UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MILDRED MARIE WHITE; PATSY ANN

MCCOY; ROBERT CECIL BRINSON;

CLIFTON CONNER DEWITT; SAMUEL

NEWTON; WILLIAM CLEN MATTOCKS;

HAROLD MACK MCCOY; FRED DAVIS

DOBSON,

No. 95-2177

Plaintiffs-Appellants,

v.

MICHAEL P. DOWNS; JAMES A.

CATHCART,

Defendant-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

James C. Fox, Chief District Judge.

(CA-94-122-4-CV-F1)

Argued: January 27, 1997

Decided: April 30, 1997

Before RUSSELL and WILKINS, Circuit Judges, and

OSTEEN, United States District Judge for the

Middle District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jeffrey Stephen Miller, Jacksonville, North Carolina, for

Appellants. Stephen Aubrey West, Assistant United States Attorney,
Raleigh, North Carolina, for Appellees. ON BRIEF: Janice McKenzie Cole, United States Attorney, Barbara D. Kocher, Assistant

United States Attorney, Raleigh, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This case involves a set of claims brought by eight civilians against

two military officers affiliated with the Marine Corps Base at Camp

LeJeune, North Carolina, alleging violations of their constitutional

rights. Plaintiffs allege in their Bivens action that Michael P. Downs,

the Commanding General of Camp LeJeune, and James A. Cathcart,

Downs' Chief of Staff and second-in-command of Camp LeJeune,

violated their Fourth Amendment rights by authorizing an unconstitutional search and seizure. The district court stayed discovery pending

a ruling on the dispositive motion and subsequently granted Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or, in

the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56.

For the reasons that follow, we affirm the decision of the district

court.

I.

At the time the alleged unconstitutional acts occurred, Plaintiffs

were civilians making their livings cutting hair at three barber shops

located on the base at Camp LeJeune. While waiting to get his haircut

on July 19, 1991, Chief Warrant Officer J. McCaslin, Officer in

Charge of the Criminal Investigation Division ("CID") of the military

base, observed two marines paying the head barber for their haircuts

at the cash register. Each haircut costs three dollars.1 The head barber

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1 Head barbers receive a fifty-eight percent commission on haircuts and

a seventy-three percent commission on all other services. Line barbers

receive approximately five percent less in commissions than the head

barbers. The remainder goes to the federal government.

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duly received three dollars from each marine but only recorded one

sale in the cash register. McCaslin then observed the head barber

pocketing the remaining three dollars.

In the wake of McCaslin's observance, CID contacted the Review

and Analysis Branch of the Department of Morale, Welfare, and Recreation ("MWR"), whereupon it was discovered by the CID that

MWR had conducted unannounced "spot checks" of the various barber shops on the base. These random checks had revealed that "the

registers always contain[ed] more money than on the register receipt;

however, when the daily activity reports [were] turned in the number

on the register tapes and the amount of money turned in balance[d]."

(McKee Aff., J.A. at 48.) This led CID to conduct a"constant visual

surveillance" of three barber shops on the base. Over a period of four

days, August 5, 12, 15, and 19, 1991, surveillance teams with at least

two "accredited criminal investigators" made head counts of those

persons entering and exiting the barber shops. The investigators compared the number of those exiting with "fresh haircuts" to the number

of customers reported by the barbers on their daily reports and the

number of sales recorded on the daily cash register receipts. The

results of the investigation indicated that there was a "substantial loss

of government funds." Id.

Armed with this data, Staff Sergeant B. McKee, a criminal investigator with CID, presented sworn testimony to General Downs on

August 28, 1991, for the purpose of obtaining authorization to conduct searches of three barber shops. McKee's three affidavits summarized McCaslin's eyewitness observation, MWR's spot check

findings, and CID's visual surveillance. Each affidavit concluded with

the following statement from McKee: "It is believed that this activity

is an ongoing course of business for this barber shop and that stolen

U.S. currency, and personal as well as U.S. government record keeping documentation is maintained within the barber shop . . . ." (J.A.

at 49, 53, 57.) The Command Authorizations for Search and Seizure

issued by Downs each limited the search to the three barber shops and

authorized the seizure of the following items: cash register tapes,

receipts, bookkeeping paraphernalia, U.S. currency, and record keeping documentation concerning the operation of the barber shops. The

