Graham v . Nadeau, et a l . CV-07-247-PB 11/09/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melvin Graham

Case N o . 07-cv-247-PB Opinion N o .

Stephen Curry, Larry Blaisdell, John Loven, Mark Nadeau, Dwane Sweatt, and Scott Newton

MEMORANDUM AND ORDER

Melvin Graham, an inmate at the Northern New Hampshire

Correctional Facility (“NCF”), has sued Stephen Curry, Larry

Blaisdell, John Loven, Mark Nadeau, Dwane Sweatt, and Scott

Newton pursuant to

, alleging violations of his

Fourth and Eighth Amendment rights.1 Graham has also asserted a

state law claim of intentional infliction of emotional distress.

The defendants have filed a motion for summary judgment on all

counts. Graham objects. For the reasons set forth below, I

grant the motion.

1 Curry is a former commissioner of the New Hampshire Department of Corrections (“NHDOC”). Blaisdell is the warden at the Northern New Hampshire Correctional Facility (“NCF”). Loven, Nadeau, Sweatt, and Newton are corrections officers at NCF. I. BACKGROUND

Graham’s allegations arise from two separate searches: one

on June 2 , 2005 (“the June search”) and one on July 8 , 2005 (“the

July search”). Both searches were conducted in furtherance of a

larger effort by prison officials to respond to information

suggesting that inmates were smuggling marijuana or tobacco from

the prison’s kitchen into other areas of the prison.

A. The June Search2

On June 2 , 2005, Graham was stopped as he was leaving his

job in the NCF kitchen. (Compl., Doc. N o . 1-1, at 2.) Sergeant

Huter (who is not a named defendant) instructed Graham to proceed

to a large open area known as the “Industries Area.” (Id.)

Fifteen other inmates were directed to the same area. (Id.)

Nadeau, under Loven’s direct supervision, then allegedly

conducted a visual body cavity (“VBC”) search3 of Graham in full

2 Although Graham’s complaint alleges that the first search occurred on June 6, 2005, he later states that the search occurred on June 2 , 2005, which is also consistent with prison records. (See Defs.’ Mem. of Law in Supp. of Mot. for Summ. J., Doc. N o . 25-2, at 2 n.1.) 3 Graham refers to these searches as “strip searches” in his complaint. (See Compl., Doc. N o . 1-1, at 2-3.) However, the searches he describes, in which he “opened his mouth, wagged his tongue, pulled his ears forward, lifted his scrotum, turned around and bent over, spreading his buttocks apart, and lifted

-2- view of the other inmates4 and a surveillance camera allegedly

monitored by female corrections officers. (Id. at 2-3.) Graham

objected to the fact that the camera was on but was told to shut

up and strip, an order that he obeyed. (Id. at 2.) Graham

claims that there was a room “built specifically for conducting

strip searches” near where his VBC search took place. (See id. at

3.)

Other inmates were found to be in possession of tobacco and

contraband food items during the June search. (Loven. Aff., Doc.

N o . 25-7, ¶ 3.)

his feet for inspection” is more accurately described as a visual body cavity search, and this order refers to it as such. (See id. at 4.) 4 Defendants have produced an affidavit from Nadeau asserting that “[i]f an inmate was strip searched, he was pulled aside around a corner so that he would be out of the view of the other inmates while being strip searched.” (Nadeau Aff., Doc. N o . 25-9, ¶ 14 (emphasis added).) In their memorandum, however, defendants cite Nadeau’s affidavit for the proposition that “[i]f an inmate was strip searched, he was pulled aside into a corner so that he would be out of the view of the other inmates while being strip searched.” (Defs.’ Mem. of Law in Supp. of Mot. for Summ. J., Doc. N o . 25-2, at 3 (emphasis added).) Graham disputes Nadeau’s assertion that he was taken around a corner to be strip searched but he does not take a position on defendants’ alternative contention that any strip searches were conducted in a corner of the Industries Area. He does continue to maintain, however, that he was strip searched in full view of other inmates. I accept Graham’s contention with respect to this disputed issue when ruling on defendants’ summary judgment motion.

-3- B. The July Search

On July 8 , 2005, as Graham was leaving his job in the NCF

kitchen, all of the kitchen workers were being detained in the

hallway so that corrections officers could conduct VBC searches.

