Jordon v. Gardner

953 F.2d 1137

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 1992
• Docket: Nos. 90-35307, 90-35552
• Status: Published

Opinions

WALLACE, Chief Judge:

Gardner and other officials connected with the Washington Corrections Center for Women (prison officials) appeal from the district court’s order enjoining them from implementing a policy which involves routine and random cross-gender pat searches. The prison officials argue that the district court erred by holding that the searches violate inmates’ first, fourth, and eighth amendment rights. The district court had jurisdiction pursuant to 28 U.S.C. § 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse.

I

The Washington Corrections Center for Women (WCCW) is an all-female institution which houses approximately 270 convicted felons, classified at the minimum, medium, and maximum security levels. More than half of the incarcerated women are violent offenders; one out of five are in prison for murder. In addition, fifty percent of the inmates have a history of drug abuse, and twenty-five percent have an alcohol dependency. The prison is currently operating about 60% over capacity.

In January 1989, Vail took over as the new superintendent of WCCW. One of his responsibilities was to improve the security in the facility. As part of the security overhaul, Vail installed a metal detector and directed the guards to perform periodic room searches. In order to control the movement of contraband through the facility, Vail decreased the number of routine strip searches, but implemented a policy of random pat searches of the inmates. Vail required both male and female guards to perform these searches.

The pat search is conducted on fully clothed inmates, and lasts between 45 seconds and one minute. During the search, guards stand next to the inmates, and quickly run their hands over the inmates’ body. Contact with the breasts and crotch is brief and restricted.¹

On July 5, 1989, the new search policy became effective, and a handful of inmates were pat-searched by male guards. A few hours later, certain inmates filed a pro se complaint in federal court, alleging that the cross-gender searches were unconstitutional. The district judge granted the inmates’ motion for a preliminary injunction, and the case was placed on an expedited trial schedule. After hearing testimony from all parties, the district judge held that the searches were constitutionally impermissible, and permanently enjoined the practice.

II

We review the district court’s findings of fact for clear error. United States v. Benny, 786 F.2d 1410, 1419 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). Conclusions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The district court’s conclusion that the searches are unconstitutional is a mixed conclusion of law and fact, which we review de novo. Id. at 1201-04; Friedman v. Arizona, 912 F.2d 328, 331 (9th Cir.1990) (Friedman), cert. denied, — U.S. -, 111 S.Ct. 996, 112 L.Ed.2d 1079 (1991).

A.

In support of their claim that the searches violate their first amendment rights, two inmates testified that their religion prohibits them from being touched by men who are not their husbands. An expert witness corroborated this claim. The district judge found this testimony credible, and concluded that the searches violated at least some inmates’ sincerely held religious beliefs.

A prison regulation which impinges on first amendment rights is valid if it is “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987) (Turner). Four factors are relevant in assessing the reasonableness of the regulation at issue. “First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. (internal quotation omitted). Second, it should be determined “whether there are alternative means of exercising the right that remain open to prison inmates.” Id. at 90, 107 S.Ct. at 2262. “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates.” Id. “Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id.

In analyzing the inmates’ first amendment claims, the district court held that there was a rational connection between the search policy and security interests (factor one). The court also found that altering the search policy would have an effect throughout the prison (factor three). However, the court found that there were ample alternatives to the search policy (factor four), and concluded that the prison’s interest in the regulation was outweighed by the fact that the inmates had no other means of observing their religious objections to the search (factor two). Based upon these latter two determinations, the district court concluded that there had been a first amendment violation. We agree with the district court’s analysis of factors one and three, but conclude that the judge erred in his analysis of search alternatives (factor four) and lack of other means of religious observation (factor two).

The inmates presented no evidence demonstrating ready alternatives to the search policy. However, they contend that they “did not have to offer possible alternatives; the evidence showed that there were real alternatives already in place.” This argument misconstrues Turner. Pointing to alternatives that exist does not satisfy the inmates’ burden of proving that these alternatives involve little or no cost. Id. at 90-91, 107 S.Ct. at 2262 (prisoner must “point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests”); O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S.Ct. 2400, 2404-05, 96 L.Ed.2d 282 (1987) (O’Lone) (reasonableness of prison regulation does not hinge on it being the least restrictive alternative).

