PIZARRO v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHANTA PIZARRO, : Civil No. 3:20-CV-00511

:

Plaintiff, :

:

v. : (Magistrate Judge Carlson)

:

JOHN E. WETZEL, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

The plaintiff, Shanta Pizarro, filed this lawsuit against the defendants,

asserting violations of her civil rights pursuant to 42 U.S.C. § 1983. In her complaint,

Pizarro alleges that her Fourth and Fourteenth Amendment rights were violated

during a visit to the State Correctional Institute (“SCI”) in Dallas, Pennsylvania,

where her body was “strip” searched and her personal cell phone was searched by

correctional staff. Several defendants have been dismissed due to failure to state a

claim against them. (Doc. 37). The remaining defendants, Gardzalla, Bradley, and

Reese, now move for summary judgment, arguing there is no genuine issue of

material fact with respect to these claims.

For the following reasons, the motion for summary judgment will be granted

in part and denied in part.

II. Statement of Facts and of the Case

This case involved the strip search of a prison visitor and the question of

whether that highly intrusive physical search was based upon a reasonable suspicion

or some unarticulated hunch.

On March 26, 2018, Pizarro arrived at SCI-Dallas for her weekly visit with

her boyfriend, Edward Woods, who was incarcerated there. (Doc. 17, ¶¶ 11-12).

Such visits take place in a designated visitation room within the prison, and visitors

pass through several different security measures before entering. (Doc. 44-4, at 7).

Pizarro passed through the usual entry protocols of an ion scan, a metal detector, and

a dress code check. (Doc. 17, ¶ 15; Doc. 44-4, at 10). After she did so, Defendants

Gardzalla and Bradley approached Pizarro, as they thought she may be smuggling

drugs into the prison, told her to accompany them to the Administrative Building

next door, and they subsequently escorted her there. (Doc. 17, ¶ 17; Doc. 45, at 23).

Behind a closed door, the two defendants asked Pizarro whether she had ever

brought synthetic marijuana or Suboxone into the prison. (Doc. 17, ¶¶ 18, 26). They

also asked whether Pizarro had received money from Woods. (Id., ¶ 30). Although

Pizarro admitted to receiving money, she denied any criminal activity and explained

that she believed the money came from Woods’ poker winnings. (Id., ¶¶ 27, 31-32).

In his deposition, Defendant Bradley stated that at this point in the interaction with

Pizarro, he was “on the fence” and “wasn’t sure” if Pizarro was in possession of

narcotics. (Doc. 44-2, at 6). Notwithstanding this admitted uncertainty, Defendant

Reese was called to conduct a strip search of Pizarro. (Id., at 8).

On this score, it is unclear who actually ordered the strip search. For his part,

Bradley stated that he did not have the authority to order a strip search. (Doc. 44-2,

at 8). On the other hand, Gardzalla stated that Bradley was the one who requested

that Pizarro be searched, and that Gardzalla was acting on Bradley’s request when

he called for a female officer to assist with a search. (Doc. 45, at 24). Reese stated

that she was told by another Lieutenant to meet Gardzalla, and she was only

informed that it was a strip search of a visitor when she reported to Gardzalla and

Bradley. (Doc. 44-3, at 5). Notably, Reese stated that in her nine years as a

correctional officer, Ms. Pizarro was the only visitor she ever strip searched, and that

she was aware strip searches of visitors were prohibited by prison policy. (Id., at 6-

7).1

Despite having the knowledge that the strip search would violate prison

policy, Defendant Reese followed the order she was given and escorted Pizarro to a

female locker room, where she advised Pizarro that she would be strip searched,

although it is unclear if Pizarro actually consented to the search. (Doc. 17, ¶¶ 36, 39;

Doc. 44-2, at 8). During the search, Pizarro removed all her clothes, and Defendant

1 Pennsylvania Department of Corrections policy strictly prohibits strip searches of

visitors. (See Doc. 45, at 80; see also DC-ADM 812, Section 3B1(b)(6) (updated

Feb. 20, 2020).

Reese subjected her to a visual body cavity search that included examinations of

Pizarro’s mouth, breast, and genital areas. (Doc. 17, ¶ 41; Doc. 44-3, at 5-6; Doc.

