NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 14

- 3158

_____________ NANCY DINOTE,

Appellant

v. CARL C. DANBERG, Commissioner of Department of Correction; MICHA EL DELOY; REBECCA MCBRIDE; G.R. JOHNSON; PATRICK RYAN

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE D ISTRICT OF DELAWARE (D.C. Civil No. 1

- 12

- cv - 00377 ) District Judge: Honorable Gregory M. Sleet

____________ Submitted Under Third C ircuit LAR 34.1(a)

January 1 6 , 2015

____________ Before: HARDIMAN , SCIRICA and BARRY, Circuit Judges

(Filed: February 4 , 2015 )

____________ OPINION *

____________

B ARRY, Circuit Judge Nancy Dinote appeals from the orders of the District Court (1) gran ting

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

defendants’ motion for summary judgment , and (2) denying her motion for reconsideration. We will affirm.
I. The essential facts, recounted in the light most favorable to Dinote, are as follows. On May 9, 2010, Dinote was arrested and detained overni ght following a domestic dispute. T he following afternoon she was arraigned by video and ordered released. Within the hour , t he Justice of the Peace Court sent the release order to Central Offender Records (“COR”) , the Delaware Department of Correction (“D OC”) unit that controls inmate records and processes release paperwork

. COR take s a number of steps in processing the paperwork, such as verifying that the detainee has no other open charges

or warrants. The effect is that even if a judge has ordered a per son released, and even if jail personnel are aware of that order , the institution awaits receipt of the requisite direction from COR before it permits a person to leave its custody. On the night of May 10, b efore COR processed Dinote’s release paperwor k, she was transferred from the predominately male Sussex Correctional Institute ( “ SCI ” ) to an all

- women’s institution, Baylor Women’s Correctional Facility ( “ Baylor ” )

. According to Dinote, s he was injured during the transport, denied prompt medical tre at ment, and subjected to a strip search upon arrival at Baylor, where she was also made to shower, without soap, in a soiled stall

. She was released from Baylor just before 1 p.m. on May 11, COR having finished processing her release paperwork. Dinote’s tr ansfer is explained by a DOC practice or policy under which the DOC3

permits law enforcement officers to bring women arrested in Sussex County, Delaware , to SCI as a courtesy, rather than requiring them to travel to Baylor in New Castle County

– the only wo men’s facility in Delaware. Defendant Carl Danberg, the (now former) DOC Commissioner, testified in a deposition that this accommodation permits “local law enforcement to get back on the street and involved in their policing duties faster.” (App. 64.) 1 How ever, because SCI is a male prison and has a limited number of holding ce lls available to house women , female arrestees brought to SCI are then transferred to Baylor, usually within 24 hours. On March 26, 2012, Dinote filed a complaint against Danberg ; R ebecca McBride, the direc tor of COR ; Michael Deloy, the former warden of SCI ; G.R. Johnson, the deputy or acting warden at SCI; and Patrick Ryan, the warden of Baylor. Of her original claims, only two remain for decision on appeal: a claim against Danberg, McBride, and Johnson for violation of the Fourteenth Amendment’s Equal Protection Clause , and a claim against these defendants for violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. The District Court granted defendants ’ motion for summary judgment , reasoning that the equal protection claim failed because male and female inmates can constitutionally be separated, and neither the transfer nor the centralized processing of release s amounted to a Fourteenth Amendment violat ion. On Dinote’s Fourth Amendment claim, the Court held that there was no evidence that these

1 Danberg also testified about other facilities that a ccommodate women, including a work release center and a violation of probation center, both on the same campus as SCI, but also indicated that these are not open to pretrial detainees.4

defendants had anything to do with the strip search itself or the policy at Baylor, and therefore could not be held liable under 42 U.S.C. § 1983. Dinote’s subseq uent motion for reconsideration was denied. This appeal followed.
II. The District Court had jurisdictio n under 28 U.S.C. §§ 1331 and 13 43

. We have jurisdiction under 28 U.S.C. § 1291. Our review of the order granting summary judgment is plenary

. S.H. v . Lower Merion Sch. Dist. , 729 F.3d 248, 256 (3d Cir. 2013). Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “ view the facts in the light most favorable to the non

- moving party and draw all reasonable inferences in that party’s favor.” S.H. , 729 F.3d at 256.
III.
A. Dinote challenges as a violation of equal protection the practice of transferring female arres tees from SCI to Baylor within 24 hours of their arrival. A successful claim that a government practice or policy violates the Equal Protection Clause requires proof that the plaintiff “ has been treated differently from persons who are similarly situated. ” Williams v. Morton , 343 F.3d 212, 221 (3d Cir. 2003). E ven differential treatment is permissible , however, if it bears a sufficient nexus to a qualifying governmental interest; in the case of a gender classification, the state must show that the classific ation “ serves important governmental objectives and that th e discriminatory means employed are5

substantially related to the ac hievement of those objectives.” United States v. Virginia , 518 U.S. 515 , 533 (1996) (citation and internal quotation marks omitted ). 2
A lthough Dinote argues that the transfer policy is unsupported by an important governmental objective, she does not dispute that prisoners may co nstitutionally be separated by gender

. H er true challenge is to the means used to effectuate that goal ; i. e. , that SCI transfers women to Baylor , and generally do es so within 24 hours

. While men

can stay at SCI until their release, Dinote asserts , women cannot, though SCI could easily hold women for up to 48 hours

. But transferring women , and quickly, to a fac ility that can accommodate them directly accompl ishes the goal of providing gender