The inmates direct us to no evidence in the record, and we have found none, which substantiates their claim that alternatives to the search policy cost the prison absolutely nothing. To the contrary, prison officials consistently testified that requiring women to perform all searches would “have adverse effects on the institution.” O’Lone, 482 U.S. at 352, 107 S.Ct. at 2406. For example, Vail testified at length that a single sex search policy created a number of labor problems and conflicted with the requirements of the collective bargaining agreement. Vail also testified that requiring women to perform all searches made the pat searches more predictable and less effective for controlling the movement of contraband through the facility. Finally, Vail pointed out that pulling women off their posts to perform searches in other areas of the prison could create additional security problems in terms of leaving that post vacant, and also by creating delays in moving inmates through the facility. This testimony rebuts the inmates’ arguments that alternatives to the search policy are costless. See id. at 352-53, 107 S.Ct. at 2406-07 (“concerns of prison administrators” demonstrate lack of easy alternatives to prison policy).

It may be that the inmates and the district court misapplied the burden of proof. In his oral decision, the judge stated:

I was waiting to hear [Superintendent Vail] say that these kinds of searches were necessary for the internal security of the prison, that they had to be done, that they were in some way crucial. He did not say that. He testified about a lot of things, the sum total of which I concluded to be that it would be better and easier to run the prison as it ought to be run if he could have these cross-gender pat searches.

Any such requirement that prison officials prove that the searches were “crucial” would be inconsistent with the reasonableness standard of Turner. See O’Lone, 482 U.S. at 350, 107 S.Ct. at 2405 (“the [court erred] when it established a separate burden on prison officials to prove ‘that no reasonable method exists by which [prisoners’] religious rights can be accommodated without creating bona fide security problems’ ”). In the face of evidence that it is “better and easier” for the prison to allow the cross-gender searches, the last Turner factor weighs in favor of concluding that the searches are constitutional. See Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262-63.

Turning to the district court’s factor two analysis, it is true that the inmates had no alternative means of observing their religious objections to the searches. But this alone does not weigh heavily in favor of invalidating the regulation, in light of their ability to follow other tenets of their religion.

In O’Lone, the Supreme Court upheld a prison regulation that prevented inmates from attending a service that was of “central importance” to their religion. O’Lone, 482 U.S. at 351, 107 S.Ct. at 2405. Despite the lack of alternatives to attending the service, the Court held that the “ability on the part of respondents to participate in other religious observances of their faith supports the conclusion that the restrictions at issue here were reasonable.” Id. at 352, 107 S.Ct. at 2406. Similarly, in this case, the inmates are not wholly deprived of the ability to practice their religion. Cf. Friedman, 912 F.2d at 332 (prison policy prohibiting inmates from complying with one tenet of religion not unconstitutional, in part because other forms of religious exercise exist).

The inmates did not carry their burden of proving costless alternatives to the prison policy. Moreover, the search policy does not deprive the inmates of the ability to “participate in other religious observances of their faith.” O’Lone, 482 U.S. at 352, 107 S.Ct. at 2406. We therefore conclude that the inmates have failed to prove that the prison policy is not “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261.

B.

The inmates argue that the cross-gender searches are unreasonable and violate the fourth amendment. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) {Bell), the Supreme Court upheld the practice of routine body cavity searches of pretrial detainees. In doing so, the Court established a balancing test for evaluating searches in the prison context:

[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. at 1884. Following Bell, we have rejected a number of fourth amendment challenges to searches within a prison. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1445-46 (9th Cir.1989) (upholding body cavity search of arrestee); Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir.1988) (Michenfelder) (visual strip searches of male inmates are not unconstitutional, even when viewed by female guards); Rickman v. Avaniti, 854 F.2d 327 (9th Cir.1988) {Rickman) (routine visual strip searches do not violate fourth or fourteenth amendment); Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) {Grummett) (no constitutional violation when female guards perform routine pat searches of male inmates).

