Opposition Brief — Gardner v. Tribble

——

LEO J.

INSTON & CASHATT

9th

W

1

838-6131

(509)

for

IN TEE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1988

AMOS REED, et al.,

Petitioners,

LANFORD D. TRIBBLE,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Leo J. Driscoll

Winston & Cashatt, Lawyers

19th Floor

Seafirst Financial Center

Spokane, WA 99201

(509) 838-6131

Counsel for Respondent

i

QUESTIONS PRESENTED

Is a § 1983 defendant who would seek summary judgment based

upon qualified immunity subject to the threshold burdens

which are ordinarily imposed on any other moving party

seeking summary judgment, including the burden of

demonstrating the absence of a genuine issue of material

fact, or of showing the absence of evidence tc support an

element of the non-movant's case?

On interlocutory appeal of a denial of qualified immunity,

do the appellate courts have jurisdiction to review or

consider the issue of the individual conduct or

participation of a § 1983 defendant if such issue was never

presented to or ruled upon by the District Court?

In the context of a claim for, and in response to qualified

immunity, what evidence will suffice to demonstrate the

existence of a genuine issue of material fact as to whether

the ostensible or proffered justifications for a prison

policy of administering a highly intrusive rectal cavity

probe search to inmates are pretextual?

11

LIST OF PARTIES

The parties to the proceeding below were the following

Petitioners, who were aligned as Defendants-Appellants below

Amos Reed, former Washington Department of Corrections Secretary;

Robert Trimble, Washington Department of Corrections Deputy

Secretary; W. L. Kautzky, Director of the Division od Prisons;

James C. Spalding, Deputy Director of the Division of Prisons;

Lawrence Kincheloe, Washington State Penitentiary Superintendent;

; Zabor, Washington State Penitentiary medical staff; and

Correctional Officers Sergeant Snell, J. King, Christy,

P. Edwards, 2% Jones, R. Hansen. L. Menke and S. Worden were

later added as parties defendant.

Respondent Lanford D. Tribble, an inmate serving a sentence

at the Washington State Penitentiary at Walla Walla, was aligned

as the Plaintiff-Appellee below.

vi |

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED Pee ae eee ee ee ee eee ee ae ec ee ee ee x 1

LIST OF PARTIES eae ana Sey ae ee ae ee ee ne Pos ee Se 11

TABLE OF CONTENTS Pee ee ee ee ee ee ae eer Ce ee ee ee eee ea eo lii-iv

ThouE OF BU nORe. an « « * 6 6 Os lel Ue Ue ee he he V-vl

£4 STATEMENT OF THE CASE rae ee Gat See ae ee ee ee 1-5

to REASONS. FOR DENYING THE WRET! 4 « « Ay "2 “es 5-9

A. The Ordinary Requirements

of fed. 8. Civ« PP. Bete? 206

(e) are Applicable to a Motion

for Summary Judgment Based Upon

Grounds of Qualified Immunity. ... . 5-8

B. The Court of Appeais did not

have Jurisdiction of the Issue

of the Sufficiency of Evidence

as to Individual Conduct

co

a In a Maximum Security Prison Setting,

and in Response to a Claim of

Qualified Immunity, What Evidence

Will Suffice to Demonstrate the

Existence of a Genuine Issue of

Material Fact as to Whether tne

Proffered Justifications for a

Prison Policy of Administering a

Highly Intrusive Rectal Cavity Probe

Search to Inmates are Pretextual.. . 9-19

Le Respondent has Presented Direct,

Significant and Probative

Evidence that the Subject

Search did not Serve Penological

i a a se se ere ee ow ce eS Oe 4 9-1]

Zs Turner v., Safley does not

Denigrate Circumstantial

rae: aie a 8. ae oe ee 11-13

3. Unless Near-Absolute-Immunity is

to be Accorded, Reality Necessi-

tates the Use of Probative and

Significant Evidence, Including

Circumstantial Evidence .... 13-14

4. Cases Relied upon by Petitioners

Calling for a Direct Evidence

Standard are Distinguishable,

Unpersuasive and do not Merit

Grant of Certiorari in this Case . 14-16

-_ The Focus should be on the

Substantiality of the Evidence

and not upon an Arbitrary Classi

fication of Evidence .

