Daugherty v. Campbell

• Decision Date: 27 August 1991
• Docket Number: No. 89-6008,89-6008
• Citation: 935 F.2d 780
• Parties: Lenora DAUGHERTY, Plaintiff-Appellee, v. Donal CAMPBELL, Defendant-Appellant, Alton R. Hesson, Robert W. Starbuck, Funderburk, Rita A. Starbuck, Kevin W. Daniels, Bobby L. Chessor, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 780

935 F.2d 780

Lenora DAUGHERTY, Plaintiff-Appellee, v. Donal CAMPBELL, Defendant-Appellant, Alton R. Hesson, Robert W. Starbuck, Funderburk, Rita A.

Starbuck, Kevin W. Daniels, Bobby L. Chessor, Defendants.

No. 89-6008.

United States Court of Appeals, Sixth Circuit.

Argued March 11, 1991.

Decided June 10, 1991.

Rehearing and Rehearing En Banc

Denied Aug. 27, 1991.

James L. Weatherly, Jr., John J. Hollins, Jr. (argued), Hollins, Wagster & Yarbrough, Nashville, Tenn., for plaintiff-appellee.

Kimberly J. Dean, Asst. Atty. Gen., Brenda Rhoton Little, Asst. Atty. Gen. (argued), Nashville, Tenn., for defendant-appellant.

Before KEITH and NELSON, Circuit Judges, and PECK, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendant Donal Campbell ("Campbell") appeals from the district court's June 14, 1989, order denying summary judgment on the basis of qualified immunity in this action alleging violations of 42 U.S.C. Sec. 1983, the fourth amendment and the fourteenth amendment. For the reasons set forth below, we AFFIRM the district court's order.

I.

A.

In 1982, the Tennessee Department of Corrections (the "Department") established guidelines governing the search of visitors to penal institutions (the "guidelines"). The Department's search policy required any official authorizing a visual body cavity search ¹ of a visitor to make an affirmative finding of probable cause to believe that the visitor is concealing contraband prior to conducting the search. ² On July 22, 1986, Campbell, who was warden of the Turney Center Correctional Facility (the "Facility"), personally approved the Department's 1982 guidelines. Specifically, Campbell adopted the standard that a finding of probable cause must be made before a visual body cavity search of a prison visitor may be conducted.

Plaintiff Lenora Daugherty ("Daugherty") makes the following allegations in her pleadings. ³ On January 16, 1988, Campbell ordered security personnel at the Facility's visitors annex to conduct a visual body cavity search of her before permitting her to visit her husband. When Daugherty arrived at the Facility, two security guards instructed her that they were ordered to conduct a search of her vehicle as a precondition to granting her permission to visit her husband. The security officers initially were unable to search the vehicle because Daugherty had inadvertently locked her keys in the vehicle. The security officers than instructed Daugherty to enter the annex and submit to a visual body cavity search by another security officer. Daugherty complied and the visual body cavity search failed to produce contraband.

After the visual body cavity search, the security officers reinstated their request to search the vehicle before permitting Daugherty to proceed with her visit. Daugherty obtained entry of the vehicle by breaking the driver's side window. The security officers conducted a search of the vehicle which failed to produce contraband.

Next, Daugherty was instructed that permission to visit her husband was conditioned upon obtaining her signature on a standardized form indicating that she had consented to the vehicle and visual body cavity searches before they were conducted. Daugherty complied with this requirement.

B.

On June 8, 1988, Daugherty filed suit against Campbell and several other prison officials. With respect to Campbell, Daugherty's complaint alleged that he ordered a visual body cavity search of her without first finding probable cause or reasonable suspicion that she possessed contraband. Daugherty claimed that Campbell's actions violated her rights under 42 U.S.C. Sec. 1983 and the fourth and fourteenth amendments of the United States Constitution. On October 28, 1988, Campbell filed a motion for judgment on the pleadings and a stay of discovery. In its November 29, 1988, order, the district court referred all pretrial matters to a magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(A) and (B). In considering Campbell's motion, the magistrate reviewed the guidelines governing the search of visitors to penal institutions. These guidelines constitute evidence outside the pleadings, therefore, the defendant's motion was treated as a motion for summary judgment. After finding that, as a prison visitor, Daugherty had a clearly established fourth amendment right to be free of any search of her person absent a finding of reasonable suspicion by a prison official, the magistrate recommended denial of Campbell's motion for summary judgment on the issue of qualified immunity. The magistrate noted that the higher standard of probable cause, set forth in the guidelines, is not the proper legal standard to evaluate Campbell's conduct because Daugherty did not argue that the regulations created a fourth amendment liberty interest which was denied without due process.

The district court adopted the magistrate's report and recommendation on June 15, 1989 and denied Campbell qualified immunity with respect to the strip search issue. On July 14, 1989, Campbell filed a timely notice of appeal.

II.

Although Campbell's appeal is interlocutory, we derive our jurisdiction to review the district court's order from 28 U.S.C. Sec. 1291 which conveys appellate jurisdiction over appeals from "final decisions." "[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Under the "collateral order" doctrine, a final decision under Sec. 1291 may not be the last possible order made in a case. Id. at 524, 105 S.Ct. at 2814 (citation omitted). If the nature of the district court's decision is such that deferring appellate review to the conclusion of the proceedings would render the decision unreviewable, then Sec. 1291 vests this court with jurisdiction to review the decision. Id. at 525, 527, 105 S.Ct. at 2814, 2816. Qualified immunity entitles its possessor to "immunity from suit rather than a mere defense to liability." Id. at 526, 105 S.Ct. at 2815 (original emphasis). The district court's decision to deny qualified immunity, like absolute immunity, is effectively unreviewable at the conclusion of the proceedings. Id. at 527, 105 S.Ct. at 2816. The district court's denial of Campbell's claim of qualified immunity is therefore a final decision that is appealable at this juncture.

Whether qualified immunity is applicable to an official's actions is a question of law. See id. at 530, 105 S.Ct. at 2817; see also Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). We therefore apply a de novo standard of review to this question. Long v. Jones, 929 F.2d 1111, 1114 (6th Cir.1991).

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held 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." Id. at 818, 102 S.Ct. at 2738. Reiterating the objective test, the Supreme Court stated in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984):

Harlow v. Fitzgerald rejected the inquiry into state of mind in favor of a wholly objective standard.... Whether an official may prevail in his qualified immunity defense depends upon the "objective reasonableness of [his] conduct as measured by reference to clearly established law." No other "circumstances" are relevant to the issue of qualified immunity.

Id. at 191, 104 S.Ct. at 3017 (citations omitted). Before the commencement of discovery, a defendant pleading qualified immunity is entitled to dismissal if the plaintiff fails to state a claim of violation of clearly established law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. In using objective terms to define the limits of qualified immunity, the Harlow Court found that it is the district court's duty to determine, on a motion for summary judgment, the currently applicable law and whether that law was clearly established at the time the alleged action occurred. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. If the law was not clearly established, it is impossible to find that the defendant knew that the law forbade his or her conduct. Id. Under such circumstances, it is unreasonable to expect an official to anticipate subsequent legal developments. Id. Government officials, therefore, are shielded from civil damages liability when "their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

In determining whether the law was clearly established at the time of the official's action, the Anderson Court advises:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful (citation omitted), but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. When conducting an inquiry to determine whether a constitutional right is clearly established, the law of our circuit requires us to look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to the decisions of other circuits. Masters v. Crouch, 872 F.2d 1248, 1251-52 (6th Cir.1989). In Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171 (6th Cir.1988), we stated:

[I]n the ordinary instance, to find a clearly established constitutional right, a district court must find binding...