Martinique Stoudemire v. Mich. Dep't of Corrections

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0025p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MARTINIQUE STOUDEMIRE,

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Plaintiff-Appellee,

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No. 11-1588

v.

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MICHIGAN DEPARTMENT OF CORRECTIONS, et -

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Defendants, --

al.

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SUSAN DAVIS, Warden, Huron Valley

Defendants-Appellants. -

Women’s Facility; ARIEL N. DUNAGAN,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:07-cv-15387—Julian A. Cook, Jr., District Judge.

Argued: May 29, 2012

Decided and Filed: January 31, 2013

Before: BOGGS and COLE, Circuit Judges; and OLIVER, Chief District Judge.*

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COUNSEL

ARGUED: Clifton B. Schneider, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellants. Elizabeth Alexander, LAW OFFICES

OF ELIZABETH ALEXANDER, Washington, D.C., for Appellee. ON BRIEF: Clifton

B. Schneider, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellants. Elizabeth Alexander, LAW OFFICES OF ELIZABETH

ALEXANDER, Washington, D.C., Patricia A. Streeter, Ann Arbor, Michigan, for

Appellee.

*

The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District

of Ohio, sitting by designation.

1

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 2

_________________

OPINION

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SOLOMON OLIVER, JR., Chief District Judge. Plaintiff-Appellee Martinique

Stoudemire (“Plaintiff” or “Stoudemire”), a double amputee and former prisoner at

Huron Valley Women’s Correctional Facility (“Huron”) in Ypsilanti, Michigan, brought

the instant case against the Michigan Department of Corrections (“MDOC”) and

MDOC-associated officers, doctors, and nurses, asserting violations of 42 U.S.C. § 1983;

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; and Mich. Comp.

Laws § 330.1722. Stoudemire, who has suffered from autoimmune and kidney disorders

since she was a youth, alleges that, while she was an inmate at Huron, she underwent

three separate amputations as a result of inadequate health care by the Defendants, was

placed in a segregation unit immediately following her final amputation that lacked

accommodations for disabled persons, and was subjected to a strip search that served no

legitimate penological purpose. Defendant-Appellants Susan Davis (“Davis”), the

warden who allegedly sanctioned Stoudemire’s placement in segregation, and Ariel N.

Dunagan (“Dunagan”), the corrections officer who conducted the strip search, appeal

from the order of the district court denying them summary judgment on their qualified

immunity defenses to Stoudemire’s § 1983 claims against them.1 Stoudemire v. Mich.

Dep’t of Corr., No. 07-15387, 2011 WL 1303418 (E.D. Mich. Mar. 31, 2011). The

district court did not resolve Stoudemire’s state law claims; Davis and Dunagan reassert

their governmental immunity defense to those claims. For the following reasons, we

VACATE the denial of qualified immunity as to Davis, AFFIRM the denial of qualified

immunity as to Dunagan, and REMAND with instructions for the district court to

address Davis’s qualified immunity defense and Davis’s and Dunagan’s state law

defenses in a manner not inconsistent with this Opinion.

1

The other Defendants who were initially named as appellants moved to be dismissed from this

appeal and were dismissed by order of this court on December 4, 2012.

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 3

I. JURISDICTION AND STANDARD OF REVIEW

Pursuant to the “collateral order” doctrine, we have jurisdiction under 28 U.S.C.

§ 1291 to review the district court’s interlocutory denial of qualified immunity only to

the extent that it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 529-30

(1985). The district court’s characterization of the basis for its ruling is not dispositive.

See Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 402-03 (6th Cir. 2007). Thus, our

jurisdiction is not necessarily defeated by the fact that the district court denied a

defendant’s motion for summary judgment on the ground that there is a genuine issue

of material fact. Id. at 402. In such a case, we may nevertheless exercise appellate

jurisdiction over purely legal questions related to qualified immunity. Dickerson v.

McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). This is so even where the defendant

impermissibly relies on disputed facts on appeal; “this court can ignore the defendant’s

attempts to dispute the facts and nonetheless resolve the legal issue [raised], obviating

the need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter v. City

of Detroit, 408 F.3d 305, 310 (6th Cir. 2005); see also Thompson v. Grida, 656 F.3d 365,

367 (6th Cir. 2011) (explaining that a defendant appealing denial of summary judgment

on qualified immunity grounds must be willing to concede the most favorable view of

the facts to the plaintiff). However, “[m]ere conclusory statements that the officers

construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction

upon this Court.” Thompson, 656 F.3d at 368.

We review de novo a district court’s denial of a defendant’s motion for summary

judgment on qualified immunity grounds. See Tucker v. City of Richmond, 388 F.3d

216, 219 (6th Cir. 2004). We also review de novo the question of whether a defendant

is entitled to governmental immunity under Michigan law. Reilly v. Vadlamudi,

680 F.3d 617, 622 (6th Cir. 2012) (citing Herman v. City of Detroit, 680 N.W.2d 71, 74

(Mich. Ct. App. 2004)).

