courts “ordinarily should defer” to prison officials, “[i]f a policy is reasonably related to legitimate security objectives and there is no substantial evidence to indicate that prison officials have exaggerated their response to security considerations”
How later courts described this case
- courts “ordinarily should defer” to prison officials, “[i]f a policy is reasonably related to legitimate security objectives and there is no substantial evidence to indicate that prison officials have exaggerated their response to security considerations”
- distinguishing Florence because “[p]ublic exposure of the genitalia accompanied by physical touching is far more intrusive than directing an arrestee to remove her clothing in private for the purpose of ‘visually inspecting’”
- holding visual body cavity searches conducted en masse in non-private area were justified by an emergency situation created by increasing murders, violence, and the corresponding need to uncover and seize hidden weapons
- concluding the presence of female guards during a strip search does not render the search per se unconstitutional
Written by the judges who cited it.
The opinion
Case: 19-30154 Document: 00515644829 Page: 1 Date Filed: 11/19/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 19, 2020
No. 19-30154
Lyle W. Cayce
Clerk
Desmond C. Parker,
Plaintiff—Appellant,
versus
O. Woods, Deputy; Doctor Nguyen; Correct Care
Solutions, L.L.C.; Shontrell Cooper; D. Tapp, Deputy;
D. Harris, Deputy,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-1609
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Desmond C. Parker, a Louisiana state inmate, filed a pro se and in
forma pauperis federal lawsuit under 42 U.S.C. § 1983 against several
defendants, alleging various abuses that occurred during his pretrial
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
Case: 19-30154 Document: 00515644829 Page: 2 Date Filed: 11/19/2020
No. 19-30154
detention and later imprisonment. The district court granted summary
judgment dismissing all of Parker’s claims. We AFFIRM.
I.
Parker’s claims arose from three separate incidents. He alleges that
during his pretrial detention, he was denied adequate medical care for a
fractured ankle and that his personal property, including legal papers, was
lost. In addition, Parker alleges his rights were violated during a strip and
visual body cavity search that took place in jail following his conviction. 1
Parker named as defendants Sheriff Marlin N. Gusman; Correct Care
Solutions, LLC (“CCS”); Dr. Xuong Nguyen, who treated his ankle injury;
Deputy Octave Woods, who performed the strip search; Deputies Daniel
Tapp and Deshaune Harris, who were both present during the strip search;
and Shontrell Cooper, a grievance clerk at the facility where Parker was
incarcerated.
Adopting the magistrate judge’s report, the district court dismissed
the claims against CCS and Dr. Nguyen, concluding Parker’s allegations of
deficient care did not state a constitutional violation. It dismissed Parker’s
intentional deprivation of property claim without prejudice, pointing out that
Louisiana provides an adequate post-deprivation remedy. See DeMarco v.
Davis, 914 F.3d 383, 387 (5th Cir. 2019); Marshall v. Norwood, 741 F.2d 761,
764 (5th Cir. 1984). 2 The court also granted summary judgment to Cooper,
1
Parker also alleged that he and another inmate were deprived of water and access
to a bathroom while in a holding cell. Parker does not mention this claim on appeal and has
therefore abandoned it. Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, LLC, 637 F.3d
604, 610 (5th Cir. 2011).
2
The court noted that, to the extent Parker alleged a negligent deprivation of his
property, this claim was not actionable under § 1983. See Daniels v. Williams, 474 U.S. 327,
328 (1986).
2
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No. 19-30154
the grievance clerk, finding no evidence she was personally involved in
providing Parker medical care. Finally, the court concluded Deputy Woods’
search of Parker did not violate the Constitution and therefore dismissed the
claims against Deputies Woods, Tapp, and Harris.
Because the only colorable issue before us concerns the strip and body
cavity search, we provide additional detail on that claim. The incident took
place at the Orleans Justice Center, where Parker was housed. When a
syringe went missing from the jail nurse’s medical cart, officers conducted a
“shakedown” or systematic search of all inmates. Deputy Woods searched
Parker in a shower area, while only Deputies Tapp and Harris were present.
