Harold Covert v. James Plummer

United States Court of Appeals
For the Eighth Circuit
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No. 23-1557
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Harold Moses Covert
Plaintiff - Appellee
v.
James Plummer, Captain (Originally named J Plummer); Mary Lloyd, Lieutenant
(Originally names M Lloyd); Laquista Swopes, Sergeant (Originally named L
Swopes)
Defendants - Appellants
Hampton, Sergeant
Defendant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: August 2, 2023
Filed: August 18, 2023
[Unpublished]
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Before LOKEN, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Prison guards searched Harold Covert’s cell right after he called a tipline to
report drug activity. Although their comments suggested the search was not a
coincidence, we reverse the denial of summary judgment because qualified
immunity applies. See Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en
banc) (reviewing a district court’s summary-judgment determination de novo).
Only when a right is clearly established do officers lose the protection of
qualified immunity. See id. For a right to meet that standard, it must have been
“clear,” to “a high degree of specificity,” that the officers’ actions were “unlawful in
the situation [they] confronted.” District of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018) (citations omitted).
Even assuming the officers violated Covert’s constitutional rights, “existing
precedent” did not place it “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). A First Amendment retaliation claim requires an “adverse action . . . that
would chill a person of ordinary firmness from continuing.” Molina v. City of St.
Louis, 59 F.4th 334, 338 (8th Cir. 2023) (alteration in original) (citation omitted).
There is no case or “robust consensus . . . of persuasive authority” that would have
put the officers on notice that a one-time cell search violated the First Amendment.
Wesby, 138 S. Ct. at 590 (citation omitted); cf. Scher v. Engelke, 943 F.2d 921, 923–
24 (8th Cir. 1991) (holding that ten retaliatory searches over nineteen days, three of
which “left the cell in disarray,” could be a violation). And it is far from “obvious,”
Wesby, 138 S. Ct. at 590 (citation omitted), that a single search would chill an
inmate’s speech to that degree. They are, after all, a routine part of prison life and
“essential” to security. Hudson v. Palmer, 468 U.S. 517, 529 (1984).
In short, the search was not clearly unconstitutional even if Covert’s call was
the reason for it. We accordingly reverse the district court and remand for the entry
of summary judgment.
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