89 F.3d 922 (1st Cir. 1996), 96-1078, Wood v. Clemons

Docket Nº:96-1078.
Citation:89 F.3d 922
Party Name:Sharon WOOD et al., Plaintiffs, Appellants, v. James R. CLEMONS et al., Defendants, Appellees.
Case Date:July 22, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 922

89 F.3d 922 (1st Cir. 1996)

Sharon WOOD et al., Plaintiffs, Appellants,


James R. CLEMONS et al., Defendants, Appellees.

No. 96-1078.

United States Court of Appeals, First Circuit

July 22, 1996

Heard June 3, 1996.

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[Copyrighted Material Omitted]

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John S. Whitman, with whom Richardson, Whitman, Large & Badger was on brief, Portland, ME, for appellants.

Diane Sleek, Assistant Attorney General, with whom Andrew Ketterer, Attorney General of Maine, was on brief, Augusta, ME, for appellees.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Officers at a Maine prison received a tip that a female inmate's teenage children would be smuggling drugs into the prison in her infant granddaughter's booties. The superintendent of the prison, erroneously believing that the tip had been confirmed by two unconnected confidential informants, authorized a strip search of the visitors. In actuality, the tip had originated from a single anonymous and uncorroborated source. The strip search of the plaintiff minors turned up no drugs. Plaintiffs brought suit against the superintendent and the Commissioner of the Maine Department of Corrections under 42 U.S.C. § 1983. 1 The sole question on appeal

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is whether the district court correctly entered summary judgment on the plaintiffs' damages claim in favor of the superintendent based on his assertion of the qualified immunity defense. We conclude that the constitutionality of prison-visitor strip searches is governed by the standard of reasonable suspicion and that a reasonable official in the superintendent's position could have believed, in light of the information before him, that the searches did not violate the plaintiffs' constitutional rights. Accordingly, we affirm.


The record, viewed in the light most favorable to the plaintiffs, reveals the following. Since September of 1993, Sharon Wood had been an inmate at the Maine Correctional Center ("MCC") in Windham, Maine, serving a three-year term of confinement for a drug-related conviction. From the time she was first incarcerated there, she was visited approximately every other week by her son Phillip Thamert (then seventeen years of age), her daughter Katrina Thamert (then sixteen), and Phillip's girlfriend Michelle Hatch (then seventeen). On each visit, Katrina brought along her infant daughter Maria (then seven months old). Nothing happened during any of these visits to arouse any suspicion of illegal activity on the part of Wood or her visitors. Wood had no record of drug violations while at MCC.

The events leading to the strip search of Wood's visitors began with a telephone call to the MCC by Detective Peter Herring, the State Police Department's appointed liaison to the prison. On a "large number" of previous occasions, Herring had provided MCC officials with information obtained from his own confidential sources about criminal activity at the prison. Herring's information had invariably turned out to be accurate in the past.

On January 5, 1994, Herring called the MCC to provide another tip. Corrections Officers Charles Baker and Stephen Butts, both responsible for criminal investigations within the MCC, fielded Herring's call together. Herring told Baker and Butts that he had obtained information that inmate Sharon Wood was receiving drugs from the outside. Herring said that he had been told by a confidential informant who, in turn, had heard from an anonymous source that Wood was receiving drugs during visits, and that the drugs were being smuggled into the prison in her infant granddaughter's booties. Herring disclosed to Baker and Butts that he had obtained this information on a second-hand basis, and that at no time had Herring spoken directly to the original anonymous source about the tip. Herring himself had no personal knowledge of Sharon Wood or the persons who were supposedly bringing drugs to her. Herring did not provide Baker or Butts with the name of either his confidential informant or the original source of the tip. 2

Soon after the phone call, Officer Baker prepared a written report of the conversation with Herring. Baker's report, however, contained an important inaccuracy. That inaccuracy may be what ultimately allowed the strip search to take place. The report implied that the information about Wood had been provided to Herring by two independent, mutually corroborating confidential informants:

Det Peter Herring advised Butts and Baker that he received information from two separate CI's that prisoner Sharon Wood (Dorm 2) is allegedly receiving drugs during visits. Supposedly, the drugs are hidden in Wood's granddaughter's booties. Security projects office to monitor and will request appropriate action when required.

Thus, by indicating that two unconnected "CI's"--confidential informants--had provided Detective Herring with the same information,

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Baker's report significantly overrepresented the actual reliability of Herring's tip.

Five days later, on January 10, 1994, defendant James R. Clemons, Superintendent of the MCC, met with Baker and Butts to conduct their regular weekly review of security matters at the prison. At this meeting, Clemons read Baker's report of the information received from Detective Herring. It is undisputed that, as a result of reviewing the report, Clemons came to believe in good faith that two separate confidential sources had provided Herring with precisely the same tip concerning drug-smuggling by Sharon Wood's visitors. Clemons signed Baker's report to acknowledge that he had reviewed it and to confirm that the security projects office run by Baker and Butts would monitor the situation and notify Clemons if and when any further action became appropriate. Following the January 10 meeting, no one at the MCC, including Clemons, conducted any additional investigation or follow-up concerning the Herring tip. No action was taken on the tip prior to the plaintiffs' next visit to the MCC.

That visit came on February 22, 1994. At 10:00 a.m. that morning, Officer Baker noticed the names of Wood's children on the prison visitor schedule for that day. Recalling the phone conversation with Peter Herring on January 5, Baker paged Superintendent Clemons, who was at his home, to request authorization to conduct a strip search of the visitors based on the Herring tip. About twenty minutes later, Clemons responded to Baker's page and authorized a strip search of Wood's scheduled visitors. Baker then called Detective Herring to inform him of the impending search. Herring agreed to stand by in case arrests had to be made.

Katrina and Phillip Thamert, Katrina's baby, and Michelle Hatch arrived at the prison at about 1:20 p.m. After Katrina, Phillip and Michelle signed in, Officer Baker and another officer took them aside and told them that they would have to submit to a search for contraband drugs before they would be permitted to see Sharon Wood. Baker read a "consent to search" form to the visitors, advising them of their constitutional rights to refuse to give consent and to require the prison to obtain search warrants, and to withdraw consent at any time prior to the conclusion of the search. The form also said that if the visitors refused to consent to the search, their visiting privileges would be immediately and indefinitely terminated. Neither Baker nor the consent form made clear that the search to which the visitors were being asked to consent was a strip search. After Baker finished reading, each of Wood's visitors (except the baby) signed a consent form.

Katrina Thamert and her baby were then taken by two female officers to a private bathroom, and Phillip was taken by two male officers to a private storage room, while Michelle Hatch waited in the main reception area. Katrina was asked to remove her baby's clothing and diaper. One of the two female officers visually inspected the baby and checked the baby's clothes and diaper for contraband. Katrina held her baby at all times, and neither officer touched the baby during the search. Katrina was then told to put the...

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