(Compl., Doc. N o . 1-1, at 4.) Graham was standing fourth in line

when the three inmates in front of him were called into the

laundry room to be searched. (Id.) Graham asserts that “it has

[always] been procedure to take three inmates at a time in[to]

the laundry room.” (Id.) However, on this day, Nadeau, against

whom Graham had previously filed a grievance based upon the June

search, allegedly noticed Graham in the hallway and asked Graham

and a trainee to come into the laundry room with the other

inmates. (Id.) Graham followed normal VBC search procedures by

opening his mouth, wagging his tongue, pulling his ears forward,

lifting his scrotum, turning around and bending over, spreading

his buttocks, and lifting his feet for inspection. (Id.) The

trainee then told Graham to give him his glasses. (Id.) Graham

did not want to give the trainee his glasses until the trainee

had changed his gloves. (Id.) After the trainee commanded

Graham twice more to give him the glasses and Graham refused,

Sweatt handcuffed Graham. (Id. at 4-5.) As Newton arrived,

-4- Graham asked, “You’re not going to lug me down the hall naked are

you?” (Id. at 5.) Sweatt answered, “Yes.” (Id.) Newton then

told Sweatt to let Graham put his undershorts o n , which Sweatt

did. (Id.) Graham was then “marched out into the hallway where

the other inmates were awaiting their turn . . . and then out

into the main corridor of NCF.” (Id.) Graham “tried to protest

to Sweatt that his shorts were ripped out in front and that his

penis was hanging out[,] but Sweatt only smiled and told [him] to

shut up.” (Id.) During his walk to the holding cell, Graham

allegedly sustained contusions on both heels and aggravated an

existing spinal injury. (Id.) Graham claims that as he neared

the “holding tank,” which was near the visiting area, he “could

see women and children coming and going from the area,” and notes

that “presumably[] they could see [him] in his embarrassing and

humiliating expose [sic].” (Id.) The corrections officers then

locked Graham in a holding cell for “about three hours” without

blankets, clothes, or his glasses, which Graham claims resulted

in a headache. (Id.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when the “pleadings, the

-5- discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The evidence submitted in support of the

motion for summary judgment must be considered in the light most

favorable to the nonmoving party, indulging all reasonable

inferences in its favor. See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

. The

opposing party “may not rely merely on allegations or denials in

its own pleading; rather, its response must . . . set out

specific facts showing a genuine issue for trial.” Fed. R. Civ.

P. 56(e)(2)

-6- III. ANALYSIS

Graham argues that defendants violated his Fourth Amendment

rights when they conducted the June search and violated his

Eighth Amendment rights when they conducted the July search.5 He

also asserts that both searches support a state law claim for

intentional infliction of emotional distress. Defendants respond

by claiming that they are entitled to qualified immunity with

respect to the federal claims and that Graham cannot prove his

state law claim.

A. Qualified Immunity Test

To determine whether a defendant charged with a

constitutional violation is entitled to qualified immunity, a

court must ask

5 The magistrate judge construed Graham’s complaint to assert Fourth and Eighth Amendment violations with respect to both searches. (See Report and Recommendation, Doc. N o . 4 , at 8- 15.) The proffered facts, however, do not support either a claim that the June search violated the Eighth Amendment or that the July search violated the Fourth Amendment. The June search will not support an Eighth Amendment claim because there is no evidence in the record to support a claim that Nadeau was acting maliciously when he conducted the June search. See Meriwether v . Faulkner,

0 8 , 418 (7th Cir. 1987) (malicious intent required to support Eighth Amendment claim challenging a prison search). The July search does not state a Fourth Amendment violation because Graham primarily challenges the constitution- ality of what occurred after the search was completed rather than the search itself.

-7- (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if s o , whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.

Maldonado v . Fontanes,

(1st Cir. 2009). A

court ordinarily may move directly to the second step in the

analysis and award qualified immunity if the plaintiff cannot

demonstrate that the right on which his claim is based was

clearly established when the defendants engaged in the conduct at

issue. Pearson v . Callahan, 129 S . C t . 8 0 8 , 817-18 (2009). In

determining whether a constitutional right was clearly

established, the court must look both at “the clarity of the law

at the time of the alleged civil rights violation,” and the way

in which the law applies “in light of the specific context of the

case, not as a broad general proposition.” Maldonado,

(internal quotations omitted). Ultimately, the question

that the court must ask is “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted.”

