Carmen Leverette v. Margarett Bell

Plaintiff Carmen Leverette, an employee of South Carolina's
Wateree River Correctional Institution ("WRCI"), brought this suit
against Margaret Bell, the Associate Warden of WRCI, alleging that
Bell had violated her Fourth Amendment right against unreasonable
searches and seizures by conducting a visual body cavity search of
Leverette's person. Leverette seeks damages pursuant to 42 U.S.C.
S 1983. Along with her S 1983 claim, Leverette advanced a common-
law negligence claim against the South Carolina Department of Cor-
rections ("SCDC"). Upon the defendants' motion for summary judg-
ment, the district court rejected Bell's assertion of qualified
immunity, and that assertion is the sole issue before us in this inter-
locutory appeal. Because we conclude that the challenged search was
constitutionally permissible, we reverse the denial of summary judg-
ment and remand so that judgment may be entered in Bell's favor.

I.

A.

Leverette was hired by SCDC as a correctional officer in December
1990, and she transferred to the WRCI facility in 1992. In April 1998,
she was promoted from correctional officer to program assistant, a
non-uniformed position that she continues to occupy. Prior to her pro-
motion, Leverette had been subjected to two strip searches, both of
which were authorized by John Carmichael, Warden of WRCI, pursu-
ant to the prison's efforts to interdict drugs and other contraband. The
first such search was conducted in 1996, after an SCDC drug dog
reacted to scents in Leverette's vehicle during a random search of all vehicles entering WRCI; that search, consisting of a strip, squat, and
cough, was conducted by Bell and two female correctional officers
and yielded no contraband. The second search, a visual body cavity
search of Leverette, was carried out at WRCI on February 4, 1998,
and is the subject of this lawsuit.

On February 2, 1998, a WRCI inmate informed Bell that some of
the other prisoners had schemed to buy marijuana"on the street," and
that Leverette was planning to smuggle the marijuana into the prison
by concealing it in a tampon. The inmate-informant, whose identity
has not been disclosed, had on prior occasions provided accurate tips
to the Sumter County Drug Task Force and to SCDC Internal Affairs.
Based on information obtained in a meeting Bell attended with mem-
bers of the Drug Task Force and Internal Affairs, she believed the
inmate's information concerning Leverette to be reliable.

That evening, Bell called her supervisor, Warden Carmichael, to
relay the information obtained from the inmate's tip. After the call,
but prior to Leverette's scheduled return to work on February 4, Bell
and Carmichael met to discuss the tip. In the course of their discus-
sion, Carmichael directed Bell to conduct a strip search of Leverette
upon the latter's arrival at work on February 4. Bell recalled raising
the possibility that Leverette would be wearing a tampon and suggest-
ing that a female medical professional be present, in light of the "per-
sonal" nature of the examination. J.A. 421. Bell further testified that
no specific decision was made at that time as to what procedures to
follow if a tampon were discovered.

Bell and Carmichael reconvened on the morning of February 4, in
order to finalize the logistics and procedures of the search. It was then
determined that the search of Leverette would be conducted in Bell's
office and that a female nurse supervisor would be present, along with
two female correctional officers. When Leverette arrived at WRCI to
work, she was accompanied to Bell's office and advised by Carmich-
ael that the prison had received a tip that she was carrying contraband.
Before leaving the office, Carmichael stated, "[Y]ou know the proce-
dure on this. We are going to have to do a strip search." J.A. 146-47.

Shortly after Leverette was so advised by Carmichael, the female
correctional officers were beckoned to Bell's office to conduct the search. After the warden departed, the office door was closed, the
blinds were drawn shut, and Leverette began to disrobe. Bell and the
officers first searched Leverette's clothing and lunch container, but
they detected nothing. Leverette testified that once her clothing and
lunch container had been searched, she was told that they were wait-
ing for the nurse because, Bell stated, "[W]e are going to do a body
cavity search." J.A. 149. Still naked, Leverette was seated for four or
five minutes until the nurse arrived.

In her deposition, Leverette described the activities that ensued:

I stand up and they are surround[ing] me,[the nurse] and
Ms. Bell, and they are not saying anything, but I know she
said body cavity search. So I kind of like bend over and they
are looking. And Ms. Bell said she can't see, so I bend over
a little more, and she stated she couldn't see again. So I
bend over a little more, and the third time she says she
couldn't see, so I just bent all the way down and put my
hand on the floor so she could see. And after that they are
there.

I stand up and they are surround[ing] me,[the nurse] and
Ms. Bell, and they are not saying anything, but I know she
said body cavity search. So I kind of like bend over and they
are looking. And Ms. Bell said she can't see, so I bend over
a little more, and she stated she couldn't see again. So I
bend over a little more, and the third time she says she
couldn't see, so I just bent all the way down and put my
hand on the floor so she could see. And after that they are
there.

After getting dressed, Leverette asked who the informant was; Bell
replied that it was an inmate but declined to reveal the informant's
name. Bell then left the office briefly, returning"with a consent to be
strip searched and a consent to be frisk searched." J.A. 151. Leverette
recalled signing the frisk search area of the form; when it was noticed
that the wrong section had been signed, Leverette complied with
Bell's request that she complete a written strip search consent.

After getting dressed, Leverette asked who the informant was; Bell
replied that it was an inmate but declined to reveal the informant's
name. Bell then left the office briefly, returning"with a consent to be
strip searched and a consent to be frisk searched." J.A. 151. Leverette
recalled signing the frisk search area of the form; when it was noticed
that the wrong section had been signed, Leverette complied with
Bell's request that she complete a written strip search consent.

B.

In February 1999, Leverette brought suit in the District of South
Carolina against Bell, in her individual capacity, for violating Lev-
erette's constitutional rights under the Fourth Amendment, and
against SCDC, for negligence.1 Following extensive discovery, the
defendants filed a motion for summary judgment on all of Leverette's
claims. Leverette assented to the voluntary dismissal, without preju-
dice, of her negligence claim, leaving only herS 1983 claim against
Bell. Bell moved for summary judgment solely on the basis of quali-
fied immunity. After hearing argument on the immunity issue, the dis-
trict court denied Bell's motion for summary judgment, and Bell
timely filed this interlocutory appeal. We possess jurisdiction over
this appeal pursuant to the collateral order doctrine. See Winfield v.
Bass, 106 F.3d 525, 528-29 (4th Cir. 1997) (en banc) ("To the extent
that an order of a district court rejecting a governmental official's
qualified immunity defense turns on a question of law, it is a final
decision within the meaning of S 1291 under the collateral order doc-
trine[.]") (citing Mitchell v. Forsyth , 472 U.S. 511, 524-30 (1985)
(other citations omitted)).

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Reversed and remanded.

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