Summary judgment is appropriate “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). We determine materiality by reference to the applicable

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 4

substantive law, and thus “[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). Summary judgment is not

appropriate “if the dispute about a material fact is ‘genuine,’ that is, if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also

Fed. R. Civ. P. 56(c). In reviewing a summary judgment motion, we view all facts and

draw all reasonable inferences in the light most favorable to the nonmoving party.

See Scott v. Harris, 550 U.S. 372, 378 (2007). In the qualified immunity context, “this

usually means adopting . . . the plaintiff’s version of the facts,” id., unless the plaintiff’s

version is “blatantly contradicted by the record, so that no reasonable jury could believe

it . . . .” Id. at 380.

II. FACTUAL BACKGROUND

A. Stoudemire’s Medical History

When twenty-three-year-old Martinique Stoudemire entered the MDOC system

in July 2002, she came with a long and well-documented history of health problems.

Stoudemire suffered from systemic lupus erythematosus, a chronic and painful

autoimmune disease; hypercoagulapathy, a related disorder characterized by a tendency

to develop blood clots; and depression. Without proper care, Stoudemire bore a

significant risk of experiencing kidney and liver damage, heart attacks, amputations, and

chronic pain.

Stoudemire’s health quickly deteriorated. During her five years at Huron, she

experienced a heart attack, liver failure, and a number of life-threatening embolisms.

She underwent three amputations, eventually losing both legs below the knee. By the

time of her parole in August of 2007, she also suffered from chronic depression, post-

traumatic stress disorder, and a number of conditions related to medications she had

received during her incarceration. Stoudemire attributes her health complications to the

alleged failure of MDOC staff members and associated doctors and nurses to provide her

with adequate health care while she was incarcerated. For the purposes of this appeal,

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 5

however, we focus on the events following Stoudemire’s final amputation in December

2006, when her stump and buttock became infected with Methicillin-resistant

Staphylococcus Aureas (“MRSA”) and she was quarantined in Huron’s segregation unit.

B. Stoudemire’s Placement in Huron’s Segregation Unit

According to an April 14, 2005, Memorandum from Richard D. Russell,

Administrator of the MDOC Health Care Bureau, “all prisoners with a documented

culture positive for MRSA must be quarantined.” The policy provides that responsible

staff members must notify the warden of the particular facility of a confirmed MRSA

case in order to initiate the quarantine process. If health care staff determine that

medical quarantine is necessary, the warden is responsible for isolating the infected

inmates. The warden has the discretion to choose a quarantine location within the prison

and may also opt to send infected inmates to another site. Davis designated Huron’s

segregation unit, which prisoners and guards call “the hole,” as a quarantine location.

The segregation unit is normally used for isolating prisoners who have violated prison

rules.

Stoudemire spent roughly two weeks in quarantine as a consequence of her

MRSA infection. At her deposition, Davis testified that she “was probably aware at the

time” that Stoudemire had been placed in segregation for medical purposes but that she

“[didn’t] recall specifically.”

Stoudemire alleges that she received extremely poor medical care while in

segregation. The segregation cells were not equipped to accommodate disabled patients.

Stoudemire was never provided with any assistive devices that might have allowed her

to safely move between her bed, wheelchair, toilet, and shower. There was no call

button, so Stoudemire had to shout when she needed assistance. She alleges that the

medical staff treated her with contempt. They accused her of malingering and responded

with hostility whenever she sought assistance. As a result, Stoudemire was left to care

for herself. She was forced to crawl from her bed to the toilet. On one occasion, she had

to urinate into a bowl. On another occasion, she defecated on herself. The staff

neglected Stoudemire’s hygiene. She received only one shower during her two weeks

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 6

in segregation and was required to dress her wounds herself, which put her at risk of

infection.

According to one of Plaintiff’s experts, Stoudemire received “very little medical

rounding” while she was in the segregation unit, which was “a terrible place to put an

amputee.” Davis testified that, in cases where a physically handicapped prisoner was

placed in a segregation cell, she “would check the logbook to make sure that medical

professionals had been through at least daily to see the prisoner for however often the

prisoner’s particular need was.” Davis also testified that she would “check to make sure

that my deputy warden or [an assistant deputy warden] had been through . . . [and]

personally observed that prisoner to make sure that, you know, they weren’t hanging

themselves in the cell or what have you.”

C. The Strip Search by Officer Dunagan

Stoudemire also challenges the constitutionality of a February 10, 2007, strip

search performed by Officer Dunagan. Stoudemire’s account is as follows: Stoudemire

was in the infirmary’s common area, waiting to be escorted to an aerobics class.

Dunagan approached and announced her intention to conduct a strip search. When

Stoudemire asked Dunagan for a reason for the search, Dunagan said, “[b]ecause I can.”