=)

J

—

~

.¢

¢

}

Cohe

(,TeE

Ha ] TY)

Mart

McSu

Mitc

cino Vv Carison

654 F Supp. 6

aff'd 854 F.2d

tex Corge v. Ca

bt

477 U.S 2 ae

(1986)

nv. Beneficial

337 U.S. 534i, &

nv. Carlson,

26 F.2d 647 (7

erin V Kil

on

~~

+

of Mon

998 (9

1407

v. City

775 F.2d

784 F.2d

in v.

Siz £.2G 1423,

B17 F.2Ga i144, a

reconsideration

rely v. McCleli

697 F.2d 309 (D

474 U.S. 1005,

hell v. Forsyt

ays Ht. S25. 2

TABLE OF

AUTHORI

CASES

TIES

‘

- a +r } now

3 >I Lil 1987),

+ 74} ~ + »2

4 6 4 ( L oF 3 ae iyoo

(T

—

QD

c

5

Dd

ye)

Tnonict 7 T Yr)

ai Aw & A 4 4 si

~ + 7

4 S i | (

tn Be 7 a

h Cir 1 )

OQ

-

lanl

-

wo

x

7

~~

Ay

d,

02 & ie Zier t

Cir 1984), ce

i965 S$. Ct 1843

rovia,

th Cir. 1985)

opinion vacated

nd reinstated on

824 F.2d 1240.

an,

ox “ee

1065 3S.

D.C. Metropolitan Police Dept.,

in part

cert. denied

(1985)

O OV

j~ ~~)

WwW

7, 8

, Pe

19

i

9 1¢

J, AV,

1A

49

Haydon,

853 F.2d 418 (6

109 S. Ct. 788

}

ai

t Cir. 1988), cert. denied

CEE GA 4) a Sie ke SS eae sw kos aes 28;

Pueblo Neighborhood Health Centers v. Losavio,

847 F.2d 642, (10th Cir. 1988) a ee ee ee i ee

Turner v. Dammon,

848 F.2d 440 (4th Cir. 1988) ee a eee A?

Turner v. Safley,

$32 U.G. #6; i@7 &. Ct. 2254 (19867) ..« « 12

U.S. v,. Henderson,

S93 F.20 i028, (ilth Cir. 23962) ..« « « >

Davis,

= Vv 2

26 U.S. 229, 96 S. Ct. at 2040 (1976)... 8

Wright v. South Arkansas Regional Health

Center, Inc.,

800 F.2d 199 (8th Cir. 1986) 16

STATUTES AND REGULATIONS

28 U.S.C. § 1291 8, 9

oe eee eee Pe Fa sk ee Oa we ek we 1

a

ve)

QO

-

ae,

Reeeeeee « 6 « «3 S aoe 2a me 5

Fed. R. Civ. P. 56(c) and (e) ee Ge Oe ee ee . aay

Pes OMe ees te es ee a SAT 9

OTHER AUTHORITIES

Federal Jury Practice and Instructions, Devitt &

Blackmore, Vol. 1, § 15.02, § 40.11. .... 11

Qualified Immunity for Governmental Officials:

The Problem of Unconstitutional Purpose in Civil

Rights Litigation,” 95 Yale Law Journal 126,

L339, A136 coe dee at ate ea we re ey ae ae de eS 14

Black's Law Dictionary, Revised Fourth

Se eee A tine ine oe ee Ly 9

The respondent Lanford D. Tribble respectfully requests

this Court deny the Petition for Writ of Certiorari, seeking

review of the Ninth Circuit's opinion, on interlocutory appeal,

affirming the denial of a motion for summary judgment based on

gualified immunity. The Court of Appeal‘'s opinion is reported at

860 F.2d 321 (9th Cir. 1988) and is reprinted as Appendix "A" t

the Petition for Writ of Certiorari.

: STATEMENT OF THE CASE

Respondent Lanford D. Tribble, an inmate at the Washington

State Penitentiary (WSP), initiated this action under 42 U.S.C.

