question first." Siegert, 111 S. Ct. at 1795 (Kennedy, J. concurring).
This more "complete" examination of the plaintiff's constitutional claim is a practice which has been urged upon court's in this circuit even before the Siegert decision was announced. See Brown v. Grabowski, 922 F.2d 1097, 1110 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827, 115 L. Ed. 2d 997 (1991). The benefit of this procedure is that clearly meritless claims can be disposed of without the exhaustive search for precedents that the clearly-established analysis requires. Thus, judicial economy will often be served by beginning the exercise of analyzing such claims with an examination of the underlying constitutionality, cf. Siegert, 111 S. Ct. at 1794; Brown, 922 F.2d at 1110.
A. Photographing the Plaintiff Without Consent and Without a Law Enforcement Purpose
The plaintiff contends that the Marshals violated his constitutional right to privacy by photographing him without permission and without a law enforcement justification.
In Best v. District of Columbia, 743 F. Supp. 44 (D.D.C. 1990), the court denied defendants' motion to dismiss or for summary judgment against a complaint by prisoners that they were videotaped while chained and handcuffed during transportation between prisons. The court found that the prisoners privacy rights were violated regardless of whether the film was ever publicly disclosed. Id. at 48. As the Supreme Court has recognized "inmates in jails, prisons, or mental institutions retain certain fundamental rights of privacy: they are not like animals in a zoo to be filed and photographed at will by the public or by media reporters, however 'educational' the process may be for others." Houchins v. KQED, Inc., 438 U.S. 1, 5 n.2, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978).
I find that the allegations in the instant case are substantially similar to the facts of Best. The allegations in the plaintiff's complaint raises the same concern for individual dignity which the Supreme Court and the Best court recognized. The plaintiff and other prisoners were photographed against their opposition while handcuffed and in custody. Absent any law enforcement rationale for the photographs, which from the allegations I can infer none, the Marshals' alleged actions were nothing more than a personal frolic, falling within the ambit of Houchins.
Per Justice Rehnquist's mandate in Siegert, the finding of a constitutional violation only begins my inquiry. While the D.C. District Court holding in Best, 743 F. Supp. 44, guides my decision as to whether an underlying constitutional violation was alleged, the Third Circuit has made clear that for the purpose of clearly establishing the right for qualified immunity purposes, a single out-of-circuit district court decision is insufficient. Brown, 922 F.2d at 1118-19.
Several other out-of-circuit courts have found violations in more distantly analogous circumstances. See Slayton v. Willingham, 726 F.2d 631 (10th Cir. 1984) (violation alleged if plaintiff could prove legitimate expectation of privacy in personal photos shown to others as part of criminal investigation); Smith v. Fairman, 98 F.R.D. at 447 (plaintiff filmed while in his private cell). Nevertheless, even if a right could be "clearly established" by the sum total of a number of out-of-circuit holdings, these decisions are not sufficiently analogous to Best or the instant case to illuminate the contour of the right plaintiff alleges was violated by the Marshals' conduct. Furthermore, a decision in this circuit rejected the constitutional claim of an inmate who alleged being filmed by a television crew while in the main corridor of Grateford Prison. Jones/Seymour v. Lefebvre, 781 F. Supp. 355 (E.D. Pa. 1991), aff'd, 961 F.2d 1567 (3d Cir. 1992). While that decision distinguished the Best decision's more disconcerting facts, and thus arguably implicitly acknowledged the constitutional viability of the claims in that case, and by analogy the claims before me, it can only be read to detract from the certainty of the broader right not to be photographed or filmed at all that might be drawn from Slayton or Smith, supra.
Accordingly, while I find that the plaintiff has stated a constitutional claim against the Marshals for invasion of privacy, the right was not established in this circuit to a degree sufficient to have put them on notice.
B. Delay in Providing Medical Attention to the Plaintiff
Pre-trial detainees are protected against inadequate inattention to medical needs under the Due Process Clause, rather than the Eight Amendment which is applied to convicted prisoners. See City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983); Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). In this circuit, the standard applied to pre-trial detainees is the same as that applied to prisoners: "deliberate indifference to serious medical needs." Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987), cert. denied, 485 U.S. 991, 99 L. Ed. 2d 508, 108 S. Ct. 1298 (1988).
The plaintiff alleges that the Marshals did not take him to a hospital, despite repeated requests, until more than three hours after a vehicle accident. In between the accident and the eventual trip to the hospital, the Marshals took the plaintiff all the way back to the prison. The allegations imply that the Marshal would not have taken the plaintiff to the hospital at all absent insistence by prison officials. Several quoted remarks by the Marshals and the plaintiff's allegation that Marshal #1 tried to sneak him into prison at night without filing his medical report, if true, further support my ruling that at this stage of the litigation plaintiff has sufficiently alleged the necessary culpable mental state of "deliberate indifference." Cf. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987), cert. denied, 486 U.S. 1006, 100 L. Ed. 2d 195, 108 S. Ct. 1731 (1988) ("where . . . authorities deny reasonable requests for medical treatment . . . and such denial exposes the inmate 'to undue suffering or the threat of tangible residual injury,' deliberate indifference is manifest").
The plaintiff must also allege serious medical need. While inattention to minor injuries will not cause a due process violation, authorities will be accountable for injuries which are serious or which they have reason to suspect are serious. Boring, 833 F.2d at 473; Brownell v. Figel, 950 F.2d 1285, 1291 (7th Cir. 1991); see also Lanzaro, 834 F.2d at 347 (unnecessary denial or delay in treatment which causes inmate to suffer pain or increases chance of permanent injury constitutes indifference to serious medical need).
