Gilmore v. Georgia Department of Corrections et al

Filing 70

ORDER ADOPTING 64 REPORT AND RECOMMENDATION of the Magistrate Judge. Defendants' 50 Motion for Summary Judgment is granted in part and denied in part. The Clerk of Court is directed to enter the appropriate judgment of dismissal and to close this case. Signed by District Judge R. Stan Baker on 1/18/2023. (ca)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
CLARISSA GILMORE,
Plaintiff,

CIVIL ACTION NO.: 6:18-cv-115

v.
ALBERTA W. MILTON, et al.,
Defendants.
ORDER
Plaintiff Clarissa Gilmore brought this 42 U.S.C. § 1983 action alleging that she was
subjected to an unconstitutional strip search at Smith State Prison (“SSP”) when she was visiting
an inmate. (See, e.g., doc. 50, p. 1.) The defendants moved for summary judgment, (see id.),
and the Magistrate Judge entered a Report and Recommendation on that motion, (see doc. 64).
Both parties have objected to the Magistrate Judge’s recommendations. (See docs. 65 & 66.)
After a careful de novo review, the Court ADOPTS the Report and Recommendation, as modified
by the discussion below. (Doc. 64); see also 28 U.S.C. § 636(b)(1) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.”). Defendants’ Motion for Summary Judgment is GRANTED, in part, and
DENIED, in part. (Doc. 50.)
BACKGROUND
No party objects to the Magistrate Judge’s summary of the facts. (See docs. 65 & 66.)
The Court, therefore, adopts the Magistrate Judge’s summary. (See doc. 64, pp. 2-6.) Briefly,
the relevant facts are that Plaintiff Clarissa Gilmore visited her ex-husband, an inmate at Smith

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State Prison. (Id., p. 2.) She was admitted to the Visitation Room and visited her ex-husband
for approximately thirty minutes. (Id., pp. 3-4; see also id. at 4 n. 2 (noting ambiguity in
chronology)). Defendants contend, and Plaintiff disputes, that she and her ex-husband engaged
in suspicious behavior during their visit. (Id., pp. 4-5.) There is no dispute, however, that
Defendant Milton directed Plaintiff to accompany her and Defendant Irizarry to a bathroom where
Plaintiff was strip searched. (Id. at 5-6.) The details of the search are strongly disputed. (Id. at
6.) Again, however, there is no dispute that Plaintiff was required to remove all of her clothing,
including her underclothing, during the course of the search. (Id.).
ANALYSIS
Neither party disputes the Magistrate Judge’s statement of the applicable summaryjudgment standard. (See doc. 64, pp. 6-8; see also docs. 65 & 66.) The Court, therefore, adopts
the Report and Recommendation’s statement of the standard.

The Magistrate Judge first

considered Defendants’ argument that they are all entitled to summary judgment on their qualified
immunity defense to Plaintiff’s Fourth Amendment § 1983 claim. (Doc. 64, pp. 8-27.) The
Magistrate Judge then considered Defendants’ argument that Defendant Smith is entitled to
summary judgment on Plaintiff’s supervisory liability claim. (Id., pp. 27-30.) Finally, the
Magistrate Judge considered Defendants’ request for summary judgment on Plaintiff’s claim for
punitive damages under Georgia law. (Id., pp. 30-32.)
Plaintiff objects to the Magistrate Judge’s recommendation that summary judgment be
granted for Defendants on their qualified immunity defense.

(See generally doc. 66.)

Defendants filed a response in opposition to Plaintiff’s objection. (See generally doc. 67.)
Although, as discussed below, the Magistrate Judge recommended granting summary judgment
on the merits of Plaintiff’s supervisory liability claim against Defendant Smith, he objects that the

