williams Unit, ADC, Larry May, Chief Deputy Directo...
Judge Panel:Before BYE, COLLOTON, and GRUENDER, Circuit Judges. BYE, Circuit Judge, concurring in part and dissenting in part.
Case Date:April 09, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

Story, an African-American inmate in Arkansas, sued four correctional officers under 42 U.S.C. 1983, alleging that they violated his constitutional rights during a visual body-cavity search that occurred after Story returned to the Williams Correctional Facility from the Pine Bluff unit school. Story alleges that officers told him to remove his clothes, to lift his genitals, and to bend over and... (see full summary)

 
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782 F.3d 968 (8th Cir. 2015)

Kendrick C. Story, Plaintiff - Appellant,

v.

Maxcie Foote, Major, Randall Williams Unit, ADC; John Lowe, Deputy Warden, Randall Williams Unit, ADC; Larry May, Chief Deputy Director, Randall Williams Unit, ADC; John Herrington, Captain, Randall Williams Unit, ADC, Defendants - Appellees

No. 13-2834

United States Court of Appeals, Eighth Circuit

April 9, 2015

Submitted September 11, 2014

Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff.

For Kendrick C. Story, Plaintiff - Appellant: Tory H. Lewis, FRIDAY & ELDREDGE, Little Rock, AR.

Kendrick C. Story, Plaintiff - Appellant, Pro Se, Tucker, AR.

For Maxcie Foote, Major, Randall Williams Unit, ADC, John Lowe, Deputy Warden, Randall Williams Unit, ADC, Larry May, Chief Deputy Director, Randall Williams Unit, ADC, John Herrington, Captain, Randall Williams Unit, ADC, Defendants - Appellees: James Owen Howe, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Little Rock, AR.

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

OPINION

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COLLOTON, Circuit Judge.

Kendrick C. Story, an African-American inmate in Arkansas, sued four correctional officers pursuant to 42 U.S.C. § 1983, alleging that they violated his constitutional rights and seeking damages. Story's pro se complaint and amended complaint focus on a visual body-cavity search that one or more officers allegedly conducted of Story's person on April 16, 2013. The search occurred after Story returned to the Williams Correctional Facility from the Pine Bluff unit school. The district court,1 screening the complaints before service of process pursuant to 28 U.S.C. § 1915A, dismissed them without prejudice for failure to state a claim. Story appealed, and this court requested a response from the correctional officers concerning Story's claims under the Fourth Amendment. We review the dismissal de novo and affirm.

To state a claim, Story's complaint " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Correctional officers are entitled to qualified immunity unless they violated clearly established rights of the inmate of which a reasonable person would have known, see Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), and we may consider the defense of qualified immunity in reviewing the district

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court's preservice dismissal. See 28 U.S.C. § 1915A(b)(2); Maness v. Dist. Court, Logan Cnty.-N. Div., 495 F.3d 943, 944-45 (8th Cir. 2007); Burlison v. United States, 627 F.2d 119, 122 (8th Cir. 1980). Although the district court dismissed the complaints for failure to state a claim without addressing qualified immunity, we may affirm on any ground supported by the record. Jacobson v. McCormick, 763 F.3d 914, 916-17 (8th Cir. 2014); Graves v. City of Coeur d'Alene, 339 F.3d 828, 845 n.23 (9th Cir. 2003). It is unnecessary and inefficient to address whether Story adequately pleaded a constitutional violation, see Pearson, 555 U.S. at 236-37, if the defense of qualified immunity is established on the face of the complaint.

" Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Stanton v. Sims, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (internal quotation marks omitted). To overcome qualified immunity, a plaintiff must be able to prove that " every reasonable official would have understood that what he is doing violates" a constitutional right, Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted), and that the constitutional question was " beyond debate." Id. ; see also Lane v. Franks, 134 S.Ct. 2369, 2383, 189 L.Ed.2d 312 (2014); Stanton, 134 S.Ct. at 7.

