# Cook v. Horsely

> District Court, N.D. Texas · June 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10672091

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** June 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10672091

## How later opinions describe it (automated extraction)

- explaining that a similar policy created a “rebut[table] . . . reasonable justification for the strip and visual body cavity searches... .”
- explaining that “internal rules and regulations do not alone create federally-protected rights and a prison official’s [alleged] failure to follow prison policies or regulations does not establish a violation of a constitutional right”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
REYCE JANON COOK,
Plaintiff,
V. 2:18-CV-77-Z-BR
CHARLES R. HORSLEY, et al.,
Defendants.
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Before the Court are the findings, conclusions, and recommendation of the United States
Magistrate Judge to dismiss the Complaint (“FCR”) (ECF No. 170), filed April 24, 2024. Plaintiff
filed an objection to the FCR (“Objection”) (ECF No. 171) on May 8, 2024.
BACKGROUND
Plaintiff, an inmate at TDCJ’s Neal Unit, was subject to a unit-wide strip search on
December 22, 2017. ECF No. 162 at 5. On this date, he alleges that Defendant Williams entered
the unit with “80 plus people present with 20 to 25 being females.” ECF No. 109 at 8. Williams
then left the unit and placed Sergeant White in charge. ECF No. 162 at 7. The inmates were lined
up near the bathrooms, which rendered them visible across the unit and to surveillance cameras.
Id. Defendants add that this bathroom area employed a “waist-high physical barrier to preserve the
inmates’ modesty.” ECF No. 156 at 10 (internal citations omitted). Plaintiff contests that the strip
search occurred outside the shower area. ECF No. 162 at 10-11.
Plaintiff details the search itself. He “was instructed to remove his clothing and prison
officials conducted a body cavity search, which involved, among other things, lifting his own
testicles and spreading his own buttocks while in a public area.” /d. at 7. Female cadets were

present in the dayroom, per Plaintiff, and were conversing with the male cadets actually conducting
the searches. /d. At several times, Plaintiff states that he “made direct eye contact with the female
cadets while he was fully nude,” id., and that “[n]o attempt was made to make this search private,”
ECF No. 109 at 8. Concurrently, the prison officials directed the cadets “to bring potential
contraband items to a table located adjacent to the ongoing strip searches,” which “required
additional female cadets to approach and observe the strip searches as they were occurring.”
ECF No. 162-1 at 2-3. Plaintiff alleges that Defendants Horsley, Milburn, and Seymour knew
about the search, while Defendant Williams conducted the search. ECF No. 109 at 10.
Plaintiff filed this lawsuit in 2018, alleging a violation of his Fourth Amendment rights.
Defendants moved for summary judgment, and the FCR recommended this Court to grant it.
Plaintiff now objects on the grounds stated below.
STANDARDS
This Court reviews de novo any part of the magistrate judge’s decision that has been
properly objected to. FED. R. Civ. P. 72(b)(3). Summary judgment is proper if the pleadings and
pertinent discovery show that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. Civ. P. 56(a). A material fact is in genuine
dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must resolve all
reasonable doubts in favor of the party opposing the motion. Casey Enters., Inc. v. Am. Hardware
Mut. Ins. Co., 655 F.2d 598, 602 (Sth Cir. 1981).
Defendants assert qualified immunity in their motion for summary judgment. That doctrine
“protects government officials from civil damages liability when their actions could reasonably
have been believed to be legal.” Argueta v. Jaradi, 86 F.4th 1084, 1088 (Sth Cir. 2023)

(citations omitted). Plaintiff must then establish that the officer violated his clearly established
federal rights. Jd. “This is a demanding standard ... .” Vincent v. City of Sulphur, 805 F.3d
543, 547 (Sth Cir. 2015), cert. denied, 136 S. Ct. 1517 (2016).
Qualified immunity thus alters the usual summary judgment burden of proof.
Brown vy. Callahan, 623 F.3d 249, 253 (Sth Cir. 2010). Specifically, Plaintiff “must rebut the
defense by establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct
violated clearly established law.” /d. The Court then examines whether Plaintiff has shown a
violation of a constitutional right under current law, and if a violation has occurred, it must
determine whether the right in question was “clearly established” at the time of the alleged
violation. Bevill v. Fletcher, 26 F.4th 270, 275 (Sth Cir. 2022).
ANALYSIS
Plaintiff objects that (1) the FCR’s finding that general security concerns justify cross-
gender strip searches is in error; (2) the FCR’s finding that prison officials had no knowledge of
the strip searches is in error; and (3) the FCR’s finding that Defendants who had knowledge of the
search avoid liability because they did not specifically instruct the female cadets to observe the
strip search or approve of such observation is in error. ECF No. 171 at 4—9.
I. The strip search did not create a constitutional violation.
“[N]o constitutional violation occurs when naked male inmates are viewed by female
guards if the presence of female guards is required to protect against a legitimate government
interest such as maintaining security at a correctional facility.” Letcher v. Turner, 968 F.2d
508, 510 (Sth Cir. 1992) (citations omitted); see Lewis v. Sec'y of Pub. Safety & Corr., 870 F.3d
365, 368 (5th Cir. 2017) (“We defer to the judgment of correctional officials unless the record
contains substantial evidence showing their policies are an unnecessary or unjustified response to

