Baptiste v. NH Attorney General et al
Filing
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///ORDER granting 14 Motion to Dismiss. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen Baptiste
v.
Civil No. 16-cv-439-JD
Opinion No. 2017 DNH 098
Joseph Foster, New Hampshire
Attorney General, et al.
O R D E R
Stephen C. Baptiste, who is an inmate at the New Hampshire
State Prison for men and is proceeding pro se, brought suit
against the New Hampshire Attorney General and officials and
employees of the New Hampshire Department of Corrections,
alleging claims under 42 U.S.C. § 1983, that arose from a group
strip search at the prison.
As allowed on preliminary review,
Baptiste brings a claim for damages against Officers John Doe
#2, Jardine, Fouts, Orlando, Foncier, alleging that the strip
search violated his Fourth Amendment right to be protected from
unreasonable searches.
The defendants move to dismiss the claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Baptiste
did not file a response to the motion.
Standard of Review
Under Rule 12(b)(6), the court must determine whether the
plaintiff has alleged sufficient facts to support a plausible
claim.
In re Curran, --- F.3d ---, 2017 WL 1405211, at *3 (1st
Cir. Apr. 20, 2017).
The court accepts the properly pleaded
facts as true and takes inferences from the facts in the light
most favorable to the non-moving party.
O’Shea v. UPS
Retirement Plan, 837 F.3d 67, 77 (1st Cir. 2016).
Conclusory
allegations and mere statements of the elements of a cause of
action are not sufficient to avoid dismissal.
Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
Background
The prison hosts a holiday event for inmates and their
families in December each year.
The event is held in the prison
gymnasium with each prison unit assigned a day for the party.
Inmates apply to attend the party and must meet certain criteria
to be allowed to attend.
Baptiste’s unit was scheduled to attend the holiday event
on December 18, 2014.
until 8:45 p.m.
The event began at 6:30 p.m. and lasted
When the visitors were escorted out of the gym
after the event, the inmates remained.
The corrections officers announced that there would be a
strip search of the inmates before they were allowed to leave
the gym.
The inmates were called to tables in groups of eight
for corrections officers to conduct the strip searches,
including visual body cavity searches.
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The strip searches were
done in the open in the gym, without privacy screens, and in the
view of a female corrections officer, Kelly Jardine, who was
standing on the stairs in the gym.
There was also a video
surveillance camera operating during the searches.
In early January of 2015, Baptiste complained to Major
Fouts about the strip search and about a female officer being
present.
Major Fouts denied that a female officer had been
present.
On January 22, Baptiste went to mental health sick
call to report the circumstances of the strip search and to seek
treatment for the trauma he experienced during the search.
Baptiste met with Jean Carrol to discuss the strip search and to
provide a statement.
Baptiste wrote to the New Hampshire Attorney General Joseph
Foster about the strip search.
Foster replied that he had
turned the investigation over to Colon Forbes in the department
of professional standards.
On January 29, 2015, Baptiste sent a
grievance form to Warden Gerry about the strip search, which was
denied as untimely.
In February of 2015, Baptiste sent a
grievance to Commissioner William Wrenn who responded that no
female corrections officer was present during the strip search
and that the strip search procedure would be reviewed and
changed for the next year.
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Discussion
The defendants move to dismiss Baptiste’s claim that the
strip search violated his Fourth Amendment rights.
They argue
both that Baptiste has not alleged facts to show a violation of
his Fourth Amendment rights and that they are protected by
qualified immunity.
Baptiste did not file a response to the
motion.
A.
Fourth Amendment
Prison inmates retain Fourth Amendment rights against
unreasonable searches and seizures.
520, 545 (1979).
Bell v. Wolfish, 441 U.S.
Inmates’ rights, however, are subject to
restrictions and limitations that are imposed because of “[t]he
fact of confinement as well as the legitimate goals and policies
of the penal institution.”
Id. at 546.
Strip searches of
inmates following contact visits, including visual body cavity
searches, are reasonable security measures to deter the
possession of contraband.
Id. at 559-60; see also Florence v.
Bd. of Chosen Freeholders of County of Burlington, 566 U.S. 318,
326-27 (2012) (discussing Bell, 441 U.S. at 558); Wood v.
Hancock County Sheriff’s Dep’t, 354 F.3d 57, 68 (1st Cir. 2003).
Strip searches and body cavity searches must be conducted
in a reasonable manner that is justified by sufficient
legitimate penological interests to outweigh the significant
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privacy interests of the inmate.
Bell, 441 U.S. at 559-60;
Williams v. City of Cleveland, 771 F.3d 945, 951 (6th Cir.
2014); Shapiro v. Rynek, 212 F. Supp. 3d 990, 996 (Colo. 2016);
Lewis v. Chatterson, 2015 WL 9674792, at *6 (W.D. La. Oct. 7,
2015); Shapiro v. Falk, 2014 WL 4651952, at *9 (D. Colo. 2014);
Zunker v. Bertrand, 798 F. Supp. 1365, 1369-70 (E.D. Wisc.
