Peter Bushee v. RONALD J. ANGELONE, Commissioner of Virginia Department of Corrections, individually

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 PETER BUSHEE,
Plaintiff-Appellant,
v.
RONALD J. ANGELONE, Commissioner
of Virginia Department of
Corrections, individually and in his
official capacity; RUFUS FLEMING,
Regional Director of Virginia
Department of Corrections,
individually and in his official
capacity; SHIRLEY AVENT, Associate
Warden/Superintendent Designee,
individually and in her official
capacity; HUM HICKS, Turnkey,
individually and in his official
capacity; MISTER POSSEY, Turnkey, No. 00-7547 
individually and in his official
capacity; CAPTAIN MCINNIS, Senior
Turnkey, individually and in his
official capacity; BUILDING MANAGER
ROCHE, Senior Team Manager,
individually and in his official
capacity; MRS. SMALLWOOD,
Turnkey, individually and in her
official capacity; MR. BOONE,
Turnkey, individually and in his
official capacity; MR. MOORE,
Turnkey, individually and in his
official capacity; P. A. LORD,
Medical Staff, individually and in
his official capacity,
Defendants-Appellees. 

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Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-99-1639-2)
Submitted: February 9, 2001
Decided: March 27, 2001
Before WILLIAMS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Peter Bushee, Appellant Pro Se. William W. Muse, Assistant Attor-
ney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Peter Bushee appeals the district court’s order dismissing his 42
U.S.C.A. § 1983 (West Supp. 2000) claim pursuant to Fed. R. Civ. P.
12(b)(6). We affirm in part, and vacate and remand for further pro-
ceedings.
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Prison officials received a tip from a confidential informant that
Bushee, an inmate, might have been in possession of cash or contra-
band. Officials searched Bushee’s cell, then took him into a confer-
ence room. Once in the conference room, officials stripped Bushee in
front of five people, including a medical professional, and conducted
a body cavity search. The search and subsequent x-rays turned up no
contraband. Bushee filed suit under § 1983 claiming that the body
cavity search violated his Fourth Amendment right to privacy. The
district court granted the State’s motion to dismiss, and Bushee timely
appealed. On appeal, he continues to press his Fourth Amendment
claim.*
This Court reviews de novo the district court’s ruling on a motion
to dismiss pursuant Fed. R. Civ. P. 12(b)(6). Mylan Labs, Inc. v. Mat-
kari, 7 F.3d 1130, 1134 (4th Cir. 1993). A motion to dismiss under
Rule 12(b)(6) should not be granted unless it appears that the plaintiff
can prove no set of facts that would entitle him or her to relief. Id.
Thus, when considering the propriety of a dismissal, this Court
accepts the factual allegations in the complaint as true and affords the
plaintiff the benefit of all reasonable inferences that can be drawn
from those allegations. Id.
Body cavity searches do not violate the Fourth Amendment if rea-
sonable and not motivated by punitive intent. Bell v. Wolfish, 441
U.S. 520, 545-46, 558-61 (1979). There is no evidence that the offi-
cials’ search of Bushee was motivated by an intent to punish him.
Thus, the only question is whether the search was reasonable.
*Bushee made three other allegations in his original complaint and in
his brief to this Court: 1) prison officials did not have probable cause to
search him, 2) the body cavity search violated the Eighth Amendment,
and 3) prison officials violated his due process right by refusing to dis-
close the identity of the confidential informant. The district court granted
the State’s motion to dismiss these claims. We have reviewed the record
and the district court’s opinion and find no reversible error. Accordingly,
we affirm as to these claims on the reasoning of the district court. Bushee
v. Angelone, No. CA-99-1639-2 (E.D. Va. Sept. 29, 2000). Bushee also
filed a motion to remand so that he could amend his complaint to state
a claim. In light of our disposition of this appeal, we deny that motion
as moot.
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Courts gauge the reasonableness of a particular search by balancing
the need for the search against the invasion of personal rights that the
search entails. To this end, a court must consider the scope of the par-
ticular intrusion, the manner in which it was conducted, the justifica-
tion for initiating it, and the place in which it was conducted. Id. at
559.
Relevant to the Bell balancing test, and to the district court’s con-
sideration on remand, Bushee alleged that the body cavity search
occurred in front of five people, only one of whom was a medical pro-
fessional, and that the search occurred "in an open conference room
. . . with windows open into a foyer where secretaries work." (Exhibit
to complaint). Although Bushee does not allege that anyone outside
of the conference room actually saw the search, nor does he offer any
details concerning the size of the window or whether anyone was
working in the area at the time of the search, the well-pleaded allega-
tions of Bushee’s complaint give rise to a permissible inference that
the search may have occurred in an unnecessarily open area. Cf. Polk
v. Montgomery County, 782 F.2d 1196, 1201 (4th Cir. 1986) (stating
that whether the strip search was "conducted in private . . . is espe-
cially relevant in determining whether [it was] reasonable under the
circumstances").
Accordingly, we vacate the district court’s order insofar as it
granted the State’s motion to dismiss Bushee’s Fourth Amendment
privacy claim. We remand the case so that the district court can fur-
ther develop the factual basis of that claim and conduct a Bell balanc-
ing analysis in light of those facts. We dispense with oral argument
because the facts and legal contentions are adequately represented
before the court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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