Ruth Blackburn v. Linwood Snow

BAILEY ALDRICH, Senior Circuit Judge,

dissenting.

Before examining the bricks of which this ultimate structure was built, I note its totality: $328,120, being $177,040 in damages and $151,080 in prejudgment interest, because plaintiff was three times, in April and May 1977, subjected to a strip search in connection with visiting her brother at a Massachusetts prison. Although there was no probing, or even touching of the private *574 bodily orifices, the court (I use the term “court” throughout as meaning this court, as distinguished from the district court) characterizes the “intrusion [as] perhaps ‘the greatest personal indignity’ searching officials can visit upon an individual.” It finds damages “exacerbated” because of the “marginal privacy,” although the searches were conducted in a small room, by a single matron, with no one else present. Damages were also exacerbated because the matron had received no medical training, although there was no evidence of medical injury. I start, however, with plaintiff’s Fourth Amendment claim, and Sheriff Snow’s claim to qualified immunity.

The court acknowledges that “prison administrators should be accorded wide-ranging deference,” and that assessment of these claims involves a “delicate task,” and cites the right opinions. Not included, however, in its generalizations, and, I suggest, adequately in its thinking, is the following from Block v. Rutherford, — U.S. ---, 104 S.Ct. 3227 at 3233-34 , 82 L.Ed.2d 438 (1984). “We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country.” “Visitors can easily conceal guns, knives, drugs, or other contraband in countless ways and pass them to an inmate unnoticed by even the most vigilant observers.” Instead, the court says, “[W]e believe that the record in this case shows that no unusual need for special security measures such as strip search of all prison visitors existed.”

With respect to reasonableness, defendant testified,

“[Plymouth is] basically supposedly a minimum security institution; however, the way we were operating the past several years, with the backlog in Walpole and things, we were holding — at one point I had 26 or 27 inmates out of Walpole, and I had another 25 inmates, federal inmates.

“So basically, it was a minimum institution with maximum security people in it____ The majority of them were there for drug related — mostly—some of them were direct drug sentences or waiting trial for drugs, or the majority of them, probably, breaking and entering or different things to support drug habits.” [T]he thing that causes the most problem is drugs and the control of them____ [When I returned from Florida in early April, 1977] I had reports, verbal reports from different officers that things were getting out of hand in the institution. There were several inmates right after visits were high.” (Emphasis supplied.)

Asked what he ordered done, he answered,

“I questioned about the search procedures that was going on, and I found out that they were not strip searching visitors. So I ordered it reinstituted.”

For not requiring individual suspicion, defendant testified,

“[W]e had found drugs in babies’ diapers before and we have found them since

Reports also showed drugs found in sanitary napkins and underpants.

None of this testimony was contradicted, or affirmatively rejected. I do not know what the court means by “the district court in this case did not find ‘many factors’ supporting the blanket strip search rule.” It is true that the district court devoted only a footnote to defendant’s reasons, neglecting specific testimony, and merely reciting that the Incident Reports “indicates that visitors were involved in very few drug or weapon related incidents.” The court gives more detail, referring to defendant’s testimony of “five incidents involving visitors” while the searches were suspended, and characterizes this as “only a few.”

Drugs in prisons can be serious, and defendant’s testimony revealed he had special problems. It cannot be said that drugs could inescapably be found in some other manner, for they were not. Is the court to say defendant’s conduct was “capricious [and] not justified by considerations of jail *575 security,” Feeley v. Sampson, 570 F.2d 364, 372 (1st Cir.1978), because only five cases got by in spite of body searches of inmates? In Rutherford v. Block, 104 S.Ct. at 3233 , the court said, “In Wolfish [Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979) ], we sustained against a Fourth Amendment challenge the practice of conducting routine body cavity searches [of inmates] following contact visits, even though there had been only one reported attempt to smuggle contraband into the facility in a body cavity.”

Finally, the court speaks of plaintiff as a “free person,” and says there is no case approving strip searches of “[non-] incarcerated individuals” (emphasis in original). This is to confuse person and place. How different was plaintiff from the detainees in Wolfish , who, also, had been convicted of nothing? The point is, plaintiff was inside a prison, and “smuggling [is] a byproduct of contact visits.” Rutherford, 104 S.Ct. at 3233 .

