United States Court of Appeals For the First Circuit
No. 23-1767
JADEN BROWN,
Plaintiff, Appellee,
v.
SAM DICKEY, individually and as an employee of the Cumberland County Sheriff's Department; DANIEL HASKELL, individually and as an employee of the Cumberland County Sheriff's Department, Defendants, Appellants.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Gelpí, Montecalvo, and Aframe, Circuit Judges.
John J. Wall, III, with whom Monaghan Leahy, LLP was on brief, for appellants. Jeremy W. Dean for appellee. Jaba Tsitsuashvili, Institute for Justice, Daniel Greenfield, George Mills, and Roderick & Solange MacArthur Justice Center were on brief for the Roderick and Solange MacArthur Justice Center and the Institute for Justice, amici curiae.
September 3, 2024 AFRAME, Circuit Judge. This is an interlocutory appeal
by two Cumberland County, Maine jail correction officers, Daniel
Haskell and Sam Dickey, from an order denying summary judgment
based on qualified immunity. The case, asserting violations of 42
U.S.C. § 1983 and the Maine Civil Rights Act, Me. Rev. Stat. Ann.
tit. 5, § 4682, stems from an allegation brought by an individual
who was previously incarcerated, Jaden Brown, that Haskell and
Dickey violated her Fourth Amendment rights by observing her naked
body during her stay at a local hospital to deliver a baby.1
Haskell and Dickey's primary argument is premised on a
challenge to the district court's determination that there are
sufficient facts for a jury to conclude that they viewed Brown's
naked body in a manner that was more than inadvertent, occasional,
casual, or restricted. An argument that the district court
erroneously identified factual disputes as the basis for denying
summary judgment premised on qualified immunity is not the proper
subject of an interlocutory appeal. Thus, we lack jurisdiction
over most of this appeal. To the extent Haskell and Dickey contend
that observing Brown's body in the manner described does not
1 "[T]he protections provided by the Maine Civil Rights Act, including immunities, are coextensive with those afforded by 42 U.S.C. § 1983." Est. of Bennett v. Wainwright, 548 F.3d 155, 178-79 (1st Cir. 2008). We therefore will treat the disposition of the § 1983 claim as controlling the outcome of the Maine Civil Rights Act claim. Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (citing Dimmitt v. Ockenfels, 220 F.R.D. 116, 123 (D. Me. 2004)).
- 2 - constitute a search under the Fourth Amendment, we reject that
claim based on clearly established circuit law.
I.
We begin by describing the facts from the summary
judgment record in the light most favorable to Brown. See Norton
v. Rodrigues, 955 F.3d 176, 179 (1st Cir. 2020).
In July 2018, Brown, who was then pregnant, began serving
a 15-month sentence at the Cumberland County Jail in Portland,
Maine. Brown went into labor on the morning of February 10, 2019.
Jail officials transported Brown to Maine Medical Center at around
11 a.m. Brown did not give birth until around 1 a.m. the following
day.
During Brown's hospital stay, Brown was continuously
accompanied by jail officials. At first, Officer Angel Dufour
stayed with Brown. Brown invited Dufour to remain with her in the
hospital room. During Dufour's shift, Haskell was in Brown's room
for about an hour between 6:30 p.m. and 7:30 p.m. Dickey and
Officer Carrie Brady replaced Dufour at about 10:45 p.m. Haskell,
who supervised Dickey and Brady, was present for the shift change
and remained in and around Brown's hospital room until at least
approximately 11:30 p.m. Haskell and Dickey both had engaged
previously in inappropriate conduct with females who were
incarcerated. For his part, Dickey had been demoted for an
inappropriate relationship with a female who was incarcerated.
- 3 - And, according to Brown, she previously watched females who were
incarcerated strip naked for Haskell.
At the end of the shift change, Dufour reminded Dickey
that jail policy prevented officers from being in "the delivery
room when [a person who is incarcerated] is giving birth." Dickey
responded, "OK." This policy was consistent with Maine law, which
instructs that "[w]hen a prisoner . . . is admitted to a medical
facility . . . for labor or childbirth, a corrections officer may
not be present in the room during labor or childbirth unless
specifically requested by medical personnel." Me. Rev. Stat. Ann.
tit. 30-A, § 1582(4). There was no such request from medical
personnel here.
