Pierce v. Ohio Department of Rehabilitation & Corrections (284 F. Supp. 2d 811, 2003)

MEMORANDUM OPINION

DOWD, District Judge.

The above-captioned matter represents another chapter in what has become a continuing dispute between the Ohio Department of Rehabilitation and Corrections and its correctional officers. The officers complain that the department subjected them to strip searches in violation of the Constitution and a settlement agreement from a prior lawsuit. The parties’ dispute sub judice began on November 19, 2000, when the individual plaintiffs were subjected to strip searches upon arriving to work, but arguably has its genesis in events that transpired much earlier. That is, a prior lawsuit brought by the department’s correctional officers against the department resulted in a settlement agreement and a revamping of the prison’s policies for strip searching its employees. The plaintiffs’ claims in the current dispute consist of, inter alia, § 1983 claims for violations of the Fourth, Fifth, and Fourteenth Amendments, and a pair of state law claims, including one for breach of contract (the settlement agreement of the prior litigation).

Currently before the Court is Defendants’ “Motion to Dismiss and/or for Qualified Immunity and/or for Summary Judgment” (Doc. No. 55). Plaintiffs have filed their response in opposition (Doc. No. 56), and Defendants have filed a reply (Doc. No. 57). In their motion, Defendants raise, inter alia, issues of jurisdiction and qualified immunity.

I. FACTUAL BACKGROUND

The events during two time periods are important to understanding the issues of this case. The first period consists of the events from the prior litigation, which gave rise to an overhaul of the department’s policies for strip searching its employees. The second period consists of the events leading up to, and including, the searches conducted at the Trumbull Correctional Institution (“TCI”) on November 19, 2000. The facts presented here are undisputed, and, if not, set forth in a light most favorable to the plaintiffs pursuant to the qualified immunity standard, infra Part II.B.

A. The Prior Litigation

As mentioned, the subject matter of this dispute is not new. The department and its employees previously fought over the constitutional propriety of strip searching correctional officers. Plaintiff Ohio Civil Service Employees Association/AFSCME Local 11 AFL-CIO (“OCSEA” or “Union”) and several members/employees sued the Ohio Department of Rehabilitation and Corrections (“ODRC” or “Department”) and its various officials after several correctional officers were strip searched allegedly without probable cause or search warrants. The case resulted in a published opinion, which examined the same, primary defense pled here: qualified immunity.

On February 22, 1985, the OCSEA and nine prison guards brought suit against the Department and several of its officials under 42 U.S.C.1983 (1996) and 42 U.S.C. § 1985 (1871). The plaintiffs alleged that, from 1979 to 1985, the Department subjected them to strip searches and body cavity searches without probable cause or search warrants in violation of the Fourth Amendment. The guards also alleged that some of the searches were motivated by race, retaliation, and the intent to discipline.

The procedural posture of the prior case includes two appeals to the Sixth Circuit. Leading to the first appeal, the defendants moved the district court for judgment on the pleadings, invoking the defense of qualified immunity on the basis that the rights asserted by the plaintiffs were not clearly established statutory or constitutional rights. The district court rejected the defense. The Sixth Circuit remanded, noting that the district court failed to make explicit findings in rejecting qualified immunity. Ohio Civil Service Employees Ass’n v. Seiter, No. 85-3836, 1986 WL 16458, at *1, 785 F.2d 309 (6th Cir. Jan 24, 1986) (unpublished table decision). On remand, the district court again rejected the Department’s qualified immunity defense, providing specific findings in its analysis as instructed by the circuit. The defendants again appealed to the Sixth Circuit, which reversed the district court. Ohio Civil Service Employees Ass’n v. Seiter, 858 F.2d 1171, 1178 (6th Cir.1988) (“Seiter”).

To understand fully the significance of Seiter, an examination of the district court’s rationale is necessary. The district court rejected the defendants’ qualified immunity defense based on the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and the Second Circuit’s decision in Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187 (2d Cir.1984). From these opinions, the district court derived the following three principles: a per se rule for the unlawfulness of any warrantless search not falling within an articulated exception; a basic constitutional right to be free from unreasonable searches, unless the alleged conduct fell within an exception to the above per se rule; and a prohibition of strip searches and body cavity searches without at least a reasonable suspicion of wrongdoing. Seiter, 858 F.2d at 1172-73. Applying these principles to the facts of the case, the district court rejected the defendants’ qualified immunity defense. Id. at 1172.

In reviewing this decision; the Sixth Circuit examined the then-current Supreme Court cases that shaped the face of qualified immunity, namely Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Against the background of these cases, the circuit framed the issues as: “[WJhether the Fourth Amendment encompasses the right to be free from warrantless strip and body cavity searches and, if so, whether that right was clearly established at the time the searches took place.” Seiter, 858 F.2d at 1173-74. Finding error in the lower court’s decision, the circuit held that “the district court was required to find both a subjective expression of privacy and an approval of that expectation by society, in order to avoid a finding of qualified immunity.” Id. at 1175. In the end, the court determined from its review of other circuits’ cases and instructive Supreme Court decisions that the right of prison guards to be free from strip searches and body cavity searches was not clearly established at the time the searches occurred. Id. at 1177-78. The circuit again remanded, but this time for a trial on the plaintiffs’ other claims. The litigation ended, however, in a settlement, which culminated into a renovation of the Department’s policy towards strip searches.

The details of the settlement in Seiter bear considerable relevance to the instant dispute. The text of that agreement provided:

1. This Settlement Agreement is made between Plaintiffs, Ohio Civil Service Employees Association, Cris Bees-ler, Douglas A. Gerhart, Michael A. Hill, Randy M. Martin, Edward L. Brooks, Phillip Reed and Jeffrey Craft, and Defendants George Wilson, Director of the Ohio Department of Rehabilitation and Corrections (“ODRC”) and certain other ODRC employees.