- segregated institutions. See Miss. Univ. for Women v. Hogan , 458 U.S. 718, 725

- 26 ( 1982 ) ( intermediate scrutiny requires “ direct, substantial relationship between objective and

means ” to “ assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of ” stereotypes about gender roles). Dinote ignores the record evidence that the number of women entering SCI can fluctuate : Johnson, SCI ’s warden, explained while in one shift one woman may arrive, in another six may arri ve during an eight

- hour period, and that while it is typically not a problem keeping the female population below the maximum supportable by SCI , “especially with our sort of 24

- hour window,” “the problem would be is if we got eight

2 Because, as will be seen, we conclude that the challenged practice passes intermediate scrutiny, we need not reach whether Turner v. Safley , 482 U.S. 78 (1987), under which “a [prison] regulation [restricting constitutional rights] passes muster if it is reasonably related to legitimate penological interests,” applies. F raise v. Terhune , 283 F.3d 506, 513 (3d Cir. 2002)

. But cf. DeHart v. Horn , 227 F.3d 47, 61 (3d Cir. 2000) (en banc) (applying Turner to religion

- based equal protection claim).6

and then two came in together, we wouldn’t have anywhere to put those two.” (App. 57.) The 24

- hour limit to which SCI generally adheres is not, as Dinote argu es , arbi trary, but is supported by sound gender

- neutral reasoning. Finally, even if the introduction of COR resulted in processing delays over the previous system, Dinote concedes that most
release s are still processed within 48 hours; the combination of this circ umstance with SCI’s policy does not undermine the direct relationship between that policy and its objective.
B. Dinote argues that her strip search at Baylor violated the Fourth Amendment because she had been judicially ordered released by that time. A s t he District Court concluded , assuming arguendo a constitutional violation, these defendants cannot be
liable for it

. Under 42 U.S.C. § 1983, state actors are “ liable only for the ir own unconstitutional conduct ” and respondeat superior liability is not p ermitted

. Barkes v. First Corr. Med., Inc. , 766 F.3d 307, 316 (3d Cir. 2014)

. Supervisory liability is available only if the supervisor (1) “‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which di rectly caused [the] constitutional harm,’” or (2) “‘participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced’ in the subordinate’s unconstitutional conduct.” Id. (altera tion in original) (citations omitted). Dinote does not contend that defendants participated in the search , and the record indicates that an institution’s policy on strip searches of detainees arriving from other7

institutions is set by the receiving insti tution. Dinote points to no evidence that these defendants were involved in establishing or maintaining Baylor’s policy , or that they issued any direction with respect to the search

. S he merely alleges that they knew their actions wo uld lead to searches at Baylor. Specifically, Dinote alleges that McBride knew about COR’s a lle ged processing deficiencies and that she “was aware that this was regularly causing women to be transferred to [Baylor],” Reply Br. 5, but as support she relies on Danberg’s testimony that COR sends processed release paperwork to a detainee’s current institution. More than this attenuated relationship is necessary.
Evancho v. Fisher , 423 F.3d 347, 353 (3d Cir. 2005) (complaint did “not contain even a remote suggestion that [defendant] h ad contemporaneous, personal knowledge of [plaintiff’s] transfer and acquiesced in it ”). Even if Dinote did raise a genuine dispute of fact as to McBride’ s knowledge of transfers, this is still a step removed from knowledge of an (allegedly) illegal search

. Moreover, t he record contradicts Dinote ’s claim that “[d]efendants know that the DOC strip

- search policy causes all women coming to [Baylor] from another i nstitution to be strip

- searched. ” (Appellant’s Br. 24.) Danberg testified that DOC policy requir es strip searches when personnel have cause to believe an inmate has contraband, when an inmate leaves an institution and returns after contact with the public ( as with, e.g. , a court appearance), and when an inmate is moved into the general population. He also testified, however, that while it was “possible” that Baylor required a strip search of detainees coming from other institutions, he “[didn’t] know that , ” and the warden at each8

institution is responsible for setting the strip searc h policies at that institution , without the commissioner’s review . (App. 70

- 71.) In short, Dinote was required to point to more than her own conjecture about the defendants’ knowledge and acquiescence to survive summary judgment, and she has not. See Halsey v. Pfeiffer , 7 50 F.3d 273, 287 (3d Cir. 2014) (inferences premised on speculation or conjecture are insufficient); In re IKON Office Solutions, Inc. , 277 F.3d 658 , 666 (3d Cir. 2002) (allegations alone are insufficient to withstand summary judgment). 3
IV. Having rejected Dinote’s claims of error, we will affirm the orders of the District
Court.

3 Dinote nominally appeals from the denial of her Rule 59(e) motion, but makes no argument in support of her position . She has, therefo re, abandoned the issue and we need not address it. Kost v. Kozakiewicz , 1 F.3d 176, 182 (3d Cir. 1993). In any event, having reviewed the record, we conclude that the District Court did not abuse it s discretion in denying reconsideration , because Dinote simply reiterated the arguments she made in opposing defendants’ motion for summary judgment. N. River Ins. Co. v. CIGNA Reins. Co. , 52 F.3d 1194, 1218 (3d Cir. 1995) (motion to alter or amend judgmen t must rely on intervening change in law, new evidence, or the need to correct a clear error of law or prevent manifest injustice) ; see also Jang v. Boston Scientific Scimed, Inc. , 729 F.3d 357, 367 (3d Cir. 2013) (review of denial of Fed. R. Civ. P. 59(e) motion is for abuse of discretion).