Ducharme v. Rhode Island

Opinion

USCA1 Opinion

July 15, 1994           [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1675

                                  TODD G. DUCHARME,

                                Plaintiff, Appellant,

                                          v.

                            STATE OF RHODE ISLAND, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________

                                 ____________________

                                        Before

                              Torruella, Cyr, and Stahl,

                                   Circuit Judges.
                                   ______________

                                 ____________________

            Richard  A. Sinapi with  whom Sinapi  Law Associates,  Ltd. was on
            __________________            _____________________________
        brief for appellant.
            Robin  E. Feder, Assistant Attorney General, with  whom Jeffrey B.
            _______________                                         __________
        Pine, Attorney General, was on brief for appellee.
        ____

____________________

____________________

Per   Curiam.     In  this   interlocutory  appeal,
                      ____________

            plaintiff-appellant  Todd  G. Ducharme  ("Ducharme") contends

            that  the  district court  erred  in  refusing to  approve  a

            consent judgment  in settlement  of  Ducharme's civil  rights

            action  against the  Rhode  Island Division  of State  Police

            ("State  Police") and  Raymond  A.  Driscoll ("Driscoll"),  a

            member of  the State Police.   Alternatively, Ducharme argues

            that the district court  exceeded its authority in preventing

            the  parties from  entering  the proposed  consent decree  on

            their  own  in the  guise of  an  accepted offer  of judgment

            pursuant to Federal Rule of Civil Procedure 68.

                                          I.
                                          I.
                                          __

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                      On  July 23,  1991,  Ducharme was  arrested by  the

            State Police and charged with disorderly conduct.  The charge

            was  based on Ducharme's  "abusive and  belligerent" behavior

            toward a lifeguard who had  requested Ducharme to remove  his

            dog from  Beach Pond, a state-run facility located in Exeter,

            Rhode Island.  Clad only in "swim trunks," Ducharme was taken

            to  a  police building  and  strip  searched.   Specifically,

            defendant Driscoll commanded Ducharme to pull his swim trunks

            down to his knees, pull them up again, and then take them off

            so that Driscoll could search the pockets of the swim trunks.

            Driscoll  then   returned  the  swim   trunks  to   Ducharme.

            According to State  Police Superintendent Edmond  S. Culhane,

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Jr., Ducharme was  strip searched  because it  "is a  routine

            procedure  performed  prior to  placing  an  individual in  a

            holding cell."  We assume that  Ducharme was then placed in a

            holding  cell  and that  the  disorderly  conduct charge  was

            resolved in some fashion.

                      Ducharme  later filed  this  action  in the  United

            States  District  Court  for  the District  of  Rhode  Island

            against  the  State  Police  and Driscoll.1    The  complaint

            alleges,  inter alia,  that  the strip  search constituted  a
                      _____ ____

            violation  of Ducharme's  right  to be  free of  unreasonable

            searches and  seizures pursuant to the  Fourth and Fourteenth

            Amendments to the Constitution,  actionable under 42 U.S.C.  

            1983.

                      The   complaint   contains   specific   allegations

            concerning the unreasonableness of an  automatic strip search

            policy.  The complaint  asserts that "it is well  settled law

            that mandatory strip searches of arrestees charged with minor

            offenses, absent a reasonable  suspicion that the arrestee is

            concealing weapons  or contraband, such as  that performed on

            [Ducharme],  are unconstitutional."   As  additional evidence

            that an  automatic strip  search policy is  unreasonable, the

            complaint reports that Rhode Island's Attorney General issued

            the following advice to the State Police in 1985:

____________________

            1.  The complaint  names Driscoll in both  his individual and
            official capacities.

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The strip searching  of persons  detained
                      for  a  short  period of  time  for petty
                      offenses  should not  be undertaken  as a
                      matter of routine procedure.  The persons
                      arrested for petty offenses should not be
                      strip searched unless  there is  probable
                      cause  to  believe  that  the  person  is
                      concealing a weapon, drugs or evidence of
                      a crime.

                      Ducharme  also alleged  that  he  might again  fall

            victim to  defendants' strip  search policy.   In particular,

            Ducharme alleged that he

                      resides in  close proximity to  the State
                      of Rhode Island and  has and continues to
                      travel  to and  frequent  places  in  the
                      State  of Rhode  Island, as  a result  of
                      which,  he has [been] and continues to be
                      exposed  to  the  possibility of  further
                      invasion  of  his privacy  by Defendants'
                      policy   of  routinely   strip  searching
                      arrestees for minor offenses, even in the
                      absence of reasonable grounds  to justify
                      such a search.