While, at the very least, I question the court’s facility in determining unconstitutionality, I will not pursue this further because it is only secondary to what I regard as the deep, and conclusive error in this case, the short shrift accorded defendant’s claim of qualified immunity. It may be captious to note that the court’s originating summary begins, “At issue in this case is whether the federal Constitution permits a correctional institution to require that all men, women and children wishing to visit inmates at the institution submit to a strip search before doing so,” and concludes “Because we find that the strip search violated Blackburn’s Fourth Amendment rights, we affirm as to liability.” However, it is only commencing at page 569 that the court devotes four pages to the question whether conduct today found unconstitutionally excessive was clearly established to be such in 1977. 1 The court’s approach almost seems to be that excessiveness, and objective obviousness, are one and the same. They are not, and starting from the position that defendant’s security decisions are entitled to “wide-ranging deference,” unless he should have known them wrong, I find the four pages singularly unpersuasive.

Apart from generalizations, the court’s chief reliance with respect to the law in 1977 are three “analogous” cases: our decisions in Kallevig and Flores, involving border searches and Picha v. Weiglos, a school principal case. 2 In analogizing border searches where there was no’ suspicion, the court neglects two matters. The first is that the extent of permissible intrusion is to be measured by the need, and there is a basic difference in need between a search simply to discover whether the individual has committed a crime and one where the objective is the protection of the public, such as prison security. It is axiomatic, for example, that there is far more right to search embarking airplane passengers than those who are debouching. Cf. United States v. Wehrli, 637 F.2d 408 (5th Cir. 1981), cert. denied, 452 U.S. 942 , 101 S.Ct. 3089 , 69 L.Ed.2d 958 ; Singleton v. Commissioner of Internal Revenue, 606 F.2d 50 (3d Cir.1979). Second, it is not true that there was no suspicion here; the suspicion was in the situation. These factors were what moved the Court in Bell v. Wolfish to permit routine body cavity searches of detainees, after visits, without individual suspicion. They are present to a degree here, and were not present in the border searches at all. If the court feels they *576 were not present enough, this still does not make those cases analogous, let alone clearly expositional.

The cases in point, apart from Wolfish , which is anything but helpful to the court, are the subsequent visitor's cases of Hunter v. Auger, 672 F.2d 668 (8th Cir.1982), and Security and Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984), both decided long after 1977. Hunter , which was pre-Harlow, gave no thought to qualified immunity. Interestingly enough, while the court affirmed the injunction, as a sort of fire-side immunity it reduced the district court’s damage findings to nominal, although I would have thought that a strip search would justify emotional damage without specific proof. In Carey a divided court held that routine strip searches of unsuspected prison guards was excessive, but the court unanimously held the law had not been clearly established. Defendants “operated in an area in which the law was not charted clearly.” 737 F.2d, at 211 . I do not understand the court’s finding clarity by distinguishing this case on the ground that “some employee was suspected of wrongdoing.” In the case at bar, as in the routine Wolfish searches, some visitors were suspected of wrongdoing.

The simple fact is that the court cites no even recent case denying qualified immunity without special circumstances; viz., King v. Higgins, and M.M. v. Anker, violation of regulation, and hence constructive bad faith; B.C.R. Transport Co. v. Fontaine, actual bad faith. With due respect, particularly having in mind Security, etc. Employees v. Carey, 3 this seems a sorry demonstration of clear establishment in 1977.

There is a strong social purpose behind Harlow v. Fitzgerald, perhaps nowhere more important than in the dangerous area of prison safety, and I may be pardoned for referring back to the fact that this defendant was in charge of a low security prison with temporary guests from a maximum security institution. Offended by visual body cavity searches; seemingly regarding a visitor inside a prison as fundamentally different from an “incarcerated individual” (though nothing is clearer than the fact that prison searches are based upon present danger, not punishment, cf. Block v. Rutherford, 104 S.Ct. at 3232-34 (1984)), I believe that in finding the law “clearly established” and defendant’s conduct “previously identified as unlawful,” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, the court grossly violates Harlow, both its letter and its spirit.