2. This Settlement Agreement is made as a compromise between the parties for the complete and final settlement of all claims, differences, and causes of action with respect to the within action.

3. The parties understand that this settlement is a compromise of a disputed claim and is not to be construed as an admission of liability on the part of the defendants.

4. It is understood by the parties that the facts upon which this Settlement Agreement is made may hereafter prove to be other than or different from the facts now known by either of them or believed by either of them to be true. All of the parties hereto expressly accept and assume the risk of the facts proving to be so different, and all of the parties hereto agree that all the terms of this Settlement Agreement shall be in all respects effective and not subject to termination or recision [sic] by any such difference in facts.

5. The parties agree that the terms of this Settlement Agreement bind them, and their heirs, agents, employees, assigns, and successors in interest.

6. Employees of the Ohio Department of Rehabilitation and Correction (“ODRC”) [sic] entering or who have entered a correctional institution may be searched by use of a magnetometer or similar device, by a pat-down search and by an examination of the contents of pockets, bags, purses, packages and other containers which the employees desire to bring into the institution. Such searches may be conducted without cause at any time while the employees are inside of the institution.

7.(a) Any strip search or any other body search, including a body cavity search, that is more intrusive than the type of search allowed by paragraph 6 above, may be made only on the basis of reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the person to be searched is then in possession of a weapon, drugs or other contraband.

(b) Prior to conducting such a search, the employee to be searched shall be provided and may keep a written statement setting forth the specific objective facts upon which the search is based. The written statement shall contain at a minimum: the date and time the information was received; the names of the individuals to whom the information was provided, unless disclosure of the names would jeopardize the safety of the individuals or would interfere with receiving future information from the individuals; the information itself; and the basis of the informant’s knowledge. The written statement shall be preserved.

(c) In case of emergency, where time constraints make it impossible to prepare the written statement before conducting the search, the information required by the written statement shall be orally stated to the employee to be searched and a written statement prepared and given to the employee within twenty[-]four (24) hours after the search, or within twenty[-]four (24) hours after the employee returns to work where the employee leaves work before the written statement can be prepared.

(d) Such a search is to be made only on the express authority of the highest officer present in the institution and conducted by an employee of the same sex in a private setting. The employee searched shall have the right to select a witness of his or her choice from among his or her fellow employees then on duty or present in the institution.

(e) Searches that involve the physical probing of any body cavity shall be conducted only by licensed medical personnel.

(f) Complaints regarding the written statement required by paragraph 7(b) above, including a request to review the cause for suspicion supporting the search, may be addressed to the Director of the Department of Rehabilitation and Correction within ten working days of the search. The Director or his designee may review the complaint, the written statement, and any records pertaining to the cause for suspicion as appropriate. The Director or his desig-nee shall respond to such complaint in writing and, when appropriate, shall include an opinion on the adequacy of the cause for suspicion. The form of the written statement and the cause for search may not be grieved or arbitrated under the Collective Bargaining Agreement between the State of Ohio and the Ohio Civil Service Employees Association (“OCSEA”), Local 11, American Federation of State, County and Municipal Employees (“AFSCME”), or any other collective bargaining agreement between the State of Ohio and corrections employees.

8.Within two (2) weeks of any search conducted pursuant to the procedures specified in paragraph (7)(b) above, Defendants shall serve a copy of the written statement upon the general counsel of the union currently representing corrections officers or his designee.

9. If a future decision rendered by the United States Court of Appeals for the Sixth Circuit or the United States Supreme Court should articulate a different standard for conducting searches of prison employees than is contained in this Settlement Agreement, the parties agree that this Settlement Agreement shall be modified to reflect the change in the law.

10. Plaintiffs agree that all claims, demands, rights, causes of action, costs, expenses and any and all other damages to them on account of or in any way arising out of the allegations contained in the above[-]referenced case are hereby released, settled, satisfied, discharged and compensated.

11. Plaintiffs, upon execution of this Settlement Agreement, agree to enter a Stipulation of Dismissal dismissing with prejudice all claims of any kind or nature which they have or may have against any other party to this Settlement Agreement based upon any and all matters up to and including the date of execution of this Settlement Agreement. Further, plaintiffs agree that they shall not file, or permit anyone to file on their behalf, any judicial, administrative, statutory or contractual claim, charge, suit or action directly or indirectly related to the allegations set forth in the above[-]referenced case.

12. Plaintiffs, their heirs, successors and assigns, hereby hold harmless from any liability and forever discharge the defendants, their agents, heirs, servants and employees, personally or in any capacity, from any and all claims arising directly or indirectly from the instant case, including their respective searches. No damages will be paid to any of the plaintiffs. Upon execution of this Settlement Agreement, Plaintiffs agree to execute releases so discharging the defendants from liability.

18. Defendants shall pay $55,000.00 in attorneys’ fees and expenses to the law firm of Kirschner, Weinberg and Dempsey as counsel for the plaintiffs. This amount shall constitute a total monetary settlement for all attorneys’ fees for all counsel appointed or retained.

14. All costs associated with the above[-]referenced case, including court costs and any other expenses incurred by the plaintiffs in relation to this case, shall be borne equally by the parties, each party paying its own costs.

15. Plaintiff, OCSEA/AFSCME, and Defendant, ODRC, agree to cooperate in the issuance of a joint press release discussing the terms and conditions of this Settlement Agreement. No other communication with the media shall occur prior to the issuance of the joint press release described above.

16. The parties agree that the obligations of the State of Ohio shall at all times be subject to the provisions of § 126.07, Ohio Revised Code.

17. This Settlement Agreement shall be in effect and binding upon the parties after all of the parties and their counsel as listed below have signed it. Upon signature by all of the persons listed below, the parties to this Settlement Agreement agree that it shall represent the end of all litigation related in any way to the above[-]referenced[-]to case.