44-4, at 13). Following the search, Pizarro was permitted to use the bathroom under

observation, dress herself, and return to the room where she was originally

questioned. (Doc. 17, ¶¶ 43-44). She was then questioned further regarding the same

topics introduced before the search, to which she gave the same responses. (Id., ¶

44). Pizarro claims that she did not believe she had the right to leave at any point

during the aforementioned search or questioning. (Doc. 17, ¶ 21).

After their questioning, Defendants Gardzalla and Bradley escorted Pizarro to

her vehicle. (Id., ¶ 48). They then searched the vehicle and Pizarro’s cell phone,

taking pictures of various screens. (Id., ¶¶ 48, 50). The searches did not result in any

findings of contraband. (Id., ¶ 60). The defendants ultimately denied Pizarro’s

request to visit Woods. (Id., ¶ 62).

It is against this factual backdrop that the plaintiff brought suit pursuant to 42

U.S.C. § 1983 against six named defendants, alleging a deprivation of her Fourth

and Fourteenth Amendment rights. (Doc. 17). Three of these defendants have since

been dismissed. (Doc. 37). The three remaining defendants—Gardzalla, Bradley,

and Reese—have filed the instant motion for summary judgment. (Doc. 42). In doing

so, they argue that the plaintiff does not have a valid Fourteenth Amendment due

process claim in this case since her claims, which relate to a search and seizure and

are grounded in the Fourth Amendment, are governed under the more-specific

provision rule; that the search of the plaintiff’s phone was reasonable under the

special needs doctrine; that the strip search was supported by reasonable suspicion;

and that all three defendants are entitled to both sovereign and qualified immunity.

(Doc. 43). For the following reasons, we will recommend that the motion be granted

in part and denied in part.

III. Discussion

A. Motion for Summary Judgment – Standard of Review

The defendants have moved for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure, which provides that the court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Through summary adjudication, a court is empowered to dispose of those claims that

do not present a “genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and

for which a trial would be “an empty and unnecessary formality.” Univac Dental Co.

v. Dentsply Int’l, Inc., 702 F. Supp. 2d 465, 468 (M.D. Pa. 2010). The substantive

law identifies which facts are material, and “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute about a material fact is genuine only if there is a sufficient

evidentiary basis that would allow a reasonable fact finder to return a verdict for the

non-moving party. Id., at 248-49.

The moving party has the initial burden of identifying evidence that it believes

shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.

& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown

that there is an absence of evidence to support the non-moving party’s claims, “the

non-moving party must rebut the motion with facts in the record and cannot rest

solely on assertions made in the pleadings, legal memoranda, or oral argument.”

Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails

to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden at trial,” summary

judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also

appropriate if the non-moving party provides merely colorable, conclusory, or

speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla

of evidence supporting the non-moving party and more than some metaphysical

doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the

Court must “consider all evidence in the light most favorable to the party opposing

the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary judgment motion by citing

to disputed material issues of fact must show by competent evidence that such factual

disputes exist. Further, “only evidence which is admissible at trial may be considered

in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers

Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne

cannot create an issue of fact merely by . . . denying averments . . . without producing

any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App’x

896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary

judgment is made and supported . . ., an adverse party may not rest upon mere

allegations or denial.” Fireman’s Ins. Co. of Newark New Jersey v. DuFresne, 676

F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697

F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue

of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is

also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969).

Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon

bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338,

341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).

Finally, it is emphatically not the province of the court to weigh evidence or

assess credibility when passing upon a motion for summary judgment. Rather, in

adjudicating the motion, the court must view the evidence presented in the light most

favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable

inferences in the light most favorable to the non-moving party. Big Apple BMW,

Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where

the non-moving party’s evidence contradicts the movant’s, then the non-movant’s

must be taken as true. Id. Additionally, the court is not to decide whether the

evidence unquestionably favors one side or the other, or to make credibility

determinations, but instead must decide whether a fair-minded jury could return a

verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see

also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third

Circuit has instructed that:

To raise a genuine issue of material fact . . . the opponent need not

match, item for item, each piece of evidence proffered by the movant.

In practical terms, if the opponent has exceeded the “mere scintilla”

threshold and has offered a genuine issue of material fact, then the court

cannot credit the movant’s version of events against the opponent, even

if the quantity of the movant’s evidence far outweighs that of its

opponent. It thus remains the province of the fact finder to ascertain the

believability and weight of the evidence.

Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

quotation marks omitted); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d

464, 476 (3d Cir. 2011).

B. This Motion for Summary Judgment Will Be Granted in Part and

Denied in Part.

In her complaint against the remaining defendants, the plaintiff asserts civil

rights claims pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of [state law] subjects, or causes to be

subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws… [to be held] liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress…

42 U.S.C. § 1983. In bringing this claim, the plaintiff alleges that the defendants

have violated her Fourth and Fourteenth Amendment rights.

After a review of the record, we conclude that the plaintiff’s Fourteenth

Amendment due process claim fails under the more-specific provision rule. In

addition, we find that the Fourth Amendment claim relating to the plaintiff’s cell

phone fails, as the search arguably falls within an exception to the warrant

requirement. However, with respect to the Fourth Amendment claim regarding the

strip search of Pizarro at the prison, we conclude that there are genuine issues of

material fact that preclude summary judgment on this claim. Accordingly, the

motion for summary judgment will be granted in part and denied in part.

1. The More-Specific Provision Rule Precludes the Plaintiff’s Due

Process Claim.

In her complaint, Ms. Pizarro asserts that the searches conducted by prison

officials deprived her of her right to due process, in addition to violating the Fourth

Amendment. The defendants, in turn, advance the more-specific provision rule as

grounds for summary judgment regarding Pizarro’s Fourteenth Amendment due

process claim. We agree.

The more-specific provision rule states that “if a constitutional claim is

covered by a specific constitutional provision… the claim must be analyzed under

the standard appropriate to that specific provision, not under the rubric of substantive

due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citing Graham

v. Connor, 490 U.S. 386, 394 (1989)). The Third Circuit has expressly adopted this

rule for cases involving Fourteenth Amendment substantive due process claims

brought in combination with claims of other constitutional violations that challenge

the same conduct. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 261 (3d Cir.

2010); see also Piazza v. Lakkis, 2012 WL 2007112, at *5-6 (M.D. Pa. June 5, 2012)

(Caputo, J.).

In the instant case, Pizarro claims the defendants “[subjected] her to

unreasonable search and seizure, unlawful detention, [and] unlawful strip search,

thereby depriving [her] of property and liberty without due process of law.” (Doc.

17, ¶ 82). In making such a claim, Pizarro effectively challenges Fourth Amendment

“unreasonable search and seizure” under the Fourteenth Amendment, while raising

an alternative claim invoking the same Fourth Amendment language. (Doc. 17, ¶

70). The Fourth Amendment’s language of “unreasonable search and seizure” more

appropriately encompasses this claim, and we therefore conclude the plaintiff’s

Fourteenth Amendment due process claim fails under the more-specific provision

rule. Thus, this Fourteenth Amendment claim will be dismissed.

2. The Special Needs Doctrine Applies to the Phone Search.

Next, the defendants argue that the special needs doctrine justified their

warrantless search of Pizarro’s cell phone. We observe that “typically, in order to be

‘reasonable’ under the Fourth Amendment, a search must be supported by a warrant,

unless the search is supportable under one or more of the ‘specifically established

and well-delineated exceptions’ to the warrant requirement.” Neumeyer v. Beard,

421 F.3d 210, 213 (3d Cir. 2005) (quoting United States v. Brightwell, 563 F.2d 569,

574 (3d Cir. 1977)). The special needs doctrine effectively falls into the category of

“specifically established and well-delineated exceptions.” The doctrine functions

such that:

“Where a Fourth Amendment intrusion serves special government

needs, beyond the normal need for law enforcement, it is necessary to

balance the individual’s privacy expectations against the Government’s

interests to determine whether it is impractical to require a warrant or

some level of individualized suspicion in the particular context.” In

other words, there are instances when a search furthers a “special

governmental need” beyond that of normal law enforcement such that

the search, although not supported by the typical quantum of

individualized suspicion, can nonetheless still be found constitutionally

“reasonable.”

Neumeyer v. Beard, 421 F.3d 210, 213-14 (3d Cir. 2005) (quoting Nat’l Treasury

Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989)). Proof of probable

cause or reasonable suspicion is unnecessary to invoke the special needs doctrine.

Id. at 214. Rather, the government must prove “reasonableness” by means of “a

particular search… ‘judged by balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legitimate governmental interests’

beyond that of typical law enforcement.” Id. (quoting Wilcher v. City of

Wilmington, 139 F.3d 366, 373-74 (3d Cir. 1998)).

