United States Court of Appeals

For the Eighth Circuit

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No. 13-2834

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Kendrick C. Story,

lllllllllllllllllllll Plaintiff - Appellant,

v.

Maxcie Foote, Major, Randall Williams Unit, ADC; John Lowe, Deputy Warden,

Randall Williams Unit, ADC; Larry May, Chief Deputy Director, Randall

Williams Unit, ADC; John Herrington, Captain, Randall Williams Unit, ADC,

lllllllllllllllllllll Defendants - Appellees.

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Appeal from United States District Court 

for the Eastern District of Arkansas - Pine Bluff

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 Submitted: September 11, 2014

 Filed: April 9, 2015

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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

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COLLOTON, Circuit Judge.

Kendrick C. Story, an African-American inmate in Arkansas, sued four

correctional officers pursuant to 42 U.S.C. § 1983, alleging that they violated his

constitutional rights and seeking damages. Story’s pro se complaint and amended

complaint focus on a visual body-cavity search that one or more officers allegedly
conducted of Story’s person on April 16, 2013. The search occurred after Story

returned to the Williams Correctional Facility from the Pine Bluff unit school. The

district court, screening the complaints before service of process pursuant to 28 1

U.S.C. § 1915A, dismissed them without prejudice for failure to state a claim. Story

appealed, and this court requested a response from the correctional officers

concerning Story’s claims under the Fourth Amendment. We review the dismissal

de novo and affirm.

To state a claim, Story’s complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Correctional officers are entitled to qualified immunity unlessthey

violated clearly established rights of the inmate of which a reasonable person would

have known, see Pearson v. Callahan, 555 U.S. 223, 231 (2009), and we may

consider the defense of qualified immunity in reviewing the district court’s preservice

dismissal. See 28 U.S.C. § 1915A(b)(2); Maness v. Dist. Court, Logan Cnty.-N. Div.,

495 F.3d 943, 944-45 (8th Cir. 2007); Burlison v. United States, 627 F.2d 119, 122

(8th Cir. 1980). Although the district court dismissed the complaints for failure to

state a claim without addressing qualified immunity, we may affirm on any ground

supported by the record. Jacobson v. McCormick, 763 F.3d 914, 916-17 (8th Cir.

2014); Graves v. City of Coeur d’Alene, 339 F.3d 828, 845 n.23 (9th Cir. 2003). It

is unnecessary and inefficient to address whether Story adequately pleaded a

constitutional violation, see Pearson, 555 U.S. at 236-37, if the defense of qualified

immunity is established on the face of the complaint.

“Qualified immunity gives government officials breathing room to make

reasonable but mistaken judgments, and protects all but the plainly incompetent or

The Honorable D. Price Marshall, Jr., United States District Judge for the

1

Eastern District of Arkansas.

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those who knowingly violate the law.” Stanton v. Sims, 134 S. Ct. 3, 5 (2013)

(internal quotation marks omitted). To overcome qualified immunity, a plaintiff must

be able to prove that “every reasonable official would have understood that what he

is doing violates” a constitutional right, Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011) (internal quotation marks omitted), and that the constitutional question was

“beyond debate.” Id.; see also Lane v. Franks, 134 S. Ct. 2369, 2383 (2014); Stanton,

134 S. Ct. at 7. 

Story’s lead point on appeal is that he stated a claim that the defendants

violated his Fourth Amendment rights by conducting a visual body-cavity search of

his person. According to the complaint and materials attached thereto, Story returned

on the date in question to the Williams Correctional Facility from the Pine Bluff unit

school. When he arrived at the gate, he was met by Captain John Herrington and

Major Maxcie Foote. Story alleges that officerstold himto remove his clothes, to lift

his genitals, and to bend over and spread his buttocksto facilitate a visual body-cavity

search. He claims that the search took place in front of other inmates and in view of

two security cameras. He complains that one or more female correctional officers

observed the search through a video feed from the cameras in the master control

room.

The Supreme Court never has resolved whether convicted inmates retain a

Fourth Amendment right against unreasonable searches while in custody. The Court

in Bell v. Wolfish, 441 U.S. 520 (1979), assumed the point for the sake of analysis. 