Despite the reminder by Dufour and the applicable Maine
statute, Dickey and Brady sat in Brown's hospital room continuously
throughout Brown's labor and delivery until the following morning
after Brown's child was born. Brown's hospital room was large.
Brown's bed was in the back corner of the room next to a bench
that was a few feet away. Dickey sat on the left side of the
bench, within two feet of Brown's legs as she lay in bed. According
to Brown, Dickey was close enough to her that she could have
touched him. Brady sat on the other end of the bench, within four
feet of Brown. Brown perceived that Dickey and Brady were
positioned "so that they could see, hear, and smell everything
that was happening while [Brown] labored and delivered her baby."
- 4 - Haskell also repeatedly entered and exited Brown's room, although
he denies being present when Brown delivered the baby.
Prior to the delivery, Dickey watched television,
napped, and laughed at jokes told by Haskell. For example, Haskell
said to Brown that she and her baby constituted "one and a half
inmates" and suggested that she should name her daughter after
the jail. Haskell also raised with Brown a recent allegation by
another incarcerated female who had accused him of having sex with
her. Haskell made disparaging comments about this other female's
appearance. He also denied the allegation, asking Brown, "You
know my type. Is she my type?" Based on prior observations,
Brown understood Haskell to prefer young, petite, blonde women.
During Brown's hospital stay, medical personnel
conducted multiple examinations of Brown's cervix. These
examinations required Brown to spread her legs so that medical
personnel could insert gloved fingers into her vagina to manually
check the dilation of her cervix. Brown stated specifically that
Haskell was present for one of these exams when he was in her
hospital room at about 7:30 p.m. In addition to these cervix
exams, Brown received an epidural and a urinary catheter. The
medical personnel also occasionally monitored the baby's
heartbeat, which required them to expose Brown's stomach and
breasts. Just prior to the birth, medical personnel held Brown's
legs in the air so that she could push. As Brown delivered, Dickey
- 5 - wrote in the jail hospital log, "Delivery happening!",
"Pushing . . . ", and "Baby girl born!"
According to Brown, the medical personnel did their best
to cover her body with a johnny and sheet during the cervical
examinations. Nevertheless, Brown says there were times when her
breasts and vagina were exposed. Brown's genitals were completely
exposed during the actual delivery because medical personnel could
not cover her with a sheet while lifting her legs in the air.
Haskell and Dickey both denied that they observed
Brown's breasts or genitals while in the hospital room. Brown
admitted that she did not ask Haskell or Dickey to leave the
hospital room because, even though she felt "embarrassed" and
"numb," "when you're naked and your legs are spread open it's just
like -- it's over. Let's just get it done with." Brown also
acknowledged that she cannot say with certainty what any particular
officer saw during the delivery because she was focused on the
medical personnel while trying to deliver. Brown was released
from custody within 48 hours of delivering her baby.
Based on the events at the hospital, Brown filed claims
against the jail, jail supervisors, and the corrections officers
on scene, including Haskell and Dickey. The complaint against
Haskell and Dickey alleged that their conduct violated the Fourth,
Eighth, and Fourteenth Amendments of the United States
- 6 - Constitution. On appeal, the parties focus on the Fourth Amendment
claim, and so will we.
Following discovery, Haskell and Dickey sought summary
judgment, asserting qualified immunity. The district court denied
the motion. The court identified Cookish v. Powell, 945 F.2d 441,
447 (1st Cir. 1991), as holding that a prison guard of the opposite
sex from an incarcerated person violates that person's Fourth
Amendment rights by observing the person's naked body, if the
observations were "other than inadvertent, occasional, casual,
and/or restricted," unless emergency circumstances were present.
Id.
The district court held that there were genuine issues
of material fact on whether Haskell and Dickey violated the Cookish
standard by observing Brown's naked body. The court noted that
the record was "replete with facts that cast doubt" on Haskell and
Dickey's assertion that they did not view Brown naked while she
was in the hospital. The court also ruled that Haskell and
Dickey's alleged observations of Brown's naked body, if such
observations occurred, would constitute searches under the Fourth
Amendment.
II.
A.
