804 F.2d 164 (1st Cir. 1986), 85-1746, Bonitz v. Fair

Docket Nº:85-1746, 85-1809.
Citation:804 F.2d 164
Party Name:Karen BONITZ, et al., Plaintiffs, Appellees, v. Michael V. FAIR, et al., Defendants, Appellants. Karen BONITZ, et al., Plaintiffs, Appellees, v. Michael V. FAIR, et al., Defendants, Appellees. Appeal of William SHAUGHNESSY, Defendant, Appellant.
Case Date:November 03, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 164

804 F.2d 164 (1st Cir. 1986)

Karen BONITZ, et al., Plaintiffs, Appellees,


Michael V. FAIR, et al., Defendants, Appellants.

Karen BONITZ, et al., Plaintiffs, Appellees,


Michael V. FAIR, et al., Defendants, Appellees.

Appeal of William SHAUGHNESSY, Defendant, Appellant.

Nos. 85-1746, 85-1809.

United States Court of Appeals, First Circuit

November 3, 1986

Heard April 10, 1986.

Page 165

Roberta Thomas Brown, Legal Counsel to the Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., was on brief for defendants, appellants Fair, Holbrook, Trabucco, Agnes, Droney, Canty, Bettencourt, Butterworth, Coalter, Washburn and Gendron.

J. Richard Ratcliffe with whom Richard L. Zisson and Zisson and Veara, were on brief for defendant, appellant William Shaughnessy.

John Reinstein, Mass. Civil Liberties Union Foundation, with whom Ann Lambert Greenblatt, Mass. Correctional Legal Services, Inc., Robert E. Fast, Hale & Dorr, Robert Sherman, Lawyer's Committee for Civil Rights Under Law of the Boston Bar Ass'n, and Judith Mizner, Nancy Gertner and Silverglate, Gertner, Baker, Fine & Good, were on brief for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, and COFFIN and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

This case concerns a wide-ranging search conducted at the Massachusetts Correctional Institution at Framingham (Framingham), a medium security prison for women and men. Plaintiffs-appellees, nine female inmates, claim inter alia violations of their federal constitutional rights by twelve officers and officials of the Massachusetts Department of Correction, the Massachusetts State Police Department, and the Office of the Middlesex County District Attorney. 1

Page 166

The district court granted defendants' motion for summary judgment as to most of the claims, 2 but denied the motion as to the plaintiffs' fourth amendment claim that they were unreasonably searched. The court also rejected the defendants' assertion that they were entitled to qualified immunity on that claim. Defendants appeal the denial of their claim of immunity. Although appeals from denials of summary judgment are generally not permitted, the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), created a narrow exception allowing interlocutory review of denials of immunity for government officials. We therefore have jurisdiction, subject to the Mitchell constraints. After reviewing those constraints, we discuss the narrow issue before us and, finding that the constitutional right to be free from an abusive strip search was clearly established at the time of the search, we affirm.


Our jurisdiction in this case is premised on the district court's denial of the defendants' claim of qualified immunity. Government officials performing discretionary functions may be shielded from liability for civil damages in a Sec. 1983 action by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3020 n. 12, 82 L.Ed.2d 139 (1984) (immunity standard of Harlow applies in Sec. 1983 actions). An official is entitled to immunity if, at the time of the challenged action, the statutory or constitutional right allegedly violated was not "clearly established". Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Blackburn v. Snow, 771 F.2d 556, 569 (1st Cir.1985). The district court found that the right allegedly violated was clearly established at the time, and it therefore denied defendants' claim of immunity.