Id. at 557. In Hudson v. Palmer, 468 U.S. 517 (1984), the Court held that the Fourth

Amendment did not apply to a search of a prison cell, reasoning that “[a] right of

privacy in traditional Fourth Amendment terms is fundamentally incompatible with

the close and continual surveillance of inmates and their cells required to ensure

institutional security and internal order.” Id. at 527-28. The Seventh Circuit, in the

wake of Hudson, ruled that inmates retain no right under the Fourth Amendment

against visual inspections by prison guards. Johnson v. Phelan, 69 F.3d 144, 146-47

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(7th Cir. 1995). This court, however, has said that “prison inmates are entitled to

Fourth Amendment protection against unreasonable searches oftheir bodies,” Levine

v. Roebuck, 550 F.3d 684, 687 (8th Cir. 2008), and allowed a Fourth Amendment

claim challenging strip searches to proceed in Seltzer-Bey v. Delo, 66 F.3d 961, 963

(8th Cir. 1995). The Arkansas Supreme Court, as best we can tell, has never

addressed the question. The Supreme Court recently has reserved judgment twice on

the question whether decisions of a federal court of appeals are a source of clearly

established law for purposes of qualified immunity analysis. See Carroll v. Carman,

135 S. Ct. 348, 350 (2014) (per curiam); Reichle v. Howards, 132 S. Ct. 2088, 2094

(2012). Following the approach of the Court in those cases, we assume for the sake

of analysis that our decisions clearly establish that a convicted inmate has rights

under the Fourth Amendment against unreasonable searches of his body.

Whether Story’s allegations state a claimthat correctional officers violated his

clearly established rights under the Fourth Amendment must be considered in light

of prior decisions in this area. In Wolfish, the Supreme Court ruled that visual bodycavity inspections of inmates at a federal custodial facility—conducted after every

contact visit with a person from outside the institution—were not unreasonable. 441

U.S. at 558 & n.39. In Goff v. Nix, 803 F.2d 358 (8th Cir. 1986), this court held that

it was reasonable for officials to conduct visual body-cavity searches of inmates at

a state penitentiary whenever an inmate left or entered the institution. Id. at 364-67. 

Most recently, in Florence v. Board of Chosen Freeholders of County of Burlington,

132 S. Ct. 1510 (2012), the Court ruled that correctional officers must be allowed to

conduct an effective search of detainees—even those held for minor offenses—before

they are admitted to a general jail population, and that “this will require at least some

detainees to lift their genitals or cough in a squatting position.” Id. at 1520. 

These decisions, while acknowledging the privacy concerns of inmates,

emphasize that detention facilities are “fraught with serious security dangers,”

Wolfish, 441 U.S. at 559, and that correctional institutions have a strong interest in

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preventing and deterring the smuggling of money, drugs, weapons, and other

contraband. Florence, 132 S. Ct. at 1516-17; Wolfish, 441 U.S. at 559; Goff, 803

F.2d at 364-65. “[M]aintaining institutional security and preserving internal order

and discipline are essential goals that may require limitation or retraction of the

retained constitutional rights of both convicted prisoners and pretrial detainees.” 

Wolfish, 441 U.S. at 546.

Here, Story alleges that officers conducted a visual body-cavity inspection

when Story returned to the Williams facility from outside the institution. Given what

the Supreme Court and this court have said about the strong institutional interests in

maintaining security, and about the reasonableness of visual body-cavity inspections

when detainees enter a facility, Story’s allegation of a body-cavity search by itself

does not state a claim for the violation of a clearly established right.

Story argues, however, that the manner in which this particular search was

conducted violated the Fourth Amendment. He highlights an allegation that a female

correctional officer was working in the master control room at the time of the search,

and that she viewed the search on a video screen. He cites this court’s statement—in

a case about a strip search of an arrestee in a motel room—that “strip searches should

be conducted by officials of the same sex as the individual to be searched.” 

Richmond v. City of Brooklyn Center, 490 F.3d 1002, 1008 (8th Cir. 2007).

The search in this case, consistent with Richmond’s general admonition, was

conducted by male correctional officers. Story does not allege that the male officers

knew that female officers would observe the video feed from the master control unit. 

In any event, the male officers did not violate Story’s clearly established rights by

conducting the inspection in a location where a female officer also may have viewed

the search from the master control room through a video feed from a security camera. 