Haskell and Dickey's primary argument on appeal is based
on the predicate assertion that "[t]here is no evidence in the
- 7 - summary judgment record that [they] made any observation of Brown's
naked body -- let alone that they made more than inadvertent,
occasional, casual, and/or restricted observations of her naked
body." From that assertion, Haskell and Dickey contend that the
law was not clearly established that their mere presence in Brown's
hospital room, without observing Brown's naked body, constituted
a violation of Brown's Fourth Amendment rights.
We do not have jurisdiction to consider this argument.
Generally, courts of appeals lack jurisdiction over appeals from
orders denying summary judgment because such orders lack finality.
See McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017) (citing
28 U.S.C. § 1291). There is an exception, however, for orders
denying summary judgment based on assertions of qualified immunity
where the argument for immunity presents a question of law. Cady
v. Walsh, 753 F.3d 348, 350 (1st Cir. 2014) (citing Johnson v.
Jones, 515 U.S. 304, 313 (1995)).
Qualified immunity, which shields an officer from civil
liability unless the officer violates clearly established law of
which a reasonable officer would have known, is an immunity from
suit and damages. See Ortiz v. Jordan, 562 U.S. 180, 188 (2011).
Because qualified immunity is an immunity from suit, an officer's
claim of qualified immunity "ought to be resolved as soon as
possible in [the] litigation." Norton, 955 F.3d at 183.
- 8 - But not all orders denying summary judgment premised on
qualified immunity are immediately appealable. Only "[p]urely
legal rulings" implicating qualified immunity receive expedited
appellate consideration. Morse v. Cloutier, 869 F.3d 16, 22 (1st
Cir. 2017). Thus, a challenge to a district court's ruling that
the facts, taken in the light most favorable to the plaintiff,
demonstrate a violation of clearly established law may be
considered on interlocutory appeal. See McKenney, 873 F.3d at 80.
When, however, the court's order denying qualified immunity is
based only on "an issue of fact or an issue perceived by the trial
court to be an issue of fact," we do not have appellate
jurisdiction. Id. (quoting Stella v. Kelley, 63 F.3d 71, 74 (1st
Cir. 1995)). Thus, we lack jurisdiction when the
defendant-officer's argument for qualified immunity rests on a
claim that "the facts asserted by the plaintiff[] are untrue,
unproven, warrant a different spin, tell only a small part of the
story, [or] are presented out of context." Id. at 80-81 (quoting
Díaz v. Martínez, 112 F.3d 1, 5 (1st Cir. 1997)).
Haskell and Dickey's argument that their mere presence
in the hospital room did not violate clearly established law
exceeds the jurisdictional limit. Their argument is premised on
a contention that they did not observe Brown's naked body. But
the district court concluded there was a genuine issue of fact on
that question. And this issue of fact is material because, as
- 9 - mentioned earlier, in this circuit, it is established that a Fourth
Amendment violation occurs when a prison guard of the opposite
sex, in nonemergency circumstances, views an incarcerated person's
naked body in a manner that was "other than inadvertent,
occasional, casual, and/or restricted." Cookish, 945 F.2d at 447.
Therefore, Haskell and Dickey's argument for qualified immunity on
the ground that they were merely present in Brown's hospital room,
without observing Brown's naked body, does not constitute a purely
legal question appropriate for interlocutory appeal because it is
premised on facts which the district court determined are in
dispute.
Haskell and Dickey argue otherwise by pointing to what
we have called an "isthmian exception" to the limits on
interlocutory appeals of qualified-immunity denials at summary
judgment. McKenney, 873 F.3d at 81 n.4. The exception derives
from Scott v. Harris, 550 U.S. 372, 380 (2007), a case also
involving qualified immunity for a Fourth Amendment claim. The
district court had denied summary judgment premised on qualified
immunity because of purported factual disputes resulting from the
testimony of the plaintiff about his interaction with the defendant
police officer. Id. at 376. As discussed above, such a ruling
denying summary judgment based on a factual dispute would typically
preclude an interlocutory appeal of the qualified immunity
question. But, in Scott, there was also a videotape of the
- 10 - plaintiff's interactions which demonstrated that the plaintiff's
version of events was false. Id. at 378-79.
