Gilmore v. Ga. Dep't of Corr.

111 F.4th 1118

Clarissa GILMORE, Plaintiff-Appellant, v. GEORGIA DEPARTMENT OF CORRECTIONS, an agency of the State of Georgia, Commissioner, Georgia Department of Corrections, in his official capacity, Alberta W. Milton, individually and in her official capacity, Sabrini Carlene Lupo, individually and in her official capacity, Smith Sp Warden, in his official capacity as successor-in-interest, et al., Defendants-Appellees Douglas M. Williams, individually and in his official capacity, Defendant.

No. 23-10343

United States Court of Appeals, Eleventh Circuit

Filed: July 29, 2024

Appeal from the United States District Court for the Southern District of Georgia, D.C. Docket No. 6:18-cv-00115-RSB-CLR

Ashok Chandran, Arielle Humphries, NAACP Legal Defense Fund, New York, NY, Shania King, The Law Office of Shania King, LLC, Atlanta, GA, Christopher Eberhart Kemmitt, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, for Plaintiff-Appellant,

Angela Ellen Cusimano, Attorney General's Office, Atlanta, GA, Matthew Boyer, Alexia Roney, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants-Appellees.

John A. Freedman, Arnold & Porter Kaye Scholer, LLP, Washington, DC, for Amicus Curiae Southern Center for Human Rights.

Before Rosenbaum, Newsom, and Tjoflat, Circuit Judges.

Rosenbaum, Circuit Judge:

"There can be no doubt that a strip search is an invasion of personal rights of the first magnitude." Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). Indeed, the Seventh Circuit has described strip searches that involve inspection of the anal and genital areas as "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (citation and internal quotation marks omitted). And the Tenth and Eighth Circuits have recognized that a "strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience." Boren v. Deland, 958 F.2d 987, 988 n.1 (10th Cir. 1992) (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982)). So it's not surprising that the Supreme Court has said that this type of search "instinctively gives us the most pause." Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

This case involves a strip search of a civilian visiting a prison. When Plaintiff-Appellant Clarissa Gilmore was visiting her incarcerated husband, officers strip-searched her, leaving her "completely and utterly humiliated." During the search, an officer manipulated Gilmore's breasts, ordered her to "bend over," and "felt in between" her buttocks with a gloved hand. The officers did not inform Gilmore of the reasons for the search, and the search revealed no contraband.

Gilmore sued, claiming that the officers violated her Fourth Amendment right to be free from unreasonable searches and seizures. See U.S. Const. amend. IV. The district court granted summary judgment to the officers. In doing so, it found that the search did not violate clearly established law, so the officers were entitled to qualified immunity. We conclude that the officers' strip search violated Gilmore's constitutional rights. But a line of Supreme Court precedent authorizes blanket strip searches of prisoners for security reasons, and no Supreme Court or Eleventh Circuit precedent expressly prohibits blanket searches of prison visitors. And while our sister circuits have uniformly rejected suspicionless strip searches of prison visitors, our precedent precludes us from considering that precedent in the "clearly established" inquiry. So we must agree with the district court that the law was not "clearly established" when Gilmore's strip search occurred. Therefore, after careful consideration, and with the benefit of oral argument, we affirm the district court's grant of summary judgment.

I. BACKGROUND

A. Factual Background¹

Gilmore's then-husband was incarcerated at Smith State Prison in Glenville, Georgia. Gilmore visited him twice a month. On February 26, 2017, Gilmore arrived at the prison, as she had roughly fifty times before, and proceeded through the security screening. That meant going through three types of searches: a pat-down search, a metal-detector wand, and an electromagnetic-radiation body scan. During the security screening, Gilmore encountered at least four officers.

After Gilmore cleared the security screening, correctional officers escorted her to a second building, which contained the visitation room. Officer Sabrini Lupo assigned Gilmore to a visitation table, where her husband joined her, and their visit began. Officer Lupo and Lieutenant Milton remained present in the visitation room during the visit.

About thirty minutes into the visit, Gilmore noticed that Lieutenant Milton was staring at her. Gilmore stared back for "one to two minutes." In apparent response, Lieutenant Milton walked past Gilmore and returned to the front of the room, where she spoke to the other officers. Then, Lieutenant Milton left the visitation room to get Officer Christina Irizarry. When Lieutenant Milton returned, she told Gilmore to go with her.