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Magistrate Judge made no recommendation that it be granted on his alternative qualified-immunity
defense. (See doc. 65, p. 2.) The Court considers the recommendations and objections in that
order below. No party objected to the Magistrate Judge’s recommendation that Defendants’
Motion be denied as moot, to the extent it sought summary judgment on Plaintiff’s claim for
punitive damages. (See doc. 64, pp. 30-32; see generally docs. 65 & 66.)
A. Qualified Immunity
No party disputes the Magistrate Judge’s statement of the standard applicable to an
assertion of qualified immunity. (See doc. 64, pp. 8-11; see also docs. 65 & 66.) Moreover, no
party objects to the Magistrate Judge’s determination that Defendants have made the threshold
showing that they acted within their respective discretionary authorities at all relevant times. (See
doc. 64 at 11; see also doc. 66.) After a de novo review, the Court adopts the Magistrate Judge’s
statement of the qualified immunity standard and his conclusion that Defendants made the required
threshold showing.
As the Magistrate Judge recognized, once a defendant makes the threshold showing, “the
Court must grant defendants qualified immunity unless plaintiff has shown (a) a violation of the
Constitution by any defendant, (b) the illegality of which was clearly established at the time of the
incident.” (Doc. 64, p. 10 (citing Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010)
(citations omitted)). He also pointed out that the Court has discretion in ordering the qualified
immunity inquiry; providing flexibility to “‘rather quickly and easily decide that there was no
violation of clearly established law before turning to the more difficult question of whether the
relevant facts make out a constitutional violation at all.’” (Doc. 64, pp. 12-13 (quoting doc. 37, p.
13.)) The Magistrate Judge proceeded to analyze whether the quantum of suspicion required to
conduct a strip search of a prison visitor was clearly established at the time of the events at issue.

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(Doc. 64, pp. 13-24.) Plaintiff’s objection is wholly focused on that analysis. (See generally
doc. 66.)
The dispositive question for Defendants’ qualified immunity argument is whether it was
clearly established that a strip search of a prison visitor requires, at least, reasonable suspicion.
(See doc. 64, pp. 13-14.)

Plaintiff’s original briefing argued that the reasonable suspicion

standard is established by both case law and “obvious clarity.” (Id.) As discussed in more detail
below, the Magistrate Judge rejected both of those arguments.

Plaintiff objects to both

conclusions.
Plaintiff begins her objections by arguing that the “magistrate judge failed to conduct a
complete analysis of the standard that should be applied to Plaintiff’s strip search.” (Doc. 66,
p. 1.) Specifically, she contends that he “did not address whether or not it is ‘clearly established’
that Defendants could strip search Plaintiff without any suspicion or justification.” (Id.) It is
Plaintiff’s burden, upon a valid assertion of qualified immunity, to show that it was clearly
established that defendants could not conduct a strip search upon less than reasonable suspicion.
Moreover, her broad assertion that the “Fourth Amendment ‘clearly established’” the
impermissibility of the search in question entirely ignores the repeated admonitions, quoted by the
Magistrate Judge, that specificity is particularly important in the fact-intensive Fourth Amendment
context. (See doc. 64, p. 15 (citing District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577,
590 (2018)).
Plaintiff’s second argument, that the Magistrate Judge improperly weighed facts and
misunderstood her contention that “a strip search of a prison visitor without any justification
violates clearly established law,” is similarly mistaken. (Doc. 66, p. 3.) The Magistrate Judge
did not avoid that question, but concluded that “[i]f it is reasonable to think that visitors present a

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greater threat to prison security tha[n] inmates, in some circumstances, Powell and Florence
preclude a firm conclusion that strip searches of visitors based on less than reasonable suspicion,
or perhaps no particularized suspicion at all, are never constitutionally permissible.” (Doc. 64,
p. 21 (second emphasis added).) Plaintiff’s argument effectively repeats arguments made before,
and rejected by, the Magistrate Judge that reasonable suspicion should be required before prison
employees strip search a prison visitor.

The Magistrate Judge acknowledged the facial

plausibility of that contention multiple times. (See, e.g. doc. 64 at 23.) The Magistrate Judge
recognized, however, that qualified immunity does not depend upon whether this Court might be
persuaded that reasonable suspicion is required; the question is whether that requirement is clearly
established.

(Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“When properly

applied, [qualified immunity] protects all by the plainly incompetent or those who knowingly
violate the law.”)). As discussed below, the Court agrees with the Magistrate Judge that, while
reasonable suspicion might be a plausible standard in this context, Plaintiff has not borne her
burden to show that the requirement is clearly established.
The Magistrate Judge concluded that case law did not clearly establish, specifically or
generally, that strip searching a prison visitor on less than reasonable suspicion violated the
Constitution. (See doc. 64, pp. 13-24.) Plaintiff’s objection to the Magistrate Judge’s analysis
of the case law is not persuasive. The Court is not persuaded by her attempt to minimize the
Eleventh Circuit’s qualification in Evans that distinguishes “safety and security” strip searches
from “a post-arrest inventory strip search by the police looking for evidence.” (See doc. 64 at 1516 (citing Evans v. Stephens, 407 F.3d 1272, 1279 (11th Cir. 2005)). Her reading of Evans
depends upon the premise that the quantum of suspicion necessary to justify a strip search of a
prison visitor must be at least as high as the quantum of suspicion required to search an arrestee or

