Karl Fugate v. Ronald Erdos

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 18, 2022
• Docket: 21-4025
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0339n.06

Case No. 21-4025

UNITED STATES COURT OF APPEALS FILED Aug 18, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

) KARL FUGATE, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) ) COURT FOR THE SOUTHERN RONALD ERDOS, Warden, ) DISTRICT OF OHIO Defendant-Appellant. ) ) OPINION )

Before: SILER, McKEAGUE, and LARSEN, Circuit Judges.

McKEAGUE, Circuit Judge. Plaintiff Karl Fugate, an Ohio inmate, filed this suit under

42 U.S.C. § 1983 against the warden of his prison, Defendant Ronald Erdos, alleging violations of

the Fourth and Eighth Amendments to the Constitution after the warden imposed three strip

searches per day for 30 days while Fugate was kept in a segregated cell. The district court denied

the warden qualified immunity at summary judgment. The warden brings this interlocutory appeal.

We dismiss in part for lack of appellate jurisdiction and affirm the denial of qualified immunity.

I.

A. Facts

At the time of the events here, Karl Fugate was an inmate at the Southern Ohio Correctional

Facility located in Lucasville, Ohio. Lucasville is a maximum-security prison, one security level Case No. 21-4025, Fugate v. Erdos

below the Ohio State Penitentiary, Ohio’s most secure institution. Ronald Erdos is the warden at

Lucasville.

On January 17, 2017, Fugate was transported in full restraint to the Rules Infraction Board

room for a disciplinary hearing. Fugate had just assaulted a fellow inmate in hopes that the Board

would increase his security classification, resulting in a transfer from Lucasville to the State

Penitentiary. Prior to the hearing, Fugate formulated a plan to attack one of the hearing officers,

Anderson, whom Fugate claimed had a history of harassing him. Unbeknownst to the guards,

Fugate had on him a concealed shank made from a sharpened battery casing. At the end of the

hearing, the Board informed Fugate that he would not be transferred. Visibly upset, Fugate stood

up and struck Anderson in the face with the sharpened battery casing. Anderson suffered a one-

inch laceration to the cheek that required medical attention.

Immediately after the attack, two officers tackled Fugate and punched him in the face

several times. According to the officers, Fugate continued to resist, so they continued striking

him. Eventually, officers secured Fugate and took him out of the hearing room to a holding cell.

After getting Fugate to the holding cell, three officers took Fugate to the infirmary. Fugate claims

that the three officers took him to the infirmary because there are no cameras there. Once in the

camera-less infirmary, Fugate claims that the officers took turns beating him until he became

unconscious “three, four times[.]” R. 78-1 at PID 1159. The officers dispute this accusation,

claiming that they merely secured him in the infirmary “until he could be seen by medical staff.”

The magistrate judge, in analysis that the district court later adopted, concluded that a jury could

find that Fugate exhibited far more injuries after his stay in the infirmary than prior to his arrival,

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supporting the inference that the officers beat him in the infirmary.1 Once a physician eventually

evaluated Fugate, the physician recommended that he be taken via ambulance to the hospital due

to his injuries.

Back from the hospital, Fugate was placed in Lucasville’s segregated “J1 cell block.”

Within the J1 block, Fugate was placed in a “slammer cell.” According to Warden Erdos, “J1 is

where inmates are housed who have committed the most violent offense[s] until such time it is

determined that he can be safely housed” in a different block. R. 61-4 at ¶ 6. Pursuant to a “post

order” issued by Warden Erdos, which is not in the record, all inmates in the J1 slammer cells

underwent a search of their cells and a strip search twice a day, once during each of the first two

shifts.

According to the warden, the strip searches are supposed to be performed in the following

manner:

First they open the gate to the corridor outside the cells, and walk to the cell of the inmate intended to be searched. The guard then orders the inmate to cuff-up, where the inmate turns his back to the cuff-port and allows himself to be cuffed. After cuffing the inmate, the guard then leaves the corridor, through the gate, which is then shut, and the cell door is electronically opened. The inmate is then ordered to the shower, where he was secured, and then strip searched. The guard then walks to the opened cell where he conducts a search of the cell. After the cell is searched, the guard leaves the corridor, and the inmate (handcuffed) is allowed to walk back to his cell from the shower, where the cell door is closed. Then the guard walks to the front of the cell, and takes off the restraints from the cuff-port.

R. 61-4 at ¶ 8. Because of Fugate’s recent attacks of an inmate and a guard, the warden testified

that he ordered Fugate to undergo a third daily strip search during third shift. The warden claims

that he ordered the third daily search because he was “particularly concerned about [Fugate]

In interlocutory appeals from the denial of qualified immunity at summary judgment, “we 1

often may be able merely to adopt the district court’s recitation of facts and inferences.” Adams v. Blount Cnty., 946 F.3d 940, 949 (6th Cir. 2020) (quoting Barry v. O’Grady, 895 F.3d 440, 443 (6th Cir. 2018)). -3- Case No. 21-4025, Fugate v. Erdos

obtaining a weapon from a porter, at the end of second [shift], after the guards conduct their

searches.” Id. at ¶ 10.

Around 4:00 a.m. following Fugate’s first night in the slammer cell, Fugate claims that

Warden Erdos came to his cell and threatened, “if you do anything else to my staff, we’re going

to beat the fuck out of you again.” R. 78-1 at PID 1191. That morning, a Captain sent an email to

the rest of jail staff reading: “Per Warden Erdos Inmate Fugate is to be shookdown at the beginning

of every shift!!!” R. 54-1 at PID 281. Fugate testified that, around 6:30 that morning, seven

officers and a “white shirt” (a supervisor) barged into his cell and took him to the shower for his

first strip search. R. 78-1 at PID 1191–92. Officers at Lucasville proceeded to strip search Fugate

three times per day over the next 30 days. The searches occurred around 6:30 a.m., 2:00 p.m., and

between midnight and 1:30 a.m. According to Fugate, later in the month, one of the guards told

him “you think I want to fucking do this shit? . . . I asked the warden when I come into work every

day when is this going to stop, you know, and he keeps telling me when he feels like it.” R. 78-1

at PID 1197.

