United States Court of Appeals For the First Circuit

No. 23-1767

JADEN BROWN,

Plaintiff, Appellee,

v.

SAM DICKEY, individually and as an employee of the Cumberland County Sheriff's Department; DANIEL HASKELL, individually and as an employee of the Cumberland County Sheriff's Department, Defendants, Appellants.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Gelpí, Montecalvo, and Aframe, Circuit Judges.

John J. Wall, III, with whom Monaghan Leahy, LLP was on brief, for appellants. Jeremy W. Dean for appellee. Jaba Tsitsuashvili, Institute for Justice, Daniel Greenfield, George Mills, and Roderick & Solange MacArthur Justice Center were on brief for the Roderick and Solange MacArthur Justice Center and the Institute for Justice, amici curiae.

September 3, 2024 AFRAME, Circuit Judge. This is an interlocutory appeal

by two Cumberland County, Maine jail correction officers, Daniel

Haskell and Sam Dickey, from an order denying summary judgment

based on qualified immunity. The case, asserting violations of

and the Maine Civil Rights Act,

, stems from an allegation brought by an individual

who was previously incarcerated, Jaden Brown, that Haskell and

Dickey violated her Fourth Amendment rights by observing her naked

body during her stay at a local hospital to deliver a baby.1

Haskell and Dickey's primary argument is premised on a

challenge to the district court's determination that there are

sufficient facts for a jury to conclude that they viewed Brown's

naked body in a manner that was more than inadvertent, occasional,

casual, or restricted. An argument that the district court

erroneously identified factual disputes as the basis for denying

summary judgment premised on qualified immunity is not the proper

subject of an interlocutory appeal. Thus, we lack jurisdiction

over most of this appeal. To the extent Haskell and Dickey contend

that observing Brown's body in the manner described does not

1 "[T]he protections provided by the Maine Civil Rights Act, including immunities, are coextensive with those afforded by

." Est. of Bennett v. Wainwright,

, 178-79 (1st Cir. 2008). We therefore will treat the disposition of the § 1983 claim as controlling the outcome of the Maine Civil Rights Act claim. Berube v. Conley,

(1st Cir. 2007) (citing Dimmitt v. Ockenfels,

(D. Me. 2004)).

- 2 - constitute a search under the Fourth Amendment, we reject that

claim based on clearly established circuit law.

I.

We begin by describing the facts from the summary

judgment record in the light most favorable to Brown. See Norton

v. Rodrigues,

(1st Cir. 2020).

In July 2018, Brown, who was then pregnant, began serving

a 15-month sentence at the Cumberland County Jail in Portland,

Maine. Brown went into labor on the morning of February 10, 2019.

Jail officials transported Brown to Maine Medical Center at around

11 a.m. Brown did not give birth until around 1 a.m. the following

day.

During Brown's hospital stay, Brown was continuously

accompanied by jail officials. At first, Officer Angel Dufour

stayed with Brown. Brown invited Dufour to remain with her in the

hospital room. During Dufour's shift, Haskell was in Brown's room

for about an hour between 6:30 p.m. and 7:30 p.m. Dickey and

Officer Carrie Brady replaced Dufour at about 10:45 p.m. Haskell,

who supervised Dickey and Brady, was present for the shift change

and remained in and around Brown's hospital room until at least

approximately 11:30 p.m. Haskell and Dickey both had engaged

previously in inappropriate conduct with females who were

incarcerated. For his part, Dickey had been demoted for an

inappropriate relationship with a female who was incarcerated.

- 3 - And, according to Brown, she previously watched females who were

incarcerated strip naked for Haskell.

At the end of the shift change, Dufour reminded Dickey

that jail policy prevented officers from being in "the delivery

room when [a person who is incarcerated] is giving birth." Dickey

responded, "OK." This policy was consistent with Maine law, which

instructs that "[w]hen a prisoner . . . is admitted to a medical

facility . . . for labor or childbirth, a corrections officer may

not be present in the room during labor or childbirth unless

specifically requested by medical personnel." Me. Rev. Stat. Ann.

tit. 30-A, § 1582(4). There was no such request from medical

personnel here.

