# Karen Bonitz v. Michael v. Fair, Karen Bonitz v. Michael v. Fair, Appeal of William Shaughnessy

> Court of Appeals for the First Circuit · November 3, 1986 · 804 F.2d 164

URL: https://www.frixlaw.com/law-library/cases/9475504

## Case

- **Full name:** Karen BONITZ, Et Al., Plaintiffs, Appellees, v. Michael v. FAIR, Et Al., Defendants, Appellants; Karen BONITZ, Et Al., Plaintiffs, Appellees, v. Michael v. FAIR, Et Al., Defendants, Appellees. Appeal of William SHAUGHNESSY, Defendant, Appellant
- **Court:** Court of Appeals for the First Circuit
- **Decided:** November 3, 1986
- **Citations:** 804 F.2d 164; 55 U.S.L.W. 2313
- **Precedential status:** Published
- **Opinion:** Concurrence by Breyer
- **Judges:** Campbell, Coffin, Breyer
- **Cited by:** 98 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Unwin v. Campbell, 863 F.2d 124 (1988).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475504

## How later opinions describe it (automated extraction)

- finding body cavity searches by prison officers unconstitutional and noting that the officers conducting the searches “did not follow prison instructions that required internal examination of body cavities to be conducted by medical.personnel”
- holding that defendants were not entitled to qualified immunity where officers conducted oral, anal and vaginal digital searches of inmates “without changing their gloves during a search of an inmate or between searches of different inmates”
- holding that, on appeal of denial of claim of qualified immunity to section 1983 liability, review may encompass only allegations of plaintiff’s complaint and not facts adduced as to defendant’s conduct
- finding that body cavity searches in prison were unreasonable in part because they were performed by police officers rather than medical personnel
- explaining that the distinction between manual and visual body cavity searches “is significant and has been noted by the courts”

## Opinion text

BREYER, Circuit Judge
(concurring).
I have joined the majority opinion and write separately only to explain why I do not accept Judge Campbell’s solution to the difficult procedural problem that concerns him. The problem is this: what set of facts should an appellate court assume when it hears an interlocutory appeal from a denial of summary judgment in a § 1983 case — an appeal brought by a government official who has claimed “qualified immunity.”
The problem is difficult because it poses the following dilemma. On the one hand, the appellate court is tempted to treat the interlocutory appeal as if it were like any other summary judgment appeal, at least in respect to the legal question of what facts to assume. An appellate court will decide an ordinary summary judgment case (typically, a case in which a district court has granted summary judgment) by looking to see which facts have enough record support to persuade a reasonable factfinder. Why then should an appellate court, on this interlocutory appeal, assume a different set of facts that may lack this minimal record support?
On the other hand, the appellate court is aware of the time and effort that it takes to decide whether the record offers sufficient support for a particular finding of fact. Doing so often requires the court to read lengthy depositions, interrogatory answers, and other record material that may be filled with vague or ambiguous statements. This “judicial resource” problem is *177 one reason why interlocutory appeals are rarely allowed; it also can lead district courts to deny summary judgment motions in complex cases and send them to trial where the jury’s verdict may “wash out” any summary judgment issue. Why should an appellate court undertake this factually-related type of review on an interlocutory appeal of a “qualified immunity” question, when that interlocutory appeal seeks basically to answer a different kind of legal question, namely whether the right at issue was “clearly established?”
Judge Coffin’s opinion, in my view, resolves this dilemma correctly. It takes as the factual predicate for reviewing the “clearly established” question, the same facts that the district court assumed in providing its answer to that question. I do not believe we need always take this approach. In an appropriate case this court may review a district court’s factually-based determinations on an interlocutory “qualified immunity” appeal. See Jimenez Fuentes v. Torres Gaztambide, 803 F.2d 1 (1st Cir.1986); De Choudens v. Government Development Bank of Puerto Rico, 801 F.2d 5 (1st Cir.1986). But the approach is particularly sensible when the district court itself seeks to avoid a difficult summary judgment determination and instead sends the case to trial. In such a case, this approach allows the appellate court to review the legal issue of “immunity” without reviewing the factual elements of the district court’s summary judgment determination. It thus avoids lengthy, interlocutory entanglement with complex, factually difficult, record-based issues, while affording interlocutory review in respect to the basic question of immunity — the question that provides the very reason for permitting the special appeal.
As Judge Coffin points out, this approach is consistent with the language of Mitchell. That language refers only to two sets of circumstances, in neither of which are the facts (or questions about what facts the record will support) in dispute. It speaks of (1) a district court holding that a complaint alleges violation of a “clearly established” right (followed by defendant’s appeal); and (2) a district court’s (a) acceptance, of defendant’s version of the facts and (b) its holding that those facts amount to a violation of a “clearly established” right (followed by defendant’s appeal). Mitchell does not refer to (3) a district court’s (a) refusal to accept defendant’s version of the facts and (b) its holding that plaintiff’s allegations amount to a violation of a “clearly established” right (followed by defendant’s appeal of both (3)(a) and (3)(b)). As Judge Coffin also points out, the theory of Mitchell that the interlocutory appeal is to consider fairly clear legal issues not requiring elaborate review of potential evidence in the record, also supports this approach.
Finally, a defendant such as Shaughnessy, believing that plaintiffs can show no factual link between him and the complained of conduct, is not without a remedy in respect to this basically factual question. He can ask the district court for summary judgment; he can ask the jury for a verdict; he can, if necessary, ask for a directed verdict and a judgment n.o.v. Eventually, he can obtain appellate review of any adverse jury verdict. Indeed, in this case plaintiffs have not yet specifically stated the connections they intend to prove between the particular conduct complained of and each of the defendants they have sued. I believe it should still be open to defendants to ask the district court to order such a specific statement and to reconsider, in light of that statement and the evidence in the record, the individual defendants’ requests for summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475504. Public record. Not legal advice.