After 30 days, the strip searches abruptly ended, including the two daily searches required

by the post order. No contraband was found during the 90 strip searches. Fugate was not strip

searched again after the 30 days even though he remained in the J1 slammer cell for another

“month or two.” The magistrate judge noted Fugate’s speculation that the strip searches ended

around the time the Ohio Highway Patrol apparently began investigating the alleged beating

Fugate suffered in the infirmary, but the record contains no information about the results of that

investigation.

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B. Procedural Background

In June 2017, Fugate obtained his transfer to the State Penitentiary. He then filed this pro

se lawsuit in January 2019 under 42 U.S.C. § 1983 against Warden Erdos, challenging the

constitutionality of the strip searches under the Fourth and Eighth Amendments. Fugate also sued

the officers who allegedly beat him in the infirmary under the Eighth Amendment. The defendants

moved for summary judgment, asserting the defense of qualified immunity. The magistrate judge

recommended that the district court deny Warden Erdos’s motion for summary judgment and also

that the court deny summary judgment to two of the officers who allegedly beat Fugate in the

infirmary. The district court subsequently adopted that analysis over the defendants’ objections.

Warden Erdos now appeals the denial of qualified immunity. The two officers who

allegedly beat Fugate in the infirmary do not appeal the district court’s denial of qualified

immunity. Thus, this appeal concerns only Warden Erdos and the strip searches.

II.

Before jumping to the merits of the warden’s appeal, we must first ensure that we have

jurisdiction. We have jurisdiction to review a district court’s denial of qualified immunity on an

interlocutory appeal. 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). But our

review is limited to “only purely legal questions.” McGrew v. Duncan, 937 F.3d 664, 669 (6th

Cir. 2019) (citing Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006)). We “cannot

decide disputed factual issues at the summary-judgment stage, and if the appeal from a denial of

qualified immunity turns on an issue of fact, we may not exercise jurisdiction.” Barry, 895 F.3d

at 443 (citing Johnson v. Jones, 515 U.S. 304, 319–20 (1995)). We must defer to the district

court’s factual determinations, and “a defendant may not challenge the inferences that the district

court draws from [the] facts, as that too is a prohibited fact-based appeal.” Gillispie v. Miami

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Twp., 18 F.4th 909, 916 (6th Cir. 2021) (quoting Barry, 895 F.3d at 443); but see Barry, 895 F.3d

at 445 (Sutton, J., dissenting).

Two exceptions apply to this jurisdictional rule. First, when, “despite disputing a plaintiff’s

version of the story,” the defendant “is ‘willing to concede the most favorable view of the facts to

the plaintiff for purposes of the appeal.’” Adams, 946 F.3d at 948 (quoting Barry, 895 F.3d at

443). Second, “in exceptional circumstances, we may decide an appeal challenging the district

court’s factual determination if that determination is ‘blatantly contradicted by the record, so that

no reasonable jury could believe it.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

Neither exception applies here.

Nonetheless, “[i]n determining the scope of our jurisdiction, we [may] ‘separate an

appellant’s reviewable challenges from its unreviewable.’” Adams, 946 F.3d at 948 (quoting

Diluzio v. Vill. of Yorkville, 796 F.3d 604, 610 (6th Cir. 2015)). We may therefore “still review

‘pure question[s] of law, despite the defendants’ failure to concede the plaintiff’s version of the

facts[.]” Id. (quoting Livermore ex el. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007)). In

doing so, we “ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal

issue, obviating the need to dismiss the entire appeal for lack of jurisdiction.” Id. (quoting Diluzio,

796 F.3d at 611).

We take that path here. Although the warden mounts several factual challenges over which

we lack jurisdiction, he also raises several legal arguments. Thus, we will excise the warden’s

improper factual arguments from this appeal while exercising jurisdiction over his legal arguments.

See, e.g., Thompson, 831 F.3d at 371 (“Nevertheless the officers raise three legal issues which we

can decide on the basis of the plaintiff’s version of the facts as recognized by the district court.”).

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One final jurisdictional matter. Warden Erdos also appeals the district court’s denial of

summary judgment based on 42 U.S.C. § 1997e(e). Appellant’s Br. at 43. That provision says:

“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a sexual act . . . .” 42 U.S.C. § 1997e(e). Although

the warden’s arguments under § 1997e(e) are legal and not factual, § 1997e(e) is not relevant to

qualified immunity. That statute imposes limitations on the types of claims prisoners may bring

in federal court; it has no role to play in defining a constitutional violation, nor in clearly

establishing what conduct violates a constitutional right. Thus, because we have jurisdiction over

this interlocutory appeal only insofar as it raises purely legal arguments challenging the denial of

qualified immunity, we lack jurisdiction over the warden’s § 1997e(e) arguments.

In sum, we dismiss for lack of appellate jurisdiction the warden’s unreviewable factual

challenges to the district court’s denial of qualified immunity and the warden’s arguments as to

§ 1997e(e). We proceed to review the warden’s purely legal arguments challenging the denial of

qualified immunity under the version of the facts most favorable to Fugate. See Thompson,

831 F.3d at 371.

III.

We review a district court’s denial of summary judgment based on qualified immunity de

novo, viewing the facts in the light most favorable to the non-movant. Foster v. Patrick, 806 F.3d

883, 886 (6th Cir. 2015) (citation omitted). Under the test for qualified immunity, a public official

is immune from liability unless the plaintiff establishes: (1) a constitutional violation; and (2) that

“the right at issue was ‘clearly established’ when the event occurred such that a reasonable officer

would have known that his conduct violated it.” Martin v. City of Broadview Heights, 712 F.3d

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951, 957 (6th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Both prongs

must be met “for the case to go to a factfinder to decide if [the] officer’s conduct in the particular

circumstances violated a plaintiff’s clearly established constitutional rights. If either one is not

satisfied, qualified immunity will shield the officer from civil damages.” Id. (citing Pearson, 555

U.S. at 236).

Fugate raises three constitutional claims against Warden Erdos: two under the Fourth

Amendment and one under the Eighth Amendment. The district court denied qualified immunity

at summary judgment on each of these claims.

