Desmond Parker v. Marlin Gusman ( 2020 )


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  • Case: 19-30154       Document: 00515644829             Page: 1      Date Filed: 11/19/2020
    United States Court of Appeals
    for the Fifth Circuit                                    United States Court of Appeals
    Fifth Circuit
    FILED
    November 19, 2020
    No. 19-30154
    Lyle W. Cayce
    Clerk
    Desmond C. Parker,
    Plaintiff—Appellant,
    versus
    O. Woods, Deputy; Doctor Nguyen; Correct Care
    Solutions, L.L.C.; Shontrell Cooper; D. Tapp, Deputy;
    D. Harris, Deputy,
    Defendants—Appellees.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:16-CV-1609
    Before Stewart, Duncan, and Wilson, Circuit Judges.
    Per Curiam:*
    Desmond C. Parker, a Louisiana state inmate, filed a pro se and in
    forma pauperis federal lawsuit under 
    42 U.S.C. § 1983
     against several
    defendants, alleging various abuses that occurred during his pretrial
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited circumstances set
    forth in 5th Circuit Rule 47.5.4.
    Case: 19-30154        Document: 00515644829              Page: 2       Date Filed: 11/19/2020
    No. 19-30154
    detention and later imprisonment. The district court granted summary
    judgment dismissing all of Parker’s claims. We AFFIRM.
    I.
    Parker’s claims arose from three separate incidents. He alleges that
    during his pretrial detention, he was denied adequate medical care for a
    fractured ankle and that his personal property, including legal papers, was
    lost. In addition, Parker alleges his rights were violated during a strip and
    visual body cavity search that took place in jail following his conviction. 1
    Parker named as defendants Sheriff Marlin N. Gusman; Correct Care
    Solutions, LLC (“CCS”); Dr. Xuong Nguyen, who treated his ankle injury;
    Deputy Octave Woods, who performed the strip search; Deputies Daniel
    Tapp and Deshaune Harris, who were both present during the strip search;
    and Shontrell Cooper, a grievance clerk at the facility where Parker was
    incarcerated.
    Adopting the magistrate judge’s report, the district court dismissed
    the claims against CCS and Dr. Nguyen, concluding Parker’s allegations of
    deficient care did not state a constitutional violation. It dismissed Parker’s
    intentional deprivation of property claim without prejudice, pointing out that
    Louisiana provides an adequate post-deprivation remedy. See DeMarco v.
    Davis, 
    914 F.3d 383
    , 387 (5th Cir. 2019); Marshall v. Norwood, 
    741 F.2d 761
    ,
    764 (5th Cir. 1984). 2 The court also granted summary judgment to Cooper,
    1
    Parker also alleged that he and another inmate were deprived of water and access
    to a bathroom while in a holding cell. Parker does not mention this claim on appeal and has
    therefore abandoned it. Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, LLC, 
    637 F.3d 604
    , 610 (5th Cir. 2011).
    2
    The court noted that, to the extent Parker alleged a negligent deprivation of his
    property, this claim was not actionable under § 1983. See Daniels v. Williams, 
    474 U.S. 327
    ,
    328 (1986).
    2
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    the grievance clerk, finding no evidence she was personally involved in
    providing Parker medical care. Finally, the court concluded Deputy Woods’
    search of Parker did not violate the Constitution and therefore dismissed the
    claims against Deputies Woods, Tapp, and Harris.
    Because the only colorable issue before us concerns the strip and body
    cavity search, we provide additional detail on that claim. The incident took
    place at the Orleans Justice Center, where Parker was housed. When a
    syringe went missing from the jail nurse’s medical cart, officers conducted a
    “shakedown” or systematic search of all inmates. Deputy Woods searched
    Parker in a shower area, while only Deputies Tapp and Harris were present.
    After undressing, Parker was initially asked to squat and cough. When that
    procedure did not appear to work, however, Parker claims Deputy Woods
    pushed him over a chair and manually spread Parker’s buttocks. Parker
    jumped away and asserted Deputy Woods could not touch him in that
    manner. Parker stated that all the deputies laughed, and that Deputy Woods
    “was staring at [Parker’s] penis and smiling.”