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inmate. (See doc. 66, pp. 5-6.) The Court, however, agrees with the Magistrate Judge’s—and,
indeed, the Evans court’s own—distinction of its facts from the facts at issue here. (See doc. 64,
pp. 15-16 (quoting Evans, 407 F.3d at 1279). Her Objection’s assertion that Brent v. Ashley
clearly established the reasonable suspicion standard is equally dubious, given the wholly distinct
factual circumstances. (Doc. 66, p. 8.) The Magistrate Judge’s discussion of Florence makes
clear that it acknowledged “permissible strip searches on less than reasonable suspicion . . . .”
(Doc. 64 at 17.) If some strip searches are permissible upon less than reasonable suspicion,
defendants’ qualified immunity depends upon whether Plaintiff identifies cases that establish that
strip searches of prison visitors are not among them. None do. 1 All of her arguments from case
law rely on, what the Magistrate Judge described as, her “a fortiori argument,” that searches of
prison visitors require “at a minimum,” the quantum of suspicion required for inmates of various
descriptions. (Doc. 64, p. 26.) The inferential leap that argument demands, however plausible
it might be, precludes a finding that its conclusion is “clearly established” by existing case law. 2
The Magistrate Judge also considered whether, even if it was not clearly established that
the initiation of a strip search, based on less than reasonable suspicion, violated the Fourth
Amendment, it was clearly established that the conduct of the search did. (See doc. 64, p. 24.)
The Magistrate Judge noted that Plaintiff bears the burden of showing that the scope of her rights
Plaintiff’s assertion that out-of-circuit precedent establishes reasonable suspicion as the correct standard
ignores the Magistrate Judge’s discussion of Florence. (See doc. 66, p. 4; see also doc. 64, pp. 17-18.)
The Magistrate Judge concluded that the Supreme Court’s opinion in Florence altered the application of
those prior cases. (Doc. 64, p. 17.)
1

Plaintiff’s admonition concerning creation of inter-circuit conflict is also misplaced. (Doc. 66, p. 5.)
The question for evaluating defendants’ assertion of qualified immunity is whether the reasonable-suspicion
standard is clearly established. Even if this Court concludes that it is not clearly established, that hardly
conflicts with other circuits’ conclusions that it is the proper standard, even assuming Plaintiff were correct
in her assertion of those cases’ application after Florence. The conclusion drawn by the Magistrate Judge-that the quantum of suspicion required to conduct a strip search of a prison visitor is not clearly established
and, thus, might be less than reasonable suspicion—would not establish that reasonable suspicion is not
required, it merely recognizes the possibility that it is not required.
2

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was clearly established. (Id., p. 25.) He also found that her reliance on authority discussing the
rights of arrestees and detainees was not persuasive. (Id., pp. 25-26.) Plaintiff summarizes the
authority she relies upon as clearly establishing that “1) inmates retain their fourth amendment
rights to be free from unreasonable searches and seizures; 2) only visual strip searches have been
deemed constitutional for inmates; and 3) inmate strip searches can be abused if done for an
impermissible purpose . . . .” (Doc. 66, p. 10 (emphasis added).) That summary makes clear that
Plaintiff’s contention, again, depends upon her premise that the standards for visitor strip searches
must be at least as stringent as those for inmates. However, beyond the rhetorical plausibility of
that premise, the Court is not persuaded that it is “clearly established.” (See doc. 64, pp. 20-21.)
The Court, therefore, agrees with the Magistrate Judge’s conclusion that Plaintiff has not borne
her burden to show that the violative character of a contact search of a prison visitor was clearly
established. (Id., pp. 24-25.)
Plaintiff’s Objection concludes: “If searches of prisoners must be reasonable, logic and
common sense dictate that searches of those not detained must at least meet this minimal standard.
Therefore, if reasonable suspicion is required to search someone suspected of carrying contraband,
the obvious illegality of conducting a quasi-physical strip search of a prison visitor absent
reasonable suspicion violates the most fundamental principles of personal privacy and dignity
under the Fourth Amendment.” (Doc. 66, pp. 12-13.) The undersigned, like the Magistrate
Judge, is “not unsympathetic to Plaintiff’s argument that reasonable suspicion should be required
before subjecting a prison visitor to a strip search.” (Doc. 64, p. 23.) However, the Court agrees
with the Magistrate Judge’s conclusion that, however plausible Plaintiff’s contention, she has not
borne her burden to show that the right at issue was clearly established at the time of defendants’
alleged misconduct.