A. Fourth Amendment claims

The Fourth Amendment to the U.S. Constitution, as applied to the States through the

Fourteenth Amendment, prohibits “unreasonable searches and seizures.” Carpenter v. United

States, 138 S. Ct. 2206, 2213 (2018) (quoting U.S. Const. amend. IV). The Fourth Amendment

prohibition on unreasonable searches and seizures, however, does not apply in the same way to

inmates as it does to the population outside prison walls. Bell v. Wolfish, 441 U.S. 520, 545–46

(1979) (“convicted prisoners do not forfeit all constitutional protections by reason of their

conviction and confinement in prison” but “[a] detainee simply does not possess the full range of

freedoms of an unincarcerated individual”).

A body of Supreme Court and Sixth Circuit caselaw sets the legal stage here. Recognizing

the need for officials to maintain “safety and order at” prisons, the Supreme Court has devised a

balancing test for evaluating the constitutionality of searches of inmates. Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington, 566 U.S. 318, 326 (2012). A corrections official does not

violate an inmate’s Fourth Amendment rights so long as the search is “reasonably related to

legitimate penological interests.” Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Applying

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this framework requires a court to give prison officials “wide-ranging deference in the adoption

and execution of policies and practices that in their judgment are needed to preserve internal order

and discipline and to maintain institutional security.” Bell, 441 U.S. at 547. With this deference

in mind, courts must balance “the need for the particular search against the invasion of personal

rights that the search entails.” Stoudemire v. Michigan Dep’t of Corrs., 705 F.3d 560, 572 (6th

Cir. 2013) (quoting Bell, 441 U.S. at 559).

We have boiled this test down to three steps:

First, we determine the nature of intrusion, examin[ing] the scope, manner, and location of the search. Second, we evaluate the need for the search, giving due deference to the correctional officer’s exercise of her discretionary functions. And third, we determine whether the search was reasonably related to legitimate penological interests by weighing the need against the invasion.

Sumpter v. Wayne Cnty., 868 F.3d 473, 482 (6th Cir. 2017) (internal citations and quotations

omitted).

This “deferential balancing test[,]” we have explained, “originates from Bell v. Wolfish,

441 U.S. 520 (1979), where the Court confronted for the first time the issue of strip searches in the

corrections context.” Id. at 480. In Bell, the “Court held that a federal detention center’s blanket

policy of conducting visual body cavity inspections of all detainees returning from a ‘contact visit’

did not violate the Fourth Amendment.” Id. at 480–81 (citing Bell, 441 U.S. at 558, 560). In so

holding, the Court emphasized that “the problems that arise in the day-to-day operation of a

corrections facility are not susceptible of easy solutions.” Bell, 441 U.S. at 547. And prison

administrators will “have a better grasp” than a reviewing judge on how to maintain “order and

discipline” and “institutional security” in a correctional facility. Id. at 547–48. Thus, important

for our case, “in the absence of substantial evidence in the record to indicate that the officials have

exaggerated their response to these considerations, courts should ordinarily defer to” the “expert

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judgment” of prison administrators in matters of order and security. Id. at 548 (quoting Pell v.

Procunier, 417 U.S. 817, 827 (1974)).

The Supreme Court applied Bell more recently in Florence v. Board of Chosen Freeholders

of County of Burlington, 566 U.S. 318 (2012). In that case, “the Court confronted whether the

Fourth Amendment required jail officials to have reasonable suspicion before strip searching new

detainees who were arrested for minor offenses and being committed to the jail’s general

population.” Sumpter, 868 F.3d at 481 (citing Florence, 566 U.S. at 326). Relying on Bell, the

Court emphasized that, “[i]n addressing this type of constitutional claim courts must defer to the

judgment of correctional officials unless the record contains substantial evidence showing their

policies are an unnecessary or unjustified response to problems of jail security.” Florence, 566

U.S. at 322–23. Applying that principle, the Court held that the petitioner’s claim failed because

he did not produce sufficient evidence to show that the jail’s strip-search policy was unnecessary

or an unjustified response to jail security. Id. at 330 (“the record provides full justifications for

the procedures used”).

This court, too, has applied Bell. In Stoudemire v. Michigan Department of Corrections,

705 F.3d 560 (6th Cir. 2013), a defendant corrections officer appealed the denial of qualified

immunity at summary judgment. The plaintiff—housed in a women’s prison—underwent multiple

amputations because of a health disorder. Id. at 563. Under the plaintiff’s version of the facts,

one day, while in the infirmary waiting to be transported to an aerobics class, a female officer

approached the plaintiff and told her that she intended to conduct a strip search. When the plaintiff

asked why, the officer said, “because I can.” Id. at 566–67. The officer then took the plaintiff into

her cell and conducted the strip search, removing her prosthetic legs and stripping her down to her

underpants in full view of passersby in the hallway, as the officer did not cover the cell window

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during the search. Id. at 567. The plaintiff testified that the officer “displayed pleasure” at her

discomfort during the search and did not find any contraband. Id.

Evaluating the constitutionality of the strip search, this court balanced the nature of the

search with the degree of need for the search under the plaintiff’s version of the facts. Id. at 572–

75 (quoting Bell, 441 U.S. at 559). Starting with the nature of the search, the scope of the search

was highly invasive: the plaintiff was stripped down and had her prosthetic legs removed. The

location of the search—in view “where other people can see the person being stripped”—made the

search even “more invasive.” Id. at 573. The manner of the search also heightened the degree of

invasiveness: the officer refused to tell the plaintiff the reason for the search and smirked during

the search, “suggest[ing] personal animus and implicat[ing] the dignitary interest ‘inherent in the

privacy component of the Fourth Amendment’s proscription against unreasonable searches.’” Id.

(quoting Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 499 (6th Cir. 2008)).

Turning to the need for the search, the court noted that “detect[ing] and deterr[ing] the

possession of contraband” is “[u]nquestionably . . . a legitimate penological objective.” Id.

(quoting Florence, 566 U.S. at 328). And “[a]bsent proof to the contrary, we must assume that a

search of a prisoner is initiated in an effort to detect and deter contraband.” Id. (citation omitted).

But the precise question the court focused on was not whether the search was a legitimate way to

detect contraband; it was whether any exigencies “compelled [the officer] to strip search [the

plaintiff] in view of other inmates and prison personnel.” Id. at 573–74. On that question, the

court held that, “although [the officer] had a valid reason for searching [the plaintiff], no special

circumstances provided additional justifications” for the particular type of search—“strip

searching [her] where others could see her naked.” Id. at 574. Thus, “the excessively invasive

nature of the search” violated the plaintiff’s Fourth Amendment rights. Id. at 574.