In determining that a search of a prison visitor’s care or cell phone may fall

under the special needs doctrine, we note that,

The problems that arise in the day-to-day operation of a corrections

facility are not susceptible of easy solutions. Prison administrators

therefore should be accorded wide-ranging deference in the adoption

and execution of policies and practices that in their judgment are needed

to preserve internal order and discipline and to maintain institutional

security.

Bell v. Wolfish, 441 U.S. 520, 547 (1979). Furthermore, the Third Circuit has

reasoned that, “considering the relatively minor inconvenience of the searches,

balanced against the SCIH/DOC officials’ special need to maintain the security and

safety of the prison that rises beyond their general need to enforce the law,” searches

of prison visitors’ vehicles are valid under the special needs doctrine. Neumeyer,

421 F.3d at 214.

We conclude that the cell phone search in this case presents sufficiently

similar circumstances to the Neumeyer search and therefore falls under the special

needs doctrine. Indeed, we have previously held that a search of a cell phone

believed to have information that could compromise prison security is “reasonable

to ensure that there [is] no information on the cell phone that could compromise the

prison or its staff.” Randolph v. FCI Allenwood (Med), 2018 WL 2276246, at *6

(M.D. Pa. April 24, 2018), report and recommendation adopted 2018 WL 2263733

(M.D. Pa. May 17, 2018). In instant case, the search of the plaintiff’s phone presents

no circumstances suggesting an inconvenience beyond a “brief detention.” The

phone search was a minimally intrusive method of attempting to corroborate the

defendants’ apparent belief that previous messages indicated Pizarro was attempting

to bring contraband into the prison. Although the search recovered no such

messages, given the existing case law which permitted such searches, we cannot

conclude that this brief and minimally invasive search violated any clearly

established rights of the plaintiff under the Fourth Amendment.2 Accordingly, we

will grant summary judgment as to this Fourth Amendment claim.

2 Although we have found that this cell phone search did not violate the Fourth

Amendment, given the existing caselaw on the issue, we also find that the defendants

would be entitled to qualified immunity on this claim.

3. Defendants are Not Entitled to Qualified Immunity on the

Remaining Fourth Amendment Claim.

We now turn to what is the most troubling aspect of this episode, the strip

search of Ms. Pizarro. At the outset, we note that there is little doubt that this strip

search violated prison policy which strictly prohibits strip searches of visitors. (See

Doc. 45, at 80; see also DC-ADM 812, Section 3B1(b)(6) (updated Feb. 20, 2020).

While this fact is not conclusive with regard to the constitutional questions before

us, it is instructive regarding the extent to which the conduct undertaken here was a

forbidden practice under agency procedures.

Notwithstanding this policy prohibition on visitor strip searches, the

defendants argue that the strip search should be upheld on the grounds of reasonable

suspicion. Furthermore, the defendants claim that summary judgment should be

granted on the grounds of qualified immunity. We disagree, as we conclude that

there is a factual dispute as to whether the defendants had reasonable suspicion to

justify the strip search, and thus summary judgment would be inappropriate at this

time.

“Qualified immunity shields government officials from civil damages liability

unless the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S.

658, 664 (2012). A qualified immunity analysis involves two questions: whether the

official violated a statutory or constitutional right, and whether that right was clearly

established at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). Lower courts have the discretion to decide which question to analyze

first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The Supreme Court has

cautioned courts to “think carefully before expending scarce judicial resources to

resolve difficult and novel questions of constitutional or statutory interpretation that

will have no effect on the outcome of the case.” Id. (internal quotations omitted); see

also al-Kidd, 563 U.S. at 735.

An official's conduct violates clearly established law when, “at the time of the

challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would [have understood] that what he is doing violates that

right.’ ” al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). The Supreme Court has stated that this standard does not require a case

directly on point but requires that “existing precedent must have placed the statutory

or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. “When properly

applied, [qualified immunity] protects all but the plainly incompetent or those who

knowingly violate the law.” Id. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)); see also Taylor v. Barkes, 575 U.S. 822 (2015).