(quoting Brosseau v . Haugen,

9 4 ,

199 (2004)).

B. Fourth Amendment Claim: The June Search

Graham does not challenge Nadeau’s authority to subject him

to a VBC search. Instead, he claims that the search was unlawful

-8- because Nadeau conducted the search in the presence of the other

inmates.6 Graham also seeks to hold Loven, Curry, and Blaisdell

liable on a supervisory liability theory. Defendants deny that

other inmates were able to witness the search, but argue that

they are entitled to qualified immunity in any event both because

they did not violate the Fourth Amendment even if Graham’s

factual assertions are accepted as true and because reasonable

correctional officers would not have clearly understood that it

was unlawful under the circumstances to conduct the search in the

presence of other inmates.

Visual body cavity searches, though intrusive, are an

important tool for maintaining order and security in prisons and

are permitted in many situations. See, e.g., Arruda v . Fair,

(1st Cir. 1983); Bell v . Wolfish,

(1979).

However, the right to search prisoners is not unlimited.

“Prisoners, even though incarcerated, have some degree of Fourth

Amendment protection, and this protection extends to shielding

6 Graham also asserts that the search was unlawful because female guards watched the search on a surveillance camera. The evidence does not support this contention, however, because Graham has failed to identify evidence that contradicts other evidence supplied by the defendants that demonstrates that no female guards were monitoring the surveillance camera when the search occurred.

-9- prisoners from unreasonable visual cavity searches.” Seaver v .

Manduco,

0 , 38 (D. Mass. 2002) (citing Arruda,

8 6 ) . To determine whether a search is unreasonable, a

court must “balanc[e] . . . the need for the particular search

against the invasion of personal rights that [it] entails.”

Wolfish,

. “Courts must consider the scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating i t , and the place in which it is

conducted.”

A court should “evaluate ‘prison practice . . .

in light of the central objective of prison administration,

safeguarding institutional security,’” and “‘[p]rison

administrators . . . should be accorded 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.’” Arruda,

(quoting Wolfish,

4 7 ) .

Although the First Circuit has not addressed the specific

issue presented in this case, other courts have recognized that

the Fourth Amendment bars a correctional officer from conducting

a VBC search in the presence of other inmates unless the

officer’s decision to conduct the search in that manner is

-10- reasonably related to a legitimate penological interest.7 Farmer

v . Perrill,

(10th Cir. 2002); Thompson,

111 F.3d at 699-701; Sabree v . Conley,

8 0 , 283 (Mass.

App. C t . 2004). The Tenth Circuit had also held that this right

was clearly established long before the June search was

conducted. Farmer,

.

Nadeau presents two related arguments to support his

contention that he is entitled to summary judgment with respect

to his qualified immunity defense. First, he asserts that the

search was constitutional even if it was conducted in “full view”

of the other inmates because the search procedure he followed was

reasonably related to legitimate penological interests.

Alternatively, he argues that he is entitled to qualified

7 The legitimate penological interest standard is drawn from the Supreme Court’s decision in Turner v . Safley,

8 , 89 (1987). Although at least one court has suggested that Turner may not apply to Fourth Amendment claims, see Powell v . Barnett,

(11th Cir. 2008), other circuits have held that Turner provides the governing standard in determining whether an inmate search violates the Fourth Amendment, see Thompson v . Souza,

9 4 , 699-700 (9th Cir. 1997); Covino v . Patrissi,

3 , 78-79 (2d Cir. 1992). The First Circuit has not taken a position on this issue and I need not do so here to resolve the case. Instead, it is sufficient to note that in the context of this case, in which the only issue is whether it was reasonable to conduct a VBC search in the presence of other inmates, the search was unreasonable and hence violated the Fourth Amendment only if the search procedure the officers used was unrelated to a legitimate penological interest.

-11- immunity even if he violated the Fourth Amendment because a

reasonable correctional officer would not have clearly understood

that his alleged search procedure was unlawful. I skip Nadeau’s

first argument and explain why his second argument is persuasive.