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After holding that the officer violated the Fourth Amendment, the court affirmed the denial

of qualified immunity. Id. at 575. The court reasoned that the plaintiff “identified a well

established right, the right not to be subjected to a humiliating strip search in full view of several

(or perhaps many) others unless the procedure is reasonably related to a legitimate penological

interest.” Id. (emphasis in original) (quoting Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir

2002)). And under these facts, the court concluded, a “reasonable officer would have been on

notice that the search was unreasonable under the circumstances and devoid of any legitimate

penological justification.” Id.

Not long after Stoudemire came Williams v. City of Cleveland, 771 F.3d 945 (6th Cir.

2014). In Williams, a putative class sued the city of Cleveland challenging its policy that all

detainees entering the city jail be stripped naked, searched, and then sprayed with delousing

solution to prevent lice, without any particularized suspicion that the detainees had contraband or

lice. Id. at 947. After the suit was filed, the Supreme Court decided Florence, which—as discussed

above—upheld a jail’s blanket policy of searching new arrivals without reasonable suspicion. Id.

In light of Florence, the district court granted the city’s motion for judgment on the pleadings and

denied the plaintiffs leave to amend. Id. at 948–49. Thus, the question on appeal was whether the

plaintiffs stated a plausible Fourth Amendment claim (and whether the court should have granted

them leave to amend), despite the holding in Florence. See id. We held that the plaintiffs’

proposed amended complaint stated a plausible claim and reversed. Id. at 953, 956.

In reversing, we focused not on the “blanket policy of strip searching incoming inmates[,]”

but on the specific manner in which the jail conducted the strip searches and delousing. Taking

the plaintiffs’ allegations, “they were ordered to crouch naked on the floor with several strangers

in the room while corrections officers . . . hosed off their intimate body parts.” Id. at 953. Although

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the officers did not touch the detainees with their hands, they sprayed the delousing solution

directly aimed at their genitals, thus “intentionally caus[ing] physical contact to plaintiffs’ naked

genitals.” Id. at 948, 953. These searches were unlike those the Supreme Court considered in

Florence, where detainees were able to self-apply delousing solution while submitting to a visual

inspection for contraband. Id. at 954. That distinction was important; if visual searches are

“undoubtedly humiliating and deeply offensive to many,” Florence, 566 U.S. at 341 (Alito, J.,

concurring), then contact searches are “much more invasive”—causing “deeper injury to personal

dignity and individual privacy.” Williams, 771 F.3d at 952 (collecting cases). Thus, “[g]iven the

significant incursion into plaintiffs’ privacy rights caused by the jail’s preferred method of

searching and delousing them, the jail’s need to perform the searches in this particular manner

must be unusually dire before it can outbalance the affront to plaintiffs’ privacy.” Id. at 954 (citing

Florence, 566 U.S. at 327). At the pleading stage, the city could not show any penological need

reasonably related to the intensely invasive nature of the delousing. Id. at 955.

One more case from this circuit informs our analysis. Sumpter v. Wayne Cnty., 868 F.3d

473 (6th Cir. 2017). In Sumpter, the female plaintiff sued a female officer and the county jail in

Detroit challenging the constitutionality of four strip searches performed on the plaintiff in a small

group with other female inmates. Id. at 479. The group searches were visual: the officer would

instruct the inmates to strip naked and perform a series of movements designed to reveal any

contraband hidden in private areas of the body. Id. The plaintiff also testified that the officer

“made several rude comments about her body odor and hygiene, saying she ‘[s]mells like a funky

monkey’” and needed to shower more. Id. at 483. One-on-one searches were the norm, and group

searches the exception, the jail said, but the purpose of the group searches was to check for

contraband and quickly process arrivals when a “high volume of inmates demanded it[.]” Id. at

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484. The jail supported its justification with unchallenged evidence about the need to process

volumes of inmates and check for contraband efficiently to get them off to “medical care,

psychiatric care, or special housing as quickly as possible[.]” Id.

Starting with step one of the Bell test, the court held that the “scope, manner, and location

of the searches” taken together overwhelmingly supported that the “searches plaintiff endured

were especially intrusive.” Id. at 483. The court recognized that strip searches were “especially

humiliating” because “[t]he wider an audience for a strip search, the more humiliating it becomes,

especially when the stripped individual is exposed to bystanders who do not share the searching

officers’ institutional need to view her unclothed.” Id. (quoting Williams, 771 F.3d at 953). And,

just as in Stoudemire, the comments made to the plaintiff during the search, “while not dispositive

of reasonableness,” implicated her Fourth Amendment dignitary interests. Id. (quoting

Stoudemire, 705 F.3d at 573).

Turning to step two—the penological justification for the search—the court cited to the

ample evidence supporting the jail’s asserted health and safety justifications for the group searches

at issue. Id. at 484. The court concluded that the plaintiff “presented no evidence to dispute their

asserted penological justification, much less ‘substantial evidence’ that [the jail] ‘exaggerated their

response to these considerations.’” Id. (quoting Bell, 441 U.S. at 548). But the court stopped

before the final step: balancing the nature of the search with the penological justification to

determine whether they were reasonably related. Id.

Regardless of the outcome of the balancing, the court said, the officer was entitled to

qualified immunity. Id. at 485–86. Recognizing the Supreme Court’s direction that “specificity

[is] important in the Fourth Amendment context,” especially under an “ad-hoc interest-balancing

test,” the plaintiff could not point to a case that “‘squarely govern[ed]’ the outcome.” Id. (citing

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Brosseau v. Haugen, 543 U.S. 194, 201 (2004)). For starters, the plaintiff relied on Stoudemire

and Williams as clearly establishing the right, but those cases were decided after the events giving

rise to the plaintiff’s claims, so they could not have placed the officer on notice that her conduct

was unlawful. Id. at 486 (citing Brosseau, 543 U.S. at 200 n.4). More importantly, the court

distinguished the “critical difference” between Stoudemire and Williams on one side and the case

before the court on the other side: in both Stoudemire and Williams, “there was no penological

justification for the particular searches at issue.” Id. (emphasis in original). The particularized

issue before the court in Sumpter, however, was whether the plaintiff had a right to be free from

“a group strip search supported by a legitimate penological justification.” Id. (emphasis in

original).