§ 1983, seeking damages, declaratory and injunctive relief

against prison officials! who pr gated and/or implemented a

body cavity search policy and practice at WSP. Under that policy

and practice, a digital probe search of an inmate's rectal cavity

was routinely made in connection with the inmate's transfer to

WSP's Intensive Management Unit (IMU), a highly secure housing

unit [ ‘prison within 4 prison'] in WSP Or

,

lBooth Gardner, the Governor of the State of Washington, was

initially named as a defendant but by order dated March 14, 1988,

was dismissed with prejudice, Ct. Rec. No. 119. Counsel for

petitioners have erroneously identified Governor Gardner as a

petitioner in the certiorari Petition.

ab

if and when the inmate re-entered the IMU after being temporarily

In connection with transfer to the IMU and before receiving

the rectal probe enroute, routinely (anc likewise true in the

instant situation) the inmate is placed in leg irons, and is

randcuffed behind his back, with the handcuffs attached to a

~hain around his waist. The rectal probe was done

notwithstanding the inmate's protest; it was done as a matter of

) ht _ _ £ - . . } * Sh i _ ,

11 , irrespective of any suspicion that the particular lr ate

has secreted contraband n his rectal cavity. The claimed

tification for the rectal search policy is that inmates who

r

are transferred to he IMU represent a dangerous class of

,Y t¢ £ wh AMT O Yn ‘abe ry ++ +c late Yr eq lation

4 iL S 11U) iidgvc prope ISivty LV vi iGat& pr ison reguiations

Respondent was transferred to the IMU and was subjected tc

the rectal cavity probe enroute to the IMU because contraband was

= , n ’ _——

f nd in the three-man cell to which he was assigned.

' . 1 2 ape : .

Under the prison's “cell tag” policy” each inmate 1S

ipso facto responsible for an infraction occurring within the

é Notwithstanding voetitioner's assertion to the contrary, the

District Court made ruling that “the policy is constitutional

if aimed at a particularly dangerous class of inmates” (Pet.

Appx. A-3). Likewise, the Court of Appeals expressly declined to

ake ruling as to whether the search or search policy as applied

o IMU inmates violated constitutional principles (Pet.

ppx. A-6). Both rulings were more narrowly confined.

Pp

3The “cell tag" policy is not presently before this Court.

N

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During discovery phases, petitioners have contended that the

~ - ‘ 4 » 9 77

co ro ih oC rc no ry + nor + Y ~ mr e

search of the subject cell (and of another cell or re was

based up dential information of a vossihl mirdoa lot

based upon confidential information of a ossible murder plc

:

H

I

iowever, apart from or prior to that, respondent was never given

iotice of that information anc n ct

licity in an such plot

ip

“In oral argument to the erg Court, counsel for petitioner

-_

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+

L

p

acknowledged that the State of ashington was the only state

rison system that utilized this highly intrusive rectal probe

earch practice (Ct. Rec 43, Pp. 14 and 15). Shortly

hereafter, the State of Washinc ton discontinued the policy and

ractice and substantial ed the circumstances under which

rectal probe may be u he Federal Prison at Marion,

used. T

llinois, also allows use of the rectal search in more limited

onditions and affords the inmate the opportunity to use an x-ray

n lieu of the rectal search Bruscino v. Carlson, 654 F. Supp.

09, 619 (S.D. 111 1987)

I c ‘ene ; ( Sele } ] rT e « r ( , , ’ .

n resp se to res ndent inmate's pro se handwritten

mp J nt petitioner officials moved for summary judgment,

~ : : a 1 } nraha "es ~ mito “

serting that the digital rectal probe seaic h policy and

practice was justified Dy the need f prison security, was not

n violation of any clearly established rights of plaintiff, and

that petitioners were immune from suit under principles of

qualified immunity. Before hearing on the motion, the Court

r ’ ry ia ne ] P , } . “a | » ad s Ann : “ + ~~.

Ippointed counsel for the indigent inmatc. Appointed counsel was

not directed by the Court t recast the complaint and counsel did

not do so except that, at a later date, additional counts were

the Petition for

cr ne an | y y " a Oo 7 .