    The district court ruled the search did not violate the Constitution. It
    began by explaining it was uncontested that Deputy Woods was permitted to
    search Parker because the officers had legitimate security interests in finding
    the missing syringe. The court thus construed Parker’s claim as turning on
    how Deputy Woods searched him, specifically by: (1) touching Parker’s
    buttocks and (2) staring at his genitalia and smiling. While noting that “body
    cavity searches are normally conducted only visually with the prisoner
    manipulating his own body parts,” the court reasoned the mere fact that this
    search involved physical contact did not transform it into a per se
    constitutional violation. Relying on Eighth Amendment precedents, the
    court also stated that “fleeting and isolated” or “de minimis” touching would
    not violate the constitution even if “clearly inappropriate and sexual in
    nature.” For similar reasons, the court held that Deputy Woods’s “lesser
    3
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    action” of smiling at Parker’s genitalia was also not actionable “even if
    . . . intended to humiliate [Parker].” The court therefore granted summary
    judgment to Deputy Woods. Given the claims against Deputies Tapp and
    Harris turned on their alleged failure to protect Parker from Deputy Woods’s
    unconstitutional actions, those claims were dismissed as frivolous. Parker
    timely appealed.
    II.
    We review a summary judgment de novo. Renwick v. PNK Lake
    Charles, LLC, 
    901 F.3d 605
    , 611 (5th Cir. 2018). Summary judgment is
    appropriate if there is “no genuine dispute as to any material fact,” Fed. R.
    Civ. P. 56(a), but cannot stand if “the evidence is such that a reasonable
    jury could return a verdict for the nonmoving party.” Anderson v. Liberty
    Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    III.
    Parker asks for reversal, not only as to his strip-search claim but also
    as to his claims concerning medical care and lost property. We need not pause
    long over the latter two claims. As to those, Parker makes no colorable
    argument that the district court erred in granting summary judgment.
    Accordingly, we summarily affirm the judgment as to those claims. See 5th
    Cir. R. 47.6. Only one issue merits further inspection: whether the district
    court erred by granting summary judgment on the strip-search claim to
    Deputy Wood (and, so, also to Deputies Tapp and Harris). The court’s
    conclusion was correct but its analysis needs adjustment.
    In analyzing Parker’s strip-search claim, the court blended distinct
    Fourth and Eighth Amendment frameworks. The court began, properly, by
    assessing the reasonableness of the search, but then proceeded to evaluate
    whether the unwelcome contact was “de minimis,” citing cases addressing
    the Eighth Amendment. For instance, the court relied on Copeland v. Nunan,
    4
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    No. 19-30154
    No. 00-20063, 
    2001 WL 274738
    , at *2–3 (5th Cir. Feb. 21, 2001)
    (unpublished), involving a prisoner’s Eighth Amendment claim that he had
    been fondled by a prison pharmacist. Our opinion distinguished “violent
    sexual assaults involving more than de minimis force[,which] are actionable
    under the Eighth Amendment,” from claims involving “isolated, unwanted
    touchings by prison officials,” which may be “despicable” but nonetheless
    not actionable under the Eighth Amendment. 
    Id.
     at *3 (citing Schwenk v.
    Hartford, 
    204 F.3d 1187
    , 1195, 1197 (9th Cir. 2000); Boddie v. Schneider, 
    105 F.3d 857
    , 860–61 (2d Cir. 1997)). We recognize that Parker’s pro se complaint
    characterizes the strip-search as a sexual assault. On a liberal reading,
    however, we take Parker to allege an unreasonable search that sounds under
    the Fourth Amendment, which provides the proper analysis under our
    precedent for challenges to prison searches. See, e.g., Moore v. Carwell, 
    168 F.3d 234
    , 237 (5th Cir. 1999) (citing Elliott v. Lynn, 
    38 F.3d 188
    , 191 n.3 (5th
    Cir. 1994)); see also Elliot, 
    38 F.3d at
    190–91 (evaluating constitutionality of a
    “visual body cavity search[]” under the Fourth Amendment) (citing Bell v.
    Wolfish, 
    441 U.S. 520
    , 558 (1979)).