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Command Authorizations did not, however, direct the seizure of any

specific person.2

On the same day as the Command Authorizations were issued, CID

agents were accompanied by uniformed military police to the three

barber shops in order to execute the searches. Plaintiffs allege that

after the searches were executed each of them was seized, separated

from the others, and kept under guard in isolation for varying periods

of time while being interrogated. Plaintiffs were allegedly suspended

without pay pending the investigation. No criminal charges were ever

filed against any Plaintiff. Each Plaintiff was eventually reinstated.

Plaintiffs seek compensatory and punitive damages against Downs

and Cathcart. The complaint states the following claims relevant to

this appeal:

 8. That at all times material hereto, including specifically the months of August and September of 1991, the

defendant, JAMES A. CATHCART, was the Chief of Staff

of Marine Corps Base, Camp Lejeune, North Carolina. That

all of the actions of the defendant, MICHAEL P. DOWNS,

complained of below, were undertaken with the advice,

counsel, consent, and approval of the defendant, JAMES A.

CATHCART, who acted in such a way to make him jointly

liable with the defendant, MICHAEL P. DOWNS, for the

plaintiffs' injuries.

 . . . .

 10. That on or about August 28, 1991, the defendant,

MICHAEL P. DOWNS, authorized persons under his command, specifically members of the Criminal Investigation

Division (CID) of the Provost Marshal's office and other

military policemen, to search the workplaces of the plain-

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2 Plaintiffs contend that Downs gave further verbal orders contemporaneous with the issuance of the written Command Authorizations to the

effect that "all barbers present in the shops be taken into custody, transported to the Provost Marshal's Office (PMO) and interrogated . . . ."

(Br. of Appellants at 13.)

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tiffs, to seize the persons of the plaintiffs, and to take them

into custody and to search the persons and effects of the

plaintiffs.

(Compl. ¶¶ 8, 10, J.A. at 7.)

The district court granted Defendants' motion to dismiss or, in the

alternative, for summary judgment. As to Cathcart, the lower court

reasoned that Plaintiffs failed to state what action or actions by Cathcart they attributed to Downs or what principles of law support their

"novel theory of respondeat superior." (J.A. at 167.) As to Downs,

the lower court concluded that no factual support existed to suggest

that Downs authorized any actions other than those specified on the

face of the Command Authorizations. Furthermore, the district court

found that Downs was entitled to "something akin to quasi-judicial

immunity" in fulfilling the duties of his office. (J.A. at 170.) Finally,

even assuming that Downs did not possess any form of immunity, the

district court concluded that the Command Authorizations were supported by probable cause as set forth in McKee's affidavits.

Plaintiffs appeal from the district court's order of May 4, 1995.

II.

The first issue on appeal is whether the district court erred in granting Defendants' motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6) or, alternatively, Defendants' motion for summary judgment

pursuant to Fed. R. Civ. P. 56. We view the district court's ruling as

converting Defendants' motion to dismiss into a motion for summary

judgment as the district court considered affidavits and other materials submitted by the parties in reaching its decision.3 Before considering whether the district court properly granted Defendants' motion,

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3 See Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss . . . matters outside the pleading are presented to and

not excluded by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56 . . . .").

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the parameters of qualified immunity should be noted as it governs

the resolution of this case.4

Government officials performing discretionary functions are generally protected from civil damages liability as long as their "conduct

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); Taylor v. Waters, 81 F.3d 429,

433 (4th Cir. 1996). The policy reasons supporting such a rule are

compelling: the substantial costs of permitting damages actions

against government officials with the same force as against nongovernment individuals include the expense of litigation, the diversion of official energy from pressing public issues, the deterrence of

able citizens from acceptance of public office, and the interference

with the discharge of government business, to name a few. See generally Harlow, 457 U.S. at 814.

Thus, to effectuate these policies, this circuit has adopted a "heightened pleading standard" consistent with the Supreme Court's urging

in Harlow that the issue of qualified immunity be resolved by the trial

judge at the earliest possible stage of the litigation. Dunbar Corp. v.