Based upon tne evide! presented, the Court of Appeals

agreed that the rectal search policy const ituted an exaggerated

response tc purported prison security considerations and

accordingly declined to give deference to petitioners’ expert

judgment (Pet. Appx. A-13, Footnote 9) as to the need for the

The Court of Appeals agreed that the law was clearly

s

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rey)

|

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9

i

established at the relevant time that such a highly intrusive and

humiliating search must be reasonably related to a legitimate

penological need (Pet. Appx. A-9) and that inquiry into punitive

purpose was permissible because such 1S an element of the

substantive claim for violation of respondent's constitutional

present

pondent inmate was a substantial one; that specific,

-onclusory, and significan probative evidence had been

sented wt h demonstrates th of a genuine issue of

erial fact as to whether the intrusive probe search policy and

tice was done for punitive purposés, unrelated to legitimate

logical needs.

II. REASONS FOR DENYING THE WRiT

The Ordinary Requirée nts of Fed. R. Civ, P. 56(c) and (e)

are Applicable t a Motion for Summary Judgment Based Upor

Grounds of Qualified I] nity.

A major premise 5 l lng fr petitioners* argument that n

jence was produced f th individualized conduct or

ponsibility of any |r 1 petitioner-defendant. Missing 1S

itioners' acknowledg nt that that issue was never fairly o1

arely presented tc the trial sourt, or ruled upon

itioners did allege as an affirmative defense failure to

te a cause of action,’ Fed. R. Civ. P. 12(b)(6); however,

itioners did not bring n for hearing any issue of pleading

the Court

of Appeals level, petiti ers unsuccessfully argued

that the district court erred as matter of law by inquiring into

purpose or motivations for the search. Here, however, the

Questions Presented imit inquiry in that area to the standard of

proof required if an inquiry into such matter is made.

Pursuing their motion for summary judgment insofar as it was

based on qualified immunity, petitioners made certain definitive

contentions regarding qualified immunity. However, petitioners

made only oblique reference, if at all, to the issue of the

sufficiency of evidence of individualized conduct.’ Petitioners

made no attempt to demonstrate that respondent had no evidence to

prove his case against any named defendant; indeed petitioners

did not even make a “conclusory assertion" that respondent had no

such evidence. See Celotex Corp. v. Catrett, 477 U.S. 325, 328

(1986) (Justice White, concurring)

No ruling was made by, or requested of, the District Court as

to the issue of the sufficiency of evidence of individualized

conduct. After issuance of the District Court!s opinion,

petitioners made no motion to have the Court reconsider its

opinion to address that issue. The Court of Appeals declined to

consider the issue for the first time on interlocutory appeal,

’The only references known tc respondent are as_ follows:

Petitioner's Reply Brief (Ct. Rec. 40) to the District Court

referenced the heightened pleading requirement which requires,

for purposes of qualified immunity, that the complaint contain

specific, mon-conclusory factual allegations against each

individual defendant (Ct. Rec. 40, pp. 2-3); that brief also

noted that respondeat superior and vicarious liability theories

are not applicable (Ct. Rec. 40, p. 3 and 4). Finally, in

colloquy at oral argument, the District Court asked a general

question of counsel for petitioners regarding the relative

responsibility of those who establish the policy and those who

implement it (Ct. Rec. 20, lines 6-11). However, in response,

counsel then representing petitioners did not pursue or advance

the issue.

holding that the record disclosed that “no named defendant has

attempted to make such a [necessary] showing” on that issue (Pet.

Appx. A-13).8

Harlow v. Fitzgerald, 457 U.S. 800 (1982), did not abrogate

in qualified immunity cases the customary burdens imposed by

Fed. R. Civ. P. 56(c) and (e) upon a moving party that there is

no genuine issue as to a material fact. See Halperin v.

Kissinger, 807 F.2d 180, 189 (Justice Scalia, sitting as

designated Circuit Justice) (D.C. Cir. 1986); also see Green v.

Carilean. 826 £. 20.647, -651 (7th Cit... 29877: "The Supreme Court

clearly has envisioned that the issue of qualified immunity may

arise in the context of a summary judgment motion, and has given

no indication that the district court ruling on a motion for

summary judgment on grounds of qualified immunity should follow a

different procedure than if summary judgment had been requested

on other grounds. [citations omitted]" McSurely v. McClellan,

687, #20. 203, 221; Ftn.. 20- 40.C.- Cit. <2982) ("Bsc ioe Gees. aot

purport to purport to change the operation of Rule 56 in immunity

cases.”

