Leverette v. Bell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CARMEN LEVERETTE, 
Plaintiff-Appellee,
v.
MARGARET BELL, in her individual
capacity,
Defendant-Appellant,  No. 00-1407
and
SOUTH CAROLINA DEPARTMENT OF
CORRECTIONS,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry Jr., Senior District Judge.
(CA-99-501-3)
Argued: December 8, 2000
Decided: April 13, 2001
Before WILKINSON, Chief Judge, and WILKINS and
KING, Circuit Judges.
Reversed and remanded by published opinion. Judge King wrote the
opinion, in which Chief Judge Wilkinson and Judge Wilkins joined.
COUNSEL
ARGUED: Vance Earle Drawdy, HAYNSWORTH, BALDWIN,
JOHNSON & GREAVES, L.L.C., Greenville, South Carolina, for
2 LEVERETTE v. BELL
Appellant. James Lewis Cromer, CROMER & MABRY, Columbia,
South Carolina, for Appellee. ON BRIEF: Scott Timothy Justice,
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, L.L.C.,
Columbia, South Carolina, for Appellant. Edward C. Boggs, CRO-
MER & MABRY, Columbia, South Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Plaintiff Carmen Leverette, an employee of South Carolina’s
Wateree River Correctional Institution ("WRCI"), brought this suit
against Margaret Bell, the Associate Warden of WRCI, alleging that
Bell had violated her Fourth Amendment right against unreasonable
searches and seizures by conducting a visual body cavity search of
Leverette’s person. Leverette seeks damages pursuant to 42 U.S.C.
§ 1983. Along with her § 1983 claim, Leverette advanced a common-
law negligence claim against the South Carolina Department of Cor-
rections ("SCDC"). Upon the defendants’ motion for summary judg-
ment, the district court rejected Bell’s assertion of qualified
immunity, and that assertion is the sole issue before us in this inter-
locutory appeal. Because we conclude that the challenged search was
constitutionally permissible, we reverse the denial of summary judg-
ment and remand so that judgment may be entered in Bell’s favor.
I.
A.
Leverette was hired by SCDC as a correctional officer in December
1990, and she transferred to the WRCI facility in 1992. In April 1998,
she was promoted from correctional officer to program assistant, a
non-uniformed position that she continues to occupy. Prior to her pro-
motion, Leverette had been subjected to two strip searches, both of
which were authorized by John Carmichael, Warden of WRCI, pursu-
ant to the prison’s efforts to interdict drugs and other contraband. The
first such search was conducted in 1996, after an SCDC drug dog
reacted to scents in Leverette’s vehicle during a random search of all
LEVERETTE v. BELL 3
vehicles entering WRCI; that search, consisting of a strip, squat, and
cough, was conducted by Bell and two female correctional officers
and yielded no contraband. The second search, a visual body cavity
search of Leverette, was carried out at WRCI on February 4, 1998,
and is the subject of this lawsuit.
On February 2, 1998, a WRCI inmate informed Bell that some of
the other prisoners had schemed to buy marijuana "on the street," and
that Leverette was planning to smuggle the marijuana into the prison
by concealing it in a tampon. The inmate-informant, whose identity
has not been disclosed, had on prior occasions provided accurate tips
to the Sumter County Drug Task Force and to SCDC Internal Affairs.
Based on information obtained in a meeting Bell attended with mem-
bers of the Drug Task Force and Internal Affairs, she believed the
inmate’s information concerning Leverette to be reliable.
That evening, Bell called her supervisor, Warden Carmichael, to
relay the information obtained from the inmate’s tip. After the call,
but prior to Leverette’s scheduled return to work on February 4, Bell
and Carmichael met to discuss the tip. In the course of their discus-
sion, Carmichael directed Bell to conduct a strip search of Leverette
upon the latter’s arrival at work on February 4. Bell recalled raising
the possibility that Leverette would be wearing a tampon and suggest-
ing that a female medical professional be present, in light of the "per-
sonal" nature of the examination. J.A. 421. Bell further testified that
no specific decision was made at that time as to what procedures to
follow if a tampon were discovered.