Lieutenant Milton and Officer Irizarry took Gilmore into an empty bathroom and handed her a strip-search approval form. That form was blank and lacked approval signatures from prison officials. Gilmore asked why the officers were going to search her, but Lieutenant Milton refused to tell her. Gilmore also asked if she could speak with Lieutenant Milton's supervisor, but Lieutenant Milton responded that she was the officer in charge that day.

The officers insisted that Gilmore sign the strip-search approval form. If she didn't, they said, Gilmore would be sent to jail and would be unable to visit her husband at the prison again. Not only that, Lieutenant Milton told her, the officers would "search [her] anyway." Gilmore "didn't feel like [she] had an option," so she signed the form.

After Gilmore signed the form, Lieutenant Milton instructed her to remove her clothes, including her bra and underwear. Gilmore complied. Officer Irizarry examined Gilmore's clothing for contraband but found nothing. When Officer Irizarry finished, at Lieutenant Milton's direction, she manually searched Gilmore.

Officer Irizarry manipulated Gilmore's breasts, lifting each breast and looking underneath it. Lieutenant Milton then ordered Gilmore to "[t]urn around," "bend over," and "open [her] butt cheeks." Gilmore did so, and Officer Irizarry "felt in between" Gilmore's buttocks with her gloved hand. The officers also instructed Gilmore to spread her vagina, which they visually inspected. Finding no contraband, the officers told Gilmore to put her clothes back on and permitted her to resume her visit.

Officer Irizarry led Gilmore back to the visitation room and told Gilmore that she was "so sorry." Although Gilmore stayed until visitation ended, she and her husband were upset and "tearing up," and they barely spoke. Gilmore left the prison and cried through the drive home.

Two days later, Gilmore called Deputy Warden Tamarshe Smith to complain and ask why she had been searched. Deputy Warden Smith seemed unaware of the incident. He told Gilmore that he would look into it and call her back. A few days later, Gilmore spoke to Deputy Warden Smith again. During this second call, Deputy Warden Smith apologized and "said that he did not see anything on the video" footage of the visitation room "that would warrant a strip search." Deputy Warden Smith denies that this second call occurred.

At her deposition, Officer Lupo claimed that during Gilmore's visit to the prison, Officer Lupo smelled marijuana on Gilmore and shared her observation with Lieutenant Milton. Officer Lupo also testified that she found it suspicious that Gilmore was staring at her and Lieutenant Milton. But Lieutenant Milton and Officer Irizarry's witness statements, which they made the same day as the incident, did not mention any marijuana odor or suspicious eye contact. Nor did the strip-search approval form, which stated only that Gilmore was "[u]nder suspicion for carrying contraband." And Gilmore denies consuming, possessing, or smelling like marijuana at any point before or during her visit. Gilmore also denies staring at Officer Lupo during her visit.

As for Lieutenant Milton, she testified that she called Defendant Deputy Smith before conducting the search, and Smith gave her verbal approval.² But Lieutenant Milton's contemporaneously sworn statement contains no reference to any such call. And duty records show that Deputy Warden Smith was not working that day.

B. Procedural History

Gilmore sued the Georgia Department of Corrections, Commissioner Douglas Williams, Lieutenant Milton, Officer Lupo, Officer Irizarry, and Deputy Warden Smith under 42 U.S.C. § 1983, claiming that they violated her Fourth Amendment right to be free from unreasonable searches and seizures. That included a failure-to-intervene claim against Officer Lupo, Deputy Warden Smith, and Commissioner Williams. Gilmore also alleged several state-law claims, none of which are relevant to this appeal, so we discuss them no further.

Defendants moved to dismiss all claims except the Fourth Amendment claim, and the district court granted that motion. The district court also dismissed Gilmore's failure-to-intervene claim against Officer Lupo and Deputy Warden Smith.

After discovery, Defendants moved for summary judgment. The magistrate judge requested supplemental briefing on whether the individual Defendants were acting within the scope of their discretionary authority when they performed the strip search. Although Defendants filed a responsive brief, Gilmore did not.

The magistrate judge issued a report and recommendation ("R&R") recommending that the district court grant Defendants' summary-judgment motion. The R&R concluded that Defendants acted within the scope of their discretionary...