7 U.S. 317, 326, reattirms that a

Celotex Corp, v. Catrett, ‘4

party seeking summary judgment ". . . always bears the initial

8The Court of Appeals, in its Opinion at Footnote 10 stated, “Of

course a named defendant may7make such a showing at trial" (Pet.

Appx. A-13).

responsibility of informing the district court of the basis for

its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with wis affidavits, if any,' which it believes

demonstrate the absence of a genuine issue of material fact."

The Cel

tex court explained that a moving party is not

necessarily required to produce evidence showing the absence of a

genuine issue of material fact: “Instead, as we have explained,

the burden on the moving party may be discharged by

“showing"--that is, pointing out to the district court--that

there is an absence of evidence to support the nonmoving party's

case.” Id., 477 U.S. 325 (Emphasis added).

One of the obvious purposes of requiring the moving party to

make a “showing” as to the absence of evidence as to a major

element of the plaintiff's case is to alert the non-moving party

that he or she must come forth with the evidence to support that

questioned element; such notice is required even when the court

raises the issue sua sponte. Celotex Corp. v, Catrett, 477 U.S.

317, 326. Here no such notice given.

B. The Court of Appeals did not ha

of the Sufficiency of Evidence a

ve Jurisdiction ofr tne issu

s to Individual Conduct.

A concommitant of the determination that the District Court

did not rule, or decline to rule, on the issue of sufficiency of

evidence of individual conduct is that on interlocutory appeal,

the Court of Appeals would not have jurisdiction of that issue

under 28 U.S.C. § 1291 or under the collateral order doctrine of

Cohen v. Beneficial Industrial Loan

Corp.,

337 U.S. 541-561,

69 S. Ct. 1221 (1949). There has been no interlocutory decision,

much less one which meets the Cohen three-part test as discussed

in Mitchel] v. Forsyth, 472 U.S. 511, 527, 105 8&8. Ct. 2806

(1985). Mitchell v. Forsyth holds that a district court's denial

of a claim of qualified immunity is an applicable “final

decision," within the meaning of 28 U.S.C. 1291 “to the extent

that it turns on an issue of law," Id., at 530. Here the denial

does not turn on the subject issue--there has been no ruling, or

refusal to rule, on the subject issue of law.

oP In a Maximum Security Prison Setting, and in Response to a

Claim of Qualified Immunity, What_ Evidence Will Suffice t to

Demonstrate the Existence of a Genuine Issue of Material Fact

as to Whether the Proffered Justifications for a Prison

Policy | -of Administering a Highly Intrusive Rectal Cavity

Probe Search to Inmates are Pretextual.

Petitioners assert that the intent of Harlow v. Fitzgerald,

457 U.S. 800 (1982) would be defeated in a qualified immunity

case if a plaintiff's case were able to survive a defendant's

motion for summary judgment by showing

circumstantial evidence or

inference, however probative or significant, instead of direct

evidence.

: Respondent has Presented Direct, Significant and

Probative Evidence that the Subject Search did not Serve

Penological Needs.

Black's Law Dictionary, Revised Fourth Edition, defines

"direct evidence"

DIRECT EVIDENCE. Is that means of proof which

tends to show the existence of a fact in question,

without the intervention of the proof of any other

fact, and is distinguished from circumstantial

evidence, which is often called "indirect." See

Brown; State v. Calder, 23 Mont. 504, 59 P. 903.

Parallelling that definition, respondent offered direct evide:

which “tends to show the existence of a fact in question,

that the rectal search policy was carried out in a manne:

context which rendered the cstensible purpose of the sear

absurdity and a gross exaggeration of a legitimate response

prison security needs. Respondent offered direct evidence that

the only significant search of the person of the inmate being

transferred to the IMU was of the rectal cavity. Other obvious

and commonly used areas were not searched (clothing, hands, hair,

mouth, nose, ears, etc.). That and other direct specific,

Significant, and probative evidence which controverted the

proffered claim that the probe search was needed for legitimate

penalogical purposes is outlined by the Court of Appeals in its

Opinion (Pet. Appx. A-9 to A-10). An even more complete listing

of the evidence appears in the District Court opinion (Pet.

Appx. B-4 to B-6 and B-12, fn. 1).