Bell and Carmichael reconvened on the morning of February 4, in
order to finalize the logistics and procedures of the search. It was then
determined that the search of Leverette would be conducted in Bell’s
office and that a female nurse supervisor would be present, along with
two female correctional officers. When Leverette arrived at WRCI to
work, she was accompanied to Bell’s office and advised by Carmich-
ael that the prison had received a tip that she was carrying contraband.
Before leaving the office, Carmichael stated, "[Y]ou know the proce-
dure on this. We are going to have to do a strip search." J.A. 146-47.
Shortly after Leverette was so advised by Carmichael, the female
correctional officers were beckoned to Bell’s office to conduct the
4 LEVERETTE v. BELL
search. After the warden departed, the office door was closed, the
blinds were drawn shut, and Leverette began to disrobe. Bell and the
officers first searched Leverette’s clothing and lunch container, but
they detected nothing. Leverette testified that once her clothing and
lunch container had been searched, she was told that they were wait-
ing for the nurse because, Bell stated, "[W]e are going to do a body
cavity search." J.A. 149. Still naked, Leverette was seated for four or
five minutes until the nurse arrived.
In her deposition, Leverette described the activities that ensued:
I stand up and they are surround[ing] me, [the nurse] and
Ms. Bell, and they are not saying anything, but I know she
said body cavity search. So I kind of like bend over and they
are looking. And Ms. Bell said she can’t see, so I bend over
a little more, and she stated she couldn’t see again. So I
bend over a little more, and the third time she says she
couldn’t see, so I just bent all the way down and put my
hand on the floor so she could see. And after that they are
there.
So after I bent over I went to sit down. So they are bent
down. [The nurse] she is bent down. I am opening my legs
and she is looking in my vagina and Ms. Bell said they
couldn’t see. So I opened my legs again and Ms. Bell said
she couldn’t see. So I opened them a third time and opened
them as far as I could get them. I said, "Ms. Bell, how far
do you want me to open them?" and after that they looked,
and then [the nurse] looked up at Ms. Bell and just like nod
her head like everything was okay, and that was it.
J.A. 150.
After getting dressed, Leverette asked who the informant was; Bell
replied that it was an inmate but declined to reveal the informant’s
name. Bell then left the office briefly, returning "with a consent to be
strip searched and a consent to be frisk searched." J.A. 151. Leverette
recalled signing the frisk search area of the form; when it was noticed
that the wrong section had been signed, Leverette complied with
Bell’s request that she complete a written strip search consent.
LEVERETTE v. BELL 5
Although Leverette requested a copy of the signed consent form, she
apparently never received one.
B.
In February 1999, Leverette brought suit in the District of South
Carolina against Bell, in her individual capacity, for violating Lev-
erette’s constitutional rights under the Fourth Amendment, and
against SCDC, for negligence.1 Following extensive discovery, the
defendants filed a motion for summary judgment on all of Leverette’s
claims. Leverette assented to the voluntary dismissal, without preju-
dice, of her negligence claim, leaving only her § 1983 claim against
Bell. Bell moved for summary judgment solely on the basis of quali-
fied immunity. After hearing argument on the immunity issue, the dis-
trict court denied Bell’s motion for summary judgment, and Bell
timely filed this interlocutory appeal. We possess jurisdiction over
this appeal pursuant to the collateral order doctrine. See Winfield v.
Bass, 106 F.3d 525, 528-29 (4th Cir. 1997) (en banc) ("To the extent
that an order of a district court rejecting a governmental official’s
qualified immunity defense turns on a question of law, it is a final
decision within the meaning of § 1291 under the collateral order doc-
trine[.]") (citing Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985)
(other citations omitted)).
II.
We review de novo a district court’s denial of summary judgment.
Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994). Where, as here, the
district court did not fully set forth the facts supporting its legal con-
clusion denying qualified immunity, we must review the materials
submitted to the district court to determine what the record disclosed,
viewing the facts in the light most favorable to the non-moving party.
See Winfield, 106 F.3d at 533.
Before evaluating the merits of Bell’s qualified immunity defense,
we must establish her official status, i.e., whether she conducted the
1
The negligence claim focused primarily on SCDC’s failure to observe
its own procedural protections regarding employee strip searches. See
infra Part III.
6 LEVERETTE v. BELL
challenged search while acting within the scope of her authority as
Associate Warden of WRCI. See In re Allen, 106 F.3d 582 (4th Cir.
1997). Although Leverette insists that, under Allen, Bell’s actions in
conducting the search were outside of the scope of her authority, we
find this argument unpersuasive.
Allen instructs that "an official may claim qualified immunity as
long as his actions are not clearly established to be beyond the bound-
aries of his discretionary authority." Id. at 593. The relevant consider-
ation under Allen, though, is not whether the official’s actions were
a proper, or even legal, exercise of her discretionary authority. See id.
at 594 ("If these were the relevant inquiries, any illegal action would,
by definition, fall outside the scope of an official’s authority. To
equate ‘the question of whether the defendants acted lawfully with the
question of whether they acted within the scope of their discretion’ is
‘untenable.’") (quoting Sims v. Metro. Dade Co., 972 F.2d 1230, 1236
(11th Cir. 1992)) (internal citations omitted). Rather, we must ask
whether a reasonable official in Bell’s position should have known
that the conduct was clearly established to be beyond the scope of her
authority. Id.
As Leverette correctly observes, we have on occasion sought guid-
ance from statutes and regulations in delineating the "outer perimeter"
of an official’s discretionary authority. See Appellee’s Br., at 20-21
(citing Allen, 106 F.3d at 595).2 While formal sources are instructive,
a defendant does not lose official status for purposes of qualified
immunity analysis simply by failing to adhere to an agency’s stated
policies. Leverette urges us to treat Bell’s alleged reference to the
"body cavity search" — as well as her testimony that having Leverette
squat and cough was "still within policy" — as probative of her
2
In Allen, we denied an immunity defense to the Attorney General of
West Virginia, who had allegedly directed that an entity be incorporated
in order to prevent an out-of-state organization from incorporating in
West Virginia by the same name. Looking to West Virginia statutory
provisions defining the responsibilities vested in the Attorney General,
we concluded that the defendant could not reasonably have considered
the incorporation of fictitious entities to fall within his carefully circum-
scribed authority. As such, he was acting not as the Attorney General,
but as a private individual. See 106 F.3d at 598.
LEVERETTE v. BELL 7
knowledge that the search transgressed SCDC Policy 1500.11. That
policy provides for strip searches of SCDC employees only if justified
by "specific objective facts" and conducted according to its proce-
dural guidelines. See J.A. 615. It explicitly states, however, that
employees "will not be subjected to body cavity searches." J.A. 611.
The parties disagree as to the proper classification of the search
that occurred in this case. While it appears to have been more inva-
sive than a standard strip search — requiring the subject to disrobe,
squat, and cough — it also does not qualify as a true body cavity search.3
Thus, it is not clear that Bell engaged in conduct specifically pre-
cluded by SCDC policy. Moreover, to the extent that the search did
not conform to SCDC procedures — for example, the inmate’s tip
was not "reduced to writing prior to or immediately subsequent to the
approving authority’s decision" — we are not inclined to regard such
nonconformance as sufficient to take Bell’s conduct beyond the
"outer perimeter" of her discretionary authority. In the context of an
Allen analysis, an official’s responsibilities are to be defined expan-
sively. See, e.g., Harbert Int’l v. James, 157 F.3d 1271, 1282-83 (11th
Cir. 1998) (noting that the inquiry must be "properly defined," look-
ing at the general class of conduct, e.g., transporting and delivering
prisoners, rather than the specific unlawful conduct alleged, e.g.,
improperly transferring prisoners or placing them in inadequate facili-
ties). To regard noncompliance with internal policies as necessarily
removing an official from the realm of immunity would, in effect,
erode that crucial defense. See Allen, 106 F.3d at 594. There is no
3
Courts examining the constitutionality of physically intrusive searches
have distinguished between strip searches, visual body cavity searches,
and manual body cavity searches. A "visual body cavity search" requires
the searched individual to expose her anal and vaginal cavities for visual
inspection, whereas a "manual body cavity search" typically involves
digital touching or probing by another person. See, e.g., Blackburn v.
Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985). The SCDC policy proscrib-
ing employee body cavity searches does not, however, specify the scope
of such prohibition. Elsewhere, the SCDC policy governing inmate
searches contemplates manual searches. Even if, as Leverette empha-
sizes, the policy governing inmate searches is inadmissible, it does sug-
gest that there was at least a factual question as to whether the
prohibition contained in Policy 1500.11 extended to visual body cavity
searches.
8 LEVERETTE v. BELL
question that assistant wardens of correctional facilities routinely
supervise searches — including strip searches and even, under some
circumstances, body cavity searches — and, thus, that Bell was acting
within the scope of her authority for Allen purposes.
III.
Under our Allen decision, Bell, as Associate Warden of WRCI, is
clearly entitled to assert the defense of qualified immunity. Whether
the defense is valid in Bell’s case, however, requires us to conduct a
two-step, sequential analysis. Initially, we must determine de novo
whether the facts, viewed in the light most favorable to Leverette,
establish the deprivation of an actual constitutional right. See Hartley
v. Parnell, 193 F.3d 1263, 1268 (4th Cir. 1999) (citing Wilson v.
Layne, 526 U.S. 603, 609 (1999)). If so, we proceed to consider
whether that right was clearly established at the time of the purported
violation. Id.4
Leverette maintains that the February 1998 search constituted a
deprivation of her Fourth Amendment right against unreasonable
searches and seizures, and that a reasonable officer in Bell’s position
would have known that her conduct violated a "clearly established"
right. To support this position, Leverette relies primarily on SCDC’s
explicit policy against subjecting employees to body cavity searches.
Bell denies that she conducted a "body cavity search" as prohibited
by SCDC policy. In any case, she contends that the search was rea-
sonable, and that, even if ultimately ruled unconstitutional, the law
was not "clearly established" at the time of the search. We agree with
Bell, and we conclude that the search, as conducted, was reasonable
and consistent with Leverette’s Fourth Amendment rights.
4
The applicable authorities dictate that we analyze the constitutionality
of the challenged search before addressing whether the law was "clearly
established." Thus, we cannot bypass, and thereby evade, a constitutional
determination wherever the law is uncharted or ambiguous. See Milstead
v. Kibler, No. 00-1539, 2001 WL 256045, *3 (4th Cir. March 15, 2001)
("Were courts to rule on qualified immunity without determining the
constitutionality of the challenged conduct, ‘standards of official conduct
would tend to remain uncertain, to the detriment both of officials and
individuals.’") (quoting County of Sacramento v. Lewis, 523 U.S. 833,
844 n.5 (1998)).
LEVERETTE v. BELL 9
In analyzing the reasonableness of a physically intrusive search, we
must balance the government’s need for the particular search against
the invasion of personal rights entailed by the search. See Bell v.
Wolfish, 441 U.S. 520, 559 (1979)). More specifically, we must eval-
uate "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." Id. at 559.
Although the parties quarrel as to the proper definition of the con-
tested search — Bell resisting Leverette’s contention that it consti-
tuted a "body cavity search," as specifically prohibited by SCDC
policy — the reasonableness of the search cannot rest on semantics.