On the assumption that I am nevertheless wrong, I turn to damages. Except for damages I believe avoidable, I do not intend to dwell on the gross award, but I do remark that for the court to point to the $60,000 verdict in Marybeth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983), and quote the court’s description of plaintiff’s body cavity search as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission” is somewhat wide of the mark. Marybeth G. was everything which this case is not. Rather than being alone with the matron, plaintiff there, an alleged misdemeanant awaiting bail, was strip-searched within the view of two male officers and a group of prostitutes who “jeered” at her. The audience was not only unnecessary, but inexcusable, and would surely cause maximum humiliation and embarrassment. Further, this was clearly an invasion of privacy in aid of prosecution. Here the court expressly found that defendant’s purpose was security.

Marybeth G. is inapposite for a more important reason. There the plaintiff had no alternative. Here, at least presumptively, plaintiff had a choice. 4 This raises the *577 question of avoidable damages. The district court, however, based on its holding that plaintiff had a “right to visit” concluded, “The mere fact that she submits to the search does not render it ‘voluntary’ where her consent is given in ‘inherently coercive circumstances.’ See Palmigiano v. Travisono, 317 F.Supp. 776, 792 (D.R.I.1970).” The court agrees, but adds that a “right” to visit was unnecessary. “[WJhether ... a constitutional right ... or a mere privilege, ... the Sheriff was not free to condition the visitation opportunity on the sacrifice of Blackburn’s protected Fourth Amendment rights.” “Nor is it any answer to say that Blackburn could have left at any time, or declined to return after the first strip search, for it is the very choice to which she was put that is constitutionally intolerable — and it was as intolerable the second and third times as the first.” (Emphasis in original.)

This is an entirely novel concept. The court cites nothing suggesting that because constitutional rights are involved recovery is any broader than for violations of other rights; that a section 1983 plaintiff can disregard ordinary principles, such as assumption of the risk, and volenta non fit injuria. Rather section 1983 actions are to be guided by analagous common law tort principles, except in unusual cases where these would not provide a remedy. See Carey v. Piphus, 435 U.S. 247, 258 , 98 S.Ct. 1042, 1049 , 55 L.Ed.2d 252 (1978). Thus in Whirl v. Kern, 407 F.2d 781 (5th Cir.1969), cert. denied, 396 U.S. 901 , 90 S.Ct. 210 , 24 L.Ed.2d 177 , a 1983 plaintiff sued for false imprisonment. The defendant defended, in part, upon plaintiff’s failure to ask for counsel, who would have obtained his early release. The court said that one who “intentionally or heedlessly failed to protect his own interests” was chargeable with the consequences, but held that plaintiff was uneducated and uninformed and did not realize an attorney could have obtained a release. Cf. Williams v. Albemarle City Board of Education, 485 F.2d 232 , 233 and n. 1 (4th Cir.1973) (duty to mitigate damages).

Plaintiff was not a helpless individual. Even if one were to accept her claim that she felt compelled to do everything necessary to see her brother, she failed to suggest any reason why she could not have told defendant of her special problems and asked for special treatment. She was not helpless in jail, but an educated woman, in college, on the dean’s list, and there was no indication that she was afraid to speak up. 5 In fact, in high school she had sought and obtained exemption from the compulsory physical examination on the very ground of her hypersensitivity. Perhaps defendant would have refused, 6 but to be able to recover substantial damages without at least attempting to avoid them (complaining to the matron was certainly not the way) or to notify a prospective defendant in advance, is to me highly offensive. There is a basic injustice in silently persisting to incur, as plaintiff testified, extraordinary injuries, and then seeking extraordinary recovery. Section 1983 should not change this. If the court is correct that defendant, though in subjective good faith, was inex *578 cusably excessive in his concern about drugs, and insufficiently concerned about plaintiff, I believe that, when unwarned, he should, at the most, be held for no more than what was reasonably foreseeable. As the court decides this case, defendant is down for the count.

It seems almost hypercritical of me to continue to complain, but neither am I happy about prejudgment interest. In Furtado v. Bishop, 604 F.2d 80 (1st Cir.1979), cert. denied, 444 U.S. 1035 , 100 S.Ct. 710 , 62 L.Ed.2d 672 we held 7 that the Massachusetts statute imposing prejudgment interest from the date of the complaint was not applicable to a civil rights action for unliquidated damages — there a physical beating. We rejected the Massachusetts statute and vacated the court’s award. We did recognize that, in the factfinder’s discretion, it might sometimes be necessary to award such interest in order fully to compensate the plaintiff. In its original findings here, and in its order for judgment, the district court said nothing about interest. Apparently applying the Massachusetts statute, the clerk included in the judgment, “Prejudgment interest at the rate of 12% per year: $151,080.” Both parties filed post judgment motions; defendants’ to strike the award of interest, plaintiff’s, described by the court as one “to modify its opinion to make a finding in support of its award.” To these the court replied, citing Furtado , that it had “awarded prejudgment interest because it was necessary to compensate plaintiff fully for the injuries she had suffered.” It made no supporting findings.