                      In addition to  requesting compensatory damages and

            attorney's  fees,  Ducharme  also  sought  several  forms  of

            equitable  relief:    (1)  a declaratory  judgment  that  the

            automatic  strip  search  policy   of  the  State  Police  is

            unconstitutional; (2) a declaratory judgment that defendants'

            strip  search of  Ducharme was  unconstitutional; and  (3) an

            injunction  preventing  "[d]efendants  from  routinely  strip

            searching [Ducharme] and all other persons arrested for minor

            offenses,  absent reasonable suspicion  that the  arrestee is

            concealing a weapon or contraband." 

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Prior   to  the   filing  of   an  answer   or  the

            commencement of  discovery, the parties began  to negotiate a

            settlement.   In February 1993,  defendants made an  offer of

            judgment  pursuant  to  Rule  682  in  the  amount  of $7500.

            Ducharme  rejected the  offer, explaining  that he  would not

            settle without a promise  on the part of the  defendants that

            they  would no  longer conduct  unreasonable strip  searches.

            Defendants responded  by proposing, in addition  to the money

            judgment, a  letter to  Ducharme reportedly stating  that the

            policy of the  State Police  was now in  conformity with  the

            Attorney  General's  1985  letter.3    Once  again,  Ducharme

            refused. 

                      Sometime  thereafter  the   parties  agreed  on   a

            proposed consent judgment, presented to the district court in

____________________

            2.  In pertinent part, Fed R. Civ. P. 68 provides:

                      At any time more  than 10 days before the
                      trial begins, a party defending against a
                      claim may serve upon the adverse party an
                      offer  to  allow  judgment  to  be  taken
                      against the defending party for the money
                      or property or to the effect specified in
                      the offer, with  costs then accrued.   If
                      within 10 days after  the service of  the
                      offer  the  adverse party  serves written
                      notice that the offer is accepted, either
                      party may then file the offer and  notice
                      of  acceptance  together  with  proof  of
                      service thereof and  thereupon the  clerk
                      shall enter judgment.

3.  This is our understanding of statements made by the State
            at  oral argument  before this  court.   The letter  does not
            appear in the record on appeal.

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                                          5

April  1993,  that would  award Ducharme  $7500 and  bind the

            defendants with the following prospective provision:

                      Defendants shall not  require as a matter
                      of  policy,  nor  shall  they  perform or
                      cause to be  performed strip searches  of
                      arrestees  charged  with  misdemeanor  or
                      motor   vehicle    offenses,   absent   a
                      reasonable suspicion that an  arrestee is
                      concealing  a  weapon or  contraband, and
                      shall   otherwise  conduct   searches  of
                      arrestees within  the limitations imposed
                      by law.

            In  an  unrecorded  chambers conference,  the  district court

            apparently  expressed its  concern that  the proposed  decree

            would saddle  the court with  the task  of supervising  strip

            searches  conducted by  the State  Police and  on  that basis

            refused to approve the judgment.

                      With  this  avenue  closed, the  parties  developed

            another solution.   Defendants  orally agreed to  amend their

            Rule  68  offer  of judgment  to  include  the  terms of  the

            proposed consent decree.   Because Rhode Island law prohibits

            the State from  settling a  case without some  form of  court

            approval, see  R.I. Gen. Laws     9-31-6 and  9-31-10 (1985),
                      ___

            the parties gave the district judge an opportunity  to object

            by notifying him  of their intentions.  In another unrecorded

            chambers conference, the district court evidently stated that

            it  had  the discretion  to prevent  the  entry of  a consent

            judgment even if  the judgment was offered in  the form of an

            otherwise nondiscretionary, self-executing Rule 68  offer and

            acceptance.

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Finally, Ducharme filed  a self-styled "Motion  for

            Entry of Consent Judgment or in the Alternative Withdrawal of

            the Court's Interference With the Entry of Judgment by Way of

            a  Rule 68 Offer and  Acceptance Thereof."   In the meantime,

            the parties amended the  proposed consent judgment to specify

            that it could  only be  enforced by Ducharme.   The  district

            court  conducted   a  hearing   in  June  1993,   and,  after

            considering the parties' arguments, denied  Ducharme's motion

            from the bench.  This appeal followed.