Dunagan took Stoudemire to Stoudemire’s cell. Dunagan did not cover the window on

the cell door, which looked out onto a busy hallway. Dunagan and Stoudemire were

positioned so that passers-by had an unobstructed view of Stoudemire. Dunagan

“displayed pleasure at [Stoudemire’s] discomfort,” smirking throughout the search.

Stoudemire stripped down to her underpants and removed her prosthetic legs. She could

hear people in the hallway and realized that they could see her. She felt humiliated.

Dunagan did not find any contraband.

Dunagan offers a markedly different account of the search. According to

Dunagan, she asked Stoudemire to submit to a pat-down search rather than a strip search.

Stoudemire “refused and sped off in her wheelchair to her room, saying that she had to

change her shirt before I [did] my pat-down search.” Dunagan followed Stoudemire to

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 7

her cell and decided to conduct a strip search because Stoudemire had tried to evade the

pat-down search. Dunagan did not cover the cell-door window, but she did position

herself between the window and Stoudemire, thereby blocking passers-by from seeing

Stoudemire. Stoudemire stripped down to her brassiere and underpants. Dunagan

discovered a cigarette and matches–contraband items–in Stoudemire’s hand. She issued

Stoudemire a misconduct ticket.

Some facts are not in dispute. The day after the search, Stoudemire filed a

grievance, alleging that Dunagan’s conduct constituted sexual harassment. The

grievance was denied, but Dunagan received an official reprimand for conducting the

search in violation of MDOC Policy Directive 4.04.110 ¶ U, which states that “[a] strip

search shall be conducted in a place which prevents the search from being observed by

those not assisting in that search . . . .” The reprimand notes that other persons could

have observed Stoudemire during the search because Dunagan did not block the window

on the door, and that Dunagan admitted that such “visual contact” was possible. In

addition, MDOC Policy Directive 4.07.112 ¶ GG requires that, when an officer finds

contraband, the contraband must be confiscated and a contraband removal record must

be issued to the prisoner, as well as either a misconduct report or a notice of intent to

conduct an administrative hearing. The record does not contain copies of any such

documents.

III. ANALYSIS

A. Section 1983 and Qualified Immunity

Section 1983 provides “a cause of action for deprivation under color of state law,

of any rights, privileges or immunities secured by the Constitution or laws of the United

States.” Jones v. Muskegon Cnty., 625 F.3d 935, 940-41 (6th Cir. 2010) (internal

quotation marks and citation omitted). However, “[u]nder the doctrine of qualified

immunity, ‘government officials performing discretionary functions generally are

shielded 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

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 8

known.’” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). In resolving a government official’s qualified

immunity claims, we look to whether (1) the facts that the plaintiff has alleged or shown

establish the violation of a constitutional right, and (2) the right at issue was “clearly

established” at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223,

232 (2009). This court has discretion to decide “which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular

case at hand.” Id. at 236.

In evaluating whether a constitutional right was clearly established, “[t]he key

determination is whether a defendant moving for summary judgment on qualified

immunity grounds was on notice that his alleged actions were unconstitutional.” Grawey

v. Drury, 567 F.3d 302, 313 (6th Cir. 2009). The Supreme Court has stressed that the

“contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). This does not mean that “an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful.” Id.

(citing Mitchell, 472 U.S. at 535 n.12). Rather, it means that “in light of pre-existing law

the unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (collecting cases);

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“We do not require a case directly on

point, but existing precedent must have placed the statutory or constitutional question

beyond debate.”). This court has explained that a plaintiff has “two paths for showing

that officers were on notice that they were violating a ‘clearly established’ constitutional

right—where the violation was sufficiently obvious under the general standards of

constitutional care that the plaintiff need not show a body of materially similar case law,

. . . and where the violation is shown by the failure to adhere to a particularized body of

precedent that squarely governs the case here.” Lyons v. City of Xenia, 417 F.3d 565,

579 (6th Cir. 2005) (citing Brosseau v. Haugen, 543 U.S. 194, 198-200 (2004)) (internal

quotation marks omitted). In other words, the “clearly established” prong must be

applied “in light of the specific context of the case, not as a broad general proposition.”

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 9

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson,

555 U.S. at 236.

A defendant bears the initial burden of putting forth facts that suggest that he was

acting within the scope of his discretionary authority. Rich v. City of Mayfield Heights,

955 F.2d 1092, 1095 (6th Cir. 1992). Ultimately, however, the “burden of proof is on

the plaintiff to show that the defendants are not entitled to qualified immunity.” Id.