    “The Fourth Amendment . . . requires that ‘searches or seizures
    conducted on prisoners must be reasonable under all facts and circumstances
    in which they are performed.’” Elliott, 
    38 F.3d at 191
     (quoting United States
    v. Lilly, 
    576 F.2d 1240
    , 1244 (5th Cir. 1978)). Courts “must balance the need
    for the particular search against the invasion of the prisoner’s personal rights
    caused by the search . . . consider[ing] the ‘scope of the particular intrusion,
    the manner in which it is conducted, the justification for initiating it, and the
    place in which it is conducted.’” Moore, 
    168 F.3d at 237
     (quoting Bell, 
    441 U.S. at 559
    ). Proving the reasonableness of an inmate search, however,
    imposes only a “light burden” on prison officials, “[b]ecause a prison
    administrator’s decisions and actions in the prison context are entitled to
    great deference from the courts.” Elliot, 
    38 F.3d at
    191 (citing Lilly, 
    576 F.2d
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    at 1245); see also Hay v. Waldron, 
    834 F.2d 481
    , 486 (5th Cir. 1987) (courts
    “ordinarily should defer” to prison officials, “[i]f a policy is reasonably
    related to legitimate security objectives and there is no substantial evidence
    to indicate that prison officials have exaggerated their response to security
    considerations”). Ultimately, courts must “strik[e] a balance ‘in favor of
    deference to prison authorities’ views of institutional safety requirements
    against the admittedly legitimate claims of inmates not to be searched in a
    humiliating and degrading manner.’” Elliot, 
    38 F.3d at 191
     (quoting Watt v.
    City of Richardson Police Dep’t, 
    849 F.3d 195
    , 196 (5th Cir. 1988)).
    This is not the first time our court has applied these Fourth
    Amendment principles to the kind of search at issue here. “Under
    appropriate circumstances,” we have explained, “visual body cavity searches
    of prisoners can be constitutionally acceptable.” 
    Id.
     (citing Bell, 
    441 U.S. at 558
    )). We have considered factors such as whether the search was performed
    by guards of the opposite sex 3; whether it occurred in public or private 4; and
    whether it was unreasonably lengthy. 5 Further, the Supreme Court has
    advised that there “may be legitimate concerns about the invasiveness of
    searches that involve the touching of detainees.” Florence v. Bd. of Chosen
    3
    Compare Letcher v. Turner, 
    968 F.2d 508
    , 510 (5th Cir. 1992) (concluding the
    presence of female guards during a strip search does not render the search per se
    unconstitutional), with Moore, 
    168 F.3d at 237
     (holding a female guard’s strip and body
    cavity search of a male prisoner absent an emergency and when male officers were available
    could violate the Fourth Amendment).
    4
    See Elliott, 
    38 F.3d at 189
     (holding visual body cavity searches conducted en masse
    in non-private area were justified by an emergency situation created by increasing murders,
    violence, and the corresponding need to uncover and seize hidden weapons).
    5
    See McCreary v. Richardson, 
    738 F.3d 651
    , 659 (5th Cir. 2013) (stating the
    unnecessary length of a search “gives us pause,” but was not “clearly unlawful” for
    qualified immunity purposes)
    6
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    Freeholders of Cnty. of Burlington, 
    566 U.S. 318
    , 339 (2012). 6 Following
    Florence, some circuits have distinguished purely visual searches from those
    that involve varying degrees of physical touching or intrusion. 7
    Considering these principles, we find no error in the district court’s
    conclusion that the search here was reasonable. We note at the outset that
    Parker does not contest that the search was justified by the prison’s need to
    find the missing syringe. There is little doubt that it was. The Supreme Court
    has squarely recognized that prison officials have a “serious responsibility”
    to make sure inmates do not conceal such potentially lethal items on, or in,
    their bodies. Florence, 
    566 U.S. at 332
    ; see also 
    id.
     (“Correctional officers have
    had to confront arrestees concealing knives, scissors, razor blades, glass
    shards, and other prohibited items on their person, including in their body
    cavities.”); Bell, 
    441 U.S. at 559
     (observing that “[a] detention facility is a
    unique place fraught with serious security dangers,” including “[s]muggling
    6
    The Supreme Court in Florence upheld the constitutionality of a prison’s policy
    of visually searching detainees during the intake process but emphasized that the searches
    at issue did not “include any touching of unclothed areas by the inspecting officer.” 
    566 U.S. at 325
    .