Leverette has essentially conceded that a routine strip search would
have been proper. See Appellee’s Br., at 18 ("Had Bell simply asked
Leverette to remove her clothing, squat and cough[,] this lawsuit may
never have happened."). Instead, Leverette was allegedly told that a
body cavity search was to be conducted and was encouraged to
expose her anal and vaginal cavities for visual inspection. Whether
this search constituted a "body cavity search," specifically prohibited
by SCDC Policy, it appears in any event to have deviated from
SCDC’s strip search procedures. See SCDC Policy 2100.3-23, J.A.
615. That discrepancy does not, however, necessarily render the
search constitutionally unreasonable.
While this court has not addressed the standard applicable to the
authorization of visual body cavity searches on prison employees, our
decision is informed by the Supreme Court’s decision in Bell v. Wolf-
ish, along with relevant decisions of our sister circuits. In Bell v.
Wolfish, the Court upheld a prison’s practice of conducting visual
body cavity searches on inmates following every contact visit — that
is, absent individualized suspicion. 441 U.S. at 560. Emphasizing the
"unique" security concerns present in the prison context, the Court
concluded that, "[b]alancing the significant and legitimate security
interests of the institution against the privacy interests of the inmates,"
visual body cavity inspections may be conducted on inmates on less
than probable cause. Id.
The Court’s decision in Bell v. Wolfish made clear that the "unique
security dangers" present in correctional facilities may justify even
the most intrusive searches, and its conclusion also reflects, inter alia,
10 LEVERETTE v. BELL
the severely abridged privacy interests of prisoners. Thus, it leaves
unresolved the circumstances and standards under which prison visi-
tors and employees may be subjected to strip and body cavity
searches. Several of our sister circuits, however, have examined
issues concerning the privacy rights of prison visitors and employees,
concluding that prison authorities must have at least a reasonable sus-
picion that the individual is bearing contraband before conducting an
invasive search. See, e.g., Spear v. Sowders, 71 F.3d 626, 630 (6th
Cir. 1995) (regarding as "clearly established" the requirement that
officials have reasonable suspicion before conducting strip or body
cavity search of visitors, although authorities "need not secure a war-
rant or have probable cause"); Blackburn v. Snow, 771 F.2d 556, 562
(1st Cir. 1985) ("[A] rule requiring all prison visitors to submit to a
body cavity strip search, without any predicate requirement of indi-
vidualized suspicion or showing of special and highly unusual institu-
tional need, cannot satisfy the Fourth Amendment."); Thorne v. Jones,
765 F.2d 1270, 1276 (5th Cir. 1985) (applying reasonable suspicion
standard to strip searches of prison visitors); cf. Sec. & Law Enforce-
ment Employees v. Carey, 737 F.2d 187, 204, 208 (2d Cir. 1984)
(adopting reasonable suspicion standard for strip searches of correc-
tional officers, but holding that a search warrant must be obtained
before conducting a visual body cavity search).
We recognize that a prison employee such as Leverette does not
forfeit all privacy rights when she accepts employment. Her expecta-
tions of privacy are, however, diminished in light of the prison’s man-
ifest interest in preventing the introduction of drugs, weapons, and
other contraband. See Sec. & Law Enforcement Employees, 737 F.2d
at 204. We consequently must reject Leverette’s contention that this
search was constitutionally impermissible. Instead, we conclude that
prison authorities generally may conduct a visual body cavity search
when they possess a reasonable and individualized suspicion that an
employee is hiding contraband on his or her person. Our position on
this point is bolstered by our sister circuits’ decisions applying the
reasonable suspicion standard to searches of prison visitors. See, e.g.,
Spear, 71 F.3d at 630; see also Sec. & Law Enforcement Employees,
737 F.2d at 204 (cataloguing the "significant parallels between visi-
tors to correctional facilities and correction officers who work in
them").
