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[Not for Publication]

[Not for Publication]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

__________________
_____________________________
brief for appellant.
Robin E. Feder, Assistant Attorney General, with whom Jeffrey
_______________
_______
Pine, Attorney General, was on brief for appellee.
____
____________________
____________________

Per
Curiam.
____________
plaintiff-appellant
that

the

Todd

Rhode

Police") and

member of

their

parties from
own

in the

in
of

interlocutory

A.

appeal,

("Ducharme") contends
refusing to

approve

Ducharme's civil

Island Division

Raymond

the State Police.

that the district court

the

erred

in settlement

against the

("State

this

G. Ducharme

district court

consent judgment
action

In

of State

rights
Police

Driscoll ("Driscoll"),

Alternatively, Ducharme argues

exceeded its authority in preventing

entering
guise of

the proposed
an

consent decree

accepted offer

on

of judgment

pursuant to Federal Rule of Civil Procedure 68.

I.
I.
__
BACKGROUND
BACKGROUND
__________
On

July 23,

1991,

Ducharme was

arrested by

State Police and charged with disorderly conduct.

was

based on Ducharme's

"abusive and

toward a lifeguard who had

dog from

The charge

belligerent" behavior

requested Ducharme to remove

his

Beach Pond, a state-run facility located in Exeter,

Rhode Island.
to

the

Clad only in "swim trunks," Ducharme was taken

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

According to State

the

swim

trunks

to

Police Superintendent Edmond

-22

Ducharme.
S. Culhane,

Jr., Ducharme was

procedure

performed

holding cell."
holding

strip searched

cell

prior to

placing

We assume that
and that

the

because it
an

"is a

routine

individual in

Ducharme was then placed in a

disorderly

conduct charge

was

resolved in some fashion.

Ducharme
States

District

against
alleges,

the

later filed
Court

State

searches and

the strip

right

United

Rhode

Island

The

complaint

search constituted

to be

free of

seizures pursuant to the

Amendments to the Constitution,

in the

of

and Driscoll.1

that

of Ducharme's

action

the District

Police

inter alia,
_____ ____

violation

for

this

unreasonable

Fourth and Fourteenth

actionable under 42 U.S.C.

1983.
The

complaint

contains

concerning the unreasonableness of an

policy.

The complaint

specific

allegations

automatic strip search

asserts that "it is well

settled law

that mandatory strip searches of arrestees charged with minor

offenses, absent a reasonable
concealing weapons
[Ducharme],
that an

suspicion that the arrestee is

or contraband, such as

are unconstitutional."

automatic strip

As

search policy is

that performed on
additional evidence
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
official capacities.

his individual and

-33

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
victim to

also alleged

defendants' strip

that

he

might again

search policy.

fall

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

equitable

relief:

(1)

automatic

strip

search

also

sought

a declaratory
policy

of

the

several

forms

of

judgment

that

the

State

Police

is

unconstitutional; (2) a declaratory judgment that defendants'

strip

search of

injunction

Ducharme was

preventing

unconstitutional; and

"[d]efendants

from

(3) an

routinely

strip

searching [Ducharme] and all other persons arrested for minor

offenses,

absent reasonable suspicion

that the

arrestee is

concealing a weapon or contraband."

-44

Prior
commencement of
settlement.

to

the

In February 1993,

pursuant

Ducharme

rejected the

to

Rule

policy of the
Attorney

answer

the

that he

would not

defendants that

unreasonable strip

1985

letter.3

searches.

to the money

Ducharme reportedly stating

was now in

offer of
of $7500.

on the part of the

State Police

that the

conformity with
Once

the

amount

by proposing, in addition

letter to

General's

in

or

to negotiate a

defendants made an

682

longer conduct

Defendants responded
judgment, a

an

offer, explaining

settle without a promise

would no

of

discovery, the parties began

judgment

they

filing

again,

the

Ducharme

refused.
Sometime

thereafter

the

parties

agreed

on

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.
-55

April

1993,

that would

award Ducharme

$7500 and

defendants with the following prospective provision:

Defendants shall not require as a matter
of policy, nor shall they perform or

bind the

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

apparently

expressed its

would saddle
searches

chambers conference,
concern that

the court with

conducted by

the

the task

the State

district court

the proposed

decree

of supervising

strip

Police and

on

that basis

refused to approve the judgment.

With

this

another solution.
Rule

68

offer

avenue
Defendants

of judgment

proposed consent decree.

the State from
approval, see
___

closed, the

parties

orally agreed to
to

include

the

amend their
terms of

the

Because Rhode Island law prohibits

settling a

case without some

R.I. Gen. Laws

9-31-6 and

form of

of their intentions.

court

9-31-10 (1985),

the parties gave the district judge an opportunity

by notifying him

developed

to object

In another unrecorded

chambers conference, the district court evidently stated that

it

had

the discretion

judgment even if

to prevent

the

entry of

the judgment was offered in

the form of an

otherwise nondiscretionary, self-executing Rule 68

acceptance.
-66

a consent

offer and

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."

the parties amended the

that it could
court

only be

conducted

In the meantime,

proposed consent judgment to specify

enforced by Ducharme.

hearing

in

June

1993,

considering the parties' arguments, denied

from the bench.

The

district

and,

after

Ducharme's motion

This appeal followed.

II.
II.
___
JURISDICTION
JURISDICTION
____________

Two important jurisdictional issues prevent us from

addressing

the merits

claims for

equitable relief do

matter jurisdiction

of

this appeal.

not fall within

of the federal

extent that the prospective

First,

courts.