In witness whereof, the parties hereto have set their hands as of the dates noted below.

[signed]

(Settlement Agreement executed Jan. 1990 in Ohio Civil Service Employees Ass’n v. Seiter, No. C-1-85-530, at 1-8 (footnotes omitted) (Compl. Ex. 1 (Doc. No. 1)) (“Seiter Agreement”).)

B. The Strip Searches of Plaintiffs

From an unidentified date in 1999 up until November 17, 2000, Warden Julius Wilson received information that Plaintiffs Eddie Pierce, Jr., and Brod Muse (both correctional officers) were involved in trafficking drugs to inmates within the Trumbull prison. (Wilson Dep. Tr. at 30.) Similar information came to him about Billie Butler and Robert Clark (also correctional officers), but during a more limited time frame: from about March 2000 until November 17, 2000. (Wilson Dep. Tr. at 30-31.) Wilson estimated that the information on Clark came from two individuals, on Butler from four individuals, on Pierce ten individuals, and on Muse ten individuals. (Wilson Dep. Tr. at 32-34.) Defendants have worked hard to preserve the confidentiality of both the informants’ identities and their information; so, it is not clear from the record the specifics of the information provided, whether these individuals were other officers, inmates, or visitors, or whether there was any overlap among the numbers.

On November 17, 2000, or two days prior to the strip searches at issue, Johnnie Mae Fuller, a lieutenant at TCI, came to Wilson with an inmate tip about drugs coming into the facility on the following Sunday morning. (Fuller Dep. Tr. at 34-37; Wilson Dep. Tr. at 36.) Apparently, the informant identified the B1 entrance as the entry way for the drugs (Fuller Dep. Tr. at 37), though it is not clear from the record whether that was the only employee entrance or if there were others. The informant identified those persons involved as Pierce, Muse, Butler, and Clark as well as four other officers and a sergeant who are not parties to this suit. (Fuller Dep. Tr. at 38-40.) Fuller’s interview with the informant lasted approximately two hours and was tape recorded. (Fuller Dep. Tr. at 41, 46.) From this information, Wilson authorized the strip searches that are the subject of this suit.

On November 19, 2000, at 5:30 A.M., the Department set up a folding table next to a metal detector at the B1 employee entrance of TCI. Keith Fletcher (the facility’s personnel director), Andrea Carol (a facility administrator), Julie Loomis (the deputy warden), and Gary Schultz (the warden’s administrative assistant) stood behind the table. Standing nearby were John Coleman (a major) and Fuller, who were both to conduct the strip searches. A men’s restroom and a women’s restroom, where the strip searches took place, were located nearby. All employees entering the building were patted down, and subjected to a search of their shoes and lunchboxes.

The Department stopped and separately strip searched Clark, Muse, Pierce, Richard Brant (who is not a party to this litigation), and Butler. First, Clark was separated from his co-workers entering the prison and led to the nearby men’s restroom. According to Clark, Coleman said that Clark was randomly selected to be strip searched. (Clark Dep. Tr. at 17.) Then, at the direction of Coleman, Clark stripped down to his underwear (Clark Dep. Tr. at 17), which Defendants describe as “tight[,] spandex-like undershorts” (Defs.’ Mot. at 9). According to Coleman, there were no noticeable bulges in Clark’s underpants and, thus, he instructed him to stop and re-dress. (Coleman Dep. Tr. at 42-43.) The Department found no contraband on Clark. (Coleman Dep. Tr. at 47.)

Coleman searched Muse second. Muse was standing in fine with the rest of the prison guards seeking entry that morning, when Schultz, the warden’s assistant, told Muse that the major, Coleman, wanted to see him. Muse left the line and found Coleman, who informed Muse that he was going to be strip searched. Muse asked Coleman whether the strip searches were racially motivated, to which Coleman responded that the searches were random. (Muse Dep. Tr. at 17, 21.) Muse demanded that the state police conduct the strip search, but eventually relented. (Coleman Dep. Tr. at 64, 66; Muse Dep. Tr. at 18.) In the men’s restroom, he removed all of his clothing and bent over for a visual examination between his legs. (Muse Dep. Tr. at 22.) Pierce walked into the bathroom for his strip search while Muse was still re-dressing. (Muse Dep. Tr. at 18; Pierce Dep. Tr. at 17.) Again, the Department’s search turned up empty. (Muse Dep. Tr. at 22.)

Pierce was next to be strip searched. While waiting in line, he allegedly discovered that he left his hat and gloves in his car and exited the line and building to retrieve them. (Pierce Dep. Tr. at 14.) Upon his return and after being led into the men’s restroom, where the prior two searches were conducted, Pierce removed all of his clothing at Coleman’s instruction, including dropping his pants to his ankles and, eventually, removing his pants completely. (Pierce Dep. Tr. 16.) He, like Muse, removed his underwear, bent over, and squatted (Pierce Dep. Tr. at 16). Given Pierce’s sudden departure from the search line, the Department also searched his vehicle. (Coleman Dep. Tr. at 58.) No contraband was found either on his person or in his vehicle. (Coleman Dep. Tr. at 58-59.)

Last to be searched was Butler, who was the only woman to be subjected to the searches at issue in this litigation. Fuller pulled Butler out of the line of employees waiting to be patted down and conducted the strip search of Butler in a nearby restroom. (Butler Dep. Tr. at 25.) After patting her down, Fuller gave an instruction to Butler to disrobe fully, with which she complied. (Butler Dep. Tr. at 25.) Fuller inspected Butler’s mouth and then directed her to jump up and down, which she did. (Butler Dep. Tr. at 26-27.) While Butler was re-buttoning her blouse, one of Butler’s co-workers walked into the restroom. (Butler Dep. Tr. at 27.) No contraband was found.