(Id., pp. 26-27.)

Accordingly, the Court ADOPTS the Report and

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Recommendation, (doc. 64, in part), and GRANTS Defendants’ Motion for Summary Judgment,
to the extent that it asserts they are entitled to qualified immunity on Plaintiff’s Fourth Amendment
claim, (doc. 50, in part).
B. Supervisory Liability
Defendants’ objection can be resolved with relative dispatch. Defendants object that the
Magistrate Judge did not recommend granting summary judgment as to Defendant Smith’s
assertion of qualified immunity on Plaintiff’s supervisory liability claim against him.

(See

doc. 65 at 1-2.) The Magistrate Judge noted that Defendants’ arguments for summary judgment
on Smith’s supervisory liability “are cursory, at best.” (Doc. 64, p. 27.) He further noted that
Plaintiff’s responses did not address those cursory arguments at all. (Id.) The Magistrate Judge
construed Defendants’ argument as asserting that Plaintiff would be unable to bear her burden of
showing Smith’s participation in the allegedly unconstitutional search or a causal connection
between his actions and the alleged constitutional violation. (Id. at 28-29.) Such a failure, the
Magistrate Judge explained, would be fatal to Plaintiff’s supervisory-liability claim. (Id., p. 29
(citing Keith v. DeKalb Cnty., 749 F.3d 1034, 1047-48 (11th Cir. 2014) (“[T]o hold a supervisor
liable a plaintiff must show that the supervisor either directly participated in the unconstitutional
conduct or that a causal connection exists between the supervisor’s actions and the alleged
constitutional violation.”).) The Magistrate Judge explained that the only evidence Plaintiff cites
in support of her supervisory liability claim is a statement in her deposition that she was unaware
of whether Smith, or indeed anyone, ordered the search. (Doc. 64, p. 30.) The Magistrate Judge
then explained “Plaintiff’s ignorance about who ordered the search is, quite obviously, insufficient
to support a [supervisory liability] claim against Smith . . . .” (Id.) Plaintiff has not objected to

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the Magistrate Judge’s conclusion that Smith was entitled to summary judgment on her supervisory
liability claim. (See generally doc. 66.)
The Magistrate Judge’s Report and Recommendation is ADOPTED to the extent that it
recommends that summary judgment be granted for Smith on the merits of Plaintiff’s supervisory
liability claim. (Doc. 64, p. 30.) Defendants’ Motion for Summary Judgment is GRANTED to
the extent that it seeks summary judgment as to Smith’s supervisory liability. (Doc. 50, in part.)
The Court, like the Magistrate Judge, declines to consider the argument, in the alternative, that
Smith is also entitled to summary judgment based on qualified immunity. (See doc. 50-1, p. 20.)
Cf. Goebert v. Lee Cnty, 510 F.3d 1312, 1325 n. 5 (11th Cir. 2007) (declining to consider summary
judgment on any “alternative ground the district court did not reach.”); Sharma v. Johnston, 515
F. App’x 818, 820 n. 2 (11th Cir. 2013) (“Because, on the merits, summary judgment was
appropriate . . . , we need not consider [the] alternative arguments that summary judgment was
proper on the basis of . . . qualified immunity.”); Mosley v. Caraviello, 2021 WL 1725519, at *8
(S.D. Ga. Mar. 26, 2021) (“Because Defendant is entitled to summary judgment on the merits of
Plaintiff’s claim . . . the Court need not address Defendant’s qualified immunity argument.”),
adopted 2021 WL 173229 (S.D. Ga. Apr. 30, 2021). Defendants’ objection is OVERRULED.
(Doc. 65.)
CONCLUSION
For the reasons explained above, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation. (Doc. 64.) Accordingly, Defendants’ Motion for Summary Judgment is
GRANTED, in part, and DENIED, in part. (Doc. 50.) It is GRANTED to the extent that it
seeks summary judgment on Defendants’ assertion of qualified immunity against Plaintiff’s
Section 1983 Fourth Amendment claims, and to the extent it seeks summary judgment on the

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merits of Plaintiff’s supervisory liability claim against Defendant Smith. It is DENIED as moot
to the extent that it seeks summary judgment on Plaintiff’s claim for punitive damage. The Clerk
of Court is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case.
SO ORDERED, this 18th day of January, 2023.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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