Despite the reminder by Dufour and the applicable Maine

statute, Dickey and Brady sat in Brown's hospital room continuously

throughout Brown's labor and delivery until the following morning

after Brown's child was born. Brown's hospital room was large.

Brown's bed was in the back corner of the room next to a bench

that was a few feet away. Dickey sat on the left side of the

bench, within two feet of Brown's legs as she lay in bed. According

to Brown, Dickey was close enough to her that she could have

touched him. Brady sat on the other end of the bench, within four

feet of Brown. Brown perceived that Dickey and Brady were

positioned "so that they could see, hear, and smell everything

that was happening while [Brown] labored and delivered her baby."

- 4 - Haskell also repeatedly entered and exited Brown's room, although

he denies being present when Brown delivered the baby.

Prior to the delivery, Dickey watched television,

napped, and laughed at jokes told by Haskell. For example, Haskell

said to Brown that she and her baby constituted "one and a half

inmates" and suggested that she should name her daughter after

the jail. Haskell also raised with Brown a recent allegation by

another incarcerated female who had accused him of having sex with

her. Haskell made disparaging comments about this other female's

appearance. He also denied the allegation, asking Brown, "You

know my type. Is she my type?" Based on prior observations,

Brown understood Haskell to prefer young, petite, blonde women.

During Brown's hospital stay, medical personnel

conducted multiple examinations of Brown's cervix. These

examinations required Brown to spread her legs so that medical

personnel could insert gloved fingers into her vagina to manually

check the dilation of her cervix. Brown stated specifically that

Haskell was present for one of these exams when he was in her

hospital room at about 7:30 p.m. In addition to these cervix

exams, Brown received an epidural and a urinary catheter. The

medical personnel also occasionally monitored the baby's

heartbeat, which required them to expose Brown's stomach and

breasts. Just prior to the birth, medical personnel held Brown's

legs in the air so that she could push. As Brown delivered, Dickey

- 5 - wrote in the jail hospital log, "Delivery happening!",

"Pushing . . . ", and "Baby girl born!"

According to Brown, the medical personnel did their best

to cover her body with a johnny and sheet during the cervical

examinations. Nevertheless, Brown says there were times when her

breasts and vagina were exposed. Brown's genitals were completely

exposed during the actual delivery because medical personnel could

not cover her with a sheet while lifting her legs in the air.

Haskell and Dickey both denied that they observed

Brown's breasts or genitals while in the hospital room. Brown

admitted that she did not ask Haskell or Dickey to leave the

hospital room because, even though she felt "embarrassed" and

"numb," "when you're naked and your legs are spread open it's just

like -- it's over. Let's just get it done with." Brown also

acknowledged that she cannot say with certainty what any particular

officer saw during the delivery because she was focused on the

medical personnel while trying to deliver. Brown was released

from custody within 48 hours of delivering her baby.

Based on the events at the hospital, Brown filed claims

against the jail, jail supervisors, and the corrections officers

on scene, including Haskell and Dickey. The complaint against

Haskell and Dickey alleged that their conduct violated the Fourth,

Eighth, and Fourteenth Amendments of the United States

- 6 - Constitution. On appeal, the parties focus on the Fourth Amendment

claim, and so will we.

Following discovery, Haskell and Dickey sought summary

judgment, asserting qualified immunity. The district court denied

the motion. The court identified Cookish v. Powell,

(1st Cir. 1991), as holding that a prison guard of the opposite

sex from an incarcerated person violates that person's Fourth

Amendment rights by observing the person's naked body, if the

observations were "other than inadvertent, occasional, casual,

and/or restricted," unless emergency circumstances were present.

The district court held that there were genuine issues

of material fact on whether Haskell and Dickey violated the Cookish

standard by observing Brown's naked body. The court noted that

the record was "replete with facts that cast doubt" on Haskell and

Dickey's assertion that they did not view Brown naked while she

was in the hospital. The court also ruled that Haskell and

Dickey's alleged observations of Brown's naked body, if such

observations occurred, would constitute searches under the Fourth

Amendment.

