on the basis of nothing more than an uncorroborated confidential informant's tip.
Although defendant urges that the strip search was required to thwart a reasonably suspected attempt by plaintiff to smuggle drugs into the Facility, several facts belie this contention. First, on March 8, 1989, five days after authorities had received the tip from ADA Seidel's informant, prison officials permitted Anthony Varrone and Susan Wight to visit Joseph without first subjecting them to a search for contraband.
According to Brian Malone, ADA Seidel purportedly notified DOCS authorities on March 3, 1989 of his receipt of the tip that Anthony or Claire Varrone likely would attempt to transport drugs into the Facility within the near future. (Malone Aff., P 3.) A memorandum sent by Investigator Ramos to Gerald Wells, the Deputy Superintendent of Security at the Facility, confirms that Facility security personnel clearly were apprised of ADA Seidel's tip as early as March 6, 1989. (Malone Aff., Ex. B.) Noticeably absent, however, is any explanation for why prison personnel, admittedly armed with the information provided by ADA Seidel and faced with the directive to strip search Anthony, Claire, and "anyone that is with them" on "their next attempt to visit" Joseph (id.), neglected to conduct any search of plaintiff and his companion on March 8, 1989.
Defendant does not allege that prison authorities received corroborative information between March 8 and March 10 that could have bolstered the reliability of the tip or provided independent justification for a strip search of plaintiff on March 10. Rather, examination of the surrounding circumstances reveals that all evidence received by authorities after learning of ADA Seidel's tip actually points away from Joseph, Claire, and Anthony Varrone as suspects in any illegal drug trafficking at the Facility. For example, immediately after the March 8 contact visit with plaintiff, prison authorities strip-searched Joseph and then held him in isolation in a fruitless attempt to uncover secreted contraband. Similarly, authorities again failed to intercept any illicit drugs during a strip search of Claire Varrone conducted before her visit on March 9, 1989. Viewing collectively the authorities' failure to search plaintiff and his companion before their March 8 visit with the absence of any evidence of drug trafficking uncovered during previous searches of both Joseph and Claire, it appears that authorities were less justified in searching plaintiff on March 10 than they would have been prior to the March 8 visit.
The issue of whether prison authorities properly were justified in subjecting plaintiff to a strip search renders inappropriate a grant of summary judgment on the basis of the present record. Indeed, as noted above, the information received by prison authorities subsequent to their learning of the tip not only failed to bolster, but actually questioned, the veracity of the information provided about the Varrones. Viewing, as it must, these facts in the light most favorable to plaintiff, the Court holds that the confidential informant's tip, absent some measure of corroboration, fails to demonstrate as a matter of law that the strip search of plaintiff was warranted. The evidence presently before the Court leaves open to question whether there existed at the time of the search independent, articulable grounds to suspect plaintiff of an attempt to smuggle drugs into the Facility, and the reasonableness of defendant's conduct thus is a question of fact best left for the jury. See Keeler v. Hewitt, 697 F.2d 8, 12 (1st Cir. 1982) (jury properly determines the reasonableness of a search in a Section 1983 action).
3. Plaintiff Did Not Waive his Fourth Amendment Protections by Consenting to the Search
Because the Court has held that there remains a question of fact concerning the reasonableness of the strip search at issue, it becomes necessary to determine whether, as a matter of law, plaintiff's alleged consent to the search effectively waived his Fourth Amendment protections.
Matthews argues that Anthony Varrone cannot contest the reasonableness of the strip search because plaintiff knowingly consented to the conduct of that search. On this point Matthews bears the "burden of proving that consent was, in fact, freely and voluntarily given." Carey, 737 F.2d at 202 n.23 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854 ). Defendant points first to a sign posted outside the Facility -- which warns would-be visitors that the right of visitation may be contingent upon a search -- as grounds for implying plaintiff's consent. More importantly, defendant relies heavily on the "Consent to Search" form plaintiff signed as evidence of an express waiver of plaintiff's Fourth Amendment rights. It is undisputed that absent his consent to the search, plaintiff would have been denied visitation privileges.
The Court finds neither of defendant's arguments persuasive. In Cochrane v. Quattrocchi, supra, the Court of Appeals for the First Circuit held invalid consent obtained from a prison visitor where the would-be visitor was put to the choice of either consenting to a strip search or leaving the prison. The court rejected the argument that the visitor's right to choose to decline visitation rendered her consent constitutionally meaningful. Rather, the court concluded that "a prison visitor confronted with the choice between submitting to a strip search or foregoing a visit cannot provide a 'legally cognizable consent,'" because it "'is the very choice to which she was put that is constitutionally intolerable.'" 949 F.2d at 14 (quoting Blackburn, 771 F.2d at 569, 568 [emphasis in original]). The Court here agrees that plaintiff "was confronted with a similar, and no less 'constitutionally intolerable,' choice between being denied prison visitation access . . . or waiving [his] constitutional right to be free from [an] unreasonable search." 949 F.2d at 14-15. Where, as here, access to a prison is "impermissibly conditioned" on submission to a strip search, consent is constitutionally deficient as a matter of law. Blackburn, 771 F.2d at 567.
The Court also finds no merit in defendant's suggestion that the posting of the warning sign outside the Facility rendered permissible an invasion of plaintiff's privacy rights. A similar argument was advanced in Thorne v. Jones, supra, where the court rejected the defendant's assertion that plaintiff had consented to a strip search by executing a prison visitor form and by passing through the prison gates, at which warning notices were posted. The court cautioned that "if accepted, this argument would render reasonable a strip search of any such prison visitor" irrespective of the need for the particular intrusion. 765 F.2d at 1276. Accordingly, the Court finds invalid any alleged express or implied consent to the search in question.
4. Matthews was Personally Involved in Conducting the Search of Plaintiff
Defendant Matthews correctly notes that Section 1983 liability requires a showing of a defendant's personal involvement in the alleged unconstitutional behavior. See Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978). However, the Court finds wholly unconvincing defendant's attempt to distance himself from the alleged infraction involved here. While admitting that he actually performed the strip search in question, defendant Matthews argues that because he was not involved in making the decision to subject plaintiff to a strip search, he cannot be held liable under Section 1983. Defendant has cited no legal authority in support of this position, and the Court finds the argument meritless.
5. Whether the Doctrine of Qualified Immunity Shields Defendant Matthews From Civil Liability Raises a Question of Material Fact
The defense of qualified immunity shields government officials from civil liability "'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Prue v. City of Syracuse, 26 F.3d 14, 17 (2d Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 ). Whether the doctrine of qualified immunity properly applies is a question of law to be decided by the court. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985).
To establish this defense on motion for summary judgment, defendant bears the burden of showing upon undisputed facts either that it was not clear at the time he conducted the search that "the interest asserted by the plaintiff was protected by federal law," Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993), or that it was "objectively reasonable" for defendant to believe that his conduct did not violate plaintiff's clearly established rights. Prue, 26 F.3d at 17. When examining whether a right was clearly established at the time a defendant committed an alleged violation, the court must consider:
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.