
USCA1 Opinion

	




        July 15, 1994           [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1675                                  TODD G. DUCHARME,                                Plaintiff, Appellant,                                          v.                            STATE OF RHODE ISLAND, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                              Torruella, Cyr, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Richard  A. Sinapi with  whom Sinapi  Law Associates,  Ltd. was on            __________________            _____________________________        brief for appellant.            Robin  E. Feder, Assistant Attorney General, with  whom Jeffrey B.            _______________                                         __________        Pine, Attorney General, was on brief for appellee.        ____                                 ____________________                                 ____________________                      Per   Curiam.     In  this   interlocutory  appeal,                      ____________            plaintiff-appellant  Todd  G. Ducharme  ("Ducharme") contends            that  the  district court  erred  in  refusing to  approve  a            consent judgment  in settlement  of  Ducharme's civil  rights            action  against the  Rhode  Island Division  of State  Police            ("State  Police") and  Raymond  A.  Driscoll ("Driscoll"),  a            member of  the State Police.   Alternatively, Ducharme argues            that the district court  exceeded its authority in preventing            the  parties from  entering  the proposed  consent decree  on            their  own  in the  guise of  an  accepted offer  of judgment            pursuant to Federal Rule of Civil Procedure 68.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On  July 23,  1991,  Ducharme was  arrested by  the            State Police and charged with disorderly conduct.  The charge            was  based on Ducharme's  "abusive and  belligerent" behavior            toward a lifeguard who had  requested Ducharme to remove  his            dog from  Beach Pond, a state-run facility located in Exeter,            Rhode Island.  Clad only in "swim trunks," Ducharme was taken            to  a  police building  and  strip  searched.   Specifically,            defendant Driscoll commanded Ducharme to pull his swim trunks            down to his knees, pull them up again, and then take them off            so that Driscoll could search the pockets of the swim trunks.            Driscoll  then   returned  the  swim   trunks  to   Ducharme.            According to State  Police Superintendent Edmond  S. Culhane,                                         -2-                                          2            Jr., Ducharme was  strip searched  because it  "is a  routine            procedure  performed  prior to  placing  an  individual in  a            holding cell."  We assume that  Ducharme was then placed in a            holding  cell  and that  the  disorderly  conduct charge  was            resolved in some fashion.                      Ducharme  later filed  this  action  in the  United            States  District  Court  for  the District  of  Rhode  Island            against  the  State  Police  and Driscoll.1    The  complaint            alleges,  inter alia,  that  the strip  search constituted  a                      _____ ____            violation  of Ducharme's  right  to be  free of  unreasonable            searches and  seizures pursuant to the  Fourth and Fourteenth            Amendments to the Constitution,  actionable under 42 U.S.C.              1983.                      The   complaint   contains   specific   allegations            concerning the unreasonableness of an  automatic strip search            policy.  The complaint  asserts that "it is well  settled law            that mandatory strip searches of arrestees charged with minor            offenses, absent a reasonable  suspicion that the arrestee is            concealing weapons  or contraband, such as  that performed on            [Ducharme],  are unconstitutional."   As  additional evidence            that an  automatic strip  search policy is  unreasonable, the            complaint reports that Rhode Island's Attorney General issued            the following advice to the State Police in 1985:                                            ____________________            1.  The complaint  names Driscoll in both  his individual and            official capacities.                                         -3-                                          3                      The strip searching  of persons  detained                      for  a  short  period of  time  for petty                      offenses  should not  be undertaken  as a                      matter of routine procedure.  The persons                      arrested for petty offenses should not be                      strip searched unless  there is  probable                      cause  to  believe  that  the  person  is                      concealing a weapon, drugs or evidence of                      a crime.                      Ducharme  also alleged  that  he  might again  fall            victim to  defendants' strip  search policy.   In particular,            Ducharme alleged that he                      resides in  close proximity to  the State                      of Rhode Island and  has and continues to                      travel  to and  frequent  places  in  the                      State  of Rhode  Island, as  a result  of                      which,  he has [been] and continues to be                      exposed  to  the  possibility of  further                      invasion  of  his privacy  by Defendants'                      policy   of  routinely   strip  searching                      arrestees for minor offenses, even in the                      absence of reasonable grounds  to justify                      such a search.                      