None of the searches involved any probing or other invasive procedures. Despite the Setter Agreement, there were no witnesses to any of the searches. Although Defendants indicate that the guards did not request witnesses, they make no indication of any affirmative effort on their part to have witnesses present. Additionally, no prior verbal or written notice was given to any of the plaintiffs. Approximately nine days later, the Department provided Plaintiffs with the standard notice forms. Defendants indicate in their motion: “Why it took until then to provide them to the plaintiffs is 'unexplained.” (Deft/ Mot. at 12.)

Since the filing of this suit, it appears that Muse and Butler have left the Department. (Oral Arg. Tr. at 7, 21-22, 82.) According to Defendants, Butler voluntarily resigned and Muse was terminated. (Oral Arg. Tr. at 7.) Plaintiffs indicated, however, that Muse was grieving his termination through the Union. (Oral Arg. Tr. at 32.) No other information has been provided regarding Muse’s employment with the Department.

II. LEGAL STANDARD

Defendants’ motion for summary judgment raises two legal standards under which the Court must examine this case. The first is the standard for summary judgment. The second is the standard for qualified immunity.

A. Summary Judgment

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. On a motion for summary judgment, “the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). See, e.g., United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985) and cases cited therein. The Court’s favorable treatment of facts and inferences, however, does not relieve the non-moving party of the responsibility “to go beyond the pleadings” to oppose an otherwise properly supported motion for summary judgment under Rule 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party satisfies his or her burden to show an absence of evidence to support the nonmoving party’s case, id. at 323, 106 S.Ct. 2548, the party in opposition “may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). General averments or conclusory allegations of an affidavit, however, do not create specific fact disputes for summary judgment purposes. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

Where the non-moving party “has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” summary judgment is appropriate. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (equating the standard for judgment as a matter of law under Rule 50(a) with the summary judgment standard of Rule 56). If the evidence is “merely colorable,” or is “not significantly probative,” the Court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) and First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). “ ‘The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505).

In sum, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

B. Qualified Immunity

“ ‘[Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir.2002) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity protects a government official not only from damages, but from suit. Id. The doctrine of qualified immunity serves the purpose of protecting public officials from undue interference with the discharge of their duties and potentially disabling threats of liability. Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir.2003). To serve this purpose effectively, qualified immunity is considered a threshold question, which is to be resolved at the earliest possible stage of litigation. Id.

A court’s first inquiry in a qualified immunity analysis is whether a plaintiffs allegations, if true, establish a constitutional violation. Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Hoover, 307 F.3d at 466; Bell v. Johnson, 308 F.3d 594, 601 (2002). If so, the second inquiry is whether that constitutional violation involved clearly established statutory or constitutional rights of which a reasonable person would have known. Hope, 536 U.S. at 739, 122 S.Ct. 2508; Hoover, 307 F.3d at 465.

III. ANALYSIS

The Department and its officials have gone through extraordinary lengths to defend this suit, raising numerous issues in their motion for summary judgment even though some of their arguments appear to lack merit. A comprehensive and orderly resolution of Defendants’ motion requires a categorization of its issues. With that in mind, the Court divides its analysis (but consolidates Defendants’ various arguments) into three areas of discussion: (A) jurisdiction, (B) -qualified immunity, and (C) resolution of Plaintiffs’ state law claims.

A. Jurisdiction

The logical place to begin is the Department’s jurisdictional challenges. The Court’s jurisdiction over the constitutional claims is premised on 28 U.S.C. § 1331 (1980) (federal question jurisdiction) and 28 U.S.C. § 1367(a) (1990) (supplemental jurisdiction for state law claims). If, however, Plaintiffs lack standing, as Defendants contend, the claims suffering from such defect must be dismissed for lack of jurisdiction. See Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528, 531 (6th Cir.2002). To satisfy Article III standing, a plaintiff must establish three elements: “(1) an injury in fact that is concrete and particularized; (2) a connection between the injury and the conduct at issue — the injury must be fairly traceable to the defendant’s action; and (3) likelihood that the injury would be redressed by a favorable decision of the Court.” Beztak Land Co. v. City of Detroit, 298 F.3d 559, 566 (6th Cir.2002); see also Courtney v. Smith, 297 F.3d 455, 459 (6th Cir.2002); Adult Video Ass’n v. U.S. Dept. of Justice, 71 F.3d 563, 565 (6th Cir.1995). The party seeking entrance to the federal court bears the burden of alleging sufficient facts to demonstrate that he is a proper party to bring about a judicial resolution of the dispute. Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Adult Video Ass’n, 71 F.3d at 566.

Defendants argue that the Setter Agreement negates any case or controversy between the parties, thereby depriving this Court of jurisdiction to hear Plaintiffs’ constitutional claims. According to Defendants, their searches of Department employees are governed by the Setter Agreement, which “meets or exceeds any arguable constitutional requirements.” (Defs.’ Mot. for Summ. J. at 26.) As far as any past constitutional violations are concerned, “absolutely no evidence [exists] that ODRC has ever conducted any strip search of anyone ... based upon less than ‘reasonable suspicion.’” (Defs.’ Mot. for Summ. J. at 27.) As for the threat of any future constitutional violations, Defendants say that “the [Setter] agreement has disposed of any case or controversy between [the Union] and the State of Ohio regarding the ‘cause,’ if any, necessary to sustain a strip search of ODRC employees.” (Defs.’ Mot for Summ. J. at 26.) With no past search conducted on grounds less than reasonable suspicion and no threat of such a search in the future, Defendants argue that no case or controversy exists to establish the Court’s jurisdiction to issue declaratory relief.