In Grummett, we rejected a constitutional challenge to a prison policy that permitted female guards to perform pat searches on clothed male inmates and occasionally view naked inmates. We pointed out that although the searches included the groin area, “[they] are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies.” Id. at 496. We also observed that prohibiting the searches would “necessitate a tremendous rearrangement of work schedules, and possibly produce a risk to both internal security needs and equal employment opportunities for the female guards.” Id. Finally, we rejected the argument that “otherwise ‘reasonable searches’ become unreasonable when conducted by a guard of the opposite sex.” Id. at 495. Accord Michenfelder, 860 F.2d at 334 (rejecting similar privacy challenge because “requiring [female employees] to be replaced by males for the duration of strip searches, would displace officers throughout the prison”).

We see no principled way to distinguish Grummett. Therefore, the considerations relied upon in Grummett to uphold cross-gender pat searches of male inmates lead us to conclude that the searches here are reasonable. First, the district judge found that the searches are conducted for security purposes. Second, the searches are brief in duration, and are conducted on fully clothed inmates. Third, as in Grum-mett, the correction officers are trained to conduct the searches in a professional manner. See Grummett, 779 F.2d at 496. Finally, requiring women to conduct all searches could displace officers throughout the prison. Thus, we conclude that the prison officials’ labor and security concerns are sufficient to justify the brief invasion of privacy occasioned by the cross-gender pat searches. See id.

C.

The district judge ruled that the pat searches constitute cruel and unusual punishment, concluding that “[tjhere is a high probability of great harm ... to some inmates from these searches.” We are skeptical that the record supports such a sweeping conclusion. The inmates presented trial testimony from seven expert witnesses who speculated that the searches would be psychologically damaging. However, these experts admitted uncertainty about the effect of the searches, and were largely without empirical data to substantiate their predictions. See, e.g., Reporter’s Transcript 12/12/89 at 33, 59 (experts relying on single six month survey of 52 admitted inmates showing that 54% reported some type of abuse); id. at 39 (admitting that no efforts were made to verify the survey results); id. at 65 (“we don’t know how many [inmates will be harmed] and we don’t know who those people might be”); Reporter’s Transcript 12/13/89 at 289 (expert conceding that she cannot predict how many inmates will have negative reactions). See Rhodes v. Chapman, 452 U.S. 337, 346-47, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (Rhodes) (judgment concerning cruel and unusual punishment “should be informed by objective factors to the maximum possible extent” (citations omitted)); Soto v. Dickey, 744 F.2d 1260, 1268 (7th Cir.1984) (“Courts should proceed cautiously in making an Eighth Amendment judgment [because] ... revisions cannot be made in the light of further experience.”), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985). Furthermore, other expert witnesses testified that they believed the cross-gender searches would have no significant adverse effect on the inmates. See . Reporter’s Transcript 12/18/89 at 612-14 (pointing out the lack of data substantiating harm from cross-gender searches); id. at 615, 617-18 (cross-gender pat searches will not likely cause inmates to become psychotic or develop a phobia); id. at 650 (cross-gender pat searches will not likely cause post-traumatic stress disorder or other irreparable psychological harm in women inmates); see also Reporter’s Transcript 12/14/89 at 471-76 (corrections officer from another facility testifying that she is aware of no problems resulting from a similar cross-gender search policy at that facility). However, we need not decide “whether the judge’s factual finding is clearly erroneous, because even if we assume that the inmates have proven a “probability of harm” they still have not established an eighth amendment violation. See Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) (Hoptowit) (expert opinions do “not ordinarily establish constitutional minima”).

The eighth amendment proscribes “the ‘unnecessary and wanton infliction of pain,’ which includes those sanctions that are ‘so totally without penological justification that it results in the gratuitous infliction of suffering.’ ” Id., quoting Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S.Ct. 2909, 2925, 2929, 49 L.Ed.2d 859 (1976). “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (Whitley). Although it is unconstitutional to deprive inmates of “the minimal civilized measure of life’s necessities,” other prison conditions that are “restrictive and even harsh ... are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; see also Whitley, 475 U.S. at 319, 106 S.Ct. at 1084 (the infliction of pain in the course of a prison security measure does not in itself demonstrate an eighth amendment violation).