1992).
Inmates may be strip searched in the presence of other
inmates who are also being searched when that is necessary to
prevent introduction of contraband into the prison.
v. Rapone, 926 F. Supp. 255, 261 (D. Mass. 1996).
Fernandez
The presence
of a guard or officer of the opposite sex during a strip search,
however, may violate the inmate’s constitutional rights,
depending on the circumstances.
Cookish v. Powell, 945 F.2d
441, 447 (1st Cir. 1991); accord Baggett v. Ashe, 41 F. Supp. 3d
113, 119-21 & 125-26 (2014); see also Collins v. Knox County,
569 F. Supp. 2d 269, 282-83 (D. Me. 2008).
The strip search and body cavity search conducted by the
defendants was based on the contact visit between inmates and
guests during the holiday party, which is a legitimate reason
for a strip search.
The manner of conducting the search,
however, raises Fourth Amendment concerns.
The inmates were strip searched with visual body cavity
inspection in the gym in the presence of the other inmates and
officers and without any privacy measures.
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The searches were
videotaped, and one of the officers present was female.
The
defendants contend that “there is nothing about the presence of
other inmates, a female corrections officer, or a video
surveillance camera” which would implicate the Fourth Amendment.
As noted above, whether a strip search was reasonable for
purposes of the Fourth Amendment requires consideration of the
manner in which the search was conducted.
Importantly, in the
context of a motion to dismiss, the defendants do not provide
any justification for conducting the strip searches and visual
body cavity searches in the open gymnasium instead of in a more
private environment.
Baptiste alleges that the officers should
have used privacy screens to conduct the searches.
Therefore,
the constitutionality of the search cannot be determined at this
stage of the case without factual development of the
circumstances that required the searches to be conducted in that
manner.
B.
See, e.g., Shapiro, 2014 WL 4651952, at *9.
Qualified Immunity
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.”
Mullenix v. Luna, 136 S.
Ct. 305, 308 (2016) (internal quotation marks omitted).
“[T]he
clearly established law must be ‘particularized’ to the facts of
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the case.”
White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
That standard
does not require a case on point but does require “a case where
an officer acting under similar circumstances as [the defendant]
was held to have violated the Fourth Amendment.”
Id.
The defendants are entitled to qualified immunity in this
case unless the rights Baptiste asserts were clearly established
by December of 2014 when the search occurred.
The Supreme Court
held in 1979, in the context of determining whether a strip
search and visual body cavity search of a pretrial detainee
violated the Fourth Amendment, that “[t]he test of
reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application.”
at 559.
Bell, 411 U.S.
Instead, the reasonableness of the search depends on
“the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place
in which it is conducted.”
Id.
In Cookish, which was decided in 1991, the First Circuit
held that an officer of the opposite sex who views a strip
search of an inmate violates his or her constitutional rights
unless the observation was due to an emergency or was
“inadvertent, occasional, casual, and/or restricted.”
at 447.
945 F.2d
As alleged, Jardine, a female officer, was standing on
the gym stairs with a view of the searches.
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She was not in
close proximity to Baptiste, however, and the circumstances
alleged do not suggest observation that was other than
inadvertent or casual.
Cf. Baggett, 41 F. Supp. 3d at 120-21
(holding that a male guard’s presence during a strip search of a
female inmate when the male guard was only a few feet away and
was videotaping the search violated the inmate’s rights).
Therefore, the law was not clearly established that Jardine’s
presence in the gym during Baptiste’s strip search and visual
body cavity search would violate his rights.
The First Circuit has suggested that searches of inmates
should be conducted in private areas.
See United States v.
Cofield, 391 F.3d 334, 337 (1st Cir. 2004); Wood, 354 F.3d at
69.
The First Circuit has not held, however, that strip
searches of inmates conducted as part of a group violate their
constitutional rights.
Other courts have come to different
conclusions about the constitutionality of group strip searches,
depending on the circumstances.
See, e.g., Williams, 771 F.3d
at 954; Elliott v. Lynn, 38 F.3d 186, 191-92 (5th Cir. 1994);
Peek v. City of New York, 2014 WL 4160229, at *2 (S.D.N.Y. Aug.
18, 2004).
Therefore, it was not clearly established that the
defendants’ search of Baptiste in a group of inmates without
privacy screens would violate his constitutional rights.
Because there is no case before December of 2014 holding
that searches conducted in the manner used by the defendants to
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search Baptiste violated an inmate’s Fourth Amendment rights,
the defendants are entitled to qualified immunity.
Conclusion
For the foregoing reasons, the defendants’ motion to
dismiss (document no. 14) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
May 25, 2017
cc:
Stephen C. Baptiste, pro se
Francis Charles Fredericks, Esq.
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