Lindsey, 905 F.2d 754, 763 (4th Cir. 1990); see also Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (noting that qualified immunity is

"an immunity from suit rather than a mere defense to liability" and

"such pretrial matters as discovery are to be avoided if possible").

This standard requires a specification of the clearly established rights

involved and relates to the degree of factual specificity required in the

complaint. Dunbar, 905 F.2d at 763 (citations omitted).

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4 Indeed, when qualified immunity is asserted as a defense, the court

reviewing such a defense "should assess, before anything else, whether

the alleged conduct violated law clearly established at the time the conduct occurred." DiMeglio v. Haines, 45 F.3d 790, 798 (4th Cir. 1995).

The court in DiMeglio went on to find that requiring a court to conduct

a full review of such a claim on the merits would undermine the policy

of qualified immunity. Specifically, "[s]uch a requirement would undermine one of the express purposes of immunity, which is, `to spare a

defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.'" Id.

(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)).

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The heightened pleading standard finds its justification in the need

to prevent "`fishing expedition[s] in government waters' . . . on the

basis of wholly unsubstantiated charges," Dunbar Corp., 905 F.2d at

764 (internal citations omitted). In Harlow, the Court stated that once

a defendant affirmatively pleads the defense of qualified immunity, a

judge may determine

not only the currently applicable law, but whether that law

was clearly established at the time an action occurred. If the

law at that time was not clearly established, an official could

not reasonably be expected to anticipate subsequent legal

developments, nor could he fairly be said to "know" that the

law forbade conduct not previously identified as unlawful.

Until this threshold immunity question is resolved, discovery

should not be allowed.

Id. at 818 (emphasis added).

Although the district court did not address the issue of a heightened

pleading standard in this case, we agree with the district court that the

complaint and supporting materials fail to state a cognizable legal

claim or, in the alternative, that there is no genuine issue as to any

material fact, and Defendants are entitled to summary judgment as a

matter of law.

Plaintiffs have premised their Bivens claim 5 on the assumption that

because Downs and Cathcart were in charge of Camp LeJeune, they

must have ordered the allegedly unconstitutional seizures. We are not

compelled to address the merits of Plaintiffs' claim, but the point is

too obvious and brief to gloss over before reaching the issue of qualified immunity.

Plaintiffs chose to sue the first- and second-in-command of a military base for claimed unconstitutional actions taken by a collection of

individuals acting under their supervisors' command. To be sure,

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5 See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971) (holding that a violation of the Fourth Amendment by a federal

agent acting under color of his authority gives rise to a cause of action

for damages consequent upon his unconstitutional conduct).

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Plaintiffs did not name those members of the military police or CID

who executed the Command Authorizations as defendants in this suit.

The proposition of imposing such liability on persons who did not

engage in specific injury-inflicting conduct runs squarely into wellsettled principles of law.

As the district court correctly noted, supervisory liability in civil

rights cases is narrowly defined. Although there is no respondeat

superior liability in Bivens actions, see Estate of Rosenberg v.

Crandell, 56 F.3d 35, 37 (8th Cir. 1995); cf. Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 735 (1989) (holding that a municipality cannot

be held liable in Bivens-type actions under a theory of respondeat

superior), a supervisor could be held liable for the acts of a subordinate "only by proof of [his] direct culpability in causing the injury

either by directly authorizing it or by expressly or tacitly condoning

by inaction a known pattern of comparable coworker conduct."

McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1197

(4th Cir.) (citation omitted), cert. denied, 117 S. Ct. 72 (1996). Plaintiffs face a heavy burden of proof in supervisory liability cases.

Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984).

Plaintiffs fail to meet this heavy burden of proof on two fronts.

First, Plaintiffs fail to demonstrate any evidence of an unreasonable

risk of harm from a specified source or that Defendants' "corrective

inaction amounts to deliberate indifference or `tacit authorization of

the offensive practices.'" Slakan, 737 F.2d at 372 (citation omitted).