                                         II.
                                         II.
                                         ___

                                     JURISDICTION
                                     JURISDICTION
                                     ____________

                      Two important jurisdictional issues prevent us from

            addressing  the merits  of  this appeal.   First,  Ducharme's

            claims for  equitable relief do  not fall within  the subject

            matter jurisdiction  of the federal  courts.  Second,  to the

            extent that the prospective  relief contained in the proposed

            consent judgment does not amount to an injunction, we have no

            appellate  jurisdiction  to  consider  the  district  court's

            interlocutory  refusal  to   approve  the  proposed   consent

            judgment.  We discuss each jurisdictional issue in turn.

            A.  Subject Matter Jurisdiction
            _______________________________

                      Article III of the Constitution outlines the limits

            of our  mandate; federal jurisdiction extends  only to actual

            "Cases [or] Controversies."  A federal court is  powerless to

            answer   hypothetical  legal   questions  or   legislate  the

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resolution  of  future problems.    Nor may  a  federal court

            intervene  in  an  actual,  ongoing  controversy unless  that

            controversy is  reduced to  a dispute among  parties lawfully

            before the court.   Accordingly, to  stand before an  Article

            III court, "[a] plaintiff  must demonstrate a concrete injury

            caused  by  the defendant  and  remediable  by the  requested

            relief."  American  Postal Workers Union  v. Frank, 968  F.2d
                      ______________________________     _____

            1373, 1378 (1st Cir. 1992).

                      The  standing inquiry does  not require  an all-or-

            nothing analysis,  but may call for  some careful dissection.

            A suit may  proceed in federal court even if  some aspects of

            the plaintiff's  requested relief  are not likely  to redress

            plaintiff's  injuries.    By   the  same  token,  however,  a

            plaintiff who is otherwise properly in federal court may lack

            standing to pursue particular forms of relief.   For example,

            while  past injury generates standing  to bring an action for

            damages, "past exposure to  harm will not, in and  of itself,

            confer standing  upon a  litigant to obtain  equitable relief

            `[a]bsent a  sufficient likelihood  that [the litigant]  will

            again  be wronged in  a similar way.'"   Id. at 1376 (quoting
                                                     ___

            City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)) (first
            ___________________    _____

            brackets in original).

                      In this  case,  Ducharme clearly  has  standing  to

            bring  an action for damages against  the defendants based on

            the July 23, 1991, strip search.   It is equally obvious that

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Ducharme  has  no  standing  to   request  equitable  relief.

            According to  Ducharme, the routine strip  search policy only

            applied  to arrestees about to  be placed in  a holding cell.

            We simply cannot assume that Ducharme will violate the law in

            the future in  a manner that would  lead the State  Police to

            arrest him and place him  in a holding cell.  And,  as far as

            the record reveals, Ducharme is not in a State Police holding

            cell now, nor is he  about to be placed in one.   Finally, it

            appears that even in  the event of a future  arrest, Ducharme

            is unlikely to be  subject to an unconstitutional  search if,

            as the State  represented at oral argument, the  State Police

            strip search policy now conforms to the prospective provision

            of the proposed consent judgment.   In the absence of  a case

            or controversy with respect to Ducharme's claim for equitable

            relief, Lyons teaches that neither we nor the  district court
                    _____

            have  jurisdiction to  consider  the merits  of an  equitable

            decree.  Nor do we perceive any reason why the outcome of the

            jurisdictional inquiry  should turn on whether  the decree is

            the product of a  pre-trial consent judgment or  a post-trial

            order.

                      We hasten to add that  the peculiarities of Rule 68

            do   not  require   a  court  to   postpone  ruling   on  the

            jurisdictional  basis of  the  judgment the  parties seek  to

            enter.  We acknowledge that Rule 68 requires the clerk of the

            district court to enter  the parties' agreed-upon judgment in

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a ministerial fashion.   See  Fed. R. Civ.  P. 68  (providing
                                     ___

            that  "the clerk shall enter judgment" according to the terms
                             _____

            of a  timely accepted offer) (emphasis  added); see generally
                                                            ___ _________

            Mallory v. Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991) ("Rule
            _______    ______

            68  . . .  leaves no discretion  in the district  court to do

            anything  but   enter  judgment   once  an  offer   has  been

            accepted.")     Accordingly,  a  district  court   would  not

            ordinarily have an opportunity to question the jurisdictional

            basis for an injunction  embodied in the judgment until  some

            later  time,  such as  when one  party  seeks to  enforce the

            injunction.    But   Rule  68  cannot  require  entry   of  a

            jurisdictionally  defective judgment  when the  parties bring

            that judgment to the attention of the court.