II.

A.

Haskell and Dickey's primary argument on appeal is based

on the predicate assertion that "[t]here is no evidence in the

- 7 - summary judgment record that [they] made any observation of Brown's

naked body -- let alone that they made more than inadvertent,

occasional, casual, and/or restricted observations of her naked

body." From that assertion, Haskell and Dickey contend that the

law was not clearly established that their mere presence in Brown's

hospital room, without observing Brown's naked body, constituted

a violation of Brown's Fourth Amendment rights.

We do not have jurisdiction to consider this argument.

Generally, courts of appeals lack jurisdiction over appeals from

orders denying summary judgment because such orders lack finality.

See McKenney v. Mangino,

(1st Cir. 2017) (citing

). There is an exception, however, for orders

denying summary judgment based on assertions of qualified immunity

where the argument for immunity presents a question of law. Cady

v. Walsh,

(1st Cir. 2014) (citing Johnson v.

Jones,

(1995)).

Qualified immunity, which shields an officer from civil

liability unless the officer violates clearly established law of

which a reasonable officer would have known, is an immunity from

suit and damages. See Ortiz v. Jordan,

(2011).

Because qualified immunity is an immunity from suit, an officer's

claim of qualified immunity "ought to be resolved as soon as

possible in [the] litigation." Norton,

.

- 8 - But not all orders denying summary judgment premised on

qualified immunity are immediately appealable. Only "[p]urely

legal rulings" implicating qualified immunity receive expedited

appellate consideration. Morse v. Cloutier,

(1st

Cir. 2017). Thus, a challenge to a district court's ruling that

the facts, taken in the light most favorable to the plaintiff,

demonstrate a violation of clearly established law may be

considered on interlocutory appeal. See McKenney,

.

When, however, the court's order denying qualified immunity is

based only on "an issue of fact or an issue perceived by the trial

court to be an issue of fact," we do not have appellate

jurisdiction.

(quoting Stella v. Kelley,

(1st

Cir. 1995)). Thus, we lack jurisdiction when the

defendant-officer's argument for qualified immunity rests on a

claim that "the facts asserted by the plaintiff[] are untrue,

unproven, warrant a different spin, tell only a small part of the

story, [or] are presented out of context."

at 80-81 (quoting

Díaz v. Martínez,

(1st Cir. 1997)).

Haskell and Dickey's argument that their mere presence

in the hospital room did not violate clearly established law

exceeds the jurisdictional limit. Their argument is premised on

a contention that they did not observe Brown's naked body. But

the district court concluded there was a genuine issue of fact on

that question. And this issue of fact is material because, as

- 9 - mentioned earlier, in this circuit, it is established that a Fourth

Amendment violation occurs when a prison guard of the opposite

sex, in nonemergency circumstances, views an incarcerated person's

naked body in a manner that was "other than inadvertent,

occasional, casual, and/or restricted." Cookish,

.

Therefore, Haskell and Dickey's argument for qualified immunity on

the ground that they were merely present in Brown's hospital room,

without observing Brown's naked body, does not constitute a purely

legal question appropriate for interlocutory appeal because it is

premised on facts which the district court determined are in

dispute.

Haskell and Dickey argue otherwise by pointing to what

we have called an "isthmian exception" to the limits on

interlocutory appeals of qualified-immunity denials at summary

judgment. McKenney,

n.4. The exception derives

from Scott v. Harris,

(2007), a case also

involving qualified immunity for a Fourth Amendment claim. The

district court had denied summary judgment premised on qualified

immunity because of purported factual disputes resulting from the

testimony of the plaintiff about his interaction with the defendant

police officer.

. As discussed above, such a ruling

denying summary judgment based on a factual dispute would typically

preclude an interlocutory appeal of the qualified immunity

question. But, in Scott, there was also a videotape of the

- 10 - plaintiff's interactions which demonstrated that the plaintiff's

version of events was false.

.

The Supreme Court held that, in such circumstances, the

district court should have treated the undisputed facts as being

established by the videotape. As the Court explained, "[w]hen

opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary judgment."