B. The Davis Appeal

Stoudemire alleges that the conditions of her confinement while in quarantine

violated her Eighth Amendment right to be free from cruel and unusual punishment. The

Eighth Amendment protects inmates by “impos[ing] duties on [prison] officials, who

must provide humane conditions of confinement” and “adequate food, clothing, shelter,

and medical care and . . . ‘take reasonable measures to guarantee the safety of the

inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer,

468 U.S. 517, 526-527 (1984)). However, “[a]n inmate may bring a § 1983 claim under

the Eighth Amendment only where he can show that a state official acted with

‘deliberate indifference’ to his ‘medical needs.’” Gibson v. Moskowitz, 523 F.3d 657,

661 (6th Cir. 2008) (quoting Clark-Murphy v. Foreback, 439 F.3d 280, 286 (6th Cir.

2006)). Deliberate indifference requires more than a showing of “mere mistreatment or

negligence.” Id. As the Supreme Court has explained,

a prison official cannot be found liable under the Eighth Amendment for

denying an inmate humane conditions of confinement unless the official

knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also

draw that inference.

Farmer, 511 U.S. at 837. On appeal, Davis argues that the district court erred in denying

her qualified immunity on Stoudemire’s Eighth Amendment conditions of confinement

claim under § 1983 because Stoudemire did not show that Davis was deliberately

indifferent to Stoudemire’s medical needs.

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 10

The district court found that,

when viewing the facts in a light most favorable to Stoudemire, the

evidence supports her argument (i.e., she suffered from a medical

condition in the form of a double amputation and immediate infection,

for which the MDOC Defendants failed to reasonably accommodate by

providing her with (1) assistive facilities, (2) training on how to care for

herself, and (3) other aids that would assist her in meeting her basic

health and safety needs).

Stoudemire, 2011 WL 1303418, at *8. The court also found that “the MDOC

Defendants neglected to make any reasonable adjustments for her as a brand-new double

amputee who could not ambulate within her segregated cell without the assistance of

another person.” Id. The court then concluded that Stoudemire had “sufficiently alleged

the violation of a clearly established right.” Id. As a result of a series of stipulations

and Stoudemire’s decision not to challenge a portion of the Defendant’s motion to

dismiss, Stoudemire had effectively withdrawn her Eighth Amendment claim (arising

from her quarantine) against all but Davis; in a footnote, the district court noted that “the

analysis by the court applies only to Davis.” Id. at *8 n.7. Nonetheless, the district court

denied qualified immunity for the “Defendants.” The court also denied Defendants’

motion for summary judgment on Stoudemire’s ADA claim.

1. Issues Regarding Whether Claim Properly Before the Court

Davis and Stoudemire both argue that we cannot consider the merits of

Stoudemire’s Eighth Amendment claim. According to Davis, Stoudemire never actually

pleaded such a claim; instead, the district court improperly “created” an Eighth

Amendment claim by relying on the facts Stoudemire alleged solely in support of her

ADA claim. Stoudemire argues that Davis failed to raise qualified immunity as a

defense to Stoudemire’s Eighth Amendment claim and that the court therefore lacks

jurisdiction over Davis’s appeal. See Mingus v. Butler, 591 F.3d 474, 483-84 (6th Cir.

2010) (declining to address defendant’s assertion of qualified immunity where the

defense was not initially presented to the court). We review de novo whether a given

set of pleaded facts supports a claim. See, e.g., Carter v. Ford Motor Co., 561 F.3d 562,

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 11

565-66 (6th Cir. 2009). We also review de novo whether a given set of facts constitutes

waiver. See Karam v. Sagemark Consulting, Inc., 383 F.3d 421, 426 (6th Cir. 2004).

We reject Davis’s contention that the district court conflated or “confused”

Stoudemire’s ADA claim with her Eighth Amendment claim. The district court

correctly stated that Stoudemire’s Eighth Amendment claim was based on “the same

misconduct which gives rise to her claims under the ADA.” Stoudemire, 2011 WL

1303418, at *8. The court found that “the claimed misconduct . . . if true, supports

independent causes of action under Title II [of the ADA] and the Eighth Amendment.”

Id. at *6. Clearly, the district court was not “confuse[d],” and did not conflate the ADA

claim with the Eighth Amendment claim, as Davis argues. Rather, the district court

properly construed Stoudemire’s Complaint “so as to do justice.” Fed. R. Civ. P. 8(e);

see also Minger v. Green, 239 F.3d 793, 799 (“[T]he Rules require that we not rely

solely on labels in a complaint, but that we probe deeper and examine the substance of

the complaint.”).

We also reject Stoudemire’s contention that Davis did not raise qualified

immunity as a defense. Stoudemire’s argument rests entirely on the following sentence

in Defendants’ motion before the district court: “Had the plaintiff alleged this as a

constitutional violation, the defendants would respond that they are entitled to qualified

immunity because clearly established law does not prohibit quarantining a prisoner to

protect the prison population from infection.” The sentence must be read in the context

of the paragraph, which begins: “As to the remainder of the claims, the defendants are

also entitled to qualified immunity and summary judgment.” Taken together, these

sentences clearly suffice as an assertion of qualified immunity. In addition, we have

previously declined to dismiss interlocutory appeals on waiver grounds where the district

court made no findings of waiver, and we decline to do so here. See, e.g., Yates v. City

of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991) (declining to dispose of appeal on

waiver grounds where district court “made no findings of . . . waiver” regarding qualified

immunity defense); Taylor v. Mich. Dep’t of Corr., 14 F.3d 602, *2 (6th Cir.1993)

(declining to address waiver issue that was not addressed by the district court, even

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 12

though “sloppy draftsmanship” in summary judgment brief brought defendant

“dangerously close” to waiving defense).