The Supreme Court held that, in such circumstances, the
district court should have treated the undisputed facts as being
established by the videotape. As the Court explained, "[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment."
Scott, 550 U.S. at 380. Thus, when the evidence indisputably
supports only the defendant's version of events -- even though the
plaintiff testified otherwise -- the defendant may bring an
interlocutory appeal challenging the denial of qualified immunity
premised on the incontrovertibly established facts.
Haskell and Dickey contend that the Scott exception
saves their interlocutory appeal. They say that Brown's Fourth
Amendment claim requires record evidence that they observed
Brown's naked body in the manner proscribed by Cookish. They then
assert that there is no such evidence here because they "testified
that they did not view or observe Brown's naked body," and "Brown
could not dispute that testimony based on her own personal
knowledge." Because Brown could not testify from personal
knowledge that they saw her naked body and did not present witness
testimony or "physical evidence" to establish that such
- 11 - observation definitively occurred, Haskell and Dickey contend the
record supports only one conclusion: they did not observe Brown
naked. Thus, they argue the summary judgment record presents only
the purely legal question of whether it was clearly established
that their mere presence in Brown's hospital room, without
observing Brown's naked body, violated Brown's Fourth Amendment
rights.
We reject this argument, which suffers from a
misunderstanding about the roles played by direct and
circumstantial evidence in identifying factual disputes. Direct
evidence "is that which proves a fact without an inference or
presumption and which in itself, if true, establishes that fact."
Barbara E. Bergman et al., 1 Wharton's Criminal Evidence § 1.8
(15th ed. 2023) (internal citations omitted). For example, if a
witness testified that she saw the defendant shoot the victim that
would be direct evidence that the defendant was the shooter.
Circumstantial evidence is evidence from which the factfinder may
infer the fact in dispute. Id. Using the same example, if evidence
established that the defendant was the only person in a house when
a victim was shot, that would be circumstantial evidence that the
defendant was the shooter. Id.
The law draws no distinction between the value of
circumstantial and direct evidence. United States v. Ruiz, 105
F.3d 1492, 1500 (1st Cir. 1997). "The reason for treating
- 12 - circumstantial and direct evidence alike is both clear and deep
rooted: 'Circumstantial evidence is not only sufficient, but may
also be more certain, satisfying and persuasive than direct
evidence.'" Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)
(quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 n.17
(1957)). Haskell and Dickey rely solely on the direct evidence of
their own self-serving statements that they did not see Brown's
naked body. But they ignore the circumstantial evidence.
The circumstantial evidence against Dickey is strong.
Dickey was in the hospital room during the duration of Brown's
delivery, within a few feet from Brown's bed, where, according to
Brown, Dickey "could see, hear, and smell everything that was
happening." During that time, Brown underwent multiple procedures
and tests during which her body was exposed. And when Brown
delivered, medical personnel held her legs in the air exposing her
genitals as Dickey sat nearby. Dickey made notes of his
observations in real time writing, "Delivery happening!", "
Pushing . . . ", and "Baby girl born!" This is all circumstantial
evidence from which a factfinder reasonably could conclude that
Dickey was watching Brown while she gave birth and thus observed
Brown's naked body. Thus, as it pertains to Dickey, this case is
nothing like Scott because the record fails to establish to a
certainty that Dickey did not view Brown's naked body. 550 U.S.
at 380.
- 13 - We reach a similar conclusion for Haskell. The record
establishes that Haskell was in Brown's hospital room for periods
of time before Brown gave birth, in close enough proximity to
converse with Brown and make jokes. Brown also says that, during
the periods when Haskell was in her hospital room, she underwent
multiple procedures, including a cervix examination, which
required her to be exposed. The district court's order denying
summary judgment explained that the record evidence was
sufficient, in its view, to establish a disputed fact on whether
Haskell observed Brown's naked body. That conclusion is sufficient
to displace our appellate jurisdiction. When the district court
denies qualified immunity "based on an issue perceived by
the . . . court to be an issue of fact," McKenney, 873 F.3d at 80,
we lack jurisdiction. There is no indisputable contrary evidence
that would trigger the Scott exception to this rule.2
To summarize, the record evidence fails to
incontrovertibly establish a single version of events showing that
2 For the reasons discussed above, Haskell and Dickey's reliance on Harvey v. Campbell County, 453 F. App'x 557 (6th Cir. 2011), is misplaced. In Harvey, the Sixth Circuit considered an interlocutory appeal challenging a denial of qualified immunity because the district court committed a legal error in construing the summary judgment record. Id. at 561. The court erroneously found that there was a genuine issue of material fact "through reliance on the allegations of [the] complaint alone without any supporting factual evidence." Id. There was no similar error here. The district court denied summary judgment based on perceived disputes of fact arising from circumstantial evidence generated through discovery.