Without even going into Plaintiffs’ response to Defendants’ jurisdictional challenge, the Court finds a fundamental flaw in the Department’s argument that a case or controversy is lacking. It is perhaps undisputed that the parties were and are bound by the Setter Agreement. It is hotly disputed, however, whether that document dictates the Fourth Amendment standard for searches in the context of strip searches of correctional officers. Thus, for Defendants simply to assume that the Setter standards “meet or exceed any arguable constitutional requirements” in their attempt to show no case or controversy exists makes no sense. That is, the case or controversy exists in the very assumption upon which Defendants base their challenge to jurisdiction. Moreover, the suggestion here that the Seiter Agreement meets or exceeds constitutional requirements undercuts Defendants’ later argument that the Court should refrain from making a declaration of Plaintiffs’ constitutional rights. In order to buy into Defendants’ argument against a finding of jurisdiction, the Court would implicitly accept that Seiter sets the constitutional standard for strip searching prison guards — a declaration that Defendants seemingly wanted to avoid.

Plaintiffs have satisfied all of the elements for a case or controversy. Again, to establish standing, a plaintiff must establish: “(1) an injury in fact that is concrete and particularized; (2) a connection between the injury and the conduct at issue — the injury must be fairly traceable to the defendant’s action; and (3) likelihood that the injury would be redressed by a favorable decision of the Court.” Beztak Land, 298 F.3d at 566. The alleged injury is the Defendants’ act of strip searching Plaintiffs -without reasonable suspicion. A clear connection exists between the injury and the conduct at issue: it is undisputed that the Department subjected Plaintiffs to these strip searches, though hotly disputed whether they were conducted with reasonable suspicion. The likelihood that the injury would be redressed by a favorable decision of this Court is great. Setting the constitutional standard for such searches would deter future searches or at least provide a constitutional remedy for violations. Finally, Plaintiffs have alleged sufficient facts to demonstrate that they are proper parties to bring about a resolution of the constitutional standard(s) necessary to conduct strip searches of prison employees: They are employees who have been strip searched and are subject to future strip searches and/or violations of the Seiter Agreement by the Department by way of their continued employment.

The existence of the Seiter Agreement does not diminish the import of establishing the applicable constitutional rights in the context of this case. The judiciary must be necessarily concerned that the government conform its conduct to the constitutional standards that protect the people. See Miranda v. Arizona, 384 U.S. 436, 486 n. 55, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Strickland v. Washington, 466 U.S. 668, 707, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Brennan, J., concurring in part and dissenting in part). After all, the ultimate responsibility for resolving constitutional questions falls on the courts. Miranda, 384 U.S. at 486 n. 55, 86 S.Ct. 1602. While persons may be free simply to ignore a contractual provision (though face contractual liability), a constitutional command cannot be similarly ignored. As the Sixth Circuit has held in a case where the dispute was deemed moot, defining the terms of a settlement agreement between parties does not necessarily bind the parties; if the court’s definition were unsatisfactory to them, they could simply redraft their agreement. Int'l Union, United Auto., Aerospace, Agric. & Implement Workers of Am. v. Dana Corp., 697 F.2d 718, 723 (6th Cir.1983). On the other hand, the standards set for a constitutional command cannot be altered or ignored by the parties, though the Department could choose to set a higher standard. Thus, if the Court were to establish a standard under which strip searches of prison guards were constitutionally permissible, the affected governmental entities could conform their policies and conduct to such a standard; otherwise, future injured parties could seek a constitutional remedy. A contractual obligation simply does not carry the same force of a constitutional command.

Moreover, the Defendants are correct in indicating that, generally, a settlement moots a dispute. United States ex. rel. Roby v. Boeing Co., 302 F.3d 637, 641 (6th Cir.2002); ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 (5th Cir.1981). The dispute it settles, however, is the dispute that was the subject of the litigation. Importantly, Plaintiffs raise claims based on § 1983. Had Plaintiffs brought this action based on the strip searches between 1979 and 1985, this Court would agree that the Seiter Agreement mooted the dispute and dismiss this case for lack of jurisdiction. After all, the settlement agreement operates as a dismissal of all claims “based upon any and all matters up to and including the date of execution of th[e] Settlement Agreement.” (Settlement Agreement executed Jan. 1990 in Ohio Civil Service Employees Ass’n v. Seiter, No. C-1-85-530, at 5 (emphasis added).) Plaintiffs, however, allege claims, including § 1983 claims for damages, that arise after the date of execution of the Seiter Agreement. That is, the individual plaintiffs in this case were subjected to strip searches that were separate and distinct from those that were at issue in Setter.

Additionally, the cases cited by Defendants in their motion are not inconsistent with the decision reached here. None of those eases presents the scenario where the post-settlement dispute arises from a completely different set of facts than those of the pre-settlement dispute. Instead, in each of those cases, the factual background and legal disputes that began the litigation remained constant throughout the proceedings. For example, in Dana Corp., upon which Defendants rely and which is cited supra, the plaintiff obtained a temporary restraining order regarding the defendant’s acts of interfering with unionizing activity. The dictates of the temporary restraining order merged into a preliminary injunction order. The defendant appealed the case to the Sixth Circuit, but a settlement was reached after oral arguments. It appears, however, that no party informed the circuit of the settlement and, somehow, a rehearing en banc was ordered to review the panel’s affir-mance of the preliminary injunction. Then, another dispute arose, this time about the interpretation of the settlement agreement, and the defendant sought to go forward with the en banc rehearing to challenge the propriety of the temporary restraining order and preliminary injunction issued prior to settlement. Noting that the parties inexcusably failed to inform the court of their settlement, the Sixth Circuit refused to answer any of the questions on appeal because the settlement rendered the case moot. Dana Corp., 697 F.2d at 724. The court remanded to the district court to dismiss the case. Id. The complicated circumstances of Dana Corp. differ from the case at bar in that the subsequent dispute here arose from a completely different set of facts supporting a constitutional violation (ie., the strip searches of Plaintiffs in November 2000) than those giving rise to the first litigation (i.e., the strip searches from 1979 to 1985). Put into terms of the facts in Dana Corp., had the defendant in Dana Corp. again committed acts of union interference, those acts could certainly be the subject of a new lawsuit. The bottom line is that the Seiter litigation or settlement did not resolve the constitutional issues raised by Plaintiffs in this case.

