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October 6, 1994

JOSEPH, CLAIRE, and ANTHONY VARRONE, Plaintiffs, against MICHAEL BILOTTI, et al., Defendants.


The opinion of the court was delivered by: JOHN R. BARTELS


 Defendant John Matthews moves this Court under Rule 56 of the Federal Rules of Civil Procedure for summary judgment. Plaintiff Anthony Varrone moves under Rule 15 for an order granting him leave to amend the complaint to name six additional known defendants and ten unidentified "John Doe" defendants. For the reasons set forth below, the defendant's motion for summary judgment is denied and the plaintiff's motion to amend is granted.


 At the time of the events precipitating this action, *fn1" Joseph Varrone was incarcerated at the Arthur Kill Correctional Facility in New York (the "Facility"). On March 8, 1989, Joseph's son, plaintiff Anthony Varrone, and his companion, Susan Wight, spent what prison officials term a "contact visit" with Joseph at the Facility during regular visitation hours. This visit prompted prison security to subject Joseph to a strip search, a procedure they contend is performed routinely on inmates after contact visits. Although the strip search proved negative for contraband, security personnel placed Joseph in the Special Housing Unit ("SHU"), an area of solitary confinement within the Facility, where he was held for a period of twenty-seven hours. While Joseph was confined in SHU, authorities failed to uncover the presence of any contraband during an inspection of his bowel movement.

 Plaintiff alleges that defendant violated 42 U.S.C. ยง 1983 on March 10, 1989, when he again visited his father at the Facility. Upon his arrival, defendant Matthews, a Facility correction sergeant assigned to the visiting room at the relevant time, informed plaintiff that he must submit to a strip search before he would be granted visitation privileges. *fn2" A sign posted outside the Facility expressly warns that "a 11 visitors are subject to searches as a condition of visitation." (See Affidavit of Brian Malone, sworn to November 24, 1993 [the "Malone Aff."] Exhibit C.) More importantly, plaintiff admits having signed a "Consent to Search" form (id., Ex. E) before defendant Matthews escorted him to a private room, where a full-body search proved negative for contraband.

 The account offered by defendant Matthews tells virtually the same story with a few important elaborations. Matthews claims that on March 3, 1989, Kings County Assistant District Attorney Eric Seidel telephoned Brian Malone, the Inspector General for the New York State Department of Correctional Services ("DOCS"), to notify him that ADA Seidel had received information regarding possible drug trafficking by Joseph, Claire, and Anthony Varrone. Specifically, ADA Seidel stated that he had been told by a "reliable source" that Anthony and Claire Varrone planned to visit Joseph within the near future, and that they would attempt to transport heroin into the Facility at that time.

 After reviewing records pertaining to Joseph Varrone's conviction for criminal sale of a controlled substance, and armed with the knowledge that DOCS currently was investigating allegations of instances of drug smuggling at the Facility (none of which implicated Joseph Varrone, however), Malone directed Deputy Inspector General Thomas Mansfield to ensure that prison personnel subjected both Claire and Anthony Varrone to a strip search before their next visit. Deputy Inspector Mansfield then assigned the matter to Investigator Juan Ramos with instructions to contact senior security staff at the Facility. On March 6, 1989, Investigator Ramos provided Gerald Wells, Deputy Superintendent for Security at the Facility, with Malone's orders to search any visitor before allowing them to see Joseph Varrone. (See Malone Aff., Ex. B.) Apparently, this order eventually was carried out by defendant Matthews.


 A. Defendant's Motion for Summary Judgment

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the record demonstrates clearly that "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 571-73 (2d Cir. 1991). The party seeking summary disposition bears the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2558, 91 L. Ed. 2d 265 (1986). The court's function on such a motion is to "assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991).