We are required to give “wide-ranging deference” to “[prison officials’] adoption and execution of policies ... to preserve internal order and discipline and to maintain institutional security.” Bell, 441 U.S. at 547, 99 S.Ct. at 1878. This deference “requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.” Whitley, 475 U.S. at 322, 106 S.Ct. at 1085. The district judge failed to give the prison official’s decision this required deference when the district judge found that the cross-gender pat searches were not necessary for internal security. Thus, we conclude that the district judge’s finding was clearly erroneous. In this case, the district judge conceded that he had “no doubt” that prison officials implemented the policy to address “the legitimate governmental interest of security.” In light of this finding, we cannot conclude that the searches are “so totally without penological justification that [they amount to] the gratuitous infliction of suffering.” Hoptowit, 682 F.2d at 1246 (quotations omitted); see also Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir.1989) (eighth amendment protects prisoners from searches performed solely “calculated harassment”).²

Nor can the prison’s implementation of the search policy be challenged successfully. Prison guards have been carefully trained to conduct the searches in the least threatening manner, and every effort has been made to mitigate the impact of the searches on the inmates. There is no evidence that the searches are performed for any illegitimate reasons. Cf. Tribble v. Gardner, 860 F.2d 321, 325 n. 6 (9th Cir.1988) (digital rectal search may violate eighth amendment if not related to any legitimate penological justification), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989).

Finally, the brief pat searches do not violate “evolving standards of decency.” Baumann v. Arizona Department of Corrections, 754 F.2d 841, 846 (9th Cir.1985) (Baumann) (quotations omitted), “[yawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Thus, the Supreme Court has upheld searches much more intrusive than the one involved here. Bell, 441 U.S. at 558-60, 99 S.Ct. at 1884-85; see also Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (prisoners have no legitimate expectation of privacy in their prison cells). Given our line of cases upholding strip searches and body cavity searches in the prison context, e.g., Rickman, 854 F.2d at 328, we cannot hold that these brief, fully clothed, cross-gender pat searches “offend the standards of decency in modern society.” Baumann, 754 F.2d at 846.³

Ill

We are not unmindful that the pat searches may be uncomfortable or unpleasant for some inmates. Perhaps if we were the prison officials, we might choose another course than cross-gender searches. However, “the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution.” Bell, 441 U.S. at 562, 99 S.Ct. at 1886.' Because there is no constitutional violation, we are without power to interfere in these sensitive matters of prison administration. See id. The district judge’s order enjoining the cross-gender pat searches and awarding attorney fees to the inmates is therefore reversed.

REVERSED.

1 . Breast area and groin area — The breast area shall be searched in a sweeping motion, using only the back of the hand. Do not cup the hand. The breasts of a female will be flattened by this method. Use a flat hand and pushing motion across the crotch area. Maintain a flat, inward pushing motion. The edge of the hand in a downward motion can be used to check the crease in the buttocks. Push inward and upward when searching the crotch and upper thighs of the inmate.

Washington Corrections Center for Women, Pat-Down Searches of Female Inmates, E.2.

2 . The record does not substantiate the dissent’s repeated assertion that the cross-gender search policy is unrelated to any penological purposes. E.g., Dissent at 271-73. Superintendent Vail repeatedly testified that he believed that cross-gender searches were the best means of controlling the movement of contraband in the facility. For example, Vail stated that:

[F]rom a security point of view, if an inmate knows that there’s three male officers on that side of the institution, then that’s the time to move the contraband. If there’s no expectation, no reasonable expectation that they might be stopped for a pat search, then it gives them a green light to go and move.