Defendants’ argument that Muse and Butler lack standing to pursue declaratory relief because they no longer work for the Department presents a much more compelling argument for dismissal (but only as to these plaintiffs and only as to that claim) than the existence of the Seiter Agreement. As former employees, Muse and Butler cannot have standing to seek declaratory or injunctive relief because they are no longer subject to the challenged practices (i.e., strip searches by the Department), see Bordell v. General Elec. Co., 922 F.2d 1057, 1060 (2d Cir.1991). Plaintiffs offer nothing to counter this argument. Accordingly, the Court DISMISSES Muse’s and Butler’s claims for declaratory relief.

With respect to this dismissal, however, the Court makes two notes. First, the claims for declaratory relief are not entirely dismissed because Pierce and Clark still have standing to assert these claims. Second, this standing argument does not apply to any of the plaintiffs on their claims for damages under § 1983 for the searches that already occurred on November 19, 2000. In addition to deterring future constitutional deprivations, § 1983 actions serve the purpose of providing compensation to victims of past abuses. Owen v. City of Independence, Mo., 445 U.S. 622, 651, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Carter v. City of Chattanooga, Tenn., 850 F.2d 1119, 1143 (6th Cir.1988). Thus, even with the dismissal of the claims for declaratory relief as to Muse and Butler, they still remain in this litigation as plaintiffs on the § 1983 claims, while Pierce and Clark carry on the claims for declaratory relief.

As for the Union’s standing, Defendants argue that OCSEA lacks standing to seek damages for the violations of its members’ constitutional rights. Plaintiffs respond that a trilogy of Supreme Court cases, Warth, 422 U.S. 490, 95 S.Ct. 2197, Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), establishes associational standing to seek damages for members’ injuries.

As both sides acknowledge, an association has standing where:

“(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Neighborhood Action Coalition v. City of Canton, Ohio, 882 F.2d 1012, 1016 (6th Cir.1989) (quoting Brock, 477 U.S. at 282, 106 S.Ct. 2523). Contrary to Plaintiffs’ argument, however, none of the three eases provides direct authority for their argument that an association has standing to pursue damages for its members’ injuries. In fact, the Supreme Court held that the organizational plaintiff in Warth could not seek damages because the injuries suffered were particular to each individual plaintiff, thereby requiring individualized proof. Warth, 422 U.S. at 515-16, 95 S.Ct. 2197. Similarly, the Sixth Circuit held that the organizational plaintiff in Neighborhood Action Coalition lacked standing to pursue damages because such relief would require individualized proof. Neighborhood Action Coalition, 882 F.2d at 1017.

Following the decisions in Warth and Neighborhood Action Coalition, the Court finds that the Union lacks standing to pursue damages for its members’ injuries. Accordingly, the Court DISMISSES the Union’s claims for monetary damages. Nevertheless, an organization without standing to pursue a claim for damages may have standing to pursue declaratory or injunctive relief where participation by the individual members is not required. Id. Thus, like the plaintiff in Neighborhood Action Coalition, 882 F.2d at 1017, the Union may, at this point in the analysis, still pursue its claim for declaratory relief.

B. Qualified Immunity

Defendants raise the defense of qualified immunity to shield them from liability for Plaintiffs’ claims. Within the qualified immunity framework, Defendants argue that the strip search of a prison employee on less than individualized, reasonable suspicion is not a clearly established violation of the Fourth Amendment. Plaintiffs respond that the law is clearly established and that Defendants simply, but egregiously, ignored it. Framing the issue backwards, Plaintiffs (somewhat slyly) argue: “It is ... not clearly established that a strip search of prison employees can be conducted with any standard less than ‘reasonable suspicion.’” (Pis.’ Memo, in Opp’n to Summ. J. at 33 (emphasis added).) Of course, the qualified immunity inquiry asks whether the constitutional right advocated by the plaintiff is clearly established, not whether a defendant’s conduct is not clearly established. Plaintiffs are the ones complaining of Defendants’ conduct and, thus, bear the burden of proving that Defendants violated the Constitution. Part of Plaintiffs’ burden consists of overcoming the defense of qualified immunity.

As indicated in the legal standard section, the first inquiry in a qualified immunity analysis is whether a plaintiffs allegations, if true, establish a constitutional violation. Hope, 536 U.S. at 736, 122 S.Ct. 2508; Saucier, 533 U.S. at 201, 121 S.Ct. 2151; Hoover, 307 F.3d at 466; Bell, 308 F.3d at 601. If so, the second inquiry is whether that constitutional violation involved clearly established statutory or constitutional rights of which a reasonable person would have known. Hope, 536 U.S. at 739, 122 S.Ct. 2508; Hoover, 307 F.3d at 465. The Court proceeds to examine each of these questions in the context of Defendants’ strip searches of Plaintiffs.