After undressing, Parker was initially asked to squat and cough. When that
procedure did not appear to work, however, Parker claims Deputy Woods
pushed him over a chair and manually spread Parker’s buttocks. Parker
jumped away and asserted Deputy Woods could not touch him in that
manner. Parker stated that all the deputies laughed, and that Deputy Woods
“was staring at [Parker’s] penis and smiling.”
The district court ruled the search did not violate the Constitution. It
began by explaining it was uncontested that Deputy Woods was permitted to
search Parker because the officers had legitimate security interests in finding
the missing syringe. The court thus construed Parker’s claim as turning on
how Deputy Woods searched him, specifically by: (1) touching Parker’s
buttocks and (2) staring at his genitalia and smiling. While noting that “body
cavity searches are normally conducted only visually with the prisoner
manipulating his own body parts,” the court reasoned the mere fact that this
search involved physical contact did not transform it into a per se
constitutional violation. Relying on Eighth Amendment precedents, the
court also stated that “fleeting and isolated” or “de minimis” touching would
not violate the constitution even if “clearly inappropriate and sexual in
nature.” For similar reasons, the court held that Deputy Woods’s “lesser
3
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No. 19-30154
action” of smiling at Parker’s genitalia was also not actionable “even if
. . . intended to humiliate [Parker].” The court therefore granted summary
judgment to Deputy Woods. Given the claims against Deputies Tapp and
Harris turned on their alleged failure to protect Parker from Deputy Woods’s
unconstitutional actions, those claims were dismissed as frivolous. Parker
timely appealed.
II.
We review a summary judgment de novo. Renwick v. PNK Lake
Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018). Summary judgment is
appropriate if there is “no genuine dispute as to any material fact,” Fed. R.
Civ. P. 56(a), but cannot stand 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).
III.
Parker asks for reversal, not only as to his strip-search claim but also
as to his claims concerning medical care and lost property. We need not pause
long over the latter two claims. As to those, Parker makes no colorable
argument that the district court erred in granting summary judgment.
Accordingly, we summarily affirm the judgment as to those claims. See 5th
Cir. R. 47.6. Only one issue merits further inspection: whether the district
court erred by granting summary judgment on the strip-search claim to
Deputy Wood (and, so, also to Deputies Tapp and Harris). The court’s
conclusion was correct but its analysis needs adjustment.
In analyzing Parker’s strip-search claim, the court blended distinct
Fourth and Eighth Amendment frameworks. The court began, properly, by
assessing the reasonableness of the search, but then proceeded to evaluate
whether the unwelcome contact was “de minimis,” citing cases addressing
the Eighth Amendment. For instance, the court relied on Copeland v. Nunan,
4
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No. 19-30154
No. 00-20063, 2001 WL 274738, at *2–3 (5th Cir. Feb. 21, 2001)
(unpublished), involving a prisoner’s Eighth Amendment claim that he had
been fondled by a prison pharmacist. Our opinion distinguished “violent
sexual assaults involving more than de minimis force[,which] are actionable
under the Eighth Amendment,” from claims involving “isolated, unwanted
touchings by prison officials,” which may be “despicable” but nonetheless
not actionable under the Eighth Amendment. Id. at *3 (citing Schwenk v.
Hartford, 204 F.3d 1187, 1195, 1197 (9th Cir. 2000); Boddie v. Schneider, 105
F.3d 857, 860–61 (2d Cir. 1997)). We recognize that Parker’s pro se complaint
characterizes the strip-search as a sexual assault. On a liberal reading,
however, we take Parker to allege an unreasonable search that sounds under
the Fourth Amendment, which provides the proper analysis under our
precedent for challenges to prison searches. See, e.g., Moore v. Carwell, 168
F.3d 234, 237 (5th Cir. 1999) (citing Elliott v. Lynn, 38 F.3d 188, 191 n.3 (5th
Cir. 1994)); see also Elliot, 38 F.3d at 190–91 (evaluating constitutionality of a
“visual body cavity search[]” under the Fourth Amendment) (citing Bell v.
