Opinion
CIVIL ACTION NO. 99-CV-12155-RGS.
October 17, 2001
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND RELATED MOTIONS
On August 29, 2001, defendants Maloney, Ciccone, Collins, Sheridan, Anderson, St. Armand, Dinardo, McCrossen, Julian, Padula, Fournier, Glynn, Matesanz, Montenero, Rull, Reilly, Coalter, Levesque, Washburn, Merola, Weikel, and Kortes moved to dismiss plaintiff Joan Beckta's claims or in the alternative to sever them from those alleged by the co-plaintiff, Jerome Napolitano. Beckta alleges that during six of her visits to Napolitano at Southeastern Correctional Center, Gail Merola, a female correctional officer, touched her breast with a hand-held metal detector. Beckta alleges that she was "assaulted" by Merola in retaliation for having named Merola in a civil court action filed in Middlesex Superior Court. Beckta alleges that she subsequently sought to bring criminal charges against Merola, prompting the defendants to further retaliate against her by filing "libelous, slanderous, false statements about her in court papers."
Most of the 353 paragraphs of the Complaint involve Napolitano's claims regarding the conditions of his incarceration.
On all but one of these visits a walk-through metal detector was out-of-order.
In the instant Complaint, Beckta has not alleged specific counts against specific defendants. Rather, under the caption "Federal Claims" she alleges that all defendants are liable for:
(1) the infliction of the six sexual assaults and batteries on Plaintiff Beckta by Defendant Merola; (2) the libelous, slanderous, false and unwarranted publication of statements against Beckta which violated her privacy and caused her severe emotional distress; (3) the threats, intimidation, coercion and retaliation by various Defendants against Plaintiff Beckta for the filing of criminal charges against Defendant Merola; (4) the unlawful retaliation against Plaintiff Beckta by various Defendant . . . .
Complaint, ¶ 348. Beckta also alleges violations of the Massachusetts Declaration of Rights, Massachusetts privacy law, common-law libel and slander, and sexual assault and battery.
Paragraph 348 goes on to allege fourteen more claims by Napolitano and states that all defendants "cumulatively have violated Plaintiff Beckta's and Napolitano's rights under the First, Fourth, Sixth, Eighth, Ninth and Fourteenth Amendments to United States Constitution, as well as Plaintiffs' civil rights under 42 U.S.C. § 1983, 1986, 1988, and 12101, et seq."
In the paragraph of the Complaint outlining the alleged sexual assaults, Beckta states that:
[s]hortly after the dismissal of Middlesex Superior Civil Action No. 97-4960, Defendant Merola, who was a Defendant on the above-entitled action, commenced retaliatory acts of sexual assault and battery upon Plaintiff Joan P. Beckta, who is Plaintiff Jerome A. Napolitano's visitor. These assaults, which occurred on March 6, April 6, April 13, April 27, May 28 and June 11, 1998, were solely to retaliate against Plaintiffs Napolitano and Beckta. A copy of the log entries of the operability of the walk-through metal detector at BSCC, which documents the incidents, is attached hereto as Exhibit 2, which is made part of this complaint and incorporated by reference herein.
Complaint, ¶ 76. The "log," a diary apparently compiled contemporaneously by Beckta, contains the only description of the alleged sexual assaults. In pertinent part, it states as follows.
3/6/98 Logging every visitor in. If we don't have to log in to walk through, why do we have to log in to be wanded?
Rubbed hand-held metal detector against me and, unsurprisingly, it kept going off. It thought it detected metal — and so the CO (Gail [Merola]) patted me down — on my right forearm, left armpit and left side of left breast, between my breasts, on the right side of my stomach and the front of both knees. It did detect the rivets on my jeans and my bra hooks (middle of my back) but there was no other metal on me for it to find. After patting me down in all the unreal places, the CO decided the wand must be picking up [my] rivets.' 4/6 Walk-through not working. Gail [Merola] mauled me again. 4/13 Walk-through not working. Gail [Merola] did not maul me this time. 4/27 Walk-through not working. Gail [Merola] mauled me again. 5/28 Walk-through not working. Gail [Merola] mauled me again. She brushed the wand across my chest and it, of course, beeped, as it always does when you rub it against something. She declared that it must be picking up the loop on my bra strap. I showed her that it is plastic. She then brushed the wand across my shoulder and said, "Oh, it must be the buckle on your bra strap." I showed her that that, too, is plastic. She then rubbed the wand against the middle of my breasts (about nipple height) and when it beeped again she said, "Underwire, right?" I replied that I do not wear an underwire bra. She then rubbed it against the left side of my left breast but did not comment or pat search. For the rest of the search, she did not rub the wand against me so it only beeped at the metal tab on my pants zipped and the metal hooks at the back of my bra.
6/11 New metal detector. Used it and wanded and logged, too. I passed the walk-through so there was no reason to conduct such a vigorous wanding. Gail [Merola] Mauled me again. She rubbed the wand over the buttons on my shirt, (between my breasts) and when it beeped said, "sounds like a little static." She rubbed it with her hand then rubbed it a little harder with the wand, rubbed it with her hand again, with the wand, with her hand, and asked, "[a]re you wearing underwire?" I told her I never wear an underwire. For the rest of the search, she didn't rub the wand on me so it only beeped faintly in keeping with a small amount of static electricity.