Reporter's Transcript 12/18/89 at 680; see also id. at 671-72 (pat searches create an "unpredictable element in inmate movement throughout the institution so that inmates always have to be on guard a bit about packing contraband"); Reporter’s Transcript 12/19/89 at 801 (cross-gender searches are necessary for a successful random search policy). He also testified that pulling women off post to perform searches in other areas of the institution could cause additional security problems such as potentially dangerous delays in conducting searches and moving inmates. Id. at 808. Vail’s security concerns were corroborated by other prison officials. E.g., Reporter’s Transcript 12/18/89 at 532-33 (Tana Wood, Assistant Director, Division of Prisons, Department of Corrections); id. at 559 (Lawrence Kincheloe, Director of Division of Prisons, Department of Corrections).

The dissent also quickly dismisses the prison’s other justification for the policy — the need to provide equal employment opportunities for all guards. The record is contrary to the dissent’s position. Superintendent Vail testified at length concerning the labor problems caused by the prison’s original single sex search policy. He pointed out that requiring women to perform all searches had resulted in employee discontent and conflicted with the bid system put in place by the collective bargaining agreement. Reporter's Transcript 12/18/89 at 680; Reporter’s Transcript 12/19/89 at 784-85, 796. The district judge credited this testimony. E.g., Reporter’s Transcript 12/22/89 at 1024 (general credibility finding); id. at 1040-41 (problems with collective bargaining agreement and equal employment opportunity); id. at 1047-48 (change in policy will require women to be pulled off post in the prison).

In contrast to this testimony, the dissent claims that the record demonstrates that the cross-gender searches are not needed to accommodate labor concerns. Although citations to the record in support of this statement are not provided, the dissent may be relying in part on Vail’s statement during cross-examination that he had managed to run the facility without cross-gender searches during the course of the appeal. Reporter’s Transcript 12/19/89 at 749. However, Vail made it clear that this had been accomplished only "with the cooperation of the union.” Id. The union’s suspension of normal procedures to enable Vail to comply with a preliminary injunction in no way establishes that the search policy has no long-term labor effects.

3 . The dissent proposes another legal standard. Under this test, we must strike down the search policy if we conclude that the search policy was unnecessary and that Superintendent Vail acted with deliberate indifference to the needs of the inmates. See Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991). However, the Supreme Court has stated that deliberate indifference is the appropriate standard for culpability under the eighth amendment only when "the State’s responsibility to attend to the ... needs of prisoners does not ... clash with other equally important governmental responsibilities.” Id. (internal quotations omitted); see also id. (whether conduct "can be characterized as ‘wanton’ depends upon the constraints facing the official'). In this case, the search policy was implemented to address security and labor concerns, which are surely "important governmental responsibilities.” However, even assuming that the dissent has stated the correct standard for culpability, it has not been met.

The dissent first argues that Vail was deliberately indifferent because the search policy was not the result of a "considered choice.” Dissent at 1149 n. 4, 1149. This argument is directly contradicted by the district judge’s own findings. In his oral decision, the judge stated that "[Vail] is trying to do the right thing for his institution, for his corrections officers, and also for the inmates in it.... His testimony, in my judgment, reflects that he has given this a great deal of thought [and] has educated himself about the problem over a long period of time." Reporter’s Transcript 12/22/89 at 14. The record also reveals that Vail adopted the policy only after consulting with his supervisor and staff over a period of several weeks. Reporter’s Transcript 12/18/89 at 665-69. Finally, Vail’s decision to implement the policy was made with the knowledge that other institutions had cross-gender search policies, such that the "practice was pretty fundamental in a correctional facility.” Reporter’s Transcript 12/18/89 at 669.

The dissent also argues that Vail was deliberately indifferent to the needs of the inmates, because he implemented the search policy in the face of some staff resistance, and has defended the policy despite evidence that cross-gender searches might be psychologically damaging. However, as stated above, the evidence of psychological harm is, at best, equivocal. The plaintiffs' witnesses produced no empirical data substantiating their predictions of harm, and some experts who testified at trial were of the opinion that the searches would have no adverse psychological effect. Given this disagreement, Vail can hardly be faulted for implementing the search policy. Cf. Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (courts must give "wide-ranging deference” to a prison official’s "adoption and execution of policies ... to maintain institutional security"). Similarly, in light of the conflicting trial evidence, Vail’s failure to abandon the policy does not demonstrate "deliberate indifference” to the needs of the inmates.