Petition for Writ of Certiorari — Gardner v. Tribble

SS-12909 | FiLeED

JAN 23 1889

JOSEPH #. SPANIOL, JR

ae: CLERK

eo Se pm

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1988

BooTH GARDNER, et al..

Petitioners,

LANFORD ID. TRIBBLE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH Q. EIKENBERR\

4{ttorney Genera

WILLIAM L. WILLIAMS

Sr Assistant Attorne y Gener

Counsel of Record

GLENN L. HARVEY

Assistant Attorney Gener

7th Floor, Highways-Licenses Building

Mail Stop: FZ-11

Olympia, WA 98504

(206) 586-1445

ATE PRINTING PLANT YMPIA, WASHINGTON

QUESTIONS PRESENTED

I. Can prison officials who develop a prison policy,

which is not unconstitutional on its face, and the employees

who carry out that policy, be denied qualified immunity from

suit on the basis that the policy was motivated by an im-

proper purpose absent any direct evidence of such a purpose?

II. Can a prison staff member be held liable under 42 §

1983 for creating or carrying cut a prison policy, which, al-

though not unconstitutional on its face, was allegedly tainted

by am improper purpose, absent any evidence that the actions

of that staff member were motivated by the claimed im-

proper purpose?

ee ee a

ll

LIST OF PARTIES

The parties to the proceeding below were the following

Petitioners, who were aligned as Defendants-Appellants be-

low: Booth Gardner, Governor of the State of Washington;

Amos Reed, former Washington Department of Corrections

Secretary; Robert Trimble, Washington Department of Cor-

rections Deputy Secretary; W.L. Kautzky, Director of the Di-

vision of Prisons; James C. Spalding, Deputy Director of the

Division of Prisons; Lawrence Kincheloe, Washington State

Penitentiary Superintendent; R. Zabor, Washington State

Penitentiary medical staff; and Correctional Officers Ser-

geant Snell, J. King, J. Christy, P. Edwards, R. Jones, and R.

Hansen.

Respondent Landforu wv. Tribble, an inmate serving a

sentence at the Washington State Penitentiary at Walla

Walla, was aligned as the Plaintiff-Appellee below.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

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CONSTITUTIONAL AND STATUTORY PROVI-

a >» Uae

pose.

A The Ninth Circuit Court of Appeal’s

refusal to require that a § 1983 plain-

tiff present some “direct evidence” of

a defendant’s improper purpose in

order to defeat the defendant’s mo-

tion for summary judgment based on

qualified immunity flies in the face of

recent decisions of this Court. The

decision is in conflict with decisions

of the Sixth and District of Columbia

Circuits. Direction from this Court

regarding the “direct evidence” issue

is necessary in order to effectuate

the Court’s holding in Harlow v.

Fitzgerald, 457 U.S. 800 (1982).

Il. The Court of Appeals has departed

from well settled law by holding that

an individual prison staff member

can be subjected to the rigors and ex-

pense of a trial based on a claim that

a particular prison policy was imple-

mented for an “improper purpose”

even where no evidence was adduced

as to the role he or she played in cre-

ating or implementing the policy, or

that he or she personally was moti-

vated by the alleged improper pur-

31 > hd

CONCLUSION aie acare oo 13

APPENDICES ere

TABLE OF AUTHORITIES

CASES

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107 Sl 34 (1987 16,7

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denied 46Y { S 1215 (1985) 'e

Br r ( ricor t 4 BS ipp HG SD | RT

aff'd. 854 F.2d 162 (7th Cir. 1988

(el [ex ( rp V Catrett, \ S

106 S.Ct. 2548 (1986) a Se

Har Fitzgerald, 457 U.S. 800

(1982) 41.5.6, 7, 8.9, 10

Jeffries v. Reed, 631, F.Supp. 1212 (E.D. Wash. 1986)

Jones v. North Carolina Prisoner’s Union, 433 U.S. 119

be fg re re re eee ne ge PAL) a 7

Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987) .... 7

Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988)...... 11

Martin v. District of Columbia Metro Police Depart-

ment, 812 F.2d 1425 (D.C.Cir.), vacated in part, 817

F.2d 144 (D.C.Cir.) reinstated sub nom., Bartlett v.