                      Our conclusion as to the claim for equitable relief

            does  not  necessarily imply,  however,  that  subject matter

            jurisdiction  is now entirely absent.   As we have mentioned,

            Ducharme  still has  standing  to pursue  his damages  claim.

            Consequently,  Ducharme still  has  the right  to settle  his

            damages claim by way  of an agreement that  does not ask  the

            court to ignore its jurisdictional limitations.  And, because

            neither the proposed consent judgment nor defendants' amended

            Rule 68  offer of judgment are on  their terms "injunctions,"

            the parties may simply have been seeking the district court's

            approval of a private contract containing a promise governing

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defendants' future behavior.   With the issues thus narrowed,

            we now turn to the matter of appellate jurisdiction.

            B.  Appellate Jurisdiction
            __________________________

                      Ducharme  concedes that his appeal does not concern

            a "final decision[]" appealable  under 28 U.S.C. 1291 (1988),

            but  correctly observes that we are authorized by 28 U.S.C.  

            1292(a)(1)  (1988) to  hear an  appeal from  "[i]nterlocutory

            orders  of  the  district  courts  .  .  .  refusing  .  .  .

            injunctions."   The  Supreme  Court has  held  that an  order

            refusing to approve a consent judgment containing  injunctive

            relief   has  the  "practical  effect"  of  a  denial  of  an

            injunction and  is therefore  appealable pursuant to  Section

            1292(a)(1).  Carson  v. American Brands,  Inc., 450 U.S.  79,
                         ______     ______________________

            83-84  (1981); Durrett  v. Housing  Auth. of  Providence, 896
                           _______     _____________________________

            F.2d 600, 602 (1st Cir. 1990).

                      We have  already concluded that neither  we nor the

            district court have jurisdiction to consider the  entry of an

            actual injunction.  Thus,  we need only determine whether  we

            have  jurisdiction to  review a  district court's  refusal to

            approve  a  consent  judgment  containing  non-injunctive yet

            forward-looking  contractual relief.    Plainly,  we do  not.

            Even if a simple contractual promise is nearly as valuable to

            a  plaintiff as an actual  injunction, such a  promise is not

            the  equivalent of  an  injunction and  therefore a  district

            court's refusal to approve such a promise does not constitute

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                                          11

the denial of an  "injunction" within the meaning  of Section

            1292(a)(1).   Moreover,  to the  extent that  the prospective

            provision  of  the  settlement  agreement  in  this  case  is

            amenable  to interpretation  as  an  "injunction,"  appellate

            jurisdiction  would   be  meaningless  because  there  is  no

            jurisdiction  in the district court for  the issuance of such

            an injunction.  In short, Ducharme has offered no valid basis

            for the exercise of appellate jurisdiction.4

                                         III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      In  light  of  the  jurisdictional  defect outlined

            above, the  district court's order denying plaintiff's motion

            is  vacated, and  the  cause  is  remanded for  dismissal  of

            plaintiff's   claim  for   equitable  relief   for  lack   of

            jurisdiction.    Any  further  action  necessary  to  resolve

            plaintiff's damages claim shall  proceed in harmony with this

            opinion.

                      So ordered.
                      ___________

____________________

            4.  We decline Ducharme's invitation to treat his appeal as a
            petition for a writ of mandamus pursuant  to 28 U.S.C.   1651
            (1988).  See generally In re Pearson, 990 F.2d  653, 656 (1st
                     ___ _________ _____________
            Cir.  1993) (describing  supervisory mandamus  powers of  the
            courts of appeals); In re Ellsberg, 446 F.2d 954, 955-57 (1st
                                ______________
            Cir. 1971)  (same).   This is  simply  not an  "extraordinary
            situation"  that  would  justify   our  "sparing[]"  use   of
            mandamus.   In  re Pearson,  990 F.2d  at 656  (citing, inter
                        ______________                              _____
            alia,  Allied Chem. Corp. v.  Daiflon, Inc., 449  U.S. 33, 34
            ____   __________________     _____________
            (1980)  (per curiam); Will v. United States, 389 U.S. 90, 107
                                  ____    _____________
            (1967)). 

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