Story's lead point on appeal is that he stated a claim that the defendants violated his Fourth Amendment rights by conducting a visual body-cavity search of his person. According to the complaint and materials attached thereto, Story returned on the date in question to the Williams Correctional Facility from the Pine Bluff unit school. When he arrived at the gate, he was met by Captain John Herrington and Major Maxcie Foote. Story alleges that officers told him to remove his clothes, to lift his genitals, and to bend over and spread his buttocks to facilitate a visual body-cavity search. He claims that the search took place in front of other inmates and in view of two security cameras. He complains that one or more female correctional officers observed the search through a video feed from the cameras in the master control room.

The Supreme Court never has resolved whether convicted inmates retain a Fourth Amendment right against unreasonable searches while in custody. The Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), assumed the point for the sake of analysis. Id. at 557. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court held that the Fourth Amendment did not apply to a search of a prison cell, reasoning that " [a] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Id. at 527-28. The Seventh Circuit, in the wake of Hudson, ruled that inmates retain no right under the Fourth Amendment against visual inspections by prison guards. Johnson v. Phelan, 69 F.3d 144, 146-47 (7th Cir. 1995). This court, however, has said that " prison inmates are entitled to Fourth Amendment protection against unreasonable searches of their bodies," Levine v. Roebuck, 550 F.3d 684, 687 (8th Cir. 2008), and allowed a Fourth Amendment claim challenging strip searches to proceed in Seltzer-Bey v. Delo, 66 F.3d 961, 963 (8th Cir. 1995). The Arkansas Supreme Court, as best we can tell, has never addressed the question. The

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Supreme Court recently has reserved judgment twice on the question whether decisions of a federal court of appeals are a source of clearly established law for purposes of qualified immunity analysis. See Carroll v. Carman, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam); Reichle v. Howards, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012). Following the approach of the Court in those cases, we assume for the sake of analysis that our decisions clearly establish that a convicted inmate has rights under the Fourth Amendment against unreasonable searches of his body.

Whether Story's allegations state a claim that correctional officers violated his clearly established rights under the Fourth Amendment must be considered in light of prior decisions in this area. In Wolfish, the Supreme Court ruled that visual body-cavity inspections of inmates at a federal custodial facility--conducted after every contact visit with a person from outside the institution--were not unreasonable. 441 U.S. at 558 & n.39. In Goff v. Nix, 803 F.2d 358 (8th Cir. 1986), this court held that it was reasonable for officials to conduct visual body-cavity searches of inmates at a state penitentiary whenever an inmate left or entered the institution. Id. at 364-67. Most recently, in Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012), the Court ruled that correctional officers must be allowed to conduct an effective search of detainees--even those held for minor offenses--before they are admitted to a general jail population, and that " this will require at least some detainees to lift their genitals or cough in a squatting position." Id. at 1520.

These decisions, while acknowledging the privacy concerns of inmates, emphasize that detention facilities are " fraught with serious security dangers," Wolfish, 441 U.S. at 559, and that correctional institutions have a strong interest in preventing and deterring the smuggling of money, drugs, weapons, and other contraband. Florence, 132 S.Ct. at 1516-17; Wolfish, 441 U.S. at 559; Goff, 803 F.2d at 364-65. " [M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees." Wolfish, 441 U.S. at 546.

Here, Story alleges that officers conducted a visual body-cavity inspection when Story returned to the Williams facility from outside the institution. Given what the Supreme Court and this court have said about the strong institutional interests in maintaining security, and about the reasonableness of visual body-cavity inspections when detainees enter a facility, Story's allegation of a body-cavity search by itself does not state a claim for the violation of a clearly established right.

Story argues, however, that the manner in which this particular search was conducted violated the Fourth Amendment. He highlights an allegation that a female correctional officer was working in the master control room at the time of the search, and that she viewed the search on a video screen. He cites this court's statement--in a case about a strip search of an arrestee in a motel room--that " strip searches should be conducted by officials of the same sex as the individual to be searched." Richmond v. City of Brooklyn Center, 490 F.3d 1002, 1008 (8th Cir. 2007).

The search in this case, consistent with Richmond' s general admonition, was conducted by male correctional officers. Story does not allege that the male officers knew that female officers would observe

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the video feed from the master...

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