Such evidence clearly distinguishes this case from the

“insubstantial claims" which Harlow at 813 said should be

resolved on summary judgment, or claims which are premised upon

“bare allegations of malice." Id. at 817, 818. Harlow clearly

did not intend to place insuperable barriers in the way of

substantial claims. Harlow at 819: "By defining the limits of

anal

in

objective

terms,

we

intent, motive or

cases where

equivalent to

may examine.

insulate

judicial

Possibly

presented by

punitive motivations

practice,

even

and practice was

lawless conduct." Harlow showed no animosity

cases to the ontrary, Harlow recognized t

Gamages may be “the only realistic avenue

of constitutional guarantees." Harlow, at 814

al evidence can be highly robative and

by the fact that juries are commonly instru

akes no distinction between the weight given

rcumstantial evidence and that one 1S not ne

valuable han 1e other see e.g Federal

Instructions, Devitt & Blackmore, Vol. l, §

are ordinarily

purpose

indeed, such

can. £

eans. iS. % 40.ik.

ealities of the situation:

the purpose of a prison regulation

there is no ‘direct evidence'

legislative history that plaintiff's

To hold plaintiffs in such cases to a

evidence' standard would effectively

arbitrate governmental action from

scrutiny (Pet. Appx. A-12).

issue,

Turner v.

Evidence.

the Court may conclude that the direct

respondent only

Or purposes of the search policy

though such evidence directly proves

an exaggerated response to

a

«+ r -+huy

trustworthy

Safley does not Denigrate Circumstantia!

evidence

circumstantially tends to prove the

that the

security

proposition

itioner‘'s advance,

which pet

«-

needs. A rdingly, respondent will below state his ontentior

A t the effect t be given probative and significant

lrcumstantial evidence as to motivation.

Petitioners argue that Turner v. Safley, 482 U.S. 78,

t 2254 (1987) presents policy consideration which

I t direct evidence standards in nmnection with any

enge t pri n regulations (Pet. Appx. A-7, 8). Turne!

f y employ a method of analysi which examines prison

ci O7 by considering whether the regulation is “reasonab]l

I ated t legitimate penalogical interests," or conversely is

"an exaggerated response” to prison concerns 482 U.S. at 78

Turner v. Safley determined that the subject pr n restrictior

f inmate rrespondence did not violate the First Amendment but

that restrictions on inmate marriages violated the inmate's

constitutional rights regarding marriage. Significantly,

Turner v. Safley did not conclude that circumstantial evidencs

could not be employed in testing the validity of the regulations;

indeed, it is obvious that circumstantial evidence was employed

in finding the marriage restriction unconstitutional. Certainly,

there was no direct evidence in the form of past documentation,

testimony, admission, or “legislative history” under and by whic!

the prison authorities acknowledged the marriage restrictions t

be an exaggerated response to legitimate penalogical needs.

Admittedly, Turner v. Safley was not a qualified immunity case

however, it is evident that the case does not stand for the broad

peter illenge whether a regulat

reé nably related t legitimate pen gica needs, 3

exaggerated response theret

Unless Near-Absolute-Immunity 1s t be Accorded, R ty

Necessitates the Use of Probative and Signif I

Evidence, Including Circumstantial Evidence

In the narrower context f qualified immunity, we s eo

pub pol y nsiderati do not reflect the need for a!

restr tive jirect -¢ dent y st lard I f I

' murs

Durt é

} y 7 y } ; ¢ Aancre +} } , reé

Y, je! h t n 1!

; ¥ , whet § Rs substanti lat i

I I Se I é City f Monr ca, Fire © see : (St

19 )} wh h in lved a § 983 clai f discriminatior

T } y 7 rT . ; 711 + < :

In the eq 1 protection ntext, just as in a

Title VII disparate treatment case, discriminatory

intent need not be proved by direct evidence

'THhnle n> ; - , ,c oO +c, ; ; P uy

\.Djetermining the existence of a discriminatory

purpose demands a sensitive inquiry nto such

Circumstantial and direct evidence of intent as

~ + - 7 ' . c 5 }

maybe available. *Rogers v. Lodge, 458 U.S. 613, 1

7 27 T Ia 1019 7 , _Y,

S. Ct. 3272, 3276, 73 L.Ed.2d 1012 (1982) quoting

'e r . co +> . . , . 14 } r - 4 +

Arlington leights v. Metropolitan Housing

T <7 in or + a a + = T | Me > he | "

vevelopment COLD.» 4235 U.S: ran 266, os Be Ge

On . Z : i , ne : . r

“Consider here the need for a heightened evidentiary standard,

which is conceptually distinct

standard of Hobson v. Wilson,

requires “non-concluso

the

]

of

from

737 F.2d

allegations

~

L

[unconstitutional

yr

s

motive] or intent,”

requires allegations of “specific facts

unconstitutional motive." Id at 30.