The court agrees that subsidiary findings were necessary (F.R.Civ.P. 52(a)), and says that “at least a portion of the award ... may have been improper.” This is a quite inadequate concession. In the first place, the judgment included $27,040, a calculated total of future medical bills. There could be no occasion for adding seven years back interest at 12% ($23,000) to “fully compensate” plaintiff for expenses not yet incurred. Second, absent some contractual, or quasi-contractual setting of a date, interest on an unliquidated sum does not commence until there is a demand, normally the filing of the complaint. The original complaint here sought only an injunction; it was not until sixteen months later that plaintiff amended to seek damages — $11,-000 actual; $20,000 punitive. There is no justification at common law, of even under the Massachusetts statute, for awarding interest for those sixteen months.

More basically, however, I believe the court’s suggestion of dividing the intangible award between past and future, and awarding interest on the former, is supported by neither authority nor logic. Plaintiff’s damages for past suffering did not all date back seven years, but, as plaintiffs’ counsel in such cases are always at pains to emphasize, are a day to day continuum. To award interest, from the beginning, on the accumulation to date makes no sense. Furtado’s “discretion” did not invoke new principles. I find this a peculiarly improper time to devise an exception to the general rule that, with respect to intangible, continuous damages, prejudgment interest is not to be awarded at all. See discussion in Cochran v. Boston, 211 Mass. 171, 172-73 , 97 N.E. 1100 (1912); McCormick on Damages §§ 54-57.

I would vacate the judgment and order the complaint dismissed. If this is not correct, I would remand for a finding of unavoidable damages, not to exceed those reasonably foreseeable, without interest.

. I, of course, agree with the court that subjective reasonableness — given, as the district court found, that defendant acted in good faith — is not the test. At the same time, the court seems inconsistent in faulting defendant for not taking legal advice. Under Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), a defendant stands or falls on whether the law was "clearly established."

. Weiglos is peculiarly unhelpful. In addition to being a mere district court case from another circuit, the opinion goes off on the ground that the search was participated in by a warrantless police officer, the court indicating that its decision might be different had it been the school principal searching on his own. Defendant's position here was akin to the principal in charge of the school, not to the police officer. See 410 F.Supp. at 1220.

. Cf. United States v. Leon, — U.S. ---, 104 S.Ct. 3405, 3423 , 82 L.Ed.2d 677 (1984), magistrate’s decision is reasonable when issue is "sufficient to create disagreement among thoughtful and competent judges.”

. The court, properly, does not resolve plaintiff's claim, disputed by defendant and unresolved below, that her “family background” left her "no real 'choice' but to do whatever was *577 necessary, even if self-destructive, to see her brother.”

. I think I should comment on the court’s footnote 2 regarding plaintiff’s encounter with defendant when out of bounds on his lawn. It is true that the court "made no finding that Blackburn made an obscene gesture.” That is no answer to an offered exhibit, an official Incident Report by a guard, who heard plaintiff "yelling obscenities to the Sheriff, she raised her right hand, giving 'the finger’ towards the Sheriff.” The obscenities were orally testified to as calling defendant "a fat f__.g pig.” There was no contradiction. If the matter is important enough for this court to mention it, and I think it is important, it is not to be dismissed on the ground that the district court failed in its duty (F.R.Civ.P. 52(a) ) to make a finding.

. Defendant was no hardnosed individual with regard to visitors. He testified, "[0]ne of the first things I did was to change the visiting hours. Visits used to be just Saturday and Sunday afternoons. I changed them to every evening and Saturday and Sunday afternoons [and] added holiday afternoons." There was no contradiction. It is not to be assumed that he would have refused plaintiff, had he been informed, of her special need for non-contact facilities.

. The "we" is editorial; I was the judge reversed, and quite correctly so.