This distinction is crucial for the qualified immunity analysis. “In the absence of a

governmental interest”—in this context, a jail or prison’s legitimate penological interest—“the

outcome of the balancing test was obvious, so obvious that any reasonable officer in the

defendant’s position would have known that the search was unreasonable.” Id. at 487 (citing

Stoudemire, 705 F.3d at 574–75); see also Brosseau, 543 U.S. at 199 (“[I]n an obvious case,

[general] standards can ‘clearly establish’ the answer, even without a body of relevant caselaw.”).

But the existence of a legitimate penological interest changes “the balancing calculus[,]” making

the outcome not obvious. Sumpter, 868 F.3d at 487. As the court summed up the point:

It is easy enough to predict how scales with one hundred apples on one end will balance out, but it is far more difficult to predict how many oranges must be added to the other side to bring it to equipoise. Tasked with making that second prediction, [the officer] would have found no clues in ‘apples-only’ cases like Stoudemire and Williams.

Id. at 487–88.

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With the legal stage set, we turn to Fugate’s claims against Warden Erdos.

1. Constitutional violations

Fugate claims that the warden violated his clearly established Fourth Amendment rights in

two ways. He first claims that his initial strip search by “seven COs and a white shirt” violated

the Fourth Amendment because it was conducted in the presence of more officers than necessary

to serve a penological purpose. He next argues that the warden violated his rights because the strip

searches were performed without any penological purpose. We start with Fugate’s second claim—

that there was no penological purpose for ordering Fugate to undergo three daily strip searches for

30 days. Ultimately, there are genuine issues of fact on whether the warden had any legitimate

penological justification for ordering Fugate to undergo the strip searches. Accepting Fugate’s

version of the facts, as we must in this appeal, the warden lacked a penological justification for

subjecting Fugate to three strip searches per day for 30 consecutive days. And in the absence of

any penological justification, Fugate’s right to be free from deeply invasive daily searches was

clearly established.

a. Constitutionality of three strip searches per day in the J1 slammer cell

The warden ordered Fugate to be strip searched during third shift while Fugate was isolated

in the J1 slammer cell, in addition to the general order requiring all J1 inmates to be strip searched

during the first and second shift. Thus, in effect, the warden ordered Fugate to be strip searched

three times a day for 30 days. We evaluate the constitutionality of these searches under the test

set out in Bell taking Fugate’s version of the facts. See Sumpter, 868 F.3d at 482.

1) Nature of the intrusion. Step one here is straightforward. We have repeatedly

recognized that “a strip search, by its very nature, constitutes an extreme intrusion upon personal

privacy, as well as an offense to the dignity of the individual.” Stoudemire, 705 F.3d at 572

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(quoting Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996)); see also Williams, 771 F.3d at 952;

Sumpter, 868 F.3d at 483. This appeal turns on whether the warden had a legitimate penological

justification for ordering the strip searches.

2) Penological justification. At step two, we evaluate the warden’s asserted justification

for the searches. Sumpter, 868 F.3d at 483–84. If Fugate “gives us no reason to doubt the

legitimacy of [Erdos’s] asserted justification[,]” id., we “defer to the judgment of [the] correctional

officials[.]” Florence, 566 U.S. at 322–23.

The warden claims that, because Fugate was “particularly dangerous,” the strip searches

were necessary to detect any concealed weapons that could be used to attack other inmates or staff.

R. 61-4 at ¶ 10. Indeed, Fugate was ordered to the J1 slammer cell because he attacked an officer

during an administrative hearing, slashing him in the face with sharpened battery. Id. at ¶ 3. Even

though the J1 slammer cells were the most secure and secluded cells at Lucasville—housing only

the prison’s most violent inmates—the warden claims that a strip search was necessary during each

shift because Fugate still could have “obtain[ed] a weapon from a porter[,]” particularly after the

guards conducted their searches on second shift. Id. at ¶ 10.

There can be no doubt that “[d]etecting contraband concealed by” inmates “is a most

serious responsibility”—especially in a maximum-security prison, and for a violent inmate like

Fugate who had just attacked an officer with a homemade weapon. Florence, 566 U.S. at 332.

The warden thus met his initial burden at summary judgment: he put forth evidence (his testimony

in a declaration) explaining that he was concerned about Fugate obtaining a weapon from a porter.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Below, in his reply to Fugate’s

response in opposition to summary judgment, the warden also declared: “During my time at

[Lucasville], during a search, contraband has been found on an inmate who was located on J-1 in

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a slammer cell.” R. 73-1 at ¶ 2. Beyond this perfunctory assertion, though, the warden offers

nothing in the way of specifics. We do not know from the record whether inmate porters have

access to the J1 slammer cells or whether Fugate had access to materials in his slammer cell that

he could have made into a weapon.

The burden shifts to Fugate to put forth more than conclusory assertions challenging the

warden’s asserted justification. See Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.

1995); see also Florence, 566 U.S. at 323 (“unless the record contains substantial evidence

showing their policies are an unnecessary or unjustified response to problems of jail security” we

defer to the correctional official’s discretion). Fugate satisfied that burden. While the asserted

penological justification—detecting weapons smuggled to Fugate by an inmate porter—is

legitimate on its face, Fugate came forward with testimony giving us “reason to doubt the

legitimacy of [the warden’s] asserted justification[.]” Sumpter, 868 F.3d at 484. Fugate testified—

in more detail than the warden’s conflicting testimony—that it would have been impossible for a

porter to access him in the J1 slammer cell. See R. 78-1 at PID 1193. As the warden highlights,

the J1 unit holds those “who have committed the most violent offense[s],” and the slammer cells

are reserved for those in J1 deemed even more dangerous than the others in the J1 block. R. 61-4

at ¶ 6. Consistent with this fact, Fugate testified that the J1 slammer cells are different even from

“average segregation cell[s].” R. 78-1 at PID 1193. The slammer cell requires getting through

two sets of doors, and extra bars surround the unit. So even if a porter “accessed the J1 corridor,

they would still have to open another locked gate to get anywhere close to a slammer-cell inmate.”