2. Discussion of Davis’s Qualified Immunity Defense

Although we have jurisdiction to consider Davis’s qualified immunity defense,

“it is well-settled that qualified immunity must be assessed in the context of each

individual’s specific conduct.” Reilly, 680 F.3d at 624; see also Bishop v. Hackel,

636 F.3d 757, 767 (6th Cir. 2011) (holding that district court erred in failing to make

individualized assessment for purposes of subjective component under Farmer);

Phillips, 534 F.3d at 542 (“Where, as here, the district court is faced with multiple

defendants asserting qualified immunity defenses, the court should consider whether

each individual defendant had a sufficiently culpable state of mind.”). Accordingly, the

question of whether an official possessed the requisite knowledge and culpable mental

state to sustain a deliberate indifference claim “must be addressed for each officer

individually.” Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005).

In order to be liable in this case, Davis must have “both be[en] aware of facts

from which the inference could be drawn that a substantial risk of serious harm exist[ed],

and [s]he must also [have] draw[n that] inference.” Farmer, 511 U.S. at 837. Though

the district court stated in a footnote that its ruling only applied to Davis, since the

Plaintiff by stipulation or otherwise had conceded its claims against the other defendants,

as stated above, it denied qualified immunity for “Defendants.” In so doing, the court

did not conduct a particularized analysis of whether Davis was deliberately indifferent

to the conditions of Stoudemire’s confinement while in quarantine. The district court

did not mention any facts in the record that specifically pertained to Davis, nor did the

court make any findings regarding Davis’s knowledge or mental state. Even if we were

to assume that the district court’s analysis satisfactorily addressed the objective element

of Stoudemire’s Eighth Amendment claim–“the existence of a sufficiently serious

medical need,” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)–clearly there was no

discussion of the subjective element of the claim: whether Davis, the warden, had “a

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 13

sufficiently culpable state of mind in denying [Stoudemire] medical care.” Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004).

Although this court has the authority to “undertake a cumbersome review of the

record to determine what facts the district court, in the light most favorable to the

nonmoving party, likely assumed,” Johnson v. Jones, 515 U.S. 304, 319 (1995), the best

course is to remand “for the district court to set forth with precision the basis for its

decision.” Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988), cert. denied, 109 S. Ct.

788 (1989); see also Crutcher v. Kentucky, 883 F.2d 502, 503 (6th Cir. 1989); Dominque

v. Telb, 831 F.2d 673, 677 (6th Cir. 1987). We therefore vacate and remand to the

district court for the purpose of properly evaluating Davis’s qualified immunity defense.

C. Dunagan’s Appeal

Dunagan appeals the district court’s denial of qualified immunity in regard to

Stoudemire’s § 1983 claim relating to the 2007 strip search. In contrast to its resolution

of Davis’s qualified immunity defense, the district court addressed Dunagan’s defense

with sufficient particularity to enable our review. Viewing the record in the light most

favorable to Stoudemire, the district court held that “Dunagan should have been on

notice that [the strip search] would have been unreasonable under the circumstances and

not based on a reasonable penological interest of security and order.” Stoudemire,

2011 WL 1303418, at *9. On appeal, Dunagan argues that Stoudemire has failed to

“show that there is clearly established law prohibiting the conduct in question,”

emphasizing that Stoudemire has presented no case holding that a same-sex strip search

of a prisoner was unlawful. Stoudemire’s alleged injury, however, is not tied to

Dunagan’s gender. Rather, Stoudemire’s focus is on evidence that suggests that the

search was “undertaken to harass or humiliate” and not for any legitimate purpose.

According to Stoudemire, the relevant constitutional question is not whether clearly

established law proscribes same-sex strip searches in prisons, but whether clearly

established law proscribes a strip search that served no legitimate penological purpose

and was intended only to harass. Dunagan focuses on whether the law regarding same-

sex strip searches is “clearly established” for qualified immunity purposes. However,

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 14

the applicable inquiry is whether the strip search was reasonable under the circumstances

and whether Stoudemire’s constitutional rights in this regard were clearly established at

the time of the search. We address both issues.

1. Constitutional Violation

Because “the difficulties of operating a [prison] must not be underestimated by

the courts,” Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct.

