929 F.2d 1111 (6th Cir. 1991), 89-5377, Long v. Norris

Docket Nº:89-5377, 89-5378, 89-5379.
Citation:929 F.2d 1111
Party Name:Mariam LONG, Curtis Long, Anita Simmers, James Marlin Hodges, Karen Mills, and Ronnie S. Mills, Plaintiffs-Appellees, v. Steven NORRIS, Individually and as Commissioner of the Tennessee Department of Corrections, Linda Roberts, Sam Chapman, Lisa Marshall, Irene Ladd, James Worthington, Charles Jones, Ruby Spakes, Gladys Noe, Charlene Smith, Barbara
Case Date:April 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1111

929 F.2d 1111 (6th Cir. 1991)

Mariam LONG, Curtis Long, Anita Simmers, James Marlin

Hodges, Karen Mills, and Ronnie S. Mills,

Plaintiffs-Appellees,

v.

Steven NORRIS, Individually and as Commissioner of the

Tennessee Department of Corrections, Linda Roberts, Sam

Chapman, Lisa Marshall, Irene Ladd, James Worthington,

Charles Jones, Ruby Spakes, Gladys Noe, Charlene Smith,

Barbara Wright, Kathy Hill, Linda Shipwash, Tom Mays, Dale

Roberts Evans, Angie Thomas, Charles Brown, Sheena Ward,

Teresa (Last Name Unknown), and Jackie Cornell, Defendants,

Otie Jones, Individually and as Warden of the Morgan County

Regional Correctional Facility, M.C. Hamby,

Associate Warden, Defendants-Appellants.

Nos. 89-5377, 89-5378, 89-5379.

United States Court of Appeals, Sixth Circuit

April 3, 1991

Argued May 3, 1990.

Rehearing Denied April 29, 1991.

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William Allen (argued), Rural Legal Services of Tennessee, Oak Ridge, Tenn., Carol S. Nickle, Knoxville, Tenn., for plaintiffs-appellees.

Joe R. Judkins (argued), Wartburg, Tenn., for defendants-appellants.

Before MARTIN and BOGGS, Circuit Judges, and HACKETT, District Judge. [*]

BOYCE F. MARTIN, Jr., Circuit Judge.

Defendants-appellants are the warden and associate warden of the Morgan County (Tennessee) Regional Correctional Facility. The wardens filed this interlocutory appeal in these consolidated civil rights actions brought under 42 U.S.C. Sec. 1983. Each of the three consolidated cases has two plaintiffs, one of whom was an inmate at the Morgan County prison during the relevant time period and one of whom was the inmate's spouse or fiancee who visited the inmate during the relevant time period. The plaintiffs claim that their constitutional rights were violated by strip and body cavity searches of the visitor plaintiffs--conducted without probable cause by prison guards--and by the searches' effect of chilling the inmate plaintiffs' rights to visitation. On appeal, the wardens argue that the district court erred in denying their motion for dismissal or summary judgment on the basis of their asserted qualified immunity. 1

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1] We affirm in part and reverse in part.

The wardens authorized at least two strip searches or body cavity searches of each of the visiting plaintiffs during 1984 and 1985. Prison guards told the visiting plaintiffs that they would not be allowed to visit their husbands or fiances unless the visiting plaintiffs submitted to the searches. Plaintiff Mariam Long's visitation rights were suspended for sixty days because she refused to undergo a manual body cavity search. None of the searches revealed any contraband or any other evidence of criminal conduct.

The plaintiffs filed separate complaints in this now-consolidated lawsuit during December 1985. They alleged that the searches violated the visiting plaintiffs' fourth amendment rights to freedom from unreasonable searches and seizures. The inmate plaintiffs also alleged that the wardens violated the inmate plaintiffs' fourteenth amendment liberty interest in visitation, created by Tennessee prison regulations. Tennessee prison regulations state that inmates "shall" have visitation rights, Tenn. Dep't. of Corrections Policy No. 501.01, V.B., and that visitation rights may be suspended only for "good cause," id. at No. 507.01, VI, Procedures Sec. E(5). Tennessee prison regulations require that a prison official have probable cause to believe that a prison visitor is concealing contraband before the official may authorize a strip search or a visual or manual body cavity search of the prison visitor. Id. at No. 506.06, V.B. 2 The plaintiffs' final allegation was that the searches violated their first amendment right to freedom of association.

On January 6, 1988, the wardens moved for dismissal or summary judgment on the basis of qualified immunity. The wardens admitted that they authorized the searches without probable cause in violation of Tennessee prison regulations. The wardens averred that they had a reasonable suspicion that the plaintiffs were smuggling contraband, based on confidential information from unnamed "reliable informants." The wardens contended that by acting on their suspicion, they did not violate clearly established constitutional law. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The district court rejected this contention and denied the wardens' motion to dismiss on February 15, 1989.

Although appellate courts usually lack jurisdiction to hear appeals of denials of motions for summary judgment, the denial of motions for summary judgment asserting qualified official immunity falls within an exception to this general rule. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Huron Valley Hospital v. City of Pontiac, 792 F.2d 563, 566-67 (6th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986). 3 Interlocutory appeal of the denial of summary judgment motions asserting qualified immunity is warranted because qualified immunity is not merely a defense to a law suit--it is an "entitlement" not to be sued at all. Mitchell, 472 U.S. at 525-27, 105 S.Ct. at 2814-16; Huron Valley, 792 F.2d at 567. Qualified immunity engages so early because liability is not the sole public danger of law suits against public officials. The threat of liability and necessary attention to pretrial matters, such as discovery, distract public officials from effectively

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performing their government functions and discourage able persons from entering public service. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Harlow v. Fitzgerald, 457 U.S. at 816-17, 102 S.Ct. at 2737-38. Interlocutory appeal is appropriate because the entitlement not to be sued is "lost forever" if an immune public official is required to litigate the case all the way to trial. Huron Valley, 792 F.2d at 567.

Application of qualified immunity to a particular defendant is a question of law. Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). As such, our review is de novo. The standard for qualified immunity is that government officials "performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. The parties do not dispute that the plaintiffs seek civil damages, or that the wardens' actions in approving searches based on an alleged reasonable suspicion constitute "discretionary functions" under Harlow.

Thus, we venture once more into the labyrinth of deciding what makes a right "clearly established" for purposes of qualified immunity. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court held that qualified immunity protected a former United States Attorney General from suit for authorizing a warrantless wiretap in a matter involving domestic security. Immunity applied because the unconstitutionality of warrantless wiretaps was not clearly established at the time of the Attorney General's wiretap authorization in November 1970. Two years after Attorney General Mitchell's authorization of the...

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