Appellee’s Br. at 9; R. 78-1 at PID 1193 (“[T]hat way just in case a porter does come in, he still

has no opportunity to get back there to you. So they have to open another gate to even come back

there in the area. Absolutely no way for me to get nothing, period.”). Thus, under Fugate’s version

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of the facts, obtaining contraband from an inmate porter while housed in the J1 slammer cell would

not have been reasonably possible.

Fugate’s testimony goes beyond mere “conclusory [claims] that there was no legitimate

penological need” for the frequent strip searches. Sumpter, 868 F.3d at 484. The warden did not

present evidence that an inmate porter would not only have access to Lucasville’s most secure unit,

but also the more secure, isolated slammer cells within that unit. Cf. Florence, 566 U.S. at 330

(“the record provides full justifications for the procedures used”); Sumpter, 868 F.3d at 484

(“Plaintiff gives us no reason to doubt the legitimacy of defendants’ asserted justification”). Thus,

under Fugate’s version of the facts, the warden lacked a legitimate penological need for imposing

three daily strip searches for an inmate housed in a J1 slammer cell.

Taking Fugate’s version of the facts, this case looks a lot like Parkell v. Danberg, 833 F.3d

313 (3d Cir. 2016). There, the Third Circuit affirmed the denial of summary judgment on an

inmate’s claim that prison officials violated the Fourth Amendment by subjecting him to three

daily strip searches while housed in the prison’s segregated housing unit for a disciplinary

violation. Id. at 325. The court noted that its “review is deferential” to the officials given the

prison’s “countervailing security interests[.]” Id. at 327. Nonetheless, the prison officials were

not entitled to summary judgment because they “[were] unable to articulate a single plausible

theory as to how inmates in isolation in C–Building would have thrice-daily opportunities to

smuggle in contraband from outside their cells or use unsupervised time in their locked cells to

transform a harmless object into something dangerous.” Id.

It’s true that when an inmate is in segregated housing, officials have a “maginf[ied] . . .

security interest, insofar as inmates who have already broken prison rules may be more likely to

seek and utilize dangerous contraband[.]” Id. at 328. But “[t]hrice-daily body cavity searches

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have little, if any, value” “[w]hen dangerous inmates are completely isolated.” Id. It is the

complete “isolation”—not the frequent strip searches—that “prevents the smuggling of

contraband.” Id. Unlike cases such as Bell, where the Court upheld a policy of strip-searching

new arrivals who would be much more likely to have contraband concealed on them, “the

probability is vanishingly small that an inmate locked in a stripped-down isolation cell . . . once

searched, could then obtain contraband during a subsequent eight-hour period involving no human

contact.” Id.

What was true in Parkell is true here. While we must “afford[ ] deference to the judgements

of correctional officers . . . we must not confuse deference with abdication[.]” Stoudemire, 705

F.3d at 571–72. Though the warden states that Lucasville had a “rash of serious assaults where

inmates” had obtained contraband and made homemade weapons—just as Fugate had done prior

to his transfer to the J1 slammer cell—the warden does not claim that any of those assaults came

from inmates who were housed in the more secure J1 block at the time of those assaults. And the

warden did not submit any evidence to show that porters can even come close to accessing the

slammer cells, nor any other specific evidence to show how Fugate could have obtained contraband

while in the slammer cell. Fugate was not searched after returning to J1 from another area of the

jail, or from outside the jail, where he could have conceivably obtained contraband. Rather, by

the warden’s own account, Fugate was taken from his isolated cell every eight hours—itself

located in Lucasville’s most secure unit—moved to a shower, strip searched, and then returned to

his isolated cell. The warden has not presented evidence to show how Fugate, “once searched,

could then obtain contraband during a subsequent eight-hour period involving no human contact.”

Parkell, 833 F.3d at 328. Further undermining the warden’s purported justification is that he offers

no explanation for why all the daily strip searches suddenly ceased, including the two required by

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the post order, despite Fugate remaining in the J1 slammer cell for at least another month. At

bottom, we cannot defer to the warden’s discretionary judgment at this interlocutory stage because

there are factual disputes on whether he “exaggerated [his] response to [the] considerations” of

“institutional security.” Bell, 441 U.S. at 548.

To be sure, we do not hold that prisons can never strip search inmates housed in more

secure cells, or even that the warden here could not have ordered some strip searches of Fugate

while he was housed in the J1 slammer cell. As this case shows, inmates kept in more secure cells

are typically those like Fugate who pose a greater danger to guards and other inmates. See Parkell,

833 F.3d at 328. But regardless of how dangerous an inmate is, repeated invasive strip searches

must be supported by a legitimate penological justification beyond the fact that the inmate is

dangerous. We express no opinion on how many searches under these facts might have been

legitimate; we are not in the business of micromanaging the “day-to-day operation of [ ] corrections

facilit[ies].” Bell, 441 U.S. at 547. We hold only that Fugate has sufficiently undermined, for

purposes of summary judgment, the warden’s asserted justification for ordering Fugate to undergo

90 strip searches over the course of 30 days when, under Fugate’s version of the facts, he had no

conceivable way to obtain contraband while housed in the J1 slammer cell. See., e.g., Parkell, 833

F.3d at 327.

3) Weighing the nature of the intrusion against the need. Without a legitimate penological

justification, we are left with an “apples-only” case—invasive searches not supported by any

countervailing governmental interest. Sumpter, 868 F.3d at 487–88. If the warden had put forth

evidence showing that Fugate could have obtained contraband from a porter after the guards on

each shift completed their search—or some other valid reason supported by evidence—the “wide-

ranging deference,” Bell, 441 U.S. at 547, we must give to prison administrators’ discretionary

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judgments would kick in. See Florence, 566 U.S. at 330; Sumpter, 868 F.3d at 482. But the

warden did not put forth such evidence below.

In sum, under Fugate’s version of the facts, the warden violated Fugate’s Fourth

Amendment rights because the strip searches were “devoid of any legitimate penological

justification related to security and order.” Stoudemire, 705 F.3d at 575; see also Parkell, 833

F.3d at 330 n.10 (collecting cases from other circuits “allow[ing] inmates to pursue Fourth

Amendment claims after being subjected to bodily searches when they had had no opportunity to

obtain contraband”).

b. Constitutionality of the first strip search

Warden Erdos also appeals the district court’s denial of qualified immunity on Fugate’s

challenge to the way his first strip search was allegedly conducted. Fugate claims that seven

corrections officers and a supervising officer witnessed the search and made demeaning comments

during the search, and therefore the manner in which the search was conducted lacked a

penological purpose. See Stoudemire, 705 F.3d at 574.