1510, 1515 (2012), we review a prisoner’s constitutional claims under a standard that

affords deference to the judgments of correctional officers, “who must have substantial

discretion to devise reasonable solutions to the problems they face.” Id.; see also

Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001). A prison’s regulations need

only be “reasonably related to legitimate penological interests.” Turner v. Safley,

482 U.S. 78, 89 (1987). We review a correctional officer’s discretionary actions under

essentially the same deferential standard. Florence, 132 S. Ct. at 1516. But we must not

confuse deference with abdication: “[F]ederal courts must take cognizance of the valid

constitutional claims of prison inmates.” Turner, 482 U.S. at 84. As we have noted, “a

convicted prisoner maintains some reasonable expectations of privacy while in prison

. . . even though those privacy rights may be less than those enjoyed by non-prisoners.”

Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992); see also Hutchins v.

McDaniels, 512 F.3d 193, 196 (5th Cir. 2007) (“[T]he Fourth Amendment protects

prisoners from searches and seizures that go beyond legitimate penological interests.

Searches of prisoners must be conducted in a manner that is reasonable under the facts

and circumstances in which they are performed.” (internal citation omitted)).2 The

2

Dunagan cites Hudson v. Palmer, 468 U.S. 517 (1984), for the proposition that “prisoners have

no Fourth Amendment right to privacy.” Dunagan misapprehends the scope of the Supreme Court’s

decision. In Hudson, the Court “addressed the question of whether prison officials could perform random

searches of inmate lockers and cells even without reason to suspect a particular individual of concealing

a prohibited item.” Florence, 132 S. Ct. at 1516 (emphasis added). 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.” Hudson, 468 U.S. at 526 (emphasis added). Hudson stands for the proposition that “prisoners

have no reasonable expectation of privacy protecting their cells from unreasonable searches.” Kent v.

Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987) (emphasis added). Our cases have long made clear that that

“a convicted prisoner maintains some reasonable expectations of privacy while in prison,” and that Hudson

did not extinguish a prisoner’s Fourth Amendment right to bodily privacy. Cornwell, 963 F.2d at 916 (6th

Cir. 1992); see also, e.g., Everson v. Mich. Dept. of Corr., 391 F.3d 737, 757 (6th Cir. 2004).

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 15

Supreme Court instructs us that, where a prisoner alleges a constitutionally unreasonable

search,

[t]he test of reasonableness under the Fourth Amendment . . . requires a

balancing of the need for the particular search against the invasion of

personal rights that the search entails. Courts must consider 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.

Bell v. Wolfish, 441 U.S. 520, 559 (1979). Accordingly, we first examine the scope,

manner, and location of the search–as well as the justification for initiating it–in order

to assess the degree to which it invaded the prisoner’s right to privacy. We next evaluate

the need for the search, giving due deference to the correctional officer’s exercise of her

discretionary functions. Finally, we determine whether the search was reasonably

related to legitimate penological interests by weighing the need against the invasion.

Florence, 132 S. Ct. at 1516. Because Stoudemire’s account of the search has not been

“blatantly contradicted by the record, so that no reasonable jury could believe it,” Scott,

550 U.S. at 380, the procedural posture of this appeal requires us to accept Stoudemire’s

version of the events.

(a) Degree of Invasion of Personal Rights

The scope of the search frames our analysis of the other Bell factors. Had

Dunagan conducted a pat-down search or a search of Stoudemire’s room, it is doubtful

that her actions would rise to the level of a constitutional violation. However, “a strip

search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well

as an offense to the dignity of the individual.” Wood v. Clemons, 89 F.3d 922, 928 (1st

Cir. 1996). It is a practice that “instinctively gives us . . . pause,” Bell, 441 U.S. at 558,

since “[u]ndergoing such an inspection is undoubtedly humiliating and deeply offensive

to many . . . .” Florence, 132 S. Ct. at 1524 (Alito, J., concurring). To the extent that

prisoners have some right, however diminished, “to be secure in their persons . . . against

unreasonable searches,” U.S. Const. amend IV, a strip search is a particularly extreme

invasion of that right. Bell, 441 U.S. at 559-60. The facts of Dunagan’s strip search of

Stoudemire tell us as much.

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 16

The location of the strip search made it more invasive. Because Dunagan did not

block the window of the cell, the search did not take place in a private location; as

Dunagan admitted, people in the hall could see Stoudemire naked, her prosthetic legs

removed. Cf. Dufrin v. Spreen, 712 F.2d 1084, 1089 (6th Cir. 1983) (finding strip search

that “was carried out discreetly and in privacy” to be unobtrusive). Dunagan received

a reprimand for her failure to conduct the strip search “in a place which prevent[ed] the

search from being observed by those not assisting in that search,” in violation of the

MDOC’s rules. The MDOC rule and Dunagan’s reprimand underscore the obvious: a

strip search is more invasive when it is performed where other people can see the person

being stripped.3 See, e.g., Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001); Iskander

v. Vill. of Forest Park, 690 F.2d 126, 129 (7th Cir. 1982).

