Somers v. Thurman

• Decision Date: 28 May 1997
• Docket Number: No. 96-55534,96-55534
• Citation: 109 F.3d 614
• Parties: 97 Cal. Daily Op. Serv. 2114, 97 Cal. Daily Op. Serv. 3975, 97 Daily Journal D.A.R. 3919 Keith SOMERS, Plaintiff-Appellee, v. Otis THURMAN, Warden; John Ratelle, Warden; C. Lovvorn; H. Castango; J. Volletti; Jesse Miles; unknown Martinez; unk. Booke; unk. Porter; unk. Brown, Defendants, and Brenda Cash; unk. Walls; unk. Shabazz; unk. Wheat; unk. Gomez; unk. Ferguson; unk. Johnson; unk. Rivera, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 614

109 F.3d 614

97 Cal. Daily Op. Serv. 2114, 97 Cal. Daily

Op. Serv. 3975,

97 Daily Journal D.A.R. 3919

Keith SOMERS, Plaintiff-Appellee, v. Otis THURMAN, Warden; John Ratelle, Warden; C. Lovvorn H. Castango; J. Volletti; Jesse Miles; unknown Martinez; unk. Booke; unk. Porter unk. Brown, Defendants and Brenda Cash; unk. Walls; unk. Shabazz; unk. Wheat; unk Gomez; unk. Ferguson; unk. Johnson; unk. Rivera, Defendants-Appellants.

No. 96-55534.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1997.

Decided March 25, 1997.

As Amended May 28, 1997.

Craig S. Nelson, Deputy Attorney General, San Diego, California, for the defendants-appellants.

James A. Frieden, Santa Monica, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Harry L. Hupp, District Judge, Presiding. D.C. No. CV-94-06935-HLH(AJW).

Before D.W. NELSON and TROTT, Circuit Judges, and BRYAN, ^* District Judge.

TROTT, Circuit Judge:

I. OVERVIEW

Female prison guards (collectively, "Officials") appeal a district court order denying them qualified immunity in a male prisoner's civil rights action brought pursuant to 42 U.S.C. § 1983. California state prisoner Keith Somers sued the Officials and their supervisors for $1,000,000 in damages, alleging that visual body cavity searches performed by the female Officials, as well as being watched by them while showering naked, violated his constitutional rights under both the Fourth and the Eighth Amendments. In addition, Somers alleged that the Officials "pointed at him" and "joked among themselves" during the searches and during his showers, behavior he characterizes as "gawking." We must determine whether the Officials' conduct violated Somers's clearly established Fourth or Eighth Amendment rights of which the Officials should have been aware at the time of these occurrences. The district court ruled that it did. We reverse.

II. BACKGROUND

From October 15, 1993 to September, 1994, Somers was incarcerated in California State Prison-Los Angeles, serving a fifteen-year-to-life sentence for second-degree murder. ¹ During his imprisonment, female prison guards allegedly subjected Somers to visual body cavity searches on a regular basis. ² During the searches, the Officials "pointed at" Somers and made "jokes among themselves." These searches violated prison regulations prohibiting unclothed body inspections by correctional employees of the opposite sex except under emergency conditions. When Somers complained that he did not want to be searched by female guards, he was given a choice between submitting to the searches or going to the "hole" (administrative segregation).

In accordance with general prison practice, the Officials also monitored Somers while he showered. During the showers, the female guards "pointed at Somers" and made "jokes among themselves." Somers does not allege that the Officials' comments were directed at him, intended to humiliate him, or even that he heard what any of the Officials allegedly said.

Because of this treatment, Somers filed a civil rights action seeking $1,000,000 in punitive damages. The Officials moved for judgment on the pleadings, asserting that they were entitled to qualified immunity. The district court adopted the magistrate judge's eighteen-page decision denying the Officials qualified immunity. The district court concluded that the Complaint properly alleged facts showing that the Officials violated Somers's clearly established constitutional rights. The Officials appeal this decision. ³

III. STANDARD OF REVIEW

We review the denial of qualified immunity de novo. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).

IV. DISCUSSION

We note at the outset that because Somers chose to seek only monetary and not equitable relief, we are not asked to determine what the law commands today, but only whether, at the time alleged, the asserted rights as he describes them were clearly established constitutional principles.

The doctrine of qualified immunity protects "government officials performing discretionary functions ... 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. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). While public officials are thus generally protected from civil liability under the doctrine, the defense will fail where their actions violate law that is clearly established, because "a reasonably competent public official should know the law governing his conduct." Id. at 819, 102 S.Ct. at 2738. "The qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.' " Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 1096, 1097, 89 L.Ed.2d 271 (1986)).

To determine whether an official is entitled to qualified immunity, we conduct a two-part analysis: (1) We consider whether the law governing the official's conduct was clearly established. If it was not clearly established, the official is entitled to immunity from suit. (2) If the law was clearly established, we proceed to ask if under that law, a reasonable official could have believed the conduct was lawful. See Act Up!/Portland, 988 F.2d at 871. Therefore, an official is denied qualified immunity only if the law was clearly established and a reasonable official could not have believed the conduct was lawful.

We are concerned in this case only with the first inquiry: whether Somers carried his burden of proving that the Officials violated his clearly established Fourth or Eighth Amendment rights. If the formulation of the law on which he relies was not clearly established at the time the acts occurred, "an official could not reasonably be expected to anticipate subsequent legal developments, nor could he [or she] fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Under such circumstances, the Officials are entitled to immunity. Id. Therefore, we must determine whether, at the time of the alleged conduct, a male inmate had clearly established Fourth or Eighth Amendment rights to be free from routine visual body cavity searches and shower viewing by female guards.

A. The Fourth Amendment

As an initial matter, we must determine whether a prisoner possessed at the relevant time some limited rights cognizable under the Fourth Amendment. ⁴ The Supreme Court had not spoken definitively on this issue, nor has it today. See Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir.1985) ("The Supreme Court has not recognized that an interest in shielding one's naked body from public view should be protected under the rubric of the right of privacy...."). In Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1979), the Court assumed arguendo that prisoners retain some right of privacy under the Fourth Amendment, but concluded that the challenged strip searches were reasonable. Five years later, however, the Court held that "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984).

Although Hudson's holding is limited to prisoners' privacy rights within their cells, its dicta indicates that the Court may have intended to strip the inmates of all Fourth Amendment privacy rights:

A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." Bell v. Wolfish, 441 U.S. at 537, 99 S.Ct. at 1873.

Hudson, 468 U.S. at 527-28, 104 S.Ct. at 3200-01 (footnote omitted). Further, the Court noted that its "holding that [a prisoner] does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs.... The Eighth Amendment always stands as a protection against 'cruel and unusual punishments.' " Id. at 530, 104 S.Ct. at 3202. Therefore, it is unclear from the dicta in Hudson whether prisoners retain any rights cognizable under the Fourth Amendment against searches qua searches of their bodies, or whether the only safeguard against assertedly egregious searches in prison is the Eighth Amendment.

Relying directly on the Court's guidance in Hudson, the Seventh Circuit has recently held in a 2--1 decision that "the [F]ourth [A]mendment does not protect privacy interests within prisons." Johnson v. Phelan, 69 F.3d 144, 150 (7th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 506, 136 L.Ed.2d 397 (1996). Although Johnson was decided after the Officials' conduct about which Somers complains, the case illustrates how the Supreme Court's sweeping utterances in Hudson-which does predate the conduct-have been interpreted. Therefore, although the relevant inquiry for purposes of establishing qualified immunity is limited to the state of the law at the time the alleged conduct took place, we look to Johnson to demonstrate what a reasonable official would have...