Scott,

. Thus, when the evidence indisputably

supports only the defendant's version of events -- even though the

plaintiff testified otherwise -- the defendant may bring an

interlocutory appeal challenging the denial of qualified immunity

premised on the incontrovertibly established facts.

Haskell and Dickey contend that the Scott exception

saves their interlocutory appeal. They say that Brown's Fourth

Amendment claim requires record evidence that they observed

Brown's naked body in the manner proscribed by Cookish. They then

assert that there is no such evidence here because they "testified

that they did not view or observe Brown's naked body," and "Brown

could not dispute that testimony based on her own personal

knowledge." Because Brown could not testify from personal

knowledge that they saw her naked body and did not present witness

testimony or "physical evidence" to establish that such

- 11 - observation definitively occurred, Haskell and Dickey contend the

record supports only one conclusion: they did not observe Brown

naked. Thus, they argue the summary judgment record presents only

the purely legal question of whether it was clearly established

that their mere presence in Brown's hospital room, without

observing Brown's naked body, violated Brown's Fourth Amendment

rights.

We reject this argument, which suffers from a

misunderstanding about the roles played by direct and

circumstantial evidence in identifying factual disputes. Direct

evidence "is that which proves a fact without an inference or

presumption and which in itself, if true, establishes that fact."

Barbara E. Bergman et al., 1 Wharton's Criminal Evidence § 1.8

(15th ed. 2023) (internal citations omitted). For example, if a

witness testified that she saw the defendant shoot the victim that

would be direct evidence that the defendant was the shooter.

Circumstantial evidence is evidence from which the factfinder may

infer the fact in dispute. Id. Using the same example, if evidence

established that the defendant was the only person in a house when

a victim was shot, that would be circumstantial evidence that the

defendant was the shooter. Id.

The law draws no distinction between the value of

circumstantial and direct evidence. United States v. Ruiz,

(1st Cir. 1997). "The reason for treating

- 12 - circumstantial and direct evidence alike is both clear and deep

rooted: 'Circumstantial evidence is not only sufficient, but may

also be more certain, satisfying and persuasive than direct

evidence.'" Desert Palace, Inc. v. Costa,

(2003)

(quoting Rogers v. Mo. Pac. R.R. Co.,

, 508 n.17

(1957)). Haskell and Dickey rely solely on the direct evidence of

their own self-serving statements that they did not see Brown's

naked body. But they ignore the circumstantial evidence.

The circumstantial evidence against Dickey is strong.

Dickey was in the hospital room during the duration of Brown's

delivery, within a few feet from Brown's bed, where, according to

Brown, Dickey "could see, hear, and smell everything that was

happening." During that time, Brown underwent multiple procedures

and tests during which her body was exposed. And when Brown

delivered, medical personnel held her legs in the air exposing her

genitals as Dickey sat nearby. Dickey made notes of his

observations in real time writing, "Delivery happening!", "

Pushing . . . ", and "Baby girl born!" This is all circumstantial

evidence from which a factfinder reasonably could conclude that

Dickey was watching Brown while she gave birth and thus observed

Brown's naked body. Thus, as it pertains to Dickey, this case is

nothing like Scott because the record fails to establish to a

certainty that Dickey did not view Brown's naked body.

.

- 13 - We reach a similar conclusion for Haskell. The record

establishes that Haskell was in Brown's hospital room for periods

of time before Brown gave birth, in close enough proximity to

converse with Brown and make jokes. Brown also says that, during

the periods when Haskell was in her hospital room, she underwent

multiple procedures, including a cervix examination, which

required her to be exposed. The district court's order denying

summary judgment explained that the record evidence was

sufficient, in its view, to establish a disputed fact on whether

Haskell observed Brown's naked body. That conclusion is sufficient

to displace our appellate jurisdiction. When the district court

denies qualified immunity "based on an issue perceived by

the . . . court to be an issue of fact," McKenney,

,

we lack jurisdiction. There is no indisputable contrary evidence

that would trigger the Scott exception to this rule.2

To summarize, the record evidence fails to

incontrovertibly establish a single version of events showing that

2 For the reasons discussed above, Haskell and Dickey's reliance on Harvey v. Campbell County,

(6th Cir. 2011), is misplaced. In Harvey, the Sixth Circuit considered an interlocutory appeal challenging a denial of qualified immunity because the district court committed a legal error in construing the summary judgment record.