This court in Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990), held that prison

administrators did not violate the Fourth Amendment rights of inmates by allowing

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intermittent visual surveillance of male inmates by female guards while the inmates

used showers and bathrooms or slept without clothing in their cells. Our opinion

cited the “rational connection between sex-neutral visualsurveillance of inmates and

the goal of prison security,” and observed thatstaffing adjustments(akin to removing

female officers from the master control room during searches in this case) would

interfere with equal employment opportunities for women and require significant

expenditures by the prison. Id. at 1102. We also have held that the use of cameras

to monitor activities from a control booth is reasonable, even when body-cavity

searches are involved. Franklin v. Lockhart, 883 F.2d 654, 656 (8th Cir. 1989). In

light of these precedents, it was not beyond debate that a reasonable correctional

officer was forbidden to proceed with a visual body-cavity search in an area

monitored by security cameras while a female officer was assigned to the master

control unit.

Story also complainsthat officers conducted the search in the presence of other

inmates. As a general proposition, the Fourth Amendment requires a balancing of the

need for a particular search against the invasion of personal rights involved. Wolfish,

441 U.S. at 558. In Franklin, however, this court held reasonable a practice of

conducting visual body-cavity searches within view of five inmates, at least where

the record did not support a finding that a less public means of searching was

consistent with institutional security. 883 F.2d at 656-57. The NinthCircuitsimilarly

upheld body-cavity searches conducted in a “sally port” area that was visible to other

inmates and to female officers working in a “control bubble,” at least where there

were no ready alternatives that would enhance privacywithout compromising security

or increasing cost. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988). 

Story does not allege that a more private, yet equally secure and cost-effective

means of conducting the body-cavity inspection was readily available to the officers. 

The Supreme Court, moreover, has not clearly established that the presence of other

inmates renders a body-cavity search unreasonable. Story cites no circuit precedent

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that has established the proposition; an unpublished and non-precedential decision

concerning strip searches in a prison yard, Mills v. White, 364 F. App’x 308, 309 (8th

Cir. 2010) (per curiam), is insufficient to make the asserted right clear. See Blazek

v. City of Iowa City, 761 F.3d 920, 925 n.3 (8th Cir. 2014). Generally speaking,

“[t]he Fourth Amendment does not require officers to use the least intrusive or less

intrusive means to effectuate a search but instead permits a range of objectively

reasonable conduct.” Richmond, 490 F.3d at 1009 (internal quotation marks omitted).

We therefore conclude that the alleged presence of other inmates during Story’s

search does not state a claim for the violation of clearly established rights.

Story next contends that Foote unreasonably conducted the search when he

called Story a “monkey” after Story was unable to bend over as far as Foote wanted

Story to bend. To be sure, body-cavity searches should not be performed “in a

degrading, humiliating or abusive fashion.” Id. Abusive conduct by searching

officers—such as “insultingly suggestive remarks or banal but terrifying expressions

of aggression,” U.S. ex rel. Wolfish v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y.

1977)—cannot be condoned. Wolfish, 441 U.S. at 560. We cannot say, however, that

Foote’s single alleged use of the term “monkey,” even with its potential racial

overtones, is sufficient to allege the violation of a clearly established right under the

Fourth Amendment. Story cites no supporting case with analogous facts, and recent

decisions rejecting Fourth Amendment claims based on verbal abuse alone militate

against a conclusion that the alleged unlawfulness of Foote’s manner of searching

was beyond debate. See Dawson v. Anderson County, Tex., 566 F. App’x 369, 371

(5th Cir. 2014) (holding that “verbal abuse by a jailer alone” did not give rise to a

Fourth Amendment claimfor unreasonable strip search); Gettridge v. Jackson Parish

Corr. Ctr., No. 3:12-cv-3148, 2013 WL 1180919, at *3 (W.D. La. Feb. 19, 2013)

(holding that claims of “verbal abuse or ridicule” during a strip search are not

actionable under § 1983); cf. Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007)

(“Verbal abuse by correctional officials, even the use of reprehensible racially

derogatory language, is not by itself unconstitutional race discrimination unless it is

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pervasive or severe enough to amount to racial harassment.”) (internal quotation

marks omitted).

For these reasons, we conclude that Story has not alleged sufficient facts to

support a plausible claim that the visual body-cavity inspection conducted of his

person on April 16, 2013, violated his clearly established constitutional rights. The

officers were not on clear notice that the aspects of the search to which Story

objects—examined individually or taken together—contravened the Fourth

Amendment.

We have considered Story’s other claims alleging violations of the Eighth

Amendment and the Fourteenth Amendment, and we conclude that they were

properly dismissed, substantially for the reasons given by the district court. See 8th

Cir. R. 47B.

