Cookish v. Powell

• Decision Date: 26 September 1991
• Docket Number: No. 90-2225,90-2225
• Citation: 945 F.2d 441
• Parties: Dennis R. COOKISH, Plaintiff, Appellee, v. Commissioner Ronald POWELL, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 441

945 F.2d 441

Dennis R. COOKISH, Plaintiff, Appellee, v. Commissioner Ronald POWELL, et al., Defendants, Appellants.

No. 90-2225.

United States Court of Appeals First Circuit.

Submitted May 1, 1991.

Decided Sept. 26, 1991.

John P. Arnold, Atty. Gen. and Claire L. Gregory, Asst. Atty. Gen., on brief for defendants, appellants.

Dennis R. Cookish, plaintiff, appellee on brief pro se.

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

PER CURIAM.

The plaintiff, Dennis R. Cookish, an inmate at the New Hampshire State Prison, filed a complaint, pursuant to 42 U.S.C. § 1983, in the District Court for the District of New Hampshire, alleging, inter alia, that the defendants, officials at the prison, violated his Fourth Amendment right to be free from unreasonable searches when female correctional officers supervised and/or observed him during a visual body cavity search. ¹ The defendants moved for summary judgment, contending, as an initial matter, that no Fourth Amendment violation occurred and, secondly, assuming arguendo the existence of such a violation, they were entitled to qualified immunity for their actions. The district court denied summary judgment, finding that there existed "a material issue of fact," ² precluding the entry of summary judgment. On that same basis, the court denied the defendants' claim of qualified immunity. The defendants ³ have appealed this denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985) (an interlocutory appeal is allowed from the denial of summary judgment on the ground of qualified immunity). We reverse and remand to the district court for entry of judgment in favor of appellants on this Fourth Amendment claim as they are entitled to qualified immunity.

I.

We begin with the legal framework. "Qualified immunity operates to shield government officials exercising discretionary powers '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.' " Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir.1990) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). A "clearly established" right in the qualified immunity context has a particularized cast. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. That is to say, "in the light of pre-existing law the unlawfulness must be apparent." Id. The inquiry focuses on an evaluation of the defendants' conduct "in light of the particular circumstances known at the time the challenged conduct took place." Brennan v. Hendrigan, 888 F.2d 189, 192 (1st Cir.1989). Should the defendants reasonably have comprehended that their specific actions transgressed a clearly established right? Amsden v. Moran, 904 F.2d 748, 752 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). "Defendants are liable for damages only if they should have known that what they did violated the law." Newman v. Massachusetts, 884 F.2d 19, 26 (1st Cir.1989) (emphasis in the original), cert. denied, 493 U.S. 1078, 110 S.Ct. 1132, 107 L.Ed.2d 1037 (1990).

Of particular relevance to our decision here is the recognition that the determination of a claim of qualified immunity is "independent of the merit of the underlying constitutional claim." Morales v. Ramirez, 906 F.2d at 787.

'Because qualified immunity does not address the substantive viability of [the asserted] claim, but rather the objective reasonableness of a defendant's actions, a plaintiff who is entitled to prevail on the merits is not necessarily entitled to prevail on the issue of qualified immunity.'

Id. (quoting Collins v. Marina-Martinez, 894 F.2d 474, 478 (1st Cir.1990)). That is to say that, even if the defendants in fact violated the plaintiff's Fourth Amendment right to be free from an unreasonable search when female correctional officers supervised and/or observed him during a visual body cavity search, if it was objectively reasonable for the defendants to conclude that conducting such a search in the existing circumstances was lawful, these defendants are entitled to summary judgment based on qualified immunity. A reasonable, although mistaken, conclusion about the lawfulness of one's conduct does not subject a government official to personal liability.

We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials--like other officials who act in ways they reasonably believe to be lawful--should not be held personally liable. [Citation omitted.] The same is true of their conclusions regarding exigent circumstances.

Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3039-3040; see also Newman v. Massachusetts, 884 F.2d at 27 ("even if it ultimately can be shown that the decision to censure her was arbitrary [ ] defendants are entitled to immunity from damages so long as they had no reason to know that the evidence on which they relied was faulty").