Other than the conclusory allegations in the complaint as referenced

above, Plaintiffs have come forward with no evidence that either

Downs or Cathcart directly authorized the seizures of the barbers or

were deliberately indifferent to a known pattern of such unconstitutional conduct. Second, with respect to the heightened pleading standard in this case, Plaintiffs merely allege that the actions of Downs

are attributable to Cathcart without offering any explanation whatsoever of Cathcart's specific involvement in the seizures. As to Downs,

Plaintiffs allege that he directly authorized the seizure of the barbers.

Downs responded with evidence in the form of the Command Authorizations demonstrating that he had not, in fact, authorized such seizures. The burden then fell to Plaintiffs to submit evidence in the

form of affidavits or otherwise which "set[s] forth specific facts

showing that there is a genuine issue for trial." Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank of

Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Plaintiffs have

failed to meet this burden by not presenting any evidence that Downs

authorized the seizure of the barbers or that Cathcart had any role in

Downs' decision.

Accordingly, we conclude that the district court properly granted

Defendants' motion to dismiss or, alternatively, for summary judgment.

III.

We turn now to the issue of the qualified immunity defense raised

by Defendants.6 Assuming that an individual is a government official

performing discretionary functions, the crux of the qualified immunity analysis is the "objective legal reasonableness" of the official's

alleged unconstitutional act viewed in the context of legal rules that

were clearly established at the time the action was taken. Anderson

v. Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 819-20 (1982)); Pritchett v. Alford, 973

F.2d 307 (4th Cir. 1992). In order to determine whether an officer's

conduct is immunized, we employ a three-step analysis: 1) identify

the specific constitutional right allegedly violated; 2) determine

whether at the time of the alleged violation the right was clearly

established; and 3) if the right were clearly established, determine

whether a reasonable person in the officer's position would have

known that doing what he did would violate that right. Pritchett, 973

F.2d at 312. The officer is entitled to immunity if the right were not

clearly established at the relevant time or if a reasonable officer

would not have known that his conduct violated the right.

Plaintiffs' constitutional claim is that Downs and Cathcart violated

their Fourth Amendment rights by authorizing military personnel to

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6 In consideration of the Supreme Court's admonition that it is "quite

sparing in its recognition of claims to absolute official immunity[,]" we

analyze this case on qualified immunity grounds to"avoid unnecessarily

extending the scope" of absolute immunity. Forrester v. White, 484 U.S.

219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555 (1988) (citations omitted).

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search and seize Plaintiffs when they had no probable cause. A determination of whether the legal rule was clearly established at the relevant time turns on the level of abstraction at which the legal rule is

assessed. The Fourth Amendment right to be searched and seized only

upon a showing of probable cause, absent a recognized exception, is

clearly established. It is, however, improper to analyze the applicable

right at this level of generality and "would bear no relationship to the

`objective legal reasonableness' that is the touchstone of Harlow."

Anderson, 483 U.S. at 639; see also Taylor , 81 F.3d at 434. The

inquiry must be more focused in order to make it possible for officials

"reasonably [to] anticipate when their conduct may give rise to liability for damages. . . ." Davis v. Scherer, 468 U.S. 183, 195 (1984).

[O]ur cases establish that the right the official is alleged to

have violated must have been "clearly established" in a more

particularized, and hence more relevant, sense: The contours

of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that

right. That is not to say that an official action is protected

by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the

light of pre-existing law the unlawfulness must be apparent.

Anderson, 483 U.S. at 640 (citation omitted).

The reasonableness of Downs' and Cathcart's actions is not contingent upon whether probable cause actually existed. Hunter v. Bryant,

502 U.S. 224, 226-27 (1991). The doctrine of qualified immunity contemplates that law enforcement officials will make the occasional

mistake in judgment. Malley v. Briggs, 475 U.S. 335, 343 (1986). A

reasonable but mistaken conclusion that probable cause exists, for

example, is tolerable because "officials should not err always on the

side of caution" for fear of being sued. Davis, 468 U.S. at 196. On the

other hand, qualified immunity does not protect against "plainly

incompetent" judgments or judgments in "know[ing] violat[ion] of the

law." Malley, 475 U.S. at 341. In determining whether Downs is entitled to qualified immunity, our analysis "must be filtered through the

lens of the officer's perceptions at the time of the incident in question." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (citation

omitted). Thus, Downs and Cathcart will not be denied qualified

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immunity for making a mistake, so long as that mistake is reasonable

given the circumstances.

