Baptiste v. Foster, NHAG, et al.

2017 DNH 098

• Court: District Court, D. New Hampshire
• Decided: May 25, 2017
• Docket: 16-cv-439-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stephen Baptiste

v. Civil No. 16-cv-439-JD Opinion No. 2017 DNH 098 Joseph Foster, New Hampshire Attorney General, et al.

O R D E R

Stephen C. Baptiste, who is an inmate at the New Hampshire

State Prison for men and is proceeding pro se, brought suit

against the New Hampshire Attorney General and officials and

employees of the New Hampshire Department of Corrections,

alleging claims under 42 U.S.C. § 1983, that arose from a group

strip search at the prison. As allowed on preliminary review,

Baptiste brings a claim for damages against Officers John Doe

#2, Jardine, Fouts, Orlando, Foncier, alleging that the strip

search violated his Fourth Amendment right to be protected from

unreasonable searches. The defendants move to dismiss the claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). Baptiste

did not file a response to the motion.

Standard of Review

Under Rule 12(b)(6), the court must determine whether the

plaintiff has alleged sufficient facts to support a plausible claim. In re Curran, --- F.3d ---, 2017 WL 1405211, at *3 (1st

Cir. Apr. 20, 2017). The court accepts the properly pleaded

facts as true and takes inferences from the facts in the light

most favorable to the non-moving party. O’Shea v. UPS

Retirement Plan, 837 F.3d 67, 77 (1st Cir. 2016). Conclusory

allegations and mere statements of the elements of a cause of

action are not sufficient to avoid dismissal. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007).

Background

The prison hosts a holiday event for inmates and their

families in December each year. The event is held in the prison

gymnasium with each prison unit assigned a day for the party.

Inmates apply to attend the party and must meet certain criteria

to be allowed to attend.

Baptiste’s unit was scheduled to attend the holiday event

on December 18, 2014. The event began at 6:30 p.m. and lasted

until 8:45 p.m. When the visitors were escorted out of the gym

after the event, the inmates remained.

The corrections officers announced that there would be a

strip search of the inmates before they were allowed to leave

the gym. The inmates were called to tables in groups of eight

for corrections officers to conduct the strip searches,

including visual body cavity searches. The strip searches were

2 done in the open in the gym, without privacy screens, and in the

view of a female corrections officer, Kelly Jardine, who was

standing on the stairs in the gym. There was also a video

surveillance camera operating during the searches.

In early January of 2015, Baptiste complained to Major

Fouts about the strip search and about a female officer being

present. Major Fouts denied that a female officer had been

present. On January 22, Baptiste went to mental health sick

call to report the circumstances of the strip search and to seek

treatment for the trauma he experienced during the search.

Baptiste met with Jean Carrol to discuss the strip search and to

provide a statement.

Baptiste wrote to the New Hampshire Attorney General Joseph

Foster about the strip search. Foster replied that he had

turned the investigation over to Colon Forbes in the department

of professional standards. On January 29, 2015, Baptiste sent a

grievance form to Warden Gerry about the strip search, which was

denied as untimely. In February of 2015, Baptiste sent a

grievance to Commissioner William Wrenn who responded that no

female corrections officer was present during the strip search

and that the strip search procedure would be reviewed and

changed for the next year.

3 Discussion

The defendants move to dismiss Baptiste’s claim that the

strip search violated his Fourth Amendment rights. They argue

both that Baptiste has not alleged facts to show a violation of

his Fourth Amendment rights and that they are protected by

qualified immunity. Baptiste did not file a response to the

motion.

A. Fourth Amendment

Prison inmates retain Fourth Amendment rights against

unreasonable searches and seizures. Bell v. Wolfish, 441 U.S.

520, 545 (1979). Inmates’ rights, however, are subject to

restrictions and limitations that are imposed because of “[t]he

fact of confinement as well as the legitimate goals and policies

of the penal institution.” Id. at 546. Strip searches of

inmates following contact visits, including visual body cavity

searches, are reasonable security measures to deter the

possession of contraband. Id. at 559-60; see also Florence v.

Bd. of Chosen Freeholders of County of Burlington, 566 U.S. 318,

326-27 (2012) (discussing Bell, 441 U.S. at 558); Wood v.

Hancock County Sheriff’s Dep’t, 354 F.3d 57, 68 (1st Cir. 2003).

Strip searches and body cavity searches must be conducted

in a reasonable manner that is justified by sufficient

legitimate penological interests to outweigh the significant

4 privacy interests of the inmate. Bell, 441 U.S. at 559-60;

Williams v. City of Cleveland, 771 F.3d 945, 951 (6th Cir.

2014); Shapiro v. Rynek, 212 F. Supp. 3d 990, 996 (Colo. 2016);

Lewis v. Chatterson, 2015 WL 9674792, at *6 (W.D. La. Oct. 7,

2015); Shapiro v. Falk, 2014 WL 4651952, at *9 (D. Colo. 2014);

Zunker v. Bertrand, 798 F. Supp. 1365, 1369-70 (E.D. Wisc.