Our review of a denial of summary judgment based on qualified immunity is plenary. Morales v. Ramirez, 906 F.2d at 785. We, like the district court, " 'are obliged to examine the properly documented portions of the record and draw all reasonable inferences therefrom in the light most hospitable to the party opposing the motion.' " Id. (quoting Amsden v. Moran, 904 F.2d at 752). ⁴ "[W]e must examine the discovered facts regarding defendants' conduct relevant to the immunity claim and, applying normal summary judgment principles, determine whether a genuine issue does or does not exist concerning qualified immunity." Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir.1988). "The question before us [is] whether, in light of those materials, the district court erred in finding a genuine issue of material fact as to defendants' entitlement to qualified immunity." Id. at 128.

II.

We now turn to an examination of the facts, crediting the plaintiff's version of disputed facts which are appropriately supported by the record, and construing all reasonable inferences in favor of the plaintiff. See Amsden v. Moran, 904 F.2d at 752-53.

On October 23, 1987, the plaintiff was assigned to the Medium South Unit (the Unit) of the New Hampshire State Prison. The Unit is comprised of three tiers, each consisting of four "pods." A pod houses between 10 and 20 inmates. The plaintiff was assigned to Pod 1C.

At approximately 3:00 p.m., on that day, inmates in the Unit began throwing trash and yelling. The tumult subsided enough so that, approximately one hour later, the prison officials were able to lock the inmates in their pods and get an accurate count. Although normally the Unit would be released, en masse, for supper in the dining room, because of the earlier disturbance, that evening the inmates were released for supper and fed, one tier at a time. When Pod 1C was released, the plaintiff went to his work assignment in the prison kitchen.

At approximately 7:00 p.m., when the inmates had returned to the Unit after supper and had been locked in their pods, the disturbance resumed, with greater intensity. The inmates destroyed furniture, smashed windows and lighting fixtures, and started fires. The prison staff were ordered to leave the pod area and go to the Unit's Control Room.

The plaintiff was not present in the Unit at this time, having remained at his work assignment in the prison kitchen. At approximately 7:15 p.m., the plaintiff was released from his work assignment and, at the direction of the Control Room officer, he returned to Pod 1C. The plaintiff describes his pod at that time as "in the middle of a riot situation." The plaintiff locked himself in his cell.

The disturbance continued for the next four hours. According to the plaintiff: "Inmates continued to yell in a hostile manner, trash was thrown out of Pods, picnic tables, sheets, plastic mop buckets, and other flammable materials were set on fire, etc...." Approximately 100 inmates were involved. The inmates in Pods 1B and 1C were the most heavily involved. The plaintiff remained in his cell, watching television and playing cards with his cellmate. He came out twice during the course of this four-hour period to use the toilet facilities.

At approximately 11:15 p.m., "dozens" of correctional personnel, including defendant Major Ash, entered the pod area. The "vast majority" were dressed in riot gear, including helmets, gas masks, and flak jackets, and were armed with shotguns, rifles, and tear gas weapons. Defendant Ash, using a bullhorn, ordered the inmates in Pod 1B to come out of their pod. They did not comply. Tear gas was fired into Pod 1B. The prison staff then entered that pod and removed all inmates. They were escorted to an unused section of the prison, known as the old cell block.

At approximately 11:45 p.m., defendant Ash and the other riot-clad staff returned to Pod 1C. Defendant Ash, again using the bullhorn, notified the inmates in Pod 1C that they had two minutes to leave the pod with their hands on their heads. The inmates in Pod 1C, including the plaintiff, complied. The inmates were then handcuffed and each was escorted by two correctional officers to the old cell block.

At the old cell block, each inmate was subjected to a visual body cavity search. As was the case with each inmate, the plaintiff had to remove every item of clothing, open his mouth, run his fingers through his hair, turn and show the bottoms of his feet, lift his genitals, and bend over to spread his buttocks. ⁵ This search was conducted by a male correctional officer, but the officer did not touch the...