Wolfish, 441 U.S. 520, 558 (1979)).
“The Fourth Amendment . . . requires that ‘searches or seizures
conducted on prisoners must be reasonable under all facts and circumstances
in which they are performed.’” Elliott, 38 F.3d at 191 (quoting United States
v. Lilly, 576 F.2d 1240, 1244 (5th Cir. 1978)). Courts “must balance the need
for the particular search against the invasion of the prisoner’s personal rights
caused by the search . . . consider[ing] 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.’” Moore, 168 F.3d at 237 (quoting Bell, 441
U.S. at 559). Proving the reasonableness of an inmate search, however,
imposes only a “light burden” on prison officials, “[b]ecause a prison
administrator’s decisions and actions in the prison context are entitled to
great deference from the courts.” Elliot, 38 F.3d at 191 (citing Lilly, 576 F.2d
5
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at 1245); see also Hay v. Waldron, 834 F.2d 481, 486 (5th Cir. 1987) (courts
“ordinarily should defer” to prison officials, “[i]f a policy is reasonably
related to legitimate security objectives and there is no substantial evidence
to indicate that prison officials have exaggerated their response to security
considerations”). Ultimately, courts must “strik[e] a balance ‘in favor of
deference to prison authorities’ views of institutional safety requirements
against the admittedly legitimate claims of inmates not to be searched in a
humiliating and degrading manner.’” Elliot, 38 F.3d at 191 (quoting Watt v.
City of Richardson Police Dep’t, 849 F.3d 195, 196 (5th Cir. 1988)).
This is not the first time our court has applied these Fourth
Amendment principles to the kind of search at issue here. “Under
appropriate circumstances,” we have explained, “visual body cavity searches
of prisoners can be constitutionally acceptable.” Id. (citing Bell, 441 U.S. at
558)). We have considered factors such as whether the search was performed
by guards of the opposite sex 3; whether it occurred in public or private 4; and
whether it was unreasonably lengthy. 5 Further, the Supreme Court has
advised that there “may be legitimate concerns about the invasiveness of
searches that involve the touching of detainees.” Florence v. Bd. of Chosen
3
Compare Letcher v. Turner, 968 F.2d 508, 510 (5th Cir. 1992) (concluding the
presence of female guards during a strip search does not render the search per se
unconstitutional), with Moore, 168 F.3d at 237 (holding a female guard’s strip and body
cavity search of a male prisoner absent an emergency and when male officers were available
could violate the Fourth Amendment).
4
See Elliott, 38 F.3d at 189 (holding visual body cavity searches conducted en masse
in non-private area were justified by an emergency situation created by increasing murders,
violence, and the corresponding need to uncover and seize hidden weapons).
5
See McCreary v. Richardson, 738 F.3d 651, 659 (5th Cir. 2013) (stating the
unnecessary length of a search “gives us pause,” but was not “clearly unlawful” for
qualified immunity purposes)
6
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Freeholders of Cnty. of Burlington, 566 U.S. 318, 339 (2012). 6 Following
Florence, some circuits have distinguished purely visual searches from those
that involve varying degrees of physical touching or intrusion. 7
Considering these principles, we find no error in the district court’s
conclusion that the search here was reasonable. We note at the outset that
Parker does not contest that the search was justified by the prison’s need to
find the missing syringe. There is little doubt that it was. The Supreme Court
has squarely recognized that prison officials have a “serious responsibility”
to make sure inmates do not conceal such potentially lethal items on, or in,
their bodies. Florence, 566 U.S. at 332; see also id. (“Correctional officers have
had to confront arrestees concealing knives, scissors, razor blades, glass
shards, and other prohibited items on their person, including in their body
cavities.”); Bell, 441 U.S. at 559 (observing that “[a] detention facility is a
unique place fraught with serious security dangers,” including “[s]muggling
6
The Supreme Court in Florence upheld the constitutionality of a prison’s policy
of visually searching detainees during the intake process but emphasized that the searches
at issue did not “include any touching of unclothed areas by the inspecting officer.” 566
U.S. at 325.
7
See Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1234 n.28 (10th
Cir. 2020) (distinguishing an officer’s touching of an inmate’s beard during an initial pat-
down frisk from “the far-more-invasive touching of a detainee’s unclothed body as part of
a strip search, especially as part of an inspection of body-cavities”); Brown v. Polk Cnty.,
965 F.3d 534, 541 (7th Cir. 2020) (characterizing body cavity search involving physical
contact as “an intrusion of privacy to the highest degree”); United States v. Fowlkes, 804
F.3d 954, 961 (9th Cir. 2015) (distinguishing between “visual cavity searches that do not
require physical entry into a prisoner’s body” and “physical cavity searches”); Williams v.
City of Cleveland, 771 F.3d 945, 953 (6th Cir. 2014) (distinguishing Florence because
“[p]ublic exposure of the genitalia accompanied by physical touching is far more intrusive
than directing an arrestee to remove her clothing in private for the purpose of ‘visually
inspecting’”) (citation omitted); Cantley v. W. Va. Reg’l Jail and Corr. Facility Auth., 771
F.3d 201, 207 (4th Cir. 2014) (officers entitled to qualified immunity from Fourth
Amendment claim when inmates were searched in a private room with one officer of the
same sex and the officer did not touch either plaintiff).
7
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of money, drugs, weapons, and other contraband . . . by concealing them in
body cavities”). Furthermore, Parker’s search was conducted in private and
by an officer of the same sex. No officers of the opposite sex were present.
Cf. Moore, 168 F.3d at 237. Moreover, nothing suggests that the search was
unduly lengthy. Parker himself does not dispute that the search lasted for
only about three minutes.
All we are left with, then, is Parker’s reliance on evidence that Deputy
Woods manually spread his buttocks and “smiled” at his exposed genitals.
We cannot conclude that this evidence, standing alone, raises a material
dispute as to whether the search was unreasonable. Even viewing the
evidence most favorably to Parker, the touching involved was incident to a
legitimate body cavity search. And, as explained, the search was a valid means
of finding potentially lethal contraband that had gone missing. Parker himself
does not contest the need for the search and does not argue the search was
unduly prolonged. See, e.g., Moore, 168 F.3d at 237 (in evaluating
reasonableness of prisoner search, 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’”) (quoting Bell, 441 U.S.
at 559). Given the “great deference and flexibility” courts must afford prison
officials in maintaining institutional security, Elliot, 38 F.3d at 191, we cannot
say that the physical touching involved here renders the search
unconstitutional.
Nor do we find a material dispute as to whether the search was
conducted in a “humiliating and degrading manner.” Id. An instructive
comparison comes from our decision in Hutchins v. McDaniels, 512 F.3d 193
(5th Cir. 2007) (per curiam), in which we held the plaintiff’s Fourth
Amendment claim arising out of a prison search was not frivolous. Id. at 196.
There, an officer performed a search by ordering an inmate to remove his
clothing and then to “step back, lift one leg up, hop on one foot, switch legs
8
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and go in the opposite direction for a total distance of about thirty feet,” all
in view of other prisoners and a female guard. Id. at 195. The plaintiff also
alleged the officer was “wearing a ‘lewd smile.’” Id. Parker’s search is
nothing like the one in Hutchins. While the Hutchins search was arguably
conducted in a manner calculated to humiliate the inmate in public and in
view of other prisoners and a guard of the opposite sex, the search here was
brief and performed in private by a guard of the same sex. Evidence that one
guard “smiled” at Parker’s penis does not rise to the level of a “humiliating
and degrading” search actionable under the Fourth Amendment. Elliott, 38
F.3d at 191 (citation omitted).
We therefore affirm the summary judgment as to Deputy Woods, and
by necessary extension, as to Deputies Tapp and Harris.
***
The judgment of the district court is AFFIRMED.
9