In his complaint, plaintiff asserts that the accident caused pain to his back and neck, and numbness in his legs. In his response to summary judgment, the plaintiff contends that he still suffers from the injury, to the extent that he is unable to play basketball. Because plaintiff was without counsel when the complaint was first filed, I will consider the allegations in the response as part of the pleadings. I find that these allegations are sufficient to create an issue of fact regarding whether there were serious medical needs. Furthermore, unlike many indifference-to-medical needs cases, see Boring, 833 F.2d at 473, the plaintiff's medical needs were not the result of a pre-existing condition the potential seriousness of which the officials might have been unaware, but instead, according to the allegations, resulted from the Marshals' own conduct. According to the stated facts, they had every reason to suspect serious injury at the time of the accident, so that, even if the injuries turn out not to be egregious, at the time of the alleged violation the threat of serious injury might have existed.
There is no meaningful dispute regarding qualified immunity. The right of both convicted prisoners and pre-trial detainees not to suffer deliberate indifference to serious medical needs is clearly established. Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Brown, 833 F.2d 468 (3d Cir. 1987).
IV. Conspiracy to Violate Civil Rights
The plaintiff has also sued under 42 U.S.C. § 1985(3), claiming a conspiracy to violate constitutional rights. The elements of a 42 U.S.C. § 1985(3)
action are (1) a conspiracy; (2) for the purpose of depriving a person or class of persons of equal protection of the laws; otherwise labeled "class-based animus"; (3) an act in furtherance of the conspiracy; (4) whereby a person is deprived of a right or privilege. United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983). Federal officials can be sued under this statute. Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir. 1989).
Defendants challenge plaintiff's allegations of conspiracy, "class-based animus," and the violation of a right or privilege. At this stage of the litigation, I find that plaintiff has sufficiently alleged all three elements. Plaintiff alleges numerous racial epithets which constitute evidence that the Marshals were racially motivated in their treatment of him and other prisoners. The conspiracy element is sufficiently alleged by reference to the acts of cooperation between the Marshals in taking the photographs and not taking him for medical care. Cf. Delong Equipment Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1515 (11th Cir. 1989), cert. denied, 494 U.S. 1081, 108 L. Ed. 2d 943, 110 S. Ct. 1813 (1990); Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472, 477 (D.D.C. 1983)(proof of tacit, as opposed to explicit, understanding is sufficient to show agreement).
The alleged deprivation of "rights and privileges," required as the fourth element of a § 1985(3) claim, are the same as those I have addressed in determining the viability of plaintiff's Bivens claim -- the alleged constitutional violations for both the photograph taking and the attention to medical needs. I have ruled on both counts that a constitutional violation has been sufficiently alleged to resist a motion to dismiss. I am withholding judgment on the issue of whether the defense of qualified immunity is available for actions brought under 1985(3), so that the parties will have an opportunity to file written arguments on the issue in the interim. See Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785 (11th Cir. 1992), cert. denied, 123 L. Ed. 2d 445, 113 S. Ct. 1814 (1993) (no qualified immunity defense available to officials sued under § 1985(3)); Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990), cert. denied, 115 L. Ed. 2d 970, 111 S. Ct. 2796 (1991) (qualified immunity defense available under § 1985(3)). Because there are outstanding issues of fact regarding the racial animus and conspiracy, I will deny the motion to dismiss without prejudice to bringing a motion for summary judgment on those issues.
V. Other Claims
The plaintiff has also alleged counts of racial discrimination, and procedural due process based on defendants harassment in opposition to his assertion of legal rights. Defendants have not challenged these claims in their motion to dismiss, and accordingly, the claims remain viable at this stage of the litigation.
The defendants have raised defenses against a potential Federal Tort Claims action. However, such a claim was never asserted in the plaintiff's complaint. Plaintiff's counsel in the response to summary judgment acknowledged that the plaintiff might file administrative claims in the appropriate federal agencies, but evinced no intention to raise such claims as a part of this action. Accordingly, I find the arguments by defendants in this regard to be moot.
The defendants also moved to dismiss plaintiff's claim for a declaration that his constitutional rights were violated. Plaintiff did not address this issue in his response, and therefore I assume that he is no longer pursuing that relief. Furthermore, the granting of declaratory relief is discretionary. See Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 7 L. Ed. 2d 604, 82 S. Ct. 580 (1962). In this instance, the question regarding whether onstitutional rights have been violated is already part of my ruling on the merits of plaintiff's claim for damages, making an independent request for declaratory relief unnecessary. I therefore decline to exercise jurisdiction over the request for declaratory relief. Cf. Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975).
AND NOW, this 10th day of February, 1994, IT IS ORDERED that
1. The defendants' motion to dismiss the plaintiff's Bivens action is GRANTED as to the invasion of privacy claim based on the photographing without consent
2. The defendants' motion to dismiss the plaintiff's Bivens action is DENIED as to the inattention to medical needs claim.
3. Defendants' motion to dismiss plaintiff's 42 U.S.C. § 1985(3) action is DENIED.
3. Defendants' motion to dismiss for improper service and lack of personal jurisdiction for failure to identify the defendants by name is DENIED.
4. Defendants' motion for summary judgment on the remaining Bivens and 1985(3) claims is DENIED without prejudice to renewal after discovery is completed.
5. Defendants' motion to dismiss plaintiff's plea for declaratory relief is GRANTED.
6. Defendants' motion to dismiss plaintiff's FTCA claims are DENIED as moot.
Anita B. Brody, J.