problems of jail security.”) (internal marks omitted). Plaintiff argues (1) that the strip search was
not “solely to provide security,” meaning the female officers could not participate in the strip
search; and (2) only an exigent circumstance, such as a group disturbance, could have justified the
search. ECF No. 171 at 4-6. Neither argument avails here.
First, Plaintiff's authorities do not help the Court decide the constitutional question, which
is whether this strip search violated the Fourth Amendment. See id. (accusing Defendants of
violating TDCJ Administrative Directives); see also Lewis, 870 F.3d at 369 (explaining that
“internal rules and regulations do not alone create federally-protected rights and a prison official’s
[alleged] failure to follow prison policies or regulations does not establish a violation of a
constitutional right”). Plaintiff presents no further caselaw, nor is this Court aware of any,
suggesting that these facts would constitute a Fourth Amendment violation.
Second, the strip search expressly served to maintain security at the prison. See Lewis, 870
F.3d at 368 (“Controlling the flow of contraband and ensuring institutional security are legitimate
penological objectives.””). Plaintiff's search was part of a prison-wide “shakedown.” ECF No. 157
at 22. The prison routinely performs these only “twice a year, as well as on an as-needed basis.”
Id. at 23. On average, some Defendants conduct these twice per year. See id. (performing 28
shakedowns in 14 years). Defendants explain that “[t]he entire point of a unit shakedown is to
thoroughly search the entire prison.” /d. They “serve an important purpose in helping officers
locate contraband.” /d.; see Lewis, 870 F.3d at 369 (explaining that a similar policy created a
“rebut[table] . . . reasonable justification for the strip and visual body cavity searches... .”).
And the presence of female guards provided necessary security during the shakedown.
Defendants explain that “[s]ometimes offenders are upset that their living areas are shaken down
or that they are strip-searched.” Jd. Because shakedowns are “necessarily disruptive ... . [t]he

extra manpower ensured that the searches were more thorough.” /d. That is, “[w]ith so many cadets
available to assist with the searches of the offenders’ personal property, every piece of property
was being inspected (sometimes multiple times).” /d. Hence, the presence of 20 additional female
guards, in addition to 20 male guards, during the unit-wide shakedown served security by allowing
the prison guards to thoroughly examine contraband.
The foregoing sufficiently demonstrates the fittingness of these strip searches under the
Fourth Amendment. These routine strip searches, which occur only twice per year, require the
upheaval of all prisoners and their personal belongings. The prison is entitled to conduct these
searches and it sensibly explains that these searches require additional reinforcement. In this case,
that meant adding roughly 20 women. ECF No. 109 at 8. Their purpose was to help locate
contraband by providing officers with the time, security, and additional manpower to do so.
They accomplished their goal.
Plaintiff understandably complains of discomfort from making eye contact with certain
female prison guards during the strip search. ECF No. 109 at 8. But this momentary discomfort
cannot override the prison’s legitimate interest in preventing the flow of contraband and from any
incidental eye contact that might arise from it. see Barnett v. Collins, 940 F.2d 1530 (Sth Cir. 1991)
(table, No. 91-1038, unpublished), cert. denied, Barnett v. Collins, 502 U.S. 1077 (1992)
(no constitutional violation occurs when naked male inmates are viewed by female guards if the
presence of female guards is required to protect a legitimate government interest such as
maintaining security at a correctional facility).
Given the Court’s mandate to “accord prison administrators great deference and flexibility