Dunagan’s manner also made the search somewhat more invasive. Stoudemire

highlights two facts in this regard: that Dunagan refused to tell Stoudemire her reasons

for initiating the search and that Dunagan smirked during the search. Although these

facts are hardly dispositive, see Roden v. Sowders, 84 F. App’x 611, 613 (6th Cir. 2003)

(“Even if [the defendant prison guard] did laugh, the strip search is not rendered

constitutionally invalid thereby.”), they may, in context, suggest personal animus and

implicate the dignitary interest “inherent in the privacy component of the Fourth

Amendment’s proscription against unreasonable searches.” Brannum v. Overton Cnty.

Sch. Bd., 516 F.3d 489, 499 (6th Cir. 2008).

(b) The Degree of Need for the Search

Our next step is to evaluate the need for the particular search. Bell, 441 U.S. at

559. Unquestionably, “detect[ing] and deter[ing] the possession of contraband” is a

legitimate penological objective. Florence, 132 S. Ct. at 1517. Absent proof to the

contrary, we must assume that a search of a prisoner is initiated in an effort to detect and

deter contraband. See Hudson, 468 U.S. at 529 (quoting Marrero v. Commonwealth, 284

S.E.2d 809, 811 (Va. 1981)) (“For one to advocate that prison searches must be

3

We note that prisoners enjoy no special privacy rights in their cells. See Hudson, 468 U.S. at

526; United States v. Smith, 526 F. 3d 306, 309 (6th Cir. 2008). Our focus, however, is not on the type

of room but on the degree of privacy the location actually provided during the search.

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 17

conducted only . . . when suspicion is directed at a particular inmate is to ignore the

realities of prison operation.”). But to say that Dunagan had a legitimate justification for

searching, or even strip searching, Stoudemire does not conclude our inquiry. We must

further determine “the need for the particular search” at issue. Bell, 441 U.S. at 559

(emphasis added).

The question, then, is whether any exigent circumstances compelled Dunagan

to strip search Stoudemire in view of other inmates and prison personnel. The record

suggests no such exigencies. As Dunagan’s reprimand shows, no emergency made such

a search necessary. Cf., Cookish v. Powell, 945 F.2d 441, 448-49 (1st Cir. 1991)

(holding that visual body cavity searches, some of which were conducted in view of

guards of the opposite sex, did not violate clearly established rights where searches were

conducted in response to what plaintiff conceded was a “riot” situation). There is no

evidence that Dunagan chose the search location out of concern for Dunagan’s own

safety. Cf. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988) (finding

legitimate penological justification for conducting searches in public hallways where

only alternative in the prison unit would have presented a risk to officer safety).

Stoudemire did not have “a history of maladaptive behavior within prison” that might

weigh in favor of conducting the search. Id. at 332 (collecting cases). Also, there were

no time or resource constraints that supported the need for such an ad hoc search.

Accordingly, although Dunagan had a valid reason for searching Stoudemire, no special

circumstances provided additional justifications for strip searching Stoudemire where

others could see her naked.

On balance, although the “test of reasonableness . . . is not capable of precise

definition,” Bell, 441 U.S. at 559, particularly as applied to prisoners, we conclude that,

taking the facts as Stoudemire alleged them, she has established a constitutional

violation. In so deciding, we do not underestimate the importance of deterring and

detecting contraband in prisons, nor have we forgotten to afford Dunagan the deference

due to a correctional officer executing a difficult discretionary responsibility. But it is

settled that the law demands an adequate need for a strip search, and, depending on the

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 18

circumstances and context, restricts the scope, manner, and place of the search. Id.

Here, the excessively invasive nature of the search outweighed any need to conduct it

in such a fashion.

It is important to emphasize two points. First, it is unquestionable that the

Supreme Court and lower courts have sanctioned a wide range of practices—many of

them intrusive—that are designed to further legitimate penological interests. See, e.g.,

Florence, 132 S. Ct. at 1518-20 (discussing significant interests for conducting strip

searches as part of inmate booking process); Hudson, 468 U.S. at 529 (stating that

“wholly random searches [of prison cells] are essential to the effective security of penal

institutions”); Bell, 441 U.S. at 558 (holding that routine visual body cavity searches

after contact visits do not violate the Fourth Amendment). Second, it is important to

note that the MDOC’s policies are not under review. Had Dunagan followed procedure,

she would not have violated Stoudemire’s Fourth Amendment rights. We are

considering the acts of a single corrections officer sued in her individual capacity.

Normally, separation of powers and federalism concerns weigh heavily in our review of

prison regulations. Turner, 482 U.S. at 84-85. But we are not dealing with a policy or

wide-ranging regulation, as indicated in the cases cited above. Instead, the “[f]actual

nuances” of this case determine whether Dunagan violated Stoudemire’s personal rights.

Florence, 132 S. Ct. at 1523 (Roberts, C.J., concurring); see also Bell, 441 U.S. at 560.

Our holding is confined to the facts, viewed most favorably to the inmate, of the

particular search under review.