    7
    See Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 
    962 F.3d 1204
    , 1234 n.28 (10th
    Cir. 2020) (distinguishing an officer’s touching of an inmate’s beard during an initial pat-
    down frisk from “the far-more-invasive touching of a detainee’s unclothed body as part of
    a strip search, especially as part of an inspection of body-cavities”); Brown v. Polk Cnty.,
    
    965 F.3d 534
    , 541 (7th Cir. 2020) (characterizing body cavity search involving physical
    contact as “an intrusion of privacy to the highest degree”); United States v. Fowlkes, 
    804 F.3d 954
    , 961 (9th Cir. 2015) (distinguishing between “visual cavity searches that do not
    require physical entry into a prisoner’s body” and “physical cavity searches”); Williams v.
    City of Cleveland, 
    771 F.3d 945
    , 953 (6th Cir. 2014) (distinguishing Florence because
    “[p]ublic exposure of the genitalia accompanied by physical touching is far more intrusive
    than directing an arrestee to remove her clothing in private for the purpose of ‘visually
    inspecting’”) (citation omitted); Cantley v. W. Va. Reg’l Jail and Corr. Facility Auth., 
    771 F.3d 201
    , 207 (4th Cir. 2014) (officers entitled to qualified immunity from Fourth
    Amendment claim when inmates were searched in a private room with one officer of the
    same sex and the officer did not touch either plaintiff).
    7
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    of money, drugs, weapons, and other contraband . . . by concealing them in
    body cavities”). Furthermore, Parker’s search was conducted in private and
    by an officer of the same sex. No officers of the opposite sex were present.
    Cf. Moore, 
    168 F.3d at 237
    . Moreover, nothing suggests that the search was
    unduly lengthy. Parker himself does not dispute that the search lasted for
    only about three minutes.
    All we are left with, then, is Parker’s reliance on evidence that Deputy
    Woods manually spread his buttocks and “smiled” at his exposed genitals.
    We cannot conclude that this evidence, standing alone, raises a material
    dispute as to whether the search was unreasonable. Even viewing the
    evidence most favorably to Parker, the touching involved was incident to a
    legitimate body cavity search. And, as explained, the search was a valid means
    of finding potentially lethal contraband that had gone missing. Parker himself
    does not contest the need for the search and does not argue the search was
    unduly prolonged. See, e.g., Moore, 
    168 F.3d at 237
     (in evaluating
    reasonableness of prisoner search, courts “‘must consider the scope of the
    particular intrusion, the manner in which it is conducted, the justification for
    initiating it, and the place in which it is conducted’”) (quoting Bell, 
    441 U.S. at 559
    ). Given the “great deference and flexibility” courts must afford prison
    officials in maintaining institutional security, Elliot, 
    38 F.3d at 191
    , we cannot
    say that the physical touching involved here renders the search
    unconstitutional.
    Nor do we find a material dispute as to whether the search was
    conducted in a “humiliating and degrading manner.” 
    Id.
     An instructive
    comparison comes from our decision in Hutchins v. McDaniels, 
    512 F.3d 193
    (5th Cir. 2007) (per curiam), in which we held the plaintiff’s Fourth
    Amendment claim arising out of a prison search was not frivolous. 
    Id. at 196
    .
    There, an officer performed a search by ordering an inmate to remove his
    clothing and then to “step back, lift one leg up, hop on one foot, switch legs
    8
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    and go in the opposite direction for a total distance of about thirty feet,” all
    in view of other prisoners and a female guard. 
    Id. at 195
    . The plaintiff also
    alleged the officer was “wearing a ‘lewd smile.’” 
    Id.
     Parker’s search is
    nothing like the one in Hutchins. While the Hutchins search was arguably
    conducted in a manner calculated to humiliate the inmate in public and in
    view of other prisoners and a guard of the opposite sex, the search here was
    brief and performed in private by a guard of the same sex. Evidence that one
    guard “smiled” at Parker’s penis does not rise to the level of a “humiliating
    and degrading” search actionable under the Fourth Amendment. Elliott, 
    38 F.3d at 191
     (citation omitted).
    We therefore affirm the summary judgment as to Deputy Woods, and
    by necessary extension, as to Deputies Tapp and Harris.
    ***
    The judgment of the district court is AFFIRMED.
    9