In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court carved out a narrow exception to the general rule that a case should be carried to conclusion before asserted errors can be reviewed. Recognizing the collateral and conclusive nature of the question of qualified immunity, id. 105 S.Ct. at 2816-17, as well as the fact that the policy behind immunity would be vitiated if an official was required to stand trial for violating a right that was not clearly established at the time, id. at 2815-16, the Court determined that a denial of qualified immunity, "to the extent that it turns on an issue of law", id. at 2817, was an appealable final decision. Thus, if scrutiny of a plaintiff's allegations indicates that, even if the alleged acts are proven, qualified immunity exists, the official should be spared the burden of further proceedings. 3

In creating this exception to the final-judgment rule, the Mitchell Court carefully circumscribed the role of the appellate court. We are not to "consider the correctness of the plaintiff's facts, nor even determine whether the plaintiff's allegations actually state a claim." Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). Instead, the issue before us is purely legal: "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions". Id. 105 S.Ct. at 2816 & n. 9. Thus, we must determine whether, assuming plaintiffs are able to prove the acts attributed to each defendant, the defendants

Page 167

are nonetheless immune because at the time of the alleged abusive strip search plaintiffs' right to be free from such a search was not clearly established. See Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 466 (1st Cir.1985) (for purposes of Mitchell review, "we must assume that there is liability upon the part of the defendants").

The dissent concludes that our review should encompass another question: whether each defendant's conduct violated clearly established law. Two factors persuade us, however, that the qualified immunity inquiry focuses not on the defendant's actions but on the right allegedly violated. First, the focus in Mitchell is on the alleged harm, and not on the defendant's precise conduct. The Court observed that "[t]he question of Mitchell's immunity turns on whether it was clearly established in November, 1970 ... that such wiretaps were unconstitutional," id. 105 S.Ct. at 2818, and it found that "[t]he legality of the warrantless domestic security wiretap Mitchell authorized ... was, at that time, an open question," id. at 2820. At another point, the Court noted that "[t]he legal determination that a given proposition of law was not clearly established at the time the defendant committed the alleged act does not entail a determination of the 'merits' of the plaintiff's claim that the defendant's actions were in fact unlawful." Id. at 2817 n. 10.

Second, to focus on conduct in the context of this case is really to address the issue of causation. With respect to defendant Shaughnessy, who had a minimal connection to the alleged abusive strip search, the dissent claims the proper question is "whether the law was 'clearly established' that doing those limited, preliminary things that are all Shaughnessy did was a violation of a constitutional right." But no one is suggesting that doing those preliminary actions is, in the abstract, a constitutional violation. The alleged violation is the abusive strip search. Thus, what the dissent is asking, in effect, is whether it was clearly established that Shaughnessy's actions were closely enough connected to the alleged search to be deemed the equivalent of actually doing it. And that, we suggest, is really to ask whether it was clearly established that Shaughnessy could be deemed a cause of the search. As discussed in Section IV, infra, we have no doubt that we are not to consider causation at this stage--even if it could be decided as a matter of law on undisputed facts. Indeed, we think Harlow represented a deliberate shift in focus away from an individual defendant's conduct--including whether he caused the harm--to the narrow issue of the right at stake, so that the immunity decision could be made by referring solely to the plaintiffs' allegations. We therefore do not accept the dissent's interpretation of Mitchell, which in this case would restore the issue of causation to the immunity inquiry.

The dissent questions not only our characterization of the qualified immunity question, but also our approach of considering only the plaintiffs' allegations rather than the undisputed facts as revealed by depositions, affidavits and other discovery materials. We think our reading of Mitchell--setting a narrow boundary on interlocutory review of a defendant's entitlement to immunity--is supported by both the Supreme Court's language and its goals. In footnote 9 of Mitchell the Court emphasizes that "the appealable issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law (emphasis added)." 105 S.Ct. at 2816. The only deviation Mitchell allows from the focus on the facts as alleged in the complaint is in a case where the district court accepted the defendant's view of the facts and, even then, found that plaintiffs had a clearly established right to be free from the described harm. Id.

This interpretation--accepting at face value the facts as presented by one party and limiting the immunity inquiry to the clarity of the right violated--is consistent with the Supreme Court's instruction to resolve the immunity question before discovery

Page 168

or trial, Harlow, 457 U.S. at 816-18, 102 S.Ct. at 2737-38. It does not, of course, foreclose the defendant from raising the issue of qualified immunity again, on appeal from final judgment, if the facts revealed through discovery or proven at trial diverge from the plaintiffs' allegations. The critical point for us is that Mitchell envisions the interlocutory appeal of qualified immunity as a straightforward matter of assessing the law and not as a...

To continue reading