Varrone v. Bilotti
| Decision Date | 18 August 1997 |
| Docket Number | Nos. 779,1392,D,s. 779 |
| Citation | 123 F.3d 75 |
| Parties | Anthony VARRONE, Plaintiff-Appellee-Cross Appellant, v. Michael BILOTTI; Cynthia Johnson; Bert Ross; Francisco Berrios; Raymond R. Bara; John Does 1-10; Defendants, John Matthews; Henrique Frett, Correction Lieutenant at Arthur Kill; Thomas Eisenschmidt, Correction Captain at Arthur Kill; Gerald A. Wells, Deputy Superintendent of Security at Arthur Kill; Juan Ramos, Inspector General's Office of the DOCS; Thomas Mansfield, Deputy Inspector General of the DOCS; Brian F. Malone, Inspector General of the DOCS; Defendants-Appellants-Cross Appellees. ockets 96-2368(L), 96-2382(XAP). |
| Court | U.S. Court of Appeals — Second Circuit |
Kevin J. Lambeson, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General of New York, on the brief), for Defendants-Appellants-Cross Appellees.
Thomas E. Butler, New York City (Chadbourne & Parke, Bernard W. McCarthy Before: NEWMAN, KEARSE and FRIEDMAN *, Circuit Judges.
Sankar Suryananayan, New York City, on the brief), for Plaintiff-Appellee-Cross Appellant.
I
A. In March 1989, Kings County Assistant District Attorney Eric Seidel, then Deputy Chief of the Narcotics Bureau, telephoned Brian Malone, Inspector General for the New York State Department of Correctional Services (the "Department") and told him that "he had received information from what he believed to be a reliable source that Anthony Varrone and Claire Varrone would be visiting Joseph Varrone, their father and husband, then an inmate at the Arthur Kill Correctional Facility ("Arthur Kill") in the near future and that, at such time, they would be bringing heroin into the facility." Seidel no longer remembers the source of this information, but stated that "the information either came from a person who was a confidential informant of ours or electronic surveillance," and "was reliable enough to be passed on to the Department of Corrections." Seidel did not tell Malone the source of the information, and Malone did not ask.
Upon reviewing the information in the Department's computers on Joseph Varrone, Malone learned that he was incarcerated for selling a controlled substance. Malone was aware that his office was investigating other alleged instances of drug smuggling into Arthur Kill. Malone directed his immediate subordinate, Deputy Inspector General Thomas Mansfield, to determine whether Joseph Varrone's wife or son had visited Arthur Kill on March 3, 1989. He also directed Mansfield to strip search Claire and Anthony Varrone on their next visits. Mansfield, who had no recollection about the details of what occurred, assigned the matter to Investigator Juan Ramos.
Ramos stated that, when given such a task, he would customarily conduct "some sort of background investigation." Although Ramos could not recall the details of his investigation, he remembered "at the very least" running a background check on Joseph Varrone and cross referencing all available information. Such a background check reveals the inmate's complete history, including the reason for the incarceration, as well as known co-defendants. A background check on Joseph Varrone would have disclosed that he was incarcerated for a drug-related crime, and that Anthony Varrone was a co-defendant with his father in the criminal case that resulted in Joseph Varrone's incarceration.
Ramos sent a memorandum to the Deputy Superintendent of Security at Arthur Kill, Gerald Wells, requesting that Wells ensure that any person seeking to visit Joseph Varrone submit to a strip search as a condition of visitation. Wells stated that he knew nothing about the information or its reliability, and that he "did absolutely nothing to implement the strip search order."
Wells delegated the matter to his immediate subordinate, Thomas Eisenschmidt, who had no specific memory of the strip search of Varrone. He ordered Henrique Frett, a lieutenant at Arthur Kill, to make the strip searches. Frett testified that he did not know the reason for the searches, but he directed Corrections Sergeant John Matthews to search Joseph Varrone's visitors.