. The court erroneously found that there was a genuine issue of material fact "through reliance on the allegations of [the] complaint alone without any supporting factual evidence."

There was no similar error here. The district court denied summary judgment based on perceived disputes of fact arising from circumstantial evidence generated through discovery.

- 14 - Haskell or Dickey did not observe Brown's naked body while they

were in her hospital room. Accordingly, because the district court

perceived a dispute of material fact on what Haskell and Dickey

saw while in the hospital room, we lack jurisdiction over this

appeal to the extent Haskell and Dickey argue for qualified

immunity premised on the disputed assertion that they did not

observe Brown's naked body.

B.

Haskell and Dickey also contend that, even if they had

viewed Brown's naked body in the hospital room, there was no Fourth

Amendment violation because they did not conduct a search of

Brown's body. Because this argument assumes that Haskell and

Dickey observed Brown's naked body, we have jurisdiction to

consider it. McKenney,

.

In evaluating an officer's assertion of a qualified

immunity defense in a § 1983 action, we ask whether the officer

violated the plaintiff's federal statutory or constitutional

rights and whether the unlawfulness of the officer's conduct was

clearly established at the time the officer acted. Bannon v.

Godin,

(1st Cir. 2024). To survive a qualified

immunity claim, the plaintiff must point to legal authority that

places the statutory or constitutional question beyond debate.

Ciarametaro v. City of Gloucester,

(1st Cir. 2023).

- 15 - Haskell and Dickey say it was not clearly established

that they violated Brown's Fourth Amendment rights by observing

her naked body because there is no proof that they conducted a

"search."3 They emphasize that it is undisputed that they did not

touch Brown, did not take steps to require Brown to expose herself,

and were not present in the hospital room to collect evidence of

a crime.

This argument is premised on too narrow a construction

of the clearly established law defining a search. "A Fourth

Amendment search occurs when the government infringes 'an

expectation of privacy that society is prepared to consider

reasonable.'" Boroian v. Mueller,

(1st Cir. 2010)

(quoting United States v. Jacobsen,

(1984)). We

have previously held that a strip search can violate the Fourth

Amendment because of the serious privacy "intrusion [that] stems

from exposing one's naked body to official scrutiny." Wood v.

Hancock Cnty. Sheriff's Dep't,

(1st Cir. 2003).

We have defined a strip search broadly to encompass "an inspection

of a naked individual, without any scrutiny of the subject's body

cavities."

(quoting Blackburn v. Snow,

(1st

Cir. 1986)). Crucially, there is no requirement that the officer

3 In the circumstances presented here, there was obviously no seizure, which is another way that an officer's conduct could trigger Fourth Amendment scrutiny.

- 16 - in question "set out deliberately to inspect a prisoner's naked

body."

This understanding of the definition of a search is

strengthened by our statement in Cookish that even regular

observations of "personal activities, such as undressing,

showering, and using the toilet" could amount to a Fourth Amendment

violation under certain circumstances in the prison context.

Cookish, 945 F.3d at 446.

Thus, a search under the Fourth Amendment does not

require Haskell or Dickey to have touched Brown, caused Brown to

have exposed herself, or be present for the purpose of collecting

evidence of a crime. A search occurs when a jail official inspects

an incarcerated individual's naked body, regardless of whether the

official set out to do so. Wood,

. If Haskell or

Dickey inspected Brown's naked body in the hospital room, such an

observation would constitute a search triggering Fourth Amendment

scrutiny. Cookish provides the standard for determining whether

that search was unlawful.

* * *

For the reasons discussed, we dismiss this appeal in

part for a lack of appellate jurisdiction and otherwise affirm the

district court's denial of summary judgment.

- 17 -