2. Whether Dunagan Violated a “Clearly Established” Right

As noted above, Dunagan’s arguments on appeal focus primarily on the question

of whether Stoudemire has satisfied the “clearly established” prong of the qualified

immunity analysis in view of the fact that she does not cite any cases involving same-sex

strip searches. While it is true that this court has stated that an expectation of privacy

may, in the prison context, be particularly reasonable “where those claims are related to

forced exposure to strangers of the opposite sex,” Cornwell, 963 F.2d at 916, Dunagan

is mistaken in suggesting that the gender of the parties involved is wholly dispositive of

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 19

the constitutional question. The gender of the parties is just one fact for the court to

consider in determining the reasonableness of a given search or the legitimacy of a

challenged practice. See, e.g., Michenfelder, 860 F.2d at 333-34 (noting that “[s]hielding

one’s unclothed figure from the view of strangers, particularly strangers of the opposite

sex is impelled by elementary self-respect and personal dignity,” but ultimately

concluding that the defendants had established a legitimate penological reason for

involving female officers in strip searches of male inmates).

Dunagan’s position is that inmates have no right to be free from same-sex strip

searches. But that is not the right that Stoudemire is seeking to vindicate. Rather,

Stoudemire has “identified a well established right, the right not to be subjected to a

humiliating strip search in full view of several (or perhaps many) others unless the

procedure is reasonably related to a legitimate penological interest.” Farmer v. Perrill,

288 F.3d 1254, 1260 (10th Cir. 2002).4 Thus, Dunagan’s emphasis on the fact that this

was not a cross-gender strip search is unavailing.

In evaluating whether a constitutional violation was clearly established, “[t]he

key determination is whether a defendant moving for summary judgment on qualified

immunity grounds was on notice that his alleged actions were unconstitutional.”

Grawey, 567 F.3d at 313. Based on the state of the law in existence at the time of the

strip search, it was clearly established that suspicionless strip searches were permissible

as a matter of constitutional law, but only so long as they were reasonable under the

circumstances and performed pursuant to a legitimate penological justification. Thus,

the district court did not err in holding that, viewing the evidence in the light most

favorable to Stoudemire, a reasonable officer would have been on notice that the search

was unreasonable under the circumstances and devoid of any legitimate penological

justification related to security and order. Stoudemire, 2011 WL 1303418, at *9. We

therefore affirm the denial of summary judgment for Dunagan on the ground of qualified

immunity.

4

We may look to the decisions of other circuits in determining whether a right is “clearly

established” for qualified immunity purposes. Dickerson, 101 F.3d at 1158.

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 20

D. Governmental Immunity Under State Law

Finally, both Davis and Dunagan assert that they are entitled to governmental

immunity under state law on Stoudemire’s claims against them under Mich. Comp. Laws

§ 330.1722(1), which provides that “[a] recipient of mental health services shall not be

subjected to abuse or neglect.” Stoudemire’s claims against Davis and Dunagan under

this statute are based on the same facts underlying her § 1983 claims against these

Defendants. However, Michigan’s governmental immunity law differs from federal

qualified immunity doctrine. See Mich. Comp. Laws § 691.1407 (negligence); Odom

v. Wayne Cnty., 760 N.W.2d 217, 228 (Mich. 2008) (intentional torts). The district court

did not discuss Stoudemire’s state law claims and made no mention of Davis and

Dunagan’s state law defenses.

The considerations that “‘classically support[] the law’s ordinary remand

requirement’” apply in this case. Brown v. Crowley, 312 F.3d 782, 788 (6th Cir. 2002)

(quoting INS v. Ventura, 537 U.S. 12, 17 (2002)); see also Norton v. Town of Islip,

378 F. App’x 85, 89 (2d Cir. 2010) (remanding matter to district court where court failed

to rule on defendants’ immunity defenses to state-law-claims). Absent “exceptional

circumstances,” we normally decline to rule on an issue not decided below. St. Marys

Foundry, Inc. v. Emp’rs Ins. of Wausau, 332 F.3d 989, 996 (6th Cir. 2003). No such

circumstances are present in this case, and we therefore remand to “ensure that any

future appeal in this case will have the benefit of the district court’s analysis of the issues

relating to” the Defendants’ governmental immunity defenses. Brown, 312 F.3d at 788.

IV. CONCLUSION

For the foregoing reasons, we VACATE the district court’s decision denying

qualified immunity with respect to Stoudemire’s § 1983 conditions of confinement claim

against Davis and REMAND such claim to the district court for reconsideration in light

of this opinion. We AFFIRM the district court’s decision denying qualified immunity

with respect to Stoudemire’s § 1983 strip search claim against Dunagan, and REMAND

No. 11-1588 Stoudemire v. Mich. Dep’t of Corrections, et al. Page 21

Defendants’ motion regarding governmental immunity defenses under state law to the

district court for consideration in the first instance.