1. Constitutional Violation Inquiry

In this case, the constitutional violations Plaintiffs allege are: (a) unreasonable search and seizure under the Fourth Amendment (Am.Compl.¶¶ 35-40); (b) deprivation of “liberty, privacy, and property” under the Fifth Amendment (Am.Compl.¶¶ 55-58); and (c) equal protection under the Fourteenth Amendment (Am.Compl.¶¶ 59-61). All of these claims stem from the same alleged conduct: Defendants’ strip searches of Plaintiffs on November 19, 2000, with less than reasonable suspicion.

a. Fourth Amendment Unreasonable Search and Seizure Claim

The Court begins with Plaintiffs’ Fourth Amendment claim, which is the only constitutional claim that raises any serious issue of the applicability of qualified immunity. The Sixth Circuit has not declared the Fourth Amendment standard, reasonable suspicion or otherwise, that must be satisfied before prison employees may be strip searched. “No Supreme Court decision nor any decision of this circuit establishes the rights of prison employees against a strip-search.” Virgili v. Gilbert, 272 F.3d 391, 393 (6th Cir.2001). As the court in Virgili observed, the only Sixth Circuit case touching on this issue is Seller, which confined its holding to finding that the right of prison employees against strip searches was not clearly established in 1985. Id. at 393. Since Virgili was decided in 2001 until the date of this memorandum opinion, the status quo in this circuit remains: no decision has established the constitutional standard that must be satisfied before prison employees may be strip searched.

Interestingly, the court in Seiter, and again in Virgili, faced the same question of qualified immunity in the same context as the Court faces today, but skipped over the constitutional violation inquiry and, instead, addressed only the second prong of the analysis (i.e., whether such a right was clearly established). In view of the Supreme Court’s recent holding in Hope and the Sixth Circuit cases issued subsequent to that opinion, the Court observes that a proper qualified immunity analysis requires: first, an examination of whether a constitutional violation exists in plaintiffs allegations; and second, if, and only if, a constitutional violation is found, an examination of whether that right was clearly established at the time it was allegedly violated. See Hope, 536 U.S. at 736, 737, 122 S.Ct. 2508; Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir.2002); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 531 (6th Cir.2002); Bell, 308 F.3d at 601; Hoover, 307 F.3d at 465; see also Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (establishing a three-step analysis, but still requiring first a constitutional violation). Thus, a court does not reach the clearly-established prong until the constitutional-violation prong is satisfied.

Aside from the precedent that indicates finding a constitutional violation is the proper first step in a qualified immunity analysis, the Court notes the point of Justice Souter, writing for the majority, in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043, that courts should not assume without deciding a constitutional violation in cases that raise the issue of qualified immunity. Lewis, 523 U.S. at 841 n. 5, 118 S.Ct. 1708. “[T]he better approach ... is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.” Id. Justice Souter further noted that the general rule of avoiding determination of constitutional issues does not fit well in a qualified immunity analysis. Id. “[I]f the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.” Id. “An immunity determination, with nothing more, provides no clear standard, constitutional or nonconsti-tutional,” Id. Justice Souter’s point has been echoed by at least one circuit court. Milstead v. Kibler, 243 F.3d 157, 162 (4th Cir.2001). The logical consequence and apparent danger is that, if courts never ruled on qualified immunity without determining the constitutionality of the challenged conduct, one circuit opinion declaring asserted constitutional rights as not clearly established might lead to an infinite line of cases within that circuit holding the same, even if most or all of the other circuits deemed otherwise. Given the precedent dictating that the constitutional violation inquiry be answered first in a qualified immunity analysis and the legitimate justifications presented above for answering this question, the Court examines whether a Fourth Amendment violation exists in the context of the strip searches in this case. Thus, in order to answer the threshold inquiry of qualified immunity, the Court must address the following issue of first impression in this circuit: What is the standard under the Fourth Amendment, made applicable to the states through the Fourteenth Amendment, by which a prison-employer may subject its prison-employees to a strip search?

The relevant facts as alleged, which must be taken as true for purposes of this qualified immunity exercise, are simple. On November 19, 2000, the various named individual defendants, in furtherance of their duties as employees of the Department, subjected Pierce, Butler, Brod, Muse, and Clark to strip searches. (Am. Comply 21.) Defendants gave verbal notice of the searches only immediately before they were carried out (Am. Compl.K 22), and written notice after the fact (Am.ComplA 26). Defendants did not provide Plaintiffs their choice of a witness and did not conduct the searches in adequate privacy. (Am.Compl.il 28.) Importantly, Defendants directed and conducted these searches without probable cause or reasonable suspicion. (Am.Compl.K 23.) In fact, evidence offered by Plaintiffs indicating that the searches were conducted on a random basis (Clark Dep. Tr. at 17; Muse Dep. Tr. at 17, 21.) It is also undisputed that these searches were conducted without a warrant.

The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. In determining the reasonableness of a search, particularly a physically intrusive search, a court must balance the government’s need to conduct the search at issue against the invasion of personal rights entailed by that search. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); United States v. Keszthelyi, 308 F.3d 557, 571-72 (6th Cir.2002). Relevant to this analysis are the scope of the intrusion, the manner in which it was conducted, the justification for initiating it, and the place it was conducted. Wolfish, 441 U.S. at 559, 99 S.Ct. 1861. Since the circuit has not issued a definitive ruling on this issue, the Court finds useful to look to other courts for guidance and examine how these other courts arrived at their decisions.

The Second Circuit, almost twenty years ago, held that the Fourth Amendment required reasonable suspicion before a prison-employer could strip search its prison-employees. Carey, 737 F.2d at 204. The facts of that case were similar to that of the instant case. Between 1977 and 1980, the New York State Department of Corrections conducted numerous strip and body cavity searches, some random and some based on tips, of its prison guards at various prison facilities throughout the state. Some of the searches yielded contraband, while others did not. In 1979, the state implemented procedures for conducting these searches, imposing reasonable suspicion as a prerequisite to conduct strip searches.