Because Graham claims that Nadeau could have searched him in

a nearby private room, Nadeau’s qualified immunity defense turns

on whether a reasonable correctional officer could have believed

that there was a legitimate penological justification for

conducting the search in the Industries Area rather than in the

private room. Defendants assert that Nadeau searched Graham in

the Industries Area because defendants needed “to keep a close

eye on the inmates and ensure that contraband was not passed

between inmates” while the VBC searches were conducted. (Loven

Aff., Doc. N o . 25-7, ¶ 5.) Although a credible argument can be

made that Loven and Nadeau could have safely taken Graham to the

private room to be searched while leaving Huter to watch the

other inmates, I cannot say that a reasonable officer in Nadeau’s

position would have clearly understood that there was no need to

conduct the search in the Industries Area to maintain control

over the other inmates who were waiting to be searched. The

Supreme Court has made it clear that courts must give “wide-

ranging deference” to the judgments that correctional officers

-12- make concerning matters of institutional security. Wolfish,

. Here, defendants reasonably could have concluded

that two officers were needed to conduct the VBC search of Graham

and that Huter was not able to watch the other inmates by himself

while Graham was being searched. Absent evidence that other

guards could have been called to the scene without compromising

security interests elsewhere, a matter about which I have no

evidence, it was reasonable for defendants to conclude that the

VBC search of Graham needed to be conducted in the Industries

Area even if that meant that other inmates might witness the

search. Thus, Nadeau is entitled to qualified immunity with

respect to the June search.

Graham’s supervisory liability claims against Loven,

Blaisdell, and Curry fail for similar reasons. Graham appears to

claim that Loven is liable as a supervisor because he was a

“primary actor” involved in Nadeau’s allegedly unconstitutional

conduct. See Camilo-Robles v . Zapata,

1 , 43-44 (1st

Cir. 1999) (distinguishing between supervisors who are “primary

actors” involved in a constitutional violation and supervisors

who are allegedly liable because they acted with deliberate

indifference in hiring, training or supervising a subordinate).

The First Circuit has explained that the qualified immunity test

-13- works in the same way with respect to supervisors that are

charged as primary violators as it does with respect to

defendants who are sued as principals.

at 4 4 . Thus, Loven

is entitled to qualified immunity for the same reason as Nadeau.

Graham’s claims against Blaisdell and Curry appear to be based on

a generalized contention that they failed to properly supervise

Loven and Nadeau. These types of claims require proof of

deliberate indifference.

Because the record contains no

evidence to support a claim that either Blaisdell or Curry acted

with deliberate indifference, they are entitled to qualified

immunity as well.

C. Eighth Amendment Claim: The July Search

In order to establish an Eighth Amendment violation, Graham

“must meet both objective and subjective criteria.” Surprenant

v . Rivas,

, 18 (1st Cir. 2005) (citing Farmer v .

Brennan,

(1994). Graham must demonstrate that

his alleged deprivation is objectively so severe that he has been

denied “the minimal civilized measure of life’s necessities.”

Hudson v . McMillian,

, 9 (1992) (internal quotation

omitted). Additionally, he must show that prison officials acted

with “a sufficiently culpable state of mind.”

(internal

quotation omitted). In the context of bodily searches performed

-14- on inmates, only searches that are “maliciously motivated,

unrelated to institutional security, and hence ‘totally without

penological justification’” are unconstitutional. Meriwether v .

Faulker,

0 8 , 418 (7th Cir. 1987) (quoting Rhodes v .

Chapman,

3 7 , 346 (1981)). To the extent that an inmate

otherwise claims that the conditions under which he is confined

are so intolerable that they amount to an Eighth Amendment

violation, the mental state required is deliberate indifference.

Giroux v . Somerset County,

8 , 32 (1st Cir. 1999).

Graham’s only claim with respect to the search itself is

that Nadeau maliciously instigated the search. Graham supports

this challenge with evidence: (1) that he challenged the June

search in a grievance at some point prior to the July search; and

(2) that Nadeau called him into the laundry room to be searched

after three other inmates were already in the room when, in his

previous experience, only three inmates had ever been searched at

once in the laundry room. (See Compl., Doc. N o . 1-1, at 4.)