- 14 - Haskell or Dickey did not observe Brown's naked body while they
were in her hospital room. Accordingly, because the district court
perceived a dispute of material fact on what Haskell and Dickey
saw while in the hospital room, we lack jurisdiction over this
appeal to the extent Haskell and Dickey argue for qualified
immunity premised on the disputed assertion that they did not
observe Brown's naked body.
B.
Haskell and Dickey also contend that, even if they had
viewed Brown's naked body in the hospital room, there was no Fourth
Amendment violation because they did not conduct a search of
Brown's body. Because this argument assumes that Haskell and
Dickey observed Brown's naked body, we have jurisdiction to
consider it. McKenney, 873 F.3d at 80.
In evaluating an officer's assertion of a qualified
immunity defense in a § 1983 action, we ask whether the officer
violated the plaintiff's federal statutory or constitutional
rights and whether the unlawfulness of the officer's conduct was
clearly established at the time the officer acted. Bannon v.
Godin, 99 F.4th 63, 84 (1st Cir. 2024). To survive a qualified
immunity claim, the plaintiff must point to legal authority that
places the statutory or constitutional question beyond debate.
Ciarametaro v. City of Gloucester, 87 F.4th 83, 88 (1st Cir. 2023).
- 15 - Haskell and Dickey say it was not clearly established
that they violated Brown's Fourth Amendment rights by observing
her naked body because there is no proof that they conducted a
"search."3 They emphasize that it is undisputed that they did not
touch Brown, did not take steps to require Brown to expose herself,
and were not present in the hospital room to collect evidence of
a crime.
This argument is premised on too narrow a construction
of the clearly established law defining a search. "A Fourth
Amendment search occurs when the government infringes 'an
expectation of privacy that society is prepared to consider
reasonable.'" Boroian v. Mueller, 616 F.3d 60, 65 (1st Cir. 2010)
(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). We
have previously held that a strip search can violate the Fourth
Amendment because of the serious privacy "intrusion [that] stems
from exposing one's naked body to official scrutiny." Wood v.
Hancock Cnty. Sheriff's Dep't, 354 F.3d 57, 63 (1st Cir. 2003).
We have defined a strip search broadly to encompass "an inspection
of a naked individual, without any scrutiny of the subject's body
cavities." Id. (quoting Blackburn v. Snow, 771 F.2d 556, 561 (1st
Cir. 1986)). Crucially, there is no requirement that the officer
3 In the circumstances presented here, there was obviously no seizure, which is another way that an officer's conduct could trigger Fourth Amendment scrutiny.
- 16 - in question "set out deliberately to inspect a prisoner's naked
body." Id. This understanding of the definition of a search is
strengthened by our statement in Cookish that even regular
observations of "personal activities, such as undressing,
showering, and using the toilet" could amount to a Fourth Amendment
violation under certain circumstances in the prison context.
Cookish, 945 F.3d at 446.
Thus, a search under the Fourth Amendment does not
require Haskell or Dickey to have touched Brown, caused Brown to
have exposed herself, or be present for the purpose of collecting
evidence of a crime. A search occurs when a jail official inspects
an incarcerated individual's naked body, regardless of whether the
official set out to do so. Wood, 354 F.3d at 63. If Haskell or
Dickey inspected Brown's naked body in the hospital room, such an
observation would constitute a search triggering Fourth Amendment
scrutiny. Cookish provides the standard for determining whether
that search was unlawful.
* * *
For the reasons discussed, we dismiss this appeal in
part for a lack of appellate jurisdiction and otherwise affirm the
district court's denial of summary judgment.
- 17 -