 Defendant's motion launches a multi-tiered attack, arguing that Anthony Varrone has failed to state a violation of his constitutional rights because he retained no legitimate expectation of privacy once he entered the Facility. Alternatively, Matthews asserts that even if plaintiff did enjoy a legitimate privacy expectation, he expressly consented to the strip search and thereby waived any Fourth Amendment protections he may have had. In any event, Matthews claims the search was based on reasonable suspicion, and thus passes constitutional muster. A second line of defense asserts that Matthews himself cannot be held liable should the Court find that the strip search was constitutionally unreasonable. First, Matthews relies on the principle that in order to establish liability in a Section 1983 action, plaintiff must demonstrate personal involvement on the part of a defendant. Matthews argues further that even if he were involved personally in the search, the doctrine of qualified immunity shields him from liability. Each of defendant's contentions here will be dealt with separately.

 1. Plaintiff Retained a Legitimate Expectation of Privacy While Visiting the Facility

 Plaintiff did not abandon his constitutional right to be free from unreasonable government intrusion when he entered the Facility to visit his father. While the Court of Appeals for the Second Circuit has recognized that "contacts between inmates and noninmates may justify otherwise impermissible intrusions into the noninmates' privacy," United States v. Willoughby, 860 F.2d 15, 21 (2d Cir. 1988), cert. denied, 488 U.S. 1033, 109 S. Ct. 846, 102 L. Ed. 2d 978 (1989), neither that court, nor any other circuit court, has held that the need to maintain prison security justifies wholesale abrogation of rights protected by the United States Constitution. Indeed, the circuit courts generally agree that a prison visitor retains a Fourth Amendment right to be free from unreasonable searches and seizures. See, e.g., Boren v. Deland, 958 F.2d 987 (10th Cir. 1992); Cochrane v. Quattrocchi, 949 F.2d 11 (1st Cir. 1991), cert. denied, U.S. , 112 S. Ct. 2965, 119 L. Ed. 2d 586 (1992); Daugherty v. Campbell, 935 F.2d 780 (6th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 939, 117 L. Ed. 2d 110 (1992); Smothers v. Gibson, 778 F.2d 470 (8th Cir. 1985); Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985), cert. denied, 475 U.S. 1016, 106 S. Ct. 1198, 89 L. Ed. 2d 313, 106 S. Ct. 1199 (1986).

 Although plaintiff retained a legitimate expectation of privacy while in the Facility, the Court agrees with defendant that any such expectation necessarily was diminished. The Second Circuit has recognized that noninmates possess legitimate expectations of privacy; the court has noted, however, that "in light of the difficult burdens of maintaining safety, order and security," these privacy expectations diminish when one enters a correctional facility. Security and Law Enforcement Employees v. Carey, 737 F.2d 187, 204 (2d Cir. 1984). As stated by the Court of Appeals for the First Circuit, "to be sure, those visiting a prison cannot credibly claim to carry with them the full panoply of rights they normally enjoy. But neither may they constitutionally be made to suffer a wholesale loss of rights. . . . " Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir. 1985). Accordingly, once inside the Facility plaintiff enjoyed a legitimate, albeit diminished, expectation that he would be free from unwarranted government intrusion into his bodily privacy.

 2. Whether the Strip Search of Plaintiff Was Supported by Reasonable Suspicion Raises an Issue of Material Fact

 The Court finds that defendant Matthews has failed to demonstrate that, as a matter of law, the gross invasion of plaintiff's Fourth Amendment rights was supported by reasonable suspicion. The Fourth Amendment "vests individuals with the right to be free from 'unreasonable government intrusions into their legitimate expectations of privacy.'" Carey, 737 F.2d at 201 (quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S. Ct. 2476, 2481, 53 L. Ed. 2d 538 [1977]). Having concluded that Anthony Varrone enjoyed a legitimate privacy expectation while a visitor at the Facility, it now is incumbent upon defendant to establish that the government's intrusion on that privacy right was reasonable. The United States Supreme Court has held that to determine the reasonableness of a strip search conducted at a correctional facility, "the court must balance the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447 (1979). Application of this balancing test has led the ...

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