The judgment of the district court is affirmed.

BYE, Circuit Judge, concurring in part and dissenting in part. 

I disagree the Fourth Amendment strip-search claim was properly dismissed

pre-service. Instead, I believe the district court erred in failing to conduct a balancing

test before dismissing Story's Fourth Amendment claim. Additionally, I would not

find the correctional officers entitled to qualified immunity.

I

I agree correctional officers are given deference on search policies absent

evidence demonstrating their response is exaggerated. Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1517 (2012). However, a strip

search in a prison context triggers the need for a district court to engage in a

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balancing test. In Goff v. Nix, 803 F.2d 358, 363-65 (8th Cir. 1986), this court noted

a prison inmate has a far lower expectation of privacy than do most other individuals

in society, but strip searches are "intrusive and unpleasant." This Court considers

Fourth Amendment challengesto a prison's strip-search policy under Bell v. Wolfish,

441 U.S. 520, 529 (1979), which requires a balancing test where the need for searches

is weighed against invasions of personal rights to determine reasonableness of

searches. Goff, 803 F.2d at 363-65.

The district court did not conduct a balancing test, and I am unable to conclude

from the complaint the search was reasonable under the Fourth Amendment as a

matter of law. Despite broad rights of correctional officers to search prisoners, there

are limits on when strip searches are appropriate. See, e.g., Beaulieu v. Ludeman,

690 F.3d 1017, 1029-30 (8th Cir. 2012) (holding courts may consider availability of

simple, safe, and less invasive techniques when determining if strip search was

reasonable); Serna v. Goodno, 567 F.3d 944, 954 (8th Cir. 2009) (finding relevant

that the search was conducted in a private bathroom where only those involved could

observe); Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1008-09 (8th Cir. 2007)

(holding strip searches should be conducted as far from public view as possible

without compromising legitimate security concerns, and should be done hygienically

and not in a degrading, humiliating, or abusive fashion); Goff, 803 F.2d at 363-65

(holding justification for strip search must be based upon concrete information and

not merely perceived security concerns).

In the present case, the complaint alleges troubling facts which require the

district court to conduct a balancing test. See Goff, 803 F.2d at 363-65. In

determining the reasonableness of the strip search of Story, the need for a strip search

must be weighed against the invasion of Story's personal rights. Story alleges the

method of the strip search invaded his personal rights, including that Story was strip

searched in front of other inmates and one or more female guards were watching a

live-streamed video of the search in the control room. I agree the remainder of Story's

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claims do not have constitutionalsignificance on their own, but I believe those claims

may be relevant to the reasonableness of the strip search. In particular, Story alleges

unsanitary conditions and racial harassment were utilized in the strip search, thus

raising concerns this particular strip search wasin violation of Story's personalrights. 

See Richmond, 490 F.3d at 1009 ("[S]trip searchesshould be performed in a hygienic

fashion and not in a degrading, humiliating or abusive fashion.").

In light of these allegations, and without any record of what security concerns

were at issue, the record here is not sufficiently developed to conclude, as a matter

of law, the strip search of Story was reasonable. Story's complaint alleges he was

returning from a prison school located at the Pine Bluff Unit. Although the majority

focuses on Story's return to the Williams Unit "from outside the institution," the

record does not establish Pine Bluff Unit which contains the school is an off-campus

non-secure facility or there are legitimate concerns of safety when inmates travel

between the Williams Unit and the Pine Bluff Unit. If Story was, in fact, returning

to his housing unit froma secure school facility the balancing test may well determine

a strip search conducted in this manner was unreasonable. Accordingly, I would

reverse the pre-service dismissal of the Fourth Amendment strip-search claim, and

remand for the district court to conduct the proper balancing test.

II

I also disagree this court should rule in favor of the correctional officers based

on qualified immunity. The majority finds the law was not clearly established at the

time of the strip search, and the officers are entitled to qualified immunity.

Themajority sua sponte raises qualified immunity, "an affirmative defense that

must be pleaded by a defendant official." Harlow v. Fitzgerald, 457 U.S. 800, 815,

(1982). The majority correctly notes an exception to the general pleading

requirements existsin § 1915 screening cases where defendant officials have not been

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served or had a chance to respond. See Maness v. Dist. Court, Logan Cnty.-N. Div.,

495 F.3d 943, 944-45 (8th Cir. 2007). In the instant matter, the district court did not

discuss qualified immunity and the correctional officers do not raise qualified

immunity on appeal. The majority does not cite, and I have been unable to find, any

cases where the Eighth Circuit sua sponte raised the affirmative defense of qualified

immunity after the district court dismissedwithoutmention of qualified immunity and

the defendants failed to brief a qualified immunity defense on appeal.