The warden’s appeal as to Fugate’s claim about the way his first strip search was conducted

is based on factual arguments over which we lack jurisdiction. The warden argues that “[t]here is

no evidence that the strip-searches were conducted in a manner meant to embarrass or demean”

him, Appellant’s Br. at 22, but Fugate testified otherwise. Fugate testified that the same officers

“who just beat [his] ass” told him to strip, bend over, and to spread his “cheeks all the way.” He

also claimed that the officers would laugh and joke about Fugate “spread[ing] [his] cheeks[.]” R.

78-1 at PID 1209. As we have repeatedly stated, demeaning comments during an already invasive

search offend the “dignitary interest ‘inherent in in the privacy component of the Fourth

Amendment[.]’” Sumpter, 868 F.3d at 483 (quoting Stoudemire, 705 F.3d at 573). Thus, contrary

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to the warden’s argument, Fugate did present evidence—which we must take as true—that the

search was conducted in an undignified manner.

The warden also impermissibly challenges the inferences drawn by the district court. See

Gillispie, 18 F.4th at 916 (“[A] defendant may not challenge the inferences that the district court

draws from [the] facts, as that too is a prohibited fact-based appeal.” (citation omitted)). He argues

that “there is no evidence demonstrating that Erdos actively participated in the searches, or ordered

that those searches be conducted in an unprofessional manner.” Appellant’s Br. at 24. The warden

is right that he cannot be held liable under a theory of respondeat superior, but the district court

addressed this precise point, stating: “the Court is not convinced there is ‘no evidence’ linking

Erdos to the ‘manner’ of the searches, as Defendants claim. There may be no direct evidence. But

a reasonable juror could infer Erdos’s involvement in the manner of the searches inferentially from

. . . [Fugate’s] testimony regarding Erdos’s animus toward [Fugate].” R. 89 at 7. We lack

jurisdiction to consider a challenge to this inference on interlocutory appeal. Gillispie, 18 F.4th at

916.

2. Clearly established law

Having determined that there are genuine issues of fact on the constitutional question, we

proceed to the second prong of the qualified immunity analysis: whether the right Fugate asserts

was clearly established. Sumpter, 868 F.3d at 485. Fugate points to a clearly established right to

be free from strip searches performed without any penological interest, relying on Sumpter and

Stoudemire.

Even when a defendant violates a plaintiff’s constitutional rights, the defendant is entitled

to qualified immunity unless the right at issue was “clearly established[.]” Pearson, 555 U.S. at

232. “A right is clearly established when it is ‘sufficiently clear that every reasonable official

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would have understood that what he is doing violates that right.’” Rivas-Villegas v. Cortesluna,

142 S. Ct. 4, 7 (2021) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)).

A case “directly on point” is not required, but “existing precedent must have placed the statutory

or constitutional question beyond debate.” Id. (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

The inquiry depends on the specific facts of the case and their similarity to caselaw in existence at

the time of the alleged violation. Id. The Supreme Court has emphasized, in the Fourth

Amendment excessive force context, that specificity is “especially important” because “it is

sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the

factual situation the officer confronts.” Id. (quoting Mullenix, 577 U.S. at 12). Still, general

standards are sufficient to “clearly establish” a right “in an obvious case[.]” Id. at 8 (quoting

Brosseau, 543 U.S. at 199).

In Sumpter, we recognized that Stoudemire, decided in 2013, established that “in the

absence of a governmental interest” for a strip search, “the outcome of the balancing test was

obvious, so obvious that any reasonable officer in the defendant’s position would have known that

the search was unreasonable.” Sumpter, 868 F.3d at 487 (citing Stoudemire, 705 F.3d at 575). In

other words, Stoudemire—and more generally, the seminal Supreme Court case, Bell—clearly

established that where a corrections official lacks any penological interest for a search, the

“general” standard is sufficient to place a reasonable officer on notice because the case is an

obvious one. Rivas-Villegas, 142 S. Ct. at 8 (quoting Brosseau, 543 U.S. at 199).2 That conclusion

2 One technical but important distinction: Sumpter does not clearly establish the law here because it was decided after the events giving rise to this case. See Sumpter, 868 F.3d 473 (decided Aug. 18, 2017). We rely on Sumpter’s holding about what Stoudemire clearly established, because Stoudemire was decided in 2013.

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is harmonious with the Supreme Court’s admonitions for determining whether a right is clearly

established in Fourth Amendment excessive force cases. In excessive force cases, where the

constitutional test is “objective reasonableness,” an officer will not be able to fairly “determine

how the relevant legal doctrine” applies to his case without a sufficiently similar factual scenario

that theoretically places the officer on notice that his conduct is unlawful. See id. (quoting

Mullenix, 577 U.S. at 12). The same is true in unlawful search cases: where the constitutional test

is one of objective “interest-balancing, the point at which the constitutional shades into the

unconstitutional will necessarily be gray.” Sumpter, 868 F.3d at 488 (citing Brosseau, 543 U.S. at

201). But where there is no governmental interest, there’s nothing to balance against the interests

of the inmate, and the outcome of a one-sided “apples-only” balancing test is obvious. Id. at 487–

88.

Here, under Fugate’s version of the facts, this is an “obvious” case. Sumpter, 868 F.3d at

487. As discussed at length above, whether the warden had any penological purpose for ordering

three daily strip searches for an inmate in a J1 slammer cell turns on the disputed issue of whether

an inmate in such a secure, isolated cell could have obtained contraband from an inmate porter (the

warden’s asserted justification for the search) or some other way. Under Fugate’s version of the

facts, without any legitimate penological purpose for the excessive number of invasive strip

searches, the general standards in Stoudemire and Bell suffice to clearly establish the constitutional

violation. Sumpter, 868 F.3d at 487.

The warden resists this conclusion, countering that the searches were supported by a

legitimate penological justification, and thus no case sufficed to place him on notice that ordering

the strip searches was unlawful. This description of the right at issue rests on a disputed issue of

fact: whether imposing 90 strip searches over the course of 30 days was supported by a legitimate

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penological justification. And “where the legal question of qualified immunity turns upon which

version of the facts one accepts, the jury, not the judge, must determine liability.” Green v.