Inmate Joseph Varrone was strip searched on March 8, 1989. On March 9, 1989, Claire Varrone agreed to a strip search as a condition of visiting her husband, and on March 10, 1989, Anthony Varrone similarly consented, and Matthews strip searched him. None of these searches uncovered any drugs.
B. Anthony Varrone (hereinafter "Varrone") filed a complaint in the United States District Court for the Eastern District of New York seeking damages under 42 U.S.C. § 1983 against the state officers for strip searching him. As finally amended, the complaint named as defendants the appellants Matthews, Ramos, Eisenschmidt, Wells Matthews moved for summary judgment on the basis of qualified immunity, which the district court denied. It held that, for purposes of qualified immunity, it was clearly established at the time that strip searches of prison visitors could be made only when based upon reasonable suspicion. Varrone v. Bilotti, 867 F.Supp. 1145 (E.D.N.Y.1994). The court stated that a visitor's signed consent to a search, which is a condition of visitation and hence involuntary, did not constitute a waiver of Fourth Amendment rights.
Mansfield, Malone and Frett. Varrone's suit subsequently was consolidated with similar actions filed by Joseph Varrone and Claire Varrone, but the district court dismissed the latter claims as untimely. Varrone v. Bilotti, 851 F.Supp. 54 (E.D.N.Y.1993).
Both sides then cross moved for summary judgment--the defendants on the ground of qualified immunity and the plaintiff on the ground that no reasonable trier of fact could find that the defendants' search was based on reasonable suspicion. The district court denied both motions. Noting that it had previously held that, for purposes of qualified immunity, a correctional officer must have "reasonable suspicion" before making a prison visitor submit to a strip search, the court ruled that none of the officials was entitled to qualified immunity because none had assessed whether reasonable suspicion existed to search Varrone. With respect to Frett and Matthews, the officers who conducted the search, the court stated that their actions were ministerial and ruled that qualified immunity "is not available to government employees in the discharge of ministerial tasks."
The court also denied Varrone's motion for summary judgment, stating that "[t]he inquiry into whether an official's actions were objectively reasonable and, therefore, qualifiedly immune, is separate from the determination of whether the actions resulted in a violation of a plaintiff's constitutional rights." Because of unanswered questions about the reliability of the information on which the search was based, the court concluded that genuine issues of material fact existed regarding whether the correctional officers violated Varrone's rights.
The correctional officers appeal from the order denying them qualified immunity. To the extent it turns solely on issues of law, such an order is immediately appealable. See Behrens v. Pelletier, --- U.S. ----, 516 U.S. 299, ----, 116 S.Ct. 834, 841, 133 L.Ed.2d 773 (1996). Varrone cross-appeals from the denial of summary judgment in his favor, requesting this court to exercise pendent appellate jurisdiction.
II
A. The doctrine of qualified immunity generally provides government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action, assessed in light of the legal rules that were "clearly established" at the time it was taken.
Anderson v. Creighton, 483 U.S. 635, 638-639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987) (citations omitted). See also Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Since qualified immunity is an affirmative defense, the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time. See Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982).
The district court here correctly stated that at the time of the strip search, under the "law of the United States Supreme Court, the Court of Appeals for the Second Circuit, and the other circuit courts of appeals," a search of prison visitors without reasonable suspicion violated clearly established law. Varrone v. Bilotti, 867 F.Supp. at 1153. The district court noted that although neither the Supreme Court nor this court had explicitly applied the reasonable- Prior to the strip search on March 10, 1989, three other circuits had established a "reasonable suspicion" standard for strip searches of prison visitors. See Blackburn v. Snow, 771 F.2d 556, 569 (1st Cir.1985); Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 313 (1986); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). Decisions of this court also foreshadowed that standard. See Security and Law Enforcement Employees v. Carey, 737 F.2d 187, 205 (2d Cir.1984) (). See also Weber, 804 F.2d at 804 (); Black v. Amico, 387 F.Supp. 88, 92 (W.D.N.Y.1974) (). Accordingly, we agree with ...
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