7

p

Id.

heightened pleading

[.G. Cat. asee)

evidence f

at 29,

Support

OL

and

to 3a

ry as

o | C

c A os > 5 cc 107 ° _ -

+} 564, 50 L.Ed.2d 450 (1977); citing

la] hinc rN , T . ~ A T °%A? * a

Washingtor v. Davis, 426 U.S at 242, 96 S. Ct at

aa

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A highly restrictive standard calling for direct evidenc:

nly would have far reaching implications as to qualified

nunity from an alleged equal protection violation involving

~ ry _ ; -ont « rT - > ~ } An —_ ~ < s>4mine

Jiscriminatory intent; from an Eighth Amendment case claiming

ak 7 no WmyNWwcial ry? + ehmoen nh ch ed) ire hoy ate \F

A Ut s aliU UlliUOUGA punisnment wn] A r Pquires a S 1OW1NYG OI

‘Aai41 ‘nat é ue ~~ ae . ate 44 en ae oil a ‘

jeliberate indifference"; from liability for sanctions 01

harge of employees made for pretextuaily valid reasons but

+ y uy h ced mnNoONn IMNrToOnNneY Jurposes in V101] a+ 4A TTYN ‘ati Rirea+

ead e sPOTI dtiplO} I put PUSeldS i ViONUddliO}l U1 4.04

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Amendment rights, etc. See “Qualified Immunity for Governmental

L *’htitc T ; ~#t#3nn “ c Vv Ic T - — > XC 12Cc 12¢

R1g s Litigation, 95 Yale Law Journal 126, 135-136

T . AT ‘ ~ - Am 4 ° — ~~. Aarltiritiac > ~ mea mh + + + .

Respondent submits that the realities are such tnfNa an

eit A rn sare . yA esh 3 mh 1 r , .. ~ “4 _n rc _ ~ Tener ;

evidentiary standard which would reject specific, non-conclusory,

probative and significant circumstantial evidence as _ being

insufficient to evidence improper purpose or motivation is

essentially tantamount to a grant of absolute immunity.

. Fitzgerald declined to grant or endorse absolute

Relied upon by Petitioners Calling for a Direct

Dd

ases

idence Standard are Distinguishable, Unpersuasive and

oh -

Ev

do not Merit Grant of Certiorari in this Case.

OD

A case primarily relied upon by petitioners, Martin v. D.

>

Metropolitan Police Dept., 812 F.2d 1425, vacated in part

817 F.2d 144 (Sec. IV of opinion and dissenting opinion)

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

LANFORD D. TRIBBLE,

NO. C-86-234-JLQ

Pisintirfz,

v8: ORDER GRANTING IN PART

AND DENYING IN PART

DEFENDANTS’ MOTION TO

DISMISS AND ORDER OF

PARTIAL DISMISSAL

WITH PREJUDICE

BOOTH GARDNER, et al

al 5

Defendant.

me a a a a ee ee ee ee ee”

BEFORE THE COURT is defendants’ Motion to Dismiss

Defendants Gardner, Worden, John Doe 1 and John Doe 2 (Ct.

mec. 114).

Plaintiff’s response (Ct. Rec. 118) indicates that he

has ne objection to the dismissal of Booth Gardner. There-

fore, the complaint and the claims therein are DISMISSED

WITH PREJUDICE as to defendant Booth Gardner.

As to defendants John Doe 1 and John Doe 2, plaintiff

states in his response that those defendants were dismissed

in an order filed prior to the filing of plaintiff’s amended

complaint. Plaintiff also states that he has no objection to

the dismissal of defendants John Doe 1 and John Doe 2 if the

ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTION, INTER ALIA - 1

“ .