Weighing the privacy interests of the prison guards to be free from intrusive searches against the government’s interests of keeping contraband out of its prisons, the court found balance in a requirement of reasonable suspicion before the state could subject its employees to a strip search. In examining the prison employees’ interests, the court applied Justice Harlan’s test of privacy and found that these employees held a legitimate expectation of privacy, which was tempered by an employee notice that they would be subject to certain searches during their tenure as prison guards. Id. at 201-02. It also found under Justice Harlan’s test that society recognized correctional officers have expectations — albeit diminished — to be “free from excessive and unwarranted intrusions based upon unrestrained, stan-dardless exercises of authority by prison administrators.” Id. at 202. In examining the government’s position, the court recognized the legitimate penological interests of maintaining prison security, preserving internal order, and instilling discipline among the inmates. Id. at 202-03.

The court held that “warrantless strip searches of correction officers within correctional facilities are not per se violative of the fourth and fourteenth amendments of the Constitution.” Id. at 203. It acknowledged that exceptions exist with respect to the Fourth Amendment requirement of a warrant. Id. (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Wolfish, 441 U.S. at 560, 99 S.Ct. 1861; United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). From its analysis of the reasonableness test, the court concluded that “a reasonable suspicion standard should govern strip searches of correction officers working in correctional facilities.” Carey, 737 F.2d at 204.

For additional support, the Second Circuit analogized the reasonable suspicion standard in border crossing cases and prison visitor cases. In border crossing cases, the court observed that “a person entering or leaving the country ‘does not expect that his entry or departure, standing alone, will cause him to be subjected to a strip search.’ ” Id. (quoting United States v. Asbury, 586 F.2d 973, 975 (2d Cir.1978)). “ ‘Before a border official may insist upon such an extensive invasion of privacy, he should have a suspicion of illegal concealment that is based upon something more than the border crossing, and the suspicion should be substantial enough to make the search a reasonable exercise of authority.’” Id. (quoting Asbury, 586 F.2d at 975-76). The court went on to say, “Not unlike persons crossing the borders of our country, correction officers, under proper circumstances, may be subjected to strip searches in order to control the flow of contraband.” Id. In prison visitor eases, the court observed that society would recognize both correction officers and visitors as having higher expectations of privacy outside a prison than inside, that both are unincarcerated individuals who may be sources of contraband for inmates, and that both have diminished expectations of privacy upon entering a prison. Id.

The Carey court concluded its analysis of the reasonable suspicion standard by noting the Supreme Court’s declarations that “prison officials must have freedom to take appropriate action to ensure the safety of inmates and correction personnel.” Id. “The day-to-day problems of administering and operating correctional facilities are demanding and complex and this reality must be accorded some weight by federal courts even when confronted with constitutional challenges.” Id. at 205 (citing Bell, 441 U.S. at 547, 99 S.Ct. 1861). The solution, the court held, was the reasonable suspicion standard, which upheld Fourth Amendment protection, yet provided sufficient flexibility to keep contraband out of prisons. See id.

In 1987, the Eighth Circuit, following the Second Circuit’s decision in Carey, declared that a reasonable suspicion standard governed strip searches of employees, McDonell v. Hunter, 809 F.2d 1302, 1306 (8th Cir.1987). The class action plaintiffs in McDonell sought declaratory and injunctive relief in federal court after the prisons in Iowa, for which the plaintiffs worked, threatened to terminate or actually terminated certain employees for refusing to cooperate in urine testing or other search procedures. In written policies, the Iowa prison administrators declared: “Any employee or vehicle entering the grounds of an adult institution or facility may be inspected at any time for security reasons .... If an employee refuses to cooperate in such an inspection, ... the employee refusing to be inspected [may] be relieved of duty pending disposition of the matter.” Id. at 1313. Further, the state’s policies indicated that “employees may be requested to submit to a strip search of their person and clothing.” Id. at 1314. The plaintiffs claimed that these policies violated their constitutional rights of privacy and freedom from unreasonable searches and seizures.

The McDonell court conducted the same balancing analysis as the Carey court. It agreed that correction officers retained an expectation of privacy, but that the expectation was diminished in the prison setting. Id. at 1306. At the same time, it recognized the legitimate governmental interest of upholding security in prisons. Id. The court found balance in imposing a reasonable suspicion standard on prison searches of correctional officers. Id. “ [T]his standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers.’ ” Id. (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982)).

The most recent circuit decision concerning the standard that governs strip searches of prison employees comes out of the Fourth Circuit, which also decided that a reasonable suspicion standard should apply, Leverette v. Bell, 247 F.3d 160, 168 (4th Cir.2001). In that case, the plaintiff was a correctional officer for a South Carolina prison who underwent a pair of strip searches. The first search consisted of requiring the plaintiff to strip, squat, and cough, while the second search consisted of a visual examination of her body cavities. Only the second search, prompted by an inmate’s tip, was the subject of the suit. During that search, the plaintiff disrobed at the direction of two female correctional officers. A search of her clothes revealed no contraband. Then, the plaintiff waited, naked, for four or five minutes until a nurse arrived to conduct a body cavity search. As described by the plaintiff, the search took place as follows:

I stand up and they are surround[ing] me, [the nurse] and Ms. Bell [the associate warden], 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.

So after I bent over I went to sit down. So they are bent down. [The nurse] she is bent down. I am opening my legs and she is looking in my vagina and Ms. Bell said they couldn’t see. So I opened them a third time and opened them as far as I could get them. I said, “Ms. Bell, how far do you want me to open them?” and after that they looked, and then [the nurse] looked up at Ms. Bell and just like nod her head like everything was okay, and that was it.

Id. at 163-64. The state’s policy required “specific objective facts” to justify conducting a strip search, but expressly forbade body cavity searches. Id. at 165.

Reviewing de novo the district court’s denial of the defendants’ motion for summary judgment on qualified immunity, the Fourth Circuit conducted the same reasonableness analysis as the Second and Eighth Circuits. Acknowledging that a prison employee does not forfeit all privacy rights, the court also noted that such privacy expectations are diminished in light of the governmental interest of keeping drugs, weapons, and other contrab