In addition to  requesting compensatory damages and            attorney's  fees,  Ducharme  also  sought  several  forms  of            equitable  relief:    (1)  a declaratory  judgment  that  the            automatic  strip  search  policy   of  the  State  Police  is            unconstitutional; (2) a declaratory judgment that defendants'            strip  search of  Ducharme was  unconstitutional; and  (3) an            injunction  preventing  "[d]efendants  from  routinely  strip            searching [Ducharme] and all other persons arrested for minor            offenses,  absent reasonable suspicion  that the  arrestee is            concealing a weapon or contraband."                                          -4-                                          4                      Prior   to  the   filing  of   an  answer   or  the            commencement of  discovery, the parties began  to negotiate a            settlement.   In February 1993,  defendants made an  offer of            judgment  pursuant  to  Rule  682  in  the  amount  of $7500.            Ducharme  rejected the  offer, explaining  that he  would not            settle without a promise  on the part of the  defendants that            they  would no  longer conduct  unreasonable strip  searches.            Defendants responded  by proposing, in addition  to the money            judgment, a  letter to  Ducharme reportedly stating  that the            policy of the  State Police  was now in  conformity with  the            Attorney  General's  1985  letter.3    Once  again,  Ducharme            refused.                       Sometime  thereafter  the   parties  agreed  on   a            proposed consent judgment, presented to the district court in                                            ____________________            2.  In pertinent part, Fed R. Civ. P. 68 provides:                      At any time more  than 10 days before the                      trial begins, a party defending against a                      claim may serve upon the adverse party an                      offer  to  allow  judgment  to  be  taken                      against the defending party for the money                      or property or to the effect specified in                      the offer, with  costs then accrued.   If                      within 10 days after  the service of  the                      offer  the  adverse party  serves written                      notice that the offer is accepted, either                      party may then file the offer and  notice                      of  acceptance  together  with  proof  of                      service thereof and  thereupon the  clerk                      shall enter judgment.            3.  This is our understanding of statements made by the State            at  oral argument  before this  court.   The letter  does not            appear in the record on appeal.                                         -5-                                          5            April  1993,  that would  award Ducharme  $7500 and  bind the            defendants with the following prospective provision:                      Defendants shall not  require as a matter                      of  policy,  nor  shall  they  perform or                      cause to be  performed strip searches  of                      arrestees  charged  with  misdemeanor  or                      motor   vehicle    offenses,   absent   a                      reasonable suspicion that an  arrestee is                      concealing  a  weapon or  contraband, and                      shall   otherwise  conduct   searches  of                      arrestees within  the limitations imposed                      by law.            In  an  unrecorded  chambers conference,  the  district court            apparently  expressed its  concern that  the proposed  decree            would saddle  the court with  the task  of supervising  strip            searches  conducted by  the State  Police and  on  that basis            refused to approve the judgment.                      With  this  avenue  closed, the  parties  developed            another solution.   Defendants  orally agreed to  amend their            Rule  68  offer  of judgment  to  include  the  terms of  the            proposed consent decree.   Because Rhode Island law prohibits            the State from  settling a  case without some  form of  court            approval, see  R.I. Gen. Laws     9-31-6 and  9-31-10 (1985),                      ___            the parties gave the district judge an opportunity  to object            by notifying him  of their intentions.  In another unrecorded            chambers conference, the district court evidently stated that            it  had  the discretion  to prevent  the  entry of  a consent            judgment even if  the judgment was offered in  the form of an            otherwise nondiscretionary, self-executing Rule 68  offer and            acceptance.                                         -6-                                          6                      Finally, Ducharme filed  a self-styled "Motion  for            Entry of Consent Judgment or in the Alternative Withdrawal of            the Court's Interference With the Entry of Judgment by Way of            a  Rule 68 Offer and  Acceptance Thereof."   In the meantime,            the parties amended the  proposed consent judgment to specify            that it could  only be  enforced by Ducharme.   The  district            court  conducted   a  hearing   in  June  1993,   and,  after            considering the parties' arguments, denied  Ducharme's motion            from the bench.  