Neither of these allegations establishes that Nadeau acted with

malicious intent. Graham has demonstrated a temporal

relationship between the filing of the grievance and the second

search but no causal relationship between the two. Nothing about

the search suggests that Graham was being personally targeted.

-15- Many other inmates were randomly searched in June and July. (See

Defs.’ Mem. of Law in Supp. of Mot. for Summ. J., Doc. N o . 25-2

at 9-10.) In addition, although Graham claims that it was

“customarily the procedure” to take three inmates at a time into

the laundry room, he has no basis for making that conclusion

aside from having been searched there “on several occasions.”

(See Compl., Doc. N o . 1-1, at 4.) Thus, the fact that Nadeau

called him into the room as a fourth person does not establish

that Nadeau acted with malicious intent.

Graham also alleges that Nadeau, Sweatt, and Newton violated

his Eighth Amendment rights by making him walk approximately a

quarter of a mile to a holding cell in his undershorts and with

his penis exposed so that it could be seen by female and child

visitors. (See Compl., Doc. N o . 1-1, at 5.) There is a genuine

dispute as to whether Graham’s penis was hanging out of his

undershorts. Graham claims that he “tried to protest to Sweatt

that his shorts were ripped out in front and that his penis was

hanging out.” (See id.) Sweatt, however, claims that he never

noticed Graham’s penis, and denies that Graham ever complained to

him about the situation. (See Defs.’ Mem. of Law in Supp. of

Mot. for Summ. J., Doc. N o . 25-2, at 4.) Nadeau also claims that

he did not notice that Graham’s penis was exposed when Graham

-16- left the laundry area to be escorted to the holding cell. (See

id.) There i s , however, no genuine dispute as to whether women

and children actually saw Graham walking down the hallway. The

defendants claim that women and children did not see Graham.

(See id. at 4-5.) Graham’s only support for his contrary

allegation is that as he neared the holding cell, he “could see

women and children coming and going from the [visiting] area, so

presumably[] they could see [him].” (See Compl., Doc. N o . 1-1

at 5.) Graham has no personal knowledge to support his

allegation that any visitors actually saw him or his exposed

penis. Thus, the most that Graham can claim with respect to the

walk from the laundry room to the holding cell is that he was

forced to walk to the holding cell in ripped undershorts that

left his penis exposed. These allegations do not amount to the

kind of extreme deprivations that are necessary to support an

Eighth Amendment claim.

Finally, Graham alleges that defendants violated his rights

under the Eighth Amendment by locking him in a holding cell for

“about three hours” without a blanket, clothes, a companion, or

his glasses. (See Compl., Doc. N o . 1-1, at 5 ; see also Def.’s

Ex. A - 3 , Doc. 25-6, at 1 (indicating that Graham was only in the

holding cell for two hours).) Again, however, Graham fails to

-17- present evidence of the kind of egregious deprivations that are

necessary to support an Eighth Amendment claim. Accordingly,

defendants are entitled to qualified immunity with respect to

Graham’s Eighth Amendment claim.

D. Intentional Infliction of Emotional Distress

Graham alleges that the defendants intentionally inflicted

emotional distress on him by subjecting him to unreasonable and

malicious strip searches. In New Hampshire, a defendant “‘who by

extreme and outrageous conduct intentionally causes severe

emotional distress to another is subject to liability for that

emotional distress.’” Amatucci v . Hamilton,

8 0 , 6

(quoting Konefal v . Hollis/Brookline Coop. Sch. Dist.,

(1998)). The conduct upon which the claim is based must

be “‘so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.’”

(quoting Restatement (Second) of Torts § 4 6 , cmt. d (1965)).

Here, the evidence does not establish that the defendants’

conduct was “outrageous” when they searched Graham on June 2 ,

2005, or when they searched him, walked him down the hall to the

holding tank, and kept him in the holding tank for two hours on

July 8 , 2005. Graham has also failed to provide evidence from

-18- which a reasonable jury could infer that the guards intentionally

caused severe emotional distress. Thus, I dismiss the state law

claim for intentional infliction of emotional distress.

IV. CONCLUSION

For all of the foregoing reasons, I grant the defendants’

motion for summary judgment (Doc. N o . 2 5 ) .

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 9, 2009

cc: Melvin Graham, pro se Laura E . B . Lombardi, Esq.

-19-