Bowen, 824 F.2d 1240 (D.C.Cir. 1987), cert. denied,

ams WS. ey SOD BAA. TEGE CER coe ces 4,9, 10

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IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1988

BootH GARDNER, et al.,

Petitioners,

LANDFORD D. TRIBBLE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TG THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioners respectfully pray that a Writ of Certiv-

rari issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit, entered in this

proceeding on October 25, 1988.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Ninth Circuit has been published. Tribble v. Gardner,

860 F.2d 321 (9th Cir. 1988}. It is reprinted as Appendix A.

The unpublished order of the District Court, which was ap-

pealed to the Court of Appeals, is attached as Appendix B.

JURISDICTION

The Court of Appeals for the Ninth Circuit entered a

Judgment and Order on October 25, 1988 affirming the Dis-

trict Court’s denial of Petitioner’s Motion for Partial Sum-

mary Judgment.

Petitioners Booth Gardner, et al., invoke this Court’s

jurisdiction to review the judgment of the Court of Appeals

for the Ninth Circuit pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourth Amendment to the United States Constitution.

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and sei-

zures, shal! not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the per-

sons or things to be seized.

Eighth Amendment to the United States Constitution.

Excessive bail shall not be required, nor excessive fines im-

posed, nor cruel and unusual punishments inflicted.

Fourteenth Amendment to the United States Constitu-

tion, section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

42 U.S.C. § 1983. Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.

For the purposes of this section, any Act of Congress applica-

ble exclusively to the District of Columbia shall be consid-

ered to be a statute of the District of Columbia.

STATEMENT OF THE CASE

This case involves a challenge by a state prison inmate

to a prison policy under 42 U.S.C. § 1983.’ Plaintiff’s chal-

lenge is not limited to a determination of the constitutional-

' Plaintiff’s § 1983 action also cnallenges the specific application of the

policy in question to him, as well as raising other issues. None of those

issues are before the Court in this petition.

ity of the policy or the availability of prospective injunctive

relief. He also seeks money damages from everyone in any

way connected with that policy—starting at the top with the

Governor who appointed the policy makers, the policy

makers themselves, and ending with the line correctional

staff hired to carry out that policy.

Defendants sought summary judgment on the basis that

the policy is constitutional’ or, in the alternative, that de-

fendants are entitled to qualified immunity from suit for

money damages’ because the policy did not violate “clearly

established rights.” Harlow v. Fitzgerald, 457 U.S. 800, 819

(1982).

The District Court agreed that the policy is constitu-

tional if aimed at a particularly dangerous class of inmates—

in other words, it was not facially unconstitutional. However,

the District Court denied summary judgment on the basis of

Plaintiff’s claim that the policy was created and implemented

for a punitive—and therefore improper—purpose. The Dis-

trict Court found that Plaintiff’s circumstantial evidence cre-

ated an issue of fact as to the purpose of the policy.

Petitioners filed an interlocutéry appeal pursuant to

Mitchell v. Forsyth, 472 U.S. 511, 529-30 (1985). The Court

of Appeals affirmed the District Court. Petitioners seek relief

from the Court of Appeals’ decision.

‘The policy in question—requiring a search of the body cavities of

dangerous inmates transferred into the prison’s most secure housing unit

was approved at least in dicta by a different district judge. Jeffries v. Reed,

631 F.Supp. 1212 (E.D. Wash. 1986). The Sixth Circuit Court of Appeals

has sustained a similar policy in a comparable high security federal prison,

recognizing the need to prevent dangerous inmates from secreting weap-

ons, drugs or other contraband in their body cavities. Bruscino v. Carlson,

654 F.Supp. 609, 620 (S.D. Ill. 1987) aff’d., 854 F.2d 162 (7th Cir. 1988).

Plaintiff’s suit is one of approximately 120 pending in district courts in

Washington relating to the same policy. The policy in question has, subse-

quent to the filing of this action, been changed—under current policy,

body cavity searches are conducted only upon a showing of reasonable

suspicion in individual cases.

‘The issue of qualified immunity from injunctive relief is not before

the Court.

INTRODUCTION AND SUMMARY OF

ARGUMENT

1. This case presents a confluence of three lines of re-

cent decisions from this Court, which, in the context of prison

administration, work together and reinforce each other. In

Turner v. Safley, _— U.S. -—, 107 S.Ct. 2254 (1987), the

Court admonished that prop: deference should be granted

to prison officials in their day-to-day administration of penal

institutions. In Anderson v. Creighton, oF oe |

S.Ct. 3034 (1987), the Court affirmed that government offi-

cials should be immune from liability for money damages

under Harlow v. Fitzgerald, 457 U.S. 800 (1982), unless their

conduct, when viewed against an objective legal reasonable-

ness standard, violated rights which had been clearly estab-

lished in a particularized sense. In Celotex v. Catrett, —~—

U.S... 106 S.Ct. 2548 (1986), the Court held that summary

judgment should bar trial when there is a failure of proof on

any element of a plaintiff’s claim, even though there may be

factual disputes as to other issues. The decision below is in

conflict with each of these lines of cases, and undercuts the

policies embodied in each.

2. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Su-

preme Court eliminated the subjective prong of the qualified

immunity test outlined in Wood v. Strickland, 420 U.S. 308

(1975). Since Harlow, the Supreme Court has not indicated

how the Harlow standard should be applied when the gov-

ernment official’s subjective intent is an element of the un-

derlying claim.

In Anderson v. Creighton, supra, the Court held that

the test against which the official’s conduct is to be measured

is one of “objective legal reasonableness” as to the particular

conduct involved.

Below, the Court of Appeals did not require the plaintiff

to produce any “direct evidence” of improper motivation to |

avoid summary judgment. This is in conflict with the “direct

evidence” standard adopted by the District of Columbia Cir-

cuit in Martin v. D.C. Metro. Police Dep’t, 812 F.2d 1425,

1435 (D.C.Cir.), vacated in part, 817 F.2d 144 (D.C.Cir.), re-

instated sub.nom. Bartlett v. Bowen, 824 F.2d 1240 (D.C.Cir.

1987), cert. denied, U.S. __, 108 S.Ct. 1121 (1988), and

the Sixth Circuit in Poe v. Haydon, 853 F.2d 418 (6th Cir.

1988).

3. The Court of Appeals also held that Tribble’s failure

to link any named defendant to the search or creation of the

policy or to the claimed improper purpose was not fatal to his

attack on the policy. This is in obvivus contravention of the

42 U.S.C. § 1983 requirement that liability be predicated on

the acts of a named defendant.

Denying summary judgment in the absence of any evi-

dence to support an essential element of plaintiff’s claim flies

in the face of Celotex, supra.

4. The result of the Court of Appeals’ decision will be to

force prison employees to incur the expense of a trial for

money damages to defend the purpose of a prison policy,

even though there is no evidence that they personally pos-

sessed punitive intent while creating or applying the policy.

This decision will result in federal courts being constantly

embroiled in the management of the nation’s prisons. Such

involvement is in contradiction to the Supreme Court’s

teachings. Turner v. Safley, ___ U.S. __, 107 S.Ct. 2254

(1987).

The Court, therefore, should accept review, not only to

rectify an erroneous decision in contravention of this Court’s

rulings and in conflict with other circuit courts of appeal, but

also to provide guidance to lower courts struggling with ex-

ploding § 1983 prison litigation.

REASONS FOR GRANTING THE WRIT

I. The refusal by the Court of Appeals for the

Ninth Circuit to require that a § 1983 plaintiff

present some “direct evidence” of a defendant’s im-

proper purpose in order to defeat the defendant’s

motion for summary judgment based on qualified

immunity flies in the face of recent decisions of this

Court. The decision is in conflict with decisions of

the Sixth and District of Columbia Circuits. Direc-

tion from this Court regarding the “direct evidence”

issue is necessary in order to effectuate the Court’s

holding in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

6

In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the

Court held that “* * * government officials performing dis-

cretionary functions generally are shielded from liability

* * *lif] their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable per-

son would have known.” The Harlow Court reasoned that if

the law was not “clearly established,” an official could not

“* * * reasonably be expected to anticipate subsequent legal

developments * * *”. Jd. at 818.

The Harlow Court sought to avoid the substantial social

costs that would attend to the inquiry of a government offi-

cial’s subjective intent. Harlow 457 U.S. at 817. Finding that

subjective inquiries are incompatible with the policy that in-

substantial claims should uot proceed to trial, the Court con-

cluded that “* * * bare allegations of malice should not

suffice to subject government officials either to the costs of

trial or to the burdens of broad reaching discovery.” Jd. at

817-18.

Harlow was followed by Mitchell v. Forsyth, 472 US.

511 (1985), in which the Court held that “* * * a district

court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final deci-

sion’ within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.” Jd. at 530. The Court rea-

soned that the qualified immunity entitlement “* * * is an

immunity from suit, rather than an a mere defense to liabil-

ity; and like an absolute immunity, it is effectively lost if a

case is erroneously permitted to go to trial.” Mitchell, 472

U.S. at 526, (emphasis added).