This appeal followed.                                         II.                                         II.                                         ___                                     JURISDICTION                                     JURISDICTION                                     ____________                      Two important jurisdictional issues prevent us from            addressing  the merits  of  this appeal.   First,  Ducharme's            claims for  equitable relief do  not fall within  the subject            matter jurisdiction  of the federal  courts.  Second,  to the            extent that the prospective  relief contained in the proposed            consent judgment does not amount to an injunction, we have no            appellate  jurisdiction  to  consider  the  district  court's            interlocutory  refusal  to   approve  the  proposed   consent            judgment.  We discuss each jurisdictional issue in turn.            A.  Subject Matter Jurisdiction            _______________________________                      Article III of the Constitution outlines the limits            of our  mandate; federal jurisdiction extends  only to actual            "Cases [or] Controversies."  A federal court is  powerless to            answer   hypothetical  legal   questions  or   legislate  the                                         -7-                                          7            resolution  of  future problems.    Nor may  a  federal court            intervene  in  an  actual,  ongoing  controversy unless  that            controversy is  reduced to  a dispute among  parties lawfully            before the court.   Accordingly, to  stand before an  Article            III court, "[a] plaintiff  must demonstrate a concrete injury            caused  by  the defendant  and  remediable  by the  requested            relief."  American  Postal Workers Union  v. Frank, 968  F.2d                      ______________________________     _____            1373, 1378 (1st Cir. 1992).                      The  standing inquiry does  not require  an all-or-            nothing analysis,  but may call for  some careful dissection.            A suit may  proceed in federal court even if  some aspects of            the plaintiff's  requested relief  are not likely  to redress            plaintiff's  injuries.    By   the  same  token,  however,  a            plaintiff who is otherwise properly in federal court may lack            standing to pursue particular forms of relief.   For example,            while  past injury generates standing  to bring an action for            damages, "past exposure to  harm will not, in and  of itself,            confer standing  upon a  litigant to obtain  equitable relief            `[a]bsent a  sufficient likelihood  that [the litigant]  will            again  be wronged in  a similar way.'"   Id. at 1376 (quoting                                                     ___            City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)) (first            ___________________    _____            brackets in original).                      In this  case,  Ducharme clearly  has  standing  to            bring  an action for damages against  the defendants based on            the July 23, 1991, strip search.   It is equally obvious that                                         -8-                                          8            Ducharme  has  no  standing  to   request  equitable  relief.            According to  Ducharme, the routine strip  search policy only            applied  to arrestees about to  be placed in  a holding cell.            We simply cannot assume that Ducharme will violate the law in            the future in  a manner that would  lead the State  Police to            arrest him and place him  in a holding cell.  And,  as far as            the record reveals, Ducharme is not in a State Police holding            cell now, nor is he  about to be placed in one.   Finally, it            appears that even in  the event of a future  arrest, Ducharme            is unlikely to be  subject to an unconstitutional  search if,            as the State  represented at oral argument, the  State Police            strip search policy now conforms to the prospective provision            of the proposed consent judgment.   In the absence of  a case            or controversy with respect to Ducharme's claim for equitable            relief, Lyons teaches that neither we nor the  district court                    _____            have  jurisdiction to  consider  the merits  of an  equitable            decree.  Nor do we perceive any reason why the outcome of the            jurisdictional inquiry  should turn on whether  the decree is            the product of a  pre-trial consent judgment or  a post-trial            order.                      We hasten to add that  the peculiarities of Rule 68            do   not  require   a  court  to   postpone  ruling   on  the            jurisdictional  basis of  the  judgment the  parties seek  to            enter.  We acknowledge that Rule 68 requires the clerk of the            district court to enter  the parties' agreed-upon judgment in                                         -9-                                          9            a ministerial fashion.   See  Fed. R. Civ.  P. 68  (providing                                     ___            that  "the clerk shall enter judgment" according to the terms                             _____            of a  timely accepted offer) (emphasis  added); see generally                                                            ___ _________            Mallory v. Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991) ("Rule            _______    ______            68  . . .  