The dispositive question that the court must ask is “whether the violative

nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12

(2015) (quoting al-Kidd, 563 U.S. at 742). The inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.” Id.; see also

Davenport v. Borough of Homestead, 870 F.3d 273, 281 (3d Cir. 2017). This

“clearly established” standard ensures that an official can reasonably anticipate when

his or her conduct may give rise to liability, and “protects the balance between

vindication of constitutional rights and government officials’ effective performance

of their duties.” Reichle, 566 U.S. at 664.

We find that there is a genuine issue of material fact concerning whether this

particular strip search violated the plaintiff’s Fourth Amendment rights. As we have

noted, for a warrantless search to be valid under the Fourth Amendment, the officers

conducting the search must have reasonable suspicion of criminal activity. United

States v. Green, 897 F.3d 173, 183 (3d Cir. 2018). It is well settled that “reasonable

suspicion ‘requires only a particularized and objective basis for suspecting . . .

criminal activity.’” Id. (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

Moreover, whether an officer has reasonable suspicion must be evaluated in light of

the totality of the circumstances. Id. However, reasonable suspicion should not be

concluded “based on nothing more substantial than inarticulate hunches.” Terry v.

Ohio, 392 U.S. 1, 22 (1968); see Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). In

essence, the inquiry that reasonable suspicion poses is whether “the facts available

to the officer at the moment of the seizure or the search ‘warrant a man of reasonable

caution in the belief’ that the action taken was appropriate.” Terry, 392 U.S. at 21-

22.

In the instant case, we cannot conclusively answer this inquiry in the

affirmative as a matter of law. We cannot do so in large measure because the

defendants themselves could not fully articulate specific facts giving rise to a

reasonable suspicion to conduct a strip search in this case. While the plaintiff’s

alleged text messages and money transfers may have authorized the defendants’

initial detention and questioning, there is no evidence indicating Pizarro’s answers

allowed the defendants to reasonably conclude a strip search was appropriate. Quite

the contrary, when deposed, Defendant Bradley admitted that, following the initial

interview, he “was on the fence. [He] wasn’t sure if [Pizarro] had narcotics on her

or not.” (Doc. 44-2, at 6). In our view, this averment—which is cloaked in

uncertainty regarding whether Ms. Pizarro possessed contraband—falls short of

what the Constitution requires in this setting to establish a reasonable suspicion

based upon specific and articulable facts.

For his part, Defendant Gardzalla stated that he was not aware of the questions

Bradley was asking Pizarro, and that Pizarro offered to be strip searched so that she

could visit her boyfriend. (Doc. 45, at 24, 27). Accordingly to Gardzalla, Bradley

ordered the search “presumably because there was a chance that she had an illicit

item on her.” (Id., at 24) (emphasis added). Thus, Gardzalla seemed to justify this

strip search based upon a presumption that there was a chance that Ms. Pizarro

possessed contraband. Such speculative presumptions may come perilously close to

the type of hunches which, as a matter of settled constitutional law, do not constitute

a reasonable suspicion. Further, and significantly, Pizarro stated that prior to their

questioning and the strip search, she was subjected to an ion scan, which is used to

detect illicit substances on a visitor’s person and which she had been through on all

of her prior visits as a part of the visitor protocol. (Doc. 44-4, at 7, 10). There is no

indication that the ion scan revealed anything suspicious. Therefore, to the extent

that the defendants were acting upon some incompletely formed suspicion

concerning Ms. Pizarro, the apparent lack of any ion scan evidence to support that

suspicion would seem to further undermine the reasonableness of this suspicion.

Thus, based on the record before us, we cannot conclude as a matter of law that the

defendants had a reasonable suspicion to strip search Pizarro.

Further, we conclude that Pizarro’s right to be free from a strip search absent

reasonable suspicion was clearly established at the time of the alleged violation. To

find that a right has been clearly established, “the contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)) (internal quotation marks omitted). The Third Circuit has

clarified that a right can be clearly established if there is sufficient precedent to

constitute notice to the officer that their actions would result in a constitutional

violation. Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169

(3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).

On this score,

We look first for applicable Supreme Court precedent. Even if none

exists, it may be possible that a “robust consensus of cases of persuasive

authority” in the Court of Appeals could clearly establish a right for

purposes of qualified immunity.

Id. (citing Taylor v. Barkes, 575 U.S. 822, 826 (2015)).