Throckmorton, 681 F.3d 853, 864 (6th Cir. 2012) (quoting McKenna v. Edgell, 617 F.3d 432, 437

(6th Cir. 2010)).

In sum, we affirm the denial of qualified immunity to Warden Erdos on Fugate’s Fourth

Amendment claims.

B. Eighth Amendment claim

Fugate also asserts a claim under the Eighth Amendment against Warden Erdos. Fugate

asserts that the warden violated a clearly established right to be free from strip searches maliciously

imposed as punishment. The district court denied the warden qualified immunity. We evaluate

the warden’s claim to qualified immunity under the two-pronged test.

1. Constitutional violation

The Eighth Amendment to the U.S. Constitution, as applied to the States through the

Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” U.S. Const.

amend. VIII. The Cruel and Unusual Punishments Clause protects inmates against “maliciously

motivated searches” and “intentional harassment of even the most hardened criminals . . . .”

Hudson v. Palmer, 468 U.S. 517, 528 (1984).

In the strip-search context, we have recognized that the principal inquiry under the Eighth

Amendment is “whether force was applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm.” Cornwell v. Dahlberg, 963 F.2d 912, 918 (6th Cir.

1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). While we did not parse the distinction

in Cornwell, the en banc Seventh Circuit recently articulated the distinction between the Eighth

Amendment and the Fourth Amendment as they relate to prison strip searches: The Fourth

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Amendment, as discussed earlier, “protects prisoners from searches that may be related to or serve

some institutional objective, but where guards nevertheless perform the searches in an

unreasonable manner, in an unreasonable place, or for an unreasonable purpose.” Henry v. Hulett,

969 F.3d 769, 781 (7th Cir. 2020) (en banc). The Eighth Amendment, on the other hand,

“safeguards prisoners against the use of searches that correctional officers subjectively intend as a

form of punishment.” Id.

With these standards in mind, Fugate has come forward with evidence that the warden

maliciously ordered the third daily strip search as punishment. Fugate testified that:

• The warden came to his cell the first night after Fugate assaulted the hearing officer and told him, “if you do anything else to my staff, we’re going to beat the fuck out of you again.”; • His first strip search, which came after the warden’s order that Fugate was to be “shookdown” after every shift, was performed by eight officials and done in a demeaning manner; • The warden told a guard, who did not want to continue performing the strip searches, that the searches would end “when I feel like it.”

R. 78-1 at PID 1191, 1198.

As the district court recognized, this testimony—combined with the evidence tending to

show that the excessive number of searches served no legitimate interest—is sufficient for a

reasonable inference that the warden ordered the additional daily strip search “maliciously and

sadistically to cause harm.” Cornwell, 963 F.2d at 918. Tellingly, the warden never disputes in

his two declarations that he threatened Fugate or that he told a guard that the searches would end

“when [he felt] like it.” R. 78-1 at PID 1198. His appeal rests on perfunctory assertions in the

briefing, such as: “Fugate fails to offer any evidence to support his contentions that Erdos acted

with [the] requisite intent.” Appellant’s Br. at 34. As discussed earlier, we lack jurisdiction over

these factual challenges to the district court’s denial of qualified immunity. See Gillispie, 18 F.4th

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at 916; see also Johnson, 515 U.S. at 313 (holding that the denial of qualified immunity at summary

judgment is not appealable when the appeal “determines only a question of ‘evidence

sufficiency[.]’”).

The warden claims that no clearly established law placed him on notice that ordering the

strip searches violated the Eighth Amendment. We disagree.

We held in 1992 that, in the context of a prison strip search, force applied “maliciously and

sadistically” and not in a “good-faith effort to maintain or restore discipline” violates the Eighth

Amendment’s Cruel and Unusual Punishments Clause. Cornwell, 963 F.2d at 917. In that case,

a male inmate was ordered to undergo a group strip search outside in the cold and in the presence

of female officers after participating in a prison riot. Id. at 914–15. We affirmed a verdict in favor

of the defendant officer on the inmate’s Eighth Amendment claim and, in doing so, established

that the district court correctly instructed the jury on the maliciousness standard that applied to the

inmate’s Eighth Amendment claim challenging the strip search. Id. at 917–18.

Although Cornwell is not “directly on point,” Rivas-Villegas, 142 S. Ct. at 7 (quoting

White, 137 S. Ct. at 551), the “operative inquiry” is “‘whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.’” Rafferty v. Trumbull Cnty.,

915 F.3d 1087, 1097 (6th Cir. 2019) (citation omitted). Under Fugate’s version of the facts,

Cornwell would have made it clear to any reasonable officer in the warden’s position that

maliciously imposing 90 strip searches in a period of 30 days to punish Fugate violates the Eighth

Amendment.

True, the Supreme Court has been clear regarding Fourth Amendment violations that

specificity of prior cases is “especially important” because it can be difficult for an officer to know

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whether his conduct is objectively reasonable in a given scenario. Mullenix, 577 U.S. at 12. But

the Court has not required the same level of specificity for Eighth Amendment violations. That

lines up with the purpose of qualified immunity: fair notice. See id. It is difficult for an official

to conform his actions to the constitution with notice of only a general objective reasonableness

standard. It is much easier, however, for a reasonable official to conform his conduct to the

Constitution with notice that he cannot impose punishment with a “malicious[ ] or sadistic[ ]”

subjective state of mind, even without a prior case with facts that specifically match the official’s

case. Cornwell, 963 F.2d at 917; see also Palmer, 468 U.S. at 528 (the Eighth Amendment

prohibits “intentional harassment of even the most hardened criminals.” (emphasis added)). In all,

Cornwell is sufficient to make “clear to a reasonable officer[,]” Rafferty, 915 F.3d at 1097, that it

violates the Eighth Amendment to impose a draconian number of strip searches “maliciously and

sadistically” for the purpose of punishment rather than in a “good-faith effort to maintain or restore

discipline[.]” Cornwell, 963 F.2d at 917. Thus, we affirm the denial of qualified immunity to the

warden on Fugate’s Eighth Amendment claim.

IV.

We DISMISS IN PART for lack of appellate jurisdiction and AFFIRM the district court’s

denial of qualified immunity at summary judgment.

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