... including deference to the authorities’ determination of the reasonableness of . . . the manner,
the place and the justification” for this search, the Court cannot say it gave rise to a constitutional

violation. Elliott v. Lynn, 38 F.3d 188, 191 (Sth Cir. 1994) (quotation omitted); see United States
v. Lilly, 576 F.2d 1240, 1244-45 (Sth Cir. 1978) (proving reasonableness is a “light burden”);
see also Oliver v. Scott, 276 F.3d 736, 745-46 (Sth Cir. 2014) (explaining that constant
surveillance, even cross-sex surveillance, of prisoners is constitutional because it is reasonably
related to the penological interest of maintaining security).
Il. Prison officials had no knowledge of the constitutional search.
A “supervisor may be held liable [under Section 1983] if the supervisor was personally
involved in the constitutional deprivation or if there was otherwise a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.” Brantner v. Freestone
Cty. Sheriffs Off, No. 20-50528, 2022 WL 2077960, at *4 (Sth Cir. June 9, 2022)
(quotation omitted).
Assuming arguendo that the foregoing did constitute a Fourth Amendment violation,
Plaintiff argues that Defendants Seymour, Milburn, and Horsley had knowledge of the search.
ECF No. 171 at 6-7. Plaintiff's affidavit states: “I believe this training exercise was approved by
Major Matthew Seymour, Assistant Warden Joe Milb[u]rn, and Warden Charles Horsley.”
ECF No. 162-1 at 2. The FCR reasoned that this assertion is conclusory and thus “not competent
summary judgment evidence, and such allegations are insufficient, therefore, to defeat a motion
for summary judgment.” ECF No. 170 at 13 (quoting Eason vy. Thaler, 73 F.3d 1322, 1325
(Sth Cir. 1996)).
Plaintiff argues that his foundation for this assertion is a TDCJ Administrative Directive
stating that “[s]trip searches will be used only when directed by specific unit post orders, unit
departmental policy, or when a supervisor believes there is reasonable suspicion to warrant such a
search.” ECF No. 157 at 9. He thus concludes that “a major, an assistant warden, and/or the warden

approved of the strip searches, as these officials in supervisory roles are precisely those who issue
unit post orders and create unit departmental policy.” ECF No. 171 at 6.
This reasoning is still conclusory because Plaintiff does not explain his basis for the belief
that any of these Defendants created unit policy or issued orders. They were simply, as Plaintiff
has it, the kind of people who might do so. That is a conclusion and not summary judgment
evidence. See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (Sth Cir. 1998)
(stating that unsubstantiated and subjective beliefs, opinions of fact, and conclusions of law are
not competent summary judgment evidence); see also ECF No. 170 at 17 (“Plaintiff does not
demonstrate personal knowledge of this approval, provide a foundation for his belief, or set forth
facts that would be otherwise admissible to show the officials’ approval of the searches.”).
There is, in short, no evidence in the record suggesting that any of the above-named Defendants
had knowledge of the search. Thus, to the extent the search was unconstitutional — it was
constitutional — the above-named Defendants cannot be held liable because Plaintiff marshalled
zero summary judgment evidence reflecting that they knew.
Ill. Evenif they had knowledge, Defendants avoid search liability.
“[Fjor the purposes of Fourth Amendment analysis, we review the objective
reasonableness of conducting a _ search, and not the officer’s subjective intent.”
McCreary v. Richardson, 738 F.3d 651, 657 (Sth Cir. 2013). It is undisputed that Defendant
Williams was not present when Plaintiff was strip searched and that Defendant White did not direct
the strip search to be conducted in an unlawful manner. ECF No. 163 at 4. Plaintiff responds that,
while true, “[t]his highlights the failure of senior officials to responsibly conduct a training
exercise.” ECF No. 171 at 8.

This causal reasoning is too attenuated to affix liability to Williams or White for an alleged
unconstitutional strip search. A supervisor’s “knowledge and acquiescence in their subordinates’
[violation]” does not “[amount] to the supervisor’s violating the Constitution.” Ashcroft v. Iqbal,
556 U.S. 662, 667 (2009). Much less so when Defendants Williams and White lacked requisite
knowledge. See ECF No. 170 at 14 (recounting Williams testimony that “[t]o the extent any
individual female officer or female cadet actively watched a strip search take place, it was neither
at my direction nor had my approval”), 15 (recounting White testimony about “never order[ing]
nor direct[ing] female officers (including female cadets) to participate in or even to observe the
strip searches of male inmates”). The FCR was correct, in short, to conclude that “any causal
relationship between Defendant|s’] conduct in bringing female cadets into the room to participate
in the shakedown while strip searches of male inmates were occurring and the alleged violation is
too tenuous to satisfy the requisite level of personal involvement.” /d. at 15—16.
CONCLUSION
Plaintiff raised only three objections to the FCR, which the Court addressed supra. After
making an independent review of the pleadings, files, and records in this case, this Court concludes
that the FCR — including those findings, conclusions, and recommendations not otherwise
objected to — is correct. It is therefore ORDERED that the findings, conclusions, and
recommendation of the Magistrate Judge are ADOPTED and Defendants’ Motion for Summary
Judgment is GRANTED.
SO ORDERED.
June F204. Cpe
MATHEW J. KACSMARYK
ITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672091. Public record. Not legal advice.