For example, in Maness, the magistrate judge recommended dismissal for one

defendant based upon qualified immunity and the district court adopted the report and

recommendation. Maness v. Dist. Court of Logan Cnty., N. Div., No. 05-2114, Docs.

4, 8 (W.D. Ark. Nov. 30, 2005). On appeal, this court affirmed the district court's

dismissal for that defendant based on qualified immunity. Maness, 495 F.3d at 944-

45. In Burlison v. United States, 627 F.2d 119 (8th Cir. 1980), the parties briefed the

immunity defense before the Eighth Circuit. Id. at 122. It appears the majority's sua

sponte qualified immunity ruling in this case is unique. Unlike before the district

court, where the correctional officers had not been served or had an opportunity to

respond, on appeal the correctional officers had the opportunity to brief any

affirmative defenses they wished to raise. The correctional officers chose not to raise

a qualified immunity defense. Generally, "a party's failure to raise or discuss an issue

in his brief is to be deemed an abandonment of that issue." Hatley v. Lockhart, 990

F.2d 1070, 1073 (8th Cir. 1993) (internal quotation marks omitted); see also Fenney

v. Dakota, Minn. & E. R. Co., 327 F.3d 707, 713 n.7 (8th Cir. 2003) ("[C]laims not

raised on appeal are waived[.]" (citing Etheridge v. United States, 241 F.3d 619, 622

(8th Cir. 2001))). While we have discretion to consider issues not raised in the briefs,

this is not the type of case where "substantial public interests" weigh in favor of

reaching an unraised issue. Cont'l Ins. Cos. v. Ne. Pharm. & Chem. Co., 842 F.2d

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977, 984 (8th Cir. 1988). Accordingly, I do not believe it is appropriate for this Court

to sua sponte raise this defense on the correctional officers' behalf.2

Even if a qualified immunity defense were properly before this court, I would

not find defendants entitled to qualified immunity at this time. Dismissal based on

an affirmative defense is appropriate only where "the defense is established on the

face of the complaint." Burlison, 627 F.2d at 122; cf. Weaver v. Clarke, 45 F.3d

1253, 1255 (8th Cir. 1995) ("Because qualified immunity is an affirmative defense

. . . it will be upheld on a 12(b)(6) motion only when the immunity is established on

the face of the complaint."). "We apply a two-part test to determine whether a

defendant is entitled to qualified immunity: (1) whether the plaintiff can make out

a violation of a constitutional orstatutory right, and (2) whether that right was clearly

established at the time of the defendant's alleged misconduct." Dowell v. Lincoln

Cnty., Mo., 762 F.3d 770, 777 (8th Cir. 2014) (internal quotation marks omitted). In

my view, the face of the complaint does not support a judgment for the correctional

officers on either prong of a qualified immunity defense.

First, for the reasons discussed above, the face of the complaint does not

establish that no constitutional violation occurred. A correctional officer's power to

strip search an inmate may be broad, but it is not unfettered. See Franklin v.

Lockhart, 769 F.2d 509, 510 (8th Cir. 1985) (reversing summary judgment entered

against an inmate who alleged violations of his Fourth Amendment rights based on

twice a day strip searches). Second, a reasonable correctional officer would have

known an overly-intrusive and unnecessary strip search was unconstitutional at the

time Story was strip searched. It was clearly established law that unreasonable strip

searches violate the Fourth Amendment. Bell, 441 U.S. at 558. Perhaps after the

To be clear, I do not believe the correctional officers have waived their right 2

to raise a qualified immunity defense in the future. If service were to occur, the

correctional officers could bring a motion for summary judgment and raise the

defense of qualified immunity.

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completion of discovery and briefing by the parties, it will be appropriate to find the

correctional officers entitled to qualified immunity against Story's claims; however,

the time for such a finding is not now.

III

Accordingly, I would reverse the pre-service dismissal of the Fourth

Amendment strip-search claim, and remand for the district court to conduct the proper

balancing test. In all other respects, I would affirm.

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