In the instant case, we find such a consensus of persuasive authority. This

court has acknowledged that “prison visitors may be subject to far more invasive

searches of their persons, including strip searches, where prison officials have

reasonable suspicion that the individual may be carrying contraband.” Randolph,

2018 WL 2276243, at *6 (emphasis added) (citing Spear v. Sowders, 71 F.3d 626

(6th Cir. 1995); Romo v. Champion, 46 F.3d 1013 (10th Cir. 1995); Blackburn v.

Snow, 771 F.2d 556 (1st Cir. 1985) (all requiring reasonable suspicion for strip

searches)); see also Neumeyer, 421 F.3d at 213 n.2 (citing Thorne v. Jones, 765 F.2d

1270, 1277 (5th Cir.1985), and Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982)).

Furthermore, another district court in this Circuit has noted that “nine of the ten

Circuit Courts that have encountered the issue [of strip searches] have held that

prison officials must possess reasonable individualized suspicion before strip

searching prison visitors.” Brewer v. Hayman, 2009 U.S. Dist. LEXIS 59321, at *9-

11 (D.N.J. July 9, 2009) (collecting cases).3

Accordingly, we find that there is a “robust consensus of persuasive authority”

that concludes prison officials need, at a minimum, reasonable suspicion to order a

strip search of a prison visitor. Thus, these correctional officials were on notice that

ordering a strip search of Pizarro without reasonable suspicion violated her Fourth

Amendment rights. Given that we have concluded there is a question of fact

concerning whether these officials had the requisite reasonable suspicion to order

the strip search, we find that summary judgment on the grounds of qualified

immunity would be inappropriate.

Further, although we find that a requirement of reasonable suspicion is clearly

established in this case, we also note that there is recent caselaw which suggests that

prison officials may need more than just a reasonable suspicion to order such a

search. In doing so, we turn to a Ninth Circuit case bearing a striking resemblance

to the case at hand. In Cates v. Stroud, 976 F.3d 972 (9th Cir. 2020), a female

individual was visiting an inmate at a prison in Nevada. Upon attempting to visit her

3 Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995); Romo v. Champion, 46 F.3d

1013, 1020 (10th Cir. 1995); Weber v. Dell, 804 F.2d 796, 802, 804 (2d Cir. 1986);

Blackburn v. Snow, 771 F.2d 556, 567 (1st Cir. 1985); Thorne v. Jones, 765 F.2d

1270, 1276 (5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984);

Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983); Hunter v.

Auger, 672 F.2d 668 (8th Cir. 1982); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.

1981).

boyfriend, the plaintiff, who officers suspected of smuggling drugs into the prison,

was subjected to a warrantless visual body cavity search. Cates, 976 F.3d at 975-77.

At no point did officers inform the plaintiff that she was free to leave. Id. at 976. The

Court of Appeals, in holding that the search violated the plaintiff’s Fourth

Amendment rights, stated that:

Even if there was reasonable suspicion that [the plaintiff] was seeking

to bring drugs into the prison (a question we do not reach), [the

defendant] violated her rights under the Fourth Amendment by

subjecting her to a strip search without giving her the option of leaving

the prison rather than being subjected to the search.

Id. at 984 (adopting the ruling of Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995)).

In this case, Pizarro similarly alleges that “at no point [following her entry

into the interview room] did [she] feel free to leave the facility, refuse to answer any

questions, [or] refuse to comply with any demands… for fear of being arrested.”

(Doc. 17, ¶ 21). Thus, while we find that a minimum requirement of reasonable

suspicion has been clearly established for strip searches, we note that such a

requirement may remain inadequate in cases where prison visitors do not feel free

to leave during the search.

In any event, a robust consensus of persuasive authority holds that at a

minimum, prison officials need reasonable suspicion to order a strip search of a

visitor. Moreover, there is a genuine issue of fact concerning whether the defendants

had the requisite reasonable suspicion in this case. Accordingly, we conclude that

the defendants are not entitled to qualified immunity, and summary judgment will

be denied with respect to the plaintiff’s Fourth Amendment claim concerning the

strip search.

4. Sovereign Immunity

Finally, the defendants contend that to the extent the plaintiff’s complaint

attempts to set forth state law claims against them, these claims are barred by the

doctrine of sovereign immunity. We agree.

Under Pennsylvania law, the Commonwealth, its agencies and employees

enjoy broad immunity from most state-law tort claims, as the General Assembly has

by statute provided that “the Commonwealth, and its officials and employees acting

within the scope of their duties, shall continue to enjoy sovereign immunity and

official immunity and remain immune from suit except as the General Assembly

shall specifically waive the immunity.” 1 Pa. Cons. Stat. § 2310; see also Moore v.

Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In other words, if the

Commonwealth is entitled to sovereign immunity under Act 152, then its officials

and employees acting within the scope of their duties are likewise immune”). This

grant of immunity “applies to Commonwealth employees in both their official and

individual capacities, so long as the employees are ‘acting within the scope of their

duties.’” Larsen v. State Employees’ Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa.

2008). Conduct of an employee is within the scope of employment if “‘it is of a kind

and nature that the employee is employed to perform; [and] it occurs substantially

within the authorized time and space limits....’” Brautigan v. Fraley, 684 F.Supp. 2d

589, 593-94 (M.D. Pa. 2010); see also Faust v. Dep’t of Revenue, 592 A.2d 835

(1991) (holding that a Commonwealth employee was protected under sovereign

immunity from liability from intentional acts which caused emotional distress when

he was acting within the scope of his duties).

Thus, so long as the agent or employee is acting within the scope of his

employment, and none of the nine recognized statutory exceptions apply,4 sovereign

immunity will bar any state law claims against him.

In analyzing claims of sovereign immunity, “Pennsylvania has accepted the

Restatement (Second) of Agency’s definition of conduct ‘within the scope of

employment.’” Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). The

Restatement reads, in relevant part:

(1) Conduct of a servant is within the scope of employment if, but only

if:

(a) it is of the kind he is employed to perform;

4 In 42 Pa. Cons. Stat. § 8522(b), the General Assembly defined nine separate,

narrow exceptions to the broad grant of sovereign immunity. These exceptions

include: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or

control of personal property; (4) Commonwealth real estate, highways and

sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control

of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and

vaccines. “Because of the clear intent to insulate government from exposure to tort

liability, the exceptions to immunity are to be strictly construed.” Lockwood v. City

of Pittsburgh, 561 Pa. 515, 751 A.2d 1136, 1139 (Pa. 2000) (citation omitted).

(b) it occurs substantially within the authorized time and space limits;

[and]

(c) it is actuated, at least in part, by a purpose to serve the master…

(2) Conduct of a servant is not within the scope of employment if it is

different in kind from that authorized, far beyond the authorized time

or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228.

In this case, there is no question that, by subjecting the plaintiff to a strip

search, the defendants violated DOC policy that strictly prohibits strip searches of

visitors. However, the Third Circuit has noted that “‘an act, although forbidden or

done in a forbidden manner, may be within the scope of employment.’” Brumfield,

232 F.3d at 381 (quoting Restatement (Second) of Agency § 230). Thus, “under

Pennsylvania law, even unauthorized acts may be within the scope of employment

‘if they are clearly incidental to the master’s business.’” Id. (quoting Shuman Estate

v. Weber, 419 A.2d 169 (1980)); see also Lee v. Lamas, 419 F.Supp.3d 863, 870

(E.D. Pa. 2019). This principle has been applied to prison strip search claims and

state law tort claims brought against prison officials in this factual context have been

dismissed on sovereign immunity grounds. Jackson v. O'Brien, No. 1:18-CV-32,

2020 WL 5702418, at *7 (W.D. Pa. Sept. 24, 2020); Marrow v. Pennsylvania, No.

1:18-CV-00931, 2018 WL 4963982, at *9 (M.D. Pa. Oct. 15, 2018).

On the record before us, we cannot conclude that the defendants’ actions fell

outside the scope of their employment. To the contrary, the defendants conducted

the strip search of Pizarro in order to ensure that she was not smuggling illicit

substances into the prison. While violative of the DOC’s policy, there is no

indication that the defendants’ actions were done with any purpose other than the

ensure the safety of the institution at SCI Dallas. Accordingly, to the extent the

plaintiff’s complaint attempts to bring state law claims against these defendants,

those claims are barred by the doctrine of sovereign immunity and will be dismissed.

IV. Conclusion

Accordingly, for the foregoing reasons, the defendants’ motion for summary

judgment (Doc. 42) will be GRANTED as to the Fourteenth Amendment claim and

Fourth Amendment claim concerning the cell phone search, but DENIED as to the

Fourth Amendment strip search claim.

An appropriate order follows.

DATED: October 19, 2021