1992). Inmates may be strip searched in the presence of other

inmates who are also being searched when that is necessary to

prevent introduction of contraband into the prison. Fernandez

v. Rapone, 926 F. Supp. 255, 261 (D. Mass. 1996). The presence

of a guard or officer of the opposite sex during a strip search,

however, may violate the inmate’s constitutional rights,

depending on the circumstances. Cookish v. Powell, 945 F.2d

441, 447 (1st Cir. 1991); accord Baggett v. Ashe, 41 F. Supp. 3d

113, 119-21 & 125-26 (2014); see also Collins v. Knox County,

569 F. Supp. 2d 269, 282-83 (D. Me. 2008).

The strip search and body cavity search conducted by the

defendants was based on the contact visit between inmates and

guests during the holiday party, which is a legitimate reason

for a strip search. The manner of conducting the search,

however, raises Fourth Amendment concerns.

The inmates were strip searched with visual body cavity

inspection in the gym in the presence of the other inmates and

officers and without any privacy measures. The searches were

5 videotaped, and one of the officers present was female. The

defendants contend that “there is nothing about the presence of

other inmates, a female corrections officer, or a video

surveillance camera” which would implicate the Fourth Amendment.

As noted above, whether a strip search was reasonable for

purposes of the Fourth Amendment requires consideration of the

manner in which the search was conducted. Importantly, in the

context of a motion to dismiss, the defendants do not provide

any justification for conducting the strip searches and visual

body cavity searches in the open gymnasium instead of in a more

private environment. Baptiste alleges that the officers should

have used privacy screens to conduct the searches. Therefore,

the constitutionality of the search cannot be determined at this

stage of the case without factual development of the

circumstances that required the searches to be conducted in that

manner. See, e.g., Shapiro, 2014 WL 4651952, at *9.

B. Qualified Immunity

“The doctrine of qualified immunity shields officials from

civil liability so long as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Mullenix v. Luna, 136 S.

Ct. 305, 308 (2016) (internal quotation marks omitted). “[T]he

clearly established law must be ‘particularized’ to the facts of

6 the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That standard

does not require a case on point but does require “a case where

an officer acting under similar circumstances as [the defendant]

was held to have violated the Fourth Amendment.” Id.

The defendants are entitled to qualified immunity in this

case unless the rights Baptiste asserts were clearly established

by December of 2014 when the search occurred. The Supreme Court

held in 1979, in the context of determining whether a strip

search and visual body cavity search of a pretrial detainee

violated the Fourth Amendment, that “[t]he test of

reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application.” Bell, 411 U.S.

at 559. Instead, the reasonableness of the search depends on

“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.” Id.

In Cookish, which was decided in 1991, the First Circuit

held that an officer of the opposite sex who views a strip

search of an inmate violates his or her constitutional rights

unless the observation was due to an emergency or was

“inadvertent, occasional, casual, and/or restricted.” 945 F.2d

at 447. As alleged, Jardine, a female officer, was standing on

the gym stairs with a view of the searches. She was not in

7 close proximity to Baptiste, however, and the circumstances

alleged do not suggest observation that was other than

inadvertent or casual. Cf. Baggett, 41 F. Supp. 3d at 120-21

(holding that a male guard’s presence during a strip search of a

female inmate when the male guard was only a few feet away and

was videotaping the search violated the inmate’s rights).

Therefore, the law was not clearly established that Jardine’s

presence in the gym during Baptiste’s strip search and visual

body cavity search would violate his rights.

The First Circuit has suggested that searches of inmates

should be conducted in private areas. See United States v.

Cofield, 391 F.3d 334, 337 (1st Cir. 2004); Wood, 354 F.3d at

69. The First Circuit has not held, however, that strip

searches of inmates conducted as part of a group violate their

constitutional rights. Other courts have come to different

conclusions about the constitutionality of group strip searches,

depending on the circumstances. See, e.g., Williams, 771 F.3d

at 954; Elliott v. Lynn, 38 F.3d 186, 191-92 (5th Cir. 1994);

Peek v. City of New York, 2014 WL 4160229, at *2 (S.D.N.Y. Aug.

18, 2004). Therefore, it was not clearly established that the

defendants’ search of Baptiste in a group of inmates without

privacy screens would violate his constitutional rights.

Because there is no case before December of 2014 holding

that searches conducted in the manner used by the defendants to

8 search Baptiste violated an inmate’s Fourth Amendment rights,

the defendants are entitled to qualified immunity.

Conclusion

For the foregoing reasons, the defendants’ motion to

dismiss (document no. 14) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

May 25, 2017

cc: Stephen C. Baptiste, pro se Francis Charles Fredericks, Esq.