1 court determines that a further order of dismissal as fo

2 those defendants is necessary.

3 J his amended complaint (Ct. Rec. 106), plaintiff agatr |

4 names defendants John Doe 1 and John Doe 2. As plaintiff |

5 || does not object to their dismissal, the complaint and the

6 ] claims therein are DISMISSED WITH PREJUDICE as to defendants

7 | John Doe 1 and John Doe 2.

8 | Finally, defendants argue that the court should dismiss

9 | defendant Steve Worden because plaintiff has failed to allege

10 | acts on the part of that defendant which amount to a consti-

11 tutional violation and because the court does not have

12 personal jurisdiction over that defendant. As to the second

13 argument, defendants allege that the court has no personal

14 jurisdiction over defendant Worden because that defendant did

15 not engage in conduct in Washington which violated plain-

16 tiff’s constitutional rights, nor in tortious conduct, and

7 | the Washington Long-Arm Statute therefore does not confer

18 | jurisdiction over defendant Worden. Thus, the validity of

19 the second argument depends upon the validity of the first.

20 In the first argument, defendants argue that plaintiff

94 has failed to state a claim against defendant Worden because

59 the complaint alleges oniy that defendant Worden made

93 || derogatory comments to plaintiff prior to the digital-rectal

24 ||

at ORDER GRANTING IN PART AND DENYING

] IN PART DEFENDANTS’ MOTION, INTER ALIA - 2

26

(Rev 8/82)

|

1 | probe and that threats do not state a cognizable 42 viascus ©

2 | 1983 action. Defendants correctly argue that threats alone

3 || will not state a cause of action pursuant to 42 U.S.C. 8 1983

4 | for violation of a prisoner’s Eighth Amendment rights.

| In this case, however, plaintiff also alleges that the

6 | defendants’ conduct violated his Fourth Amendment right to be

|

free from unreasonable searches. In Bel) v. Wolfish, 441

8 | U.S. 520 (1979), the United States Supreme Court stated the

relevant inquiry in determining the validity of a search of a

9 |

10 | prisoner. In that case, tthe court held that "each case

14 | requires a balancing of the need for tne particular search

12 against the invasion of personal rights that the search

13 | entails. Courts must consider the scope of the particular

14 | intrusion, the manner in which it is conducted, the justifi-

15 ] cation for initiating it, and the place in which it is

16 conducted." Id. at 559 (Emphasis added, citations omitted).

17 | Al though the court’s holding stated that the Fourth Amendment

ye || a0e8 not bar all visual cavity searches, the court also

19 stated in dicta that such searches must be conducted reason-

‘ ably and that searches conducted abusively may violate a

prisoner’s Fourth Amendment rights. Id. at 560.

° In his amended complaint (Ct. Rec. 106), plaintiff

. alleges that defendant Worden made an abusive statement to

24

25 ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTION, INTER ALIA - 3

26

72

v.8/82)

72

wv 8/82)

plaintiff sometime prior to a digital-rectal probe. Defend

ants have not established or even argued that the statement

unrelated to the search that the court could not

consider it in determining if the search was unconstitu-

lly abusive, nor have defendants established or argued

that the statement was insufficient to render the search

unconstitutionally abusive. Therefore, defendants’ motion to

dismiss is DENIED to the extent defendants seek the dismissal

of defendant Worden for failure to state a claim as to that

defendant. Accordingly

IT IS ORDERED:

a As to defendant Booth Gardner, defendants’ Motion to

Dismiss is GRANTED; the complaint and the claims therein as

to him are DISMISSED WITH PREJUDICE.

2 As to defendants John Doe 1 and John Doe 2, defen-

dants’ Motion is GRANTED; the complaint and the claims

therein as to them are DISMISSED WITH PREJUDICE.

< As to defendant Steve Worden, defendants’ Motion is

DENIED.

IT IS SO ORDERED. The Clerk is directed to enter this

Order and forward copies to counsel.

ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTION, INTER ALIA - 4

oe 2S

' DATED this /~4——day of March, 1988.

ait

oe BCL a

3 FY JUST I KOLELES

Wnited States District Judge

4 Vt

ie)

|

on | ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTION, INTER ALIA - 5

AQ 72