LEVERETTE v. BELL 11
We emphasize that reasonable suspicion is the minimum require-
ment, and point out that the more personal and invasive the search
activities of the authorities become, the more particularized and indi-
vidualized the articulated supporting information must be. In this
instance, we are satisfied that the supporting information was more
than adequate. The information was particularized and individualized,
i.e., that Leverette was bringing contraband into the prison in a tam-
pon on a specific occasion. See, e.g., Hunter v. Auger, 672 F.2d 668,
675 (8th Cir. 1982) (requiring, under reasonable suspicion standard,
"individualized suspicion, specifically directed to the person targeted
for the strip search" and "reasonable cause to believe that drugs or
other contraband are concealed in the particular place they decide to
search"). It also bore indicia of reliability, i.e., the inmate-informant
had provided accurate drug-related tips in the past. See, e.g., Spear,
71 F.3d at 631 (reasonable suspicion satisfied where inmate-
informant "had provided accurate and important information on at
least one prior occasion").5 Additionally, the decisionmaking process
in this matter was entirely orderly and reasonable; Bell evaluated the
information and consulted with her supervisor, Warden Carmichael,
as to the proper handling of this difficult matter. Finally, the search
itself, although exceedingly personal in nature, was administered in
a sensitive and professional manner. The officials involved were all
female, the search activity was conducted in a private setting, and it
was handled with dispatch. See generally Bell, 441 U.S. at 559
(requiring courts to evaluate the manner in which a strip search or
body cavity search is conducted); also Amaechi v. West, 237 F.3d
356, 364 (4th Cir. 2001) ("[W]e have repeatedly emphasized the
necessity of conducting a strip search in private."); Justice v. City of
5
As courts have observed elsewhere, an informant’s status as a con-
victed felon does not necessarily impugn his reliability. See Spear, 71
F.3d at 631 n.3 ("[Plaintiff] makes much of the fact that the confidential
informant was a convicted felon. However, a criminal conviction is a
prerequisite for the role of prison informant."). Nor does the fact that no
drugs were ultimately detected indicate the absence of reasonable suspi-
cion; the reliability of a tip must not be evaluated in hindsight, but must
be viewed at the time the search becomes necessary. See, e.g., Lindsey
v. Storey, 936 F.2d 554, 559 (11th Cir. 1991) ("[M]ore is required than
a mere hindsight determination of whether reasonable suspicion existed
at the time of the seizure[.]").
12 LEVERETTE v. BELL
Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992) (regarding the sex
of the officers conducting a strip search as a relevant factor in evaluat-
ing its intrusiveness).
Leverette also emphasizes that Bell failed to comply with SCDC’s
internal policies regarding employee searches. Beyond the challenged
physical intrusiveness of the search, Leverette objects that Bell waited
nineteen days to reduce to writing the specific facts justifying the
search, rather than recording them at the time the search was autho-
rized. Leverette further notes that her signed consent was not obtained
"until after the search was conducted, in clear contravention of SCDC
Policy 1500.11." Appellee’s Br., at 22. Once obtained, the consent
form was improperly filed, in violation of SCDC’s "standard operat-
ing procedure." Id.6
We find these contentions unavailing. That the search deviated
from SCDC’s formal policies and procedures does not render it unrea-
sonable under the Fourth Amendment. Even if SCDC’s policy against
conducting body cavity searches on employees was violated here,
such a violation does not in itself rise to constitutional dimensions.
IV.
Given our conclusion that no constitutional violation occurred, we
need not reach the second step of the Wilson v. Layne qualified immu-
nity analysis — that is, examining whether the law was "clearly estab-
lished" at the time of the challenged conduct. See supra note 4. Bell
was involved in a constitutionally permissible activity while acting in
the scope of her authority as Associate Warden of WRCI, and she is
therefore entitled to qualified immunity. Accordingly, we reverse the
district court’s order denying qualified immunity and remand for
entry of judgment in Bell’s favor.
REVERSED AND REMANDED
6
The validity and effect, if any, of Leverette’s written consent has not
been raised on appeal by either party and is not before us. Its existence
— and the manner and timing of its execution — is simply part of the
factual scenario underlying this case.