Beckta's April 13, 1998 log entry stating that Merola did not "maul me this time," is dispositive of that claim of assault.
In her opposition to the motion to dismiss, Beckta argues that Merola's actions amounted to violations of the Fourth Amendment's prohibition against unreasonable search and seizures and the excessive use of force. Plaintiffs' Brief, at 24, 30.
Beckta also argues that Merola's acts give rise to a "first amendment retaliation claim," because they interfered with her right to file a lawsuit and to visit Napolitano. Plaintiffs' Brief, at 26.
DISCUSSION
As a preliminary matter, the Constitution does not forbid the routine, suspicionless search of visitors to prisons or jails for contraband.Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir. 1985). To be sure, there are limits on such searches — strip or body cavity searches of prison visitors can only be justified by reasonable suspicion, Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 1996) — but "[v]isitors can be subjected to some searches, such as a pat-down or a metal detector sweep, merely as a condition of visitation, absent any suspicion." Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995). Indeed, Massachusetts prison regulations require that all visitors to correctional facilities submit to metal detector searches as a condition of entry. See 103 C.M.R. § 483.14.
This being so, there is no basis for any claim on Beckta's part that she had any right, constitutional or otherwise, to pass through the visitor's entrance to the Correctional Center without submitting to a contact search. The only issue, therefore, is whether the wand searches to which she was subjected involved an "excessive" or unreasonable use of force. Graham v. Connor, 490 U.S. 386, 395-396 (1989). In this context, Beckta's fulminations about Merola's possible retaliatory motive in passing the wand over her person are irrelevant. "An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional."Id., at 397.
Whether a plaintiff has alleged a viable cause of action under section 1983 is a matter of law for the trial court. Siegert v. Gilley, 500 U.S. 226, 232 (1991). In making this determination, there is a prescribed protocol that a court must follow. The first order of business, which is to be conducted before even reaching the issue of possible qualified immunity, is to determine whether a "plaintiff has alleged a deprivation of an actual constitutional right at all." Conn v. Gabbert, 526 U.S. 286, 290 (1999). The exercise is not unlike the one performed by a court in weighing a motion for summary judgment. "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? . . . If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2152, 2156 (2001) (rejecting cases holding that Graham's objective reasonableness test had conflated the inquiry into the merits of a plaintiff's excessive force claim with that of the reasonableness of an officer's conduct, an issue ordinarily committed to the finder of fact). Here, taking the allegations against Merola memorialized in Beckta's "log" at face value, no rational jury could conclude that Merola's placing of a wand in contact with Beckta's bra while conducting a search mandated by state regulations amounted to a constitutional tort. Whatever may have been Beckta's subjective feelings, nothing that she describes could be characterized by a reasonable observer as an offensive touching, much less as an excessive use of "force." Beckta's Fourth Amendment claims, as well as the related retaliation claims, must therefore be DISMISSED.
Qualified immunity attaches to discretionary conduct of state actors which "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A constitutional act by definition cannot support a claim of unconstitutional retaliation.
Beckta's claims of libel and slander are based on defendants' introduction of a prison disciplinary report, together with Beckta's "log," to impeach her credibility at a state court hearing on her application for a criminal complaint against Merola. These acts were privileged under Massachusetts state law and cannot therefore support a cause of action. See Doe v. Nutter, McClennon Fish, 41 Mass. App. Ct. 137, 140, rev. denied, 423 Mass. 1111 (1996). Consequently, the motion to dismiss Beckta's libel and slander claims will be ALLOWED.
According to the disciplinary report, Beckta had been acting as a courier for various Boston lawyers who had made it a practice to hire Napolitano for paralegal services in contravention of correctional facility rules.
While Beckta alleges that the information in the disciplinary report is false, she does not contend that her "log" is inaccurate.
On September 19, 2001, plaintiffs filed a motion to strike the "Department of Correction defendants'" affirmative defenses. The motion is DENIED. Plaintiffs' argument that the defendants' previous request to extend the time to file responsive pleadings did not encompass the assertion of affirmative defenses is frivolous. Similarly, plaintiffs' contention that the motion was over a year late ignores the fact that the case was stayed while plaintiffs attempted unsuccessfully to appeal various of the court's interlocutory orders.
On September 17, 2001, Correctional Medical Services, Inc., Dr. Arthur Brewer, Dr. Khalid Mohamed, Dr. Jerome Fielding, Rosalie Berry, Christopher Stonionis, and Lina Palmacci (the CMS defendants) moved to refer plaintiff Napolitano's medical negligence claims to a state medical malpractice tribunal. That motion is ALLOWED.
On July 30, 2001, the court granted defendants Travers' and Nass' motion to refer Napolitano's medical claims to a state medical malpractice tribunal. On September 17, 2001, these defendants also filed a motion seeking to depose Napolitano. The motion is ALLOWED. The Department of Correction's September 4, 2001 motion to take Napolitano's deposition is also ALLOWED.
ORDER
For the reasons set forth in this opinion, all claims brought by Beckta are DISMISSED. All pending motions shall be disposed of in accordance with the rulings contained in the body of this Memorandum.SO ORDERED.