The Court’s most recent explanation of the Harlow

standard and its application was set forth in Anderson v.

Creighton, U.S. , 107 S.Ct. 3034 (1987). The issue

addressed in the Anderson decision was the level of general-

ity at which the relevant legal rule will be deemed “clearly

established” law. For example, since the right to due process

is clearly established, it is possible that any action that vio-

lated due process thereby also violated “clearly established”

» law. However, the Anderson Court found that if the test of

clearly established law were to be applied with such general-

ity, it would undercut the “objective legal reasonableness”

test of Harlow. Anderson ___ U.S. __, 107 S.Ct. at 3039.

The Anderson Court went on to affirm that the quali-

fied immunity analysis does not require “* * * the inquiry

into officials’ subjective intent that Harlow sought to mini-

mize.” Anderson ___ U.S. ___, 107 S.Ct. at 3040. The test

would still be primarily an objective one.

The relevant question in this case, for example, is the

objective (albeit fact-specific) question whether a rea-

sonable officer could have believed Anderson’s warrant-

less search to be lawful, in light of clearly established

law and the information the searching officers pos-

sessed. Anderson’s subjective beliefs about the search

are irrelevant. Id. at 3040, (emphasis added).

The Court of Appeals’ decision in this case flies in the

face of these holdings. By refusing to require that an inmate

plaintiff adduce some direct evidence of an allegedly im-

proper purpose in order to overcome an qualified immunity

defense, the Court of Appeals has subjected the decision

making process of prison administrators to post hoc scrutiny

by federal court juries—a result clearly contrary to the teach-

ings of Harlow and Anderson

The policy considerations which dictate a direct evi-

dence standard, particularly in a prison environment, are

substantial. In Turner v. Safley, __. U.S. ___, 107 S.Ct. 2254

(1987), the Court held that “when a prison regulation im-

pinges on inmates’ constitutiona: rights, the regulation is

valid if it is reasonably related to a legitimate penological

interest.”* Id. at 2261 (emphasis added). The Turner Court

found such a standard to be necessary “* * * if prison ad-

ministrators * * *, and not the courts, [are] to make the

difficult decisions concerning institutional operations.”

Turner quoting Jones v. North Carolina Prisoner’s Labor

Union, Inc., 433 U.S. 119, 128, (1977).

*The Turner Court used very broad language which indicates the

Court intended the “reasonable relation” analysis to apply to the scrutiny

of all prison regulations. See Turner at 2261. Although Turner arose in a

first amendment context, the circuits have applied the “reasonable rela-

tion” analysis in contexts others than first amendment. See Kent v. John-

son, 821 F.2d 1220 (6th Cir. 1987), involving prisoner claims under the first,

fourth, eighth, and fourteenth amendments; Michenfelder v. Sumner, 860

F.2d 328 (9th Cir. 1988), Turner applied in a fourth and eighth amendment

context.

The “reasonable relation” standard of Turner v. Safley

requires a “logical connecti»n” between a disputed policy and

a legitimate penological objective. Turner _—_ U.S. —_, 107

S.Ct. at 2264.° If prison staff who create or implement a “logi-

cally connected” policy can be denied qualified immunity,

and thus forced to trial, by mere inferential or circumstantial

evidence of punitive purpose, then all prison policies will eas-

ily be forced to issue at trial. Obviously, at trial, a record will

be created which will be examined on appeal and the Turner

“logical connection” requirement will become the “searching

examination of the record” found inappropriate in Turner.

Id. at 2264.

Under the decision below, an inmate plaintiff can pro-

duce circumstantial evidence (not necessarily directed at a

named defendant) from which an inference could be drawn

that a policy has a punitive purpose. The defendants will be

forced to trial regardless of the merits of the suit as to their

personal culpability. This result is obviously contrary to the

teachings of Harlow and Turner. It will not be unexpected if

convicted felons soon learn to routinely allege that a policy to

which they object was created for a punitive purpose, even

though the policy is logically connected to a legitimate peno-

logical objective. Under the evidentiary standard which the

Court of Appeals has applied, those cases will be easily forced

to trial by prison inmates.

If the claims of prison inmates can withstand summary

judgment on the basis of such very limited evidence of a

named defendant’s punitive intent, as in this case, the quali-

fied immunity defense will vanish for prison officials. More-

over, the inquiry into the motivation of prison officials will

require the courts constantly to involve themselves in mat-

ters that this Court has said to be committed to the consid-

»The majority in Turner concluded that a logical connection is re-

quired, rather than an examination of the record to determine whether

sufficient proof existed that, in fact the regulation at issue was necessary.