Ducharme's
the subject

Second,

to the

relief contained in the proposed

consent judgment does not amount to an injunction, we have no

appellate

jurisdiction

interlocutory
judgment.

refusal

to
to

consider
approve

the
the

district
proposed

court's
consent

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

"Cases [or] Controversies."

answer

hypothetical

only to actual

A federal court is

legal

questions

or

powerless to
legislate

the

-77

resolution
intervene

of
in

controversy is

future problems.
an

actual,

reduced to

before the court.

Nor may

ongoing

federal court

controversy unless

a dispute among

Accordingly, to

that

parties lawfully

stand before an

Article

III court, "[a] plaintiff

must demonstrate a concrete injury

caused

and

by

relief."

the defendant

remediable

American Postal Workers Union

______________________________

by the

requested

v. Frank, 968
_____

F.2d

1373, 1378 (1st Cir. 1992).

The

standing inquiry does

nothing analysis,
A suit may

but may call for

not require

some careful dissection.

proceed in federal court even if

the plaintiff's

requested relief

an all-or-

some aspects of

are not likely

to redress

plaintiff's

injuries.

By

the

same

token,

however,

plaintiff who is otherwise properly in federal court may lack

standing to pursue particular forms of relief.
while

past injury generates standing

damages, "past exposure to

confer standing
`[a]bsent a
again

upon a

to bring an action for

harm will not, in and

litigant to obtain

sufficient likelihood

be wronged in

For example,

of itself,

equitable relief

that [the litigant]

a similar way.'"

will

Id. at 1376 (quoting

___

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)) (first
___________________
_____
brackets in original).
In this
bring

case,

Ducharme clearly

an action for damages against

the July 23, 1991, strip search.

has

standing

to

the defendants based on

It is equally obvious that

-88

Ducharme

has

According to
applied

no

standing

to

request

Ducharme, the routine strip

to arrestees about to

equitable

relief.

search policy only

be placed in

a holding cell.

We simply cannot assume that Ducharme will violate the law in

the future in

a manner that would

arrest him and place him

lead the State

in a holding cell.

Police to

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.

appears that even in

is unlikely to be
as the State

the event of a future

Finally, it

arrest, Ducharme

subject to an unconstitutional

represented at oral argument, the

search if,
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
_____
have

jurisdiction to

decree.

consider

the merits

district court
of an

equitable

Nor do we perceive any reason why the outcome of the

jurisdictional inquiry
the product of a

should turn on whether

pre-trial consent judgment or

the decree is
a post-trial

order.
We hasten to add that
do

not

require

jurisdictional
enter.

court

basis of

the

the peculiarities of Rule 68

to

postpone

judgment the

ruling

on

parties seek

the
to

We acknowledge that Rule 68 requires the clerk of the

district court to enter

the parties' agreed-upon judgment in

-99

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

. . .

anything

leaves no discretion
but

enter

accepted.")

in the district

judgment

Accordingly,

once

an

district

court to do

offer
court

has

been

would

not

ordinarily have an opportunity to question the jurisdictional

basis for an injunction
later

time,

injunction.

such as
But

jurisdictionally

embodied in the judgment until

when one

Rule

68

party

seeks to

cannot

defective judgment

require
when the

some

enforce the
entry

of

parties bring

that judgment to the attention of the court.

Our conclusion as to the claim for equitable relief
does

not

necessarily imply,

jurisdiction
Ducharme

is now entirely absent.

still has

Consequently,

however,

standing

Ducharme still

damages claim by way

that

As we have mentioned,

to pursue
has

subject matter

his damages

the right

of an agreement that

claim.

to settle

his

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

-1010

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

but

under 28 U.S.C. 1291 (1988),

correctly observes that we are authorized by 28 U.S.C.

1292(a)(1)

(1988) to

orders

the

of

injunctions."

hear an

district
The

appeal from

courts

Supreme

Court has

"[i]nterlocutory
refusing

held

that an

refusing to approve a consent judgment containing

relief

has

injunction and

the

"practical

is therefore

effect"

of

order

injunctive

denial

appealable pursuant to

of

an

Section

1292(a)(1).
83-84

Carson
______

v. American Brands, Inc., 450 U.S.

______________________

(1981); Durrett
_______

79,

v. Housing Auth. of Providence, 896

_____________________________

F.2d 600, 602 (1st Cir. 1990).

We have

already concluded that neither

district court have jurisdiction to consider the

actual injunction.
have

Thus,

jurisdiction to

approve

consent

forward-looking

we nor the
entry of an

we need only determine whether

review a
judgment

district court's
containing

contractual relief.

we

refusal to

non-injunctive yet

Plainly,

we do

not.

Even if a simple contractual promise is nearly as valuable to

a
the

plaintiff as an actual
equivalent of

an

injunction, such a

injunction and

promise is not

therefore a

district

court's refusal to approve such a promise does not constitute

-1111

the denial of an
1292(a)(1).
provision
amenable

"injunction" within the meaning

Moreover,
of

the

to the

settlement

to interpretation

as

extent that
agreement
an

in

of Section

the prospective
this

"injunction,"

case

is

appellate

jurisdiction

would

jurisdiction

in the district court for

an injunction.

be

meaningless

because

there

is

no

the issuance of such

In short, Ducharme has offered no valid basis

for the exercise of appellate jurisdiction.4

III.
III.
____
CONCLUSION
CONCLUSION
__________
In
above, the
is

light

of

the

jurisdictional

defect outlined

district court's order denying plaintiff's motion

vacated, and

plaintiff's
jurisdiction.

the

claim
Any

cause
for

is

remanded for

equitable

further

plaintiff's damages claim shall

action

relief

dismissal
for

necessary

lack
to

of
of

resolve

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)).
-1212