leaves no discretion  in the district  court to do            anything  but   enter  judgment   once  an  offer   has  been            accepted.")     Accordingly,  a  district  court   would  not            ordinarily have an opportunity to question the jurisdictional            basis for an injunction  embodied in the judgment until  some            later  time,  such as  when one  party  seeks to  enforce the            injunction.    But   Rule  68  cannot  require  entry   of  a            jurisdictionally  defective judgment  when the  parties bring            that judgment to the attention of the court.                      Our conclusion as to the claim for equitable relief            does  not  necessarily imply,  however,  that  subject matter            jurisdiction  is now entirely absent.   As we have mentioned,            Ducharme  still has  standing  to pursue  his damages  claim.            Consequently,  Ducharme still  has  the right  to settle  his            damages claim by way  of an agreement that  does not ask  the            court to ignore its jurisdictional limitations.  And, because            neither the proposed consent judgment nor defendants' amended            Rule 68  offer of judgment are on  their terms "injunctions,"            the parties may simply have been seeking the district court's            approval of a private contract containing a promise governing                                         -10-                                          10            defendants' future behavior.   With the issues thus narrowed,            we now turn to the matter of appellate jurisdiction.            B.  Appellate Jurisdiction            __________________________                      Ducharme  concedes that his appeal does not concern            a "final decision[]" appealable  under 28 U.S.C. 1291 (1988),            but  correctly observes that we are authorized by 28 U.S.C.              1292(a)(1)  (1988) to  hear an  appeal from  "[i]nterlocutory            orders  of  the  district  courts  .  .  .  refusing  .  .  .            injunctions."   The  Supreme  Court has  held  that an  order            refusing to approve a consent judgment containing  injunctive            relief   has  the  "practical  effect"  of  a  denial  of  an            injunction and  is therefore  appealable pursuant to  Section            1292(a)(1).  Carson  v. American Brands,  Inc., 450 U.S.  79,                         ______     ______________________            83-84  (1981); Durrett  v. Housing  Auth. of  Providence, 896                           _______     _____________________________            F.2d 600, 602 (1st Cir. 1990).                      We have  already concluded that neither  we nor the            district court have jurisdiction to consider the  entry of an            actual injunction.  Thus,  we need only determine whether  we            have  jurisdiction to  review a  district court's  refusal to            approve  a  consent  judgment  containing  non-injunctive yet            forward-looking  contractual relief.    Plainly,  we do  not.            Even if a simple contractual promise is nearly as valuable to            a  plaintiff as an actual  injunction, such a  promise is not            the  equivalent of  an  injunction and  therefore a  district            court's refusal to approve such a promise does not constitute                                         -11-                                          11            the denial of an  "injunction" within the meaning  of Section            1292(a)(1).   Moreover,  to the  extent that  the prospective            provision  of  the  settlement  agreement  in  this  case  is            amenable  to interpretation  as  an  "injunction,"  appellate            jurisdiction  would   be  meaningless  because  there  is  no            jurisdiction  in the district court for  the issuance of such            an injunction.  In short, Ducharme has offered no valid basis            for the exercise of appellate jurisdiction.4                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      In  light  of  the  jurisdictional  defect outlined            above, the  district court's order denying plaintiff's motion            is  vacated, and  the  cause  is  remanded for  dismissal  of            plaintiff's   claim  for   equitable  relief   for  lack   of            jurisdiction.    Any  further  action  necessary  to  resolve            plaintiff's damages claim shall  proceed in harmony with this            opinion.                      So ordered.                      ___________                                            ____________________            4.  We decline Ducharme's invitation to treat his appeal as a            petition for a writ of mandamus pursuant  to 28 U.S.C.   1651            (1988).  See generally In re Pearson, 990 F.2d  653, 656 (1st                     ___ _________ _____________            Cir.  1993) (describing  supervisory mandamus  powers of  the            courts of appeals); In re Ellsberg, 446 F.2d 954, 955-57 (1st                                ______________            Cir. 1971)  (same).   This is  simply  not an  "extraordinary            situation"  that  would  justify   our  "sparing[]"  use   of            mandamus.   In  re Pearson,  990 F.2d  at 656  (citing, inter                        ______________                              _____            alia,  Allied Chem. Corp. v.  Daiflon, Inc., 449  U.S. 33, 34            ____   __________________     _____________            (1980)  (per curiam); Will v. United States, 389 U.S. 90, 107                                  ____    _____________            (1967)).                                          -12-                                          12