What sets this case apart from the standard qualified immunity scenario is the presence of the military. The general rule governing the

search and seizure of civilians located on a military base and subject

to the authority of the base commander is that as long as their actions

are based on probable cause, "military personnel are authorized by

statute to arrest and detain civilians for on-base violations of civil

law[.]" United States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976). As

one court in this circuit has held:

[A]s long as the military respects the rights guaranteed by

the Fourth Amendment's prohibition against unreasonable

searches and seizures, the military need not be bound by all

of the procedural formalities that are imposed upon civilian

law enforcement agencies.

United States v. Rogers, 388 F.Supp. 298, 301 (E.D. Va. 1975); see

also United States v. Stuckey, 10 M.J. 347, 361 (1981) ("The commander's power to authorize searches of places and persons under his

control exists to whatever extent it does exist because it complies with

the Fourth Amendment's basic norm of reasonableness"); cf.

Applewhite v. United States Air Force, 995 F.2d 997, 1000-01 (10th

Cir. 1993) (holding that military personnel engaged in a sting operation did not violate clearly established Fourth Amendment rights in

seizing a civilian based upon probable cause to believe she was participating in a narcotics transaction and holding her pending a determination whether civilian authorities would take over the

investigation). Thus, it is clear that at the time Downs allegedly

authorized the seizure of Plaintiffs, there was no clearly established

law forbidding him to do so.

IV.

The evidence that McKee presented to Downs clearly established

enough probable cause to support the issuance of the Command

Authorizations. A Command Authorization, the military equivalent of

a search warrant, must be supported by probable cause to satisfy the

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Fourth Amendment. United States v. Harris, 403 U.S. 573, 577 (1971).7

McKee's affidavits summarized over a month-long investigation of

the barber shops in question. This investigation by the CID was set

in motion by the eyewitness account of Officer McCaslin of a head

barber pocketing half of the six dollars he received from two marines

for two haircuts. CID then discovered that past spot checks of the

base barber shops consistently revealed more money in the cash registers than on the cash register receipts. At the end of the day, however,

the money in the cash registers and the cash receipts balanced. The

CID then undertook constant visual surveillance wherein teams of

military investigators conducted on-the-spot undercover observations

of the barber shops over a period of four days.

Plaintiffs vigorously argue that the methods of collecting evidence

during the visual surveillances were conclusory, therefore, Defendants' reliance on this evidence was unreasonable. In Plaintiffs' view,

because the military investigators could not possibly distinguish

between those marines exiting the barber shops under surveillance

with fresh haircuts from any other marine exiting with short hair, it

was unreasonable for Downs and Cathcart to rely on McKee's affidavits.

Qualified immunity is lost only if "the warrant application is so

lacking in indicia of probable cause as to render official belief in its

existence unreasonable." Malley, 475 U.S. at 344-45. Notwithstanding the pure speculation by Plaintiffs as to any effects of the allegedly

flawed investigative methodologies, under the "totality-of-thecircumstances" approach to reviewing probable cause determinations,

see Illinois v. Gates, 462 U.S. 213, 230 (1983), we hold that McCaslin's eyewitness account coupled with the MWR spot check evidence

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7 Furthermore, search warrants may be issued only by a neutral and

detached magistrate. See, e.g., United States v. Clutchette, 24 F.3d 577,

579 (4th Cir. 1994). As noted, this case presents a unique twist in that

a military commander issued the search warrant. Military officials, like

federal magistrates in the civilian realm, are empowered to issue search

warrants consistent with the dictates of the Fourth Amendment and

"must be neutral and detached and must perform[their] duties with a

judicial rather than a police attitude." United States v. Ezell, 6 M.J. 307,

315 (1979) (internal quotations and citation omitted).

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constituted ample probable cause for Downs and Cathcart reasonably

to authorize the Command Authorizations.

Accordingly, reasonable officers in Downs' and Cathcart's positions could find probable cause to believe that a crime had been committed against the government.

V.

For the foregoing reasons, we affirm the decision of the district

court in granting Defendants' motion to dismiss or, in the alternative,

for summary judgment.

AFFIRMED

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