Beers v. Fouts

          Timothy Beers, pro se Francis Charles Fredericks, Esq. Lynmarie C. Cusack, Esq. Seth Michael Zoracki, Esq.

          ORDER

          Steven J. McAuliffe United States District Judge

         Before the court is defendant New Hampshire State Prison (“NHSP”) Sgt. Keith Forcier's motion to dismiss (Doc. No. 86), in which Forcier asserts entitlement to qualified immunity in this matter. Plaintiff Timothy Beers has filed an objection (Doc. No. 87).

         Background

         I. December 2014 Strip Search

         The facts underlying Beers's claim against Forcier have been previously set forth in this case in detail, most recently in the magistrate judge's June 12, 2017 Report and Recommendation (Doc. No. 82), 2017 WL 4048283, 2017 U.S. Dist. LEXIS 147378 (D.N.H. June 12, 2017) (“June 12 R&R”), R&R approved by Sept. 12, 2017 Order (Doc. No. 92), 2017 WL 4041316, 2017 U.S. Dist. LEXIS 147077 (D.N.H. Sept. 12, 2017) (“September 12 Order”). Those facts need not be repeated here. It is sufficient, for purposes of this Order, to note that this action arises out of a December 18, 2014 group strip search (“December 2014 search”), conducted at the NHSP after an event attended by inmates, including Beers, and members of the inmates' families. During the December 2014 search, officers, some or all of whom were subordinates of Forcier, conducted “visual body cavity” searches of inmates in the presence of other inmates, a video surveillance camera, and corrections officers, including a female officer.

         Beers has alleged that Forcier was present at the December 2014 search in his capacity as a supervisory officer. Beers claims that Forcier, based on his training, knew that the December 2014 search violated NHSP administrative rules and policies, as well as unspecified state and federal laws. Beers asserts that Forcier had the ability and authority to prevent or stop the December 2014 search, as evidenced by the fact that Forcier did in fact allow one inmate to be searched privately upon request, but Forcier did not prevent or stop the other inmates from being subjected to the group search.

         In this case, the court has recognized the following claim against Forcier:

Sgt. Keith Forcier violated Beers's Fourth Amendment rights, in that Beers was subjected to an unreasonable group strip search after the December 18, 2014 Holiday Event, although Forcier, who had personal knowledge of the circumstances under which the strip search occurred, as well as the authority to stop that search, failed to issue orders to cause the search to stop, and was deliberately indifferent to the violation of Beers's Fourth Amendment rights caused by that search.

See Mar. 8, 2017 Order (Doc. No. 60), at 6. This claim arises under Forcier's supervisory liability, as Beers has asserted that Forcier was directly involved in and/or deliberately indifferent to the “rights-violating conduct” of his subordinates.

         II. Procedural History

         A. Previous Grant of Summary Judgment

         This court previously granted summary judgment in this case in favor of the other defendants named in this action, in regard to Beers's claims that the conduct of those defendants during the December 2014 search violated Beers's Fourth Amendment rights. See September 12 Order (approving June 12 R&R). In granting summary judgment in the defendants' favor, the court found that the defendants were entitled to qualified immunity, in that, at the time of the pertinent group strip search, it was not clearly established “that it was unlawful to subject a prisoner to a ‘visual body cavity search' in a group setting; without privacy screens, in view of other inmates and staff, including a corrections officer of the opposite sex, and a prison surveillance camera, following an event involving contact between inmates and visitors.” June 12 R&R, at 5-6.

         B. Moti ...