Turner at 2264. In Brown v. Johnson, 743 F.2d 408, 413 (6th Cir. 1984)

cert. denied, 469 U.S. 1215 (1985), the court presaged the Turner “logical

connection” analysis when it stated “Moreover, prison officials when mak-

ing these types of decisions, need not demonstrate an actual danger in

order to support the reasonableness of their determinations. It is enough to

show that a potential danger exists without the restrictions of a challenged

prison regulation.” Brown at 413.

ered judgment of prison administrators. O’Lone v. Estate of

Shabazz, __ U.S. __, 107 S.Ct. 2400, 2404 (1987).

The decision below conflicts with the decision in Martin

v. D.C. Metro. Police Dep’t, 812 F.2d 1425, 1435 (D.C.Cir.),

vacated in part, 817 F.2d 144 (D.C.Cir.) reinstated sub nom.,

Bartlett v. Bowen, 824 F.2d 1240 (D.C.Cir. 1987), cert. de-

nied, U.S. —_, 108 S. Ct. 1121 (1988). There, the D.C.

Circuit held that when a court inquires into a defendant’s

motivation “some direct evidence that the official’s actions

were improperly motivated must be produced if the case is to

proceed to trial.” Martin, 812 F.2d at 1435. Under Martin,

the plaintiff, in order to avoid dismissal before a trial, must

come forward with more than inferential or circumstantial

support for the allegation of unconstitutional motive.

The Martin court held that the Supreme Court’s strong

condemnation of insubstantial suits against government offi-

cials compelled the application of a standard more demand-

ing of the plaintiff when public officer defendants move for

summary judgment on the basis of their qualified immunity.

Martin, 812 F.2d at 1435. Martin found that the more exact-

ing “direct evidence” standard was necessary to avoid “* * *

precisely the burden Harlow sought to prevent.” Jd. at 1435."

The Sixth Circuit has also required that a plaintiff show

direct evidence that an official’s action was improperly moti-

vated in order to defeat a summary judgment motion based

on qualified immunity. Poe v. Haydon, 853 F.2d 418, 432-433

(6th Cir. 1988). The Poe case involved alleged viclations of

the equal protection clause and the due process clause of the

fourteenth amendment in the context of sexual harassment

and discrimination.

The Poe court concluded that under Harlow, it was

proper to consider the actors’ intent. Jd. at 431-432. However,

the Poe court agreed with the Martin Court that the plaintiff

must present direct evidence that an official’s action was im-

* The court below attempted to distinguish Martin on the basis that

the court there dealt with a claim that individual defendants acted with an

unconstitutional purpose, whereas “Tribble asks [the Ninth Circuit] to

examine the purpose of the policy.” Tribble, Appendix A, p. 12. This is

pure sophistry. The policy has no life of its own—and thus no purpose

other than that of those who created it or are charged with carrying it out.

10

properly motivated to defeat a summary judgment motion

based on qualified immunity. Poe, 853 F.2d at 432.

The Poe court further indicated how such a standard

should be utilized. If there is a genuine issue of material fact

considering a defendant’s motivation and there is direct evi-

dence that the defendant was improperly motivated, then

summary judgment should be denied. However, if the plain-

tiff was unable to provide any direct evidence of improper

motive, summary judgment must be granted for the defend-

ants. Id.

The Poe and Martin cases strike an appropriate balance

between the Harlow Court’s desire to limit unsubstantial

suits against public officials, and plaintiffs’ opportunity to

overcome an asserted qualified immunity defense.

Guidance from the Court is needed regarding the appli-

cation of the proper intent inquiry in a case involving quali-

fied immunity. A “direct evidence” standard will

accommodate both Harlow and Turner and yei allow plain-

tiffs adequate opportunity to pursue meritorious claims.

II. The Court of Appeals has departed from

well settled law by holding that an individual prison

staff member can be subjected to the rigors and ex-

pense of a trial based on a claim that a particular

prison policy was implemented for an “improper

purpose” even where no evidence was adduced as to

the role he or she played in creating or implement-

ing the policy, or that he or she personally was mo-

tivated by the alleged improper purpose.

42 U.S.C. § 1983 by its very terms requires that individ-

ual participation must be shown to have actually caused a

constitutional deprivation.’ Individual participation is a fun-

damental element, and the burden of proving it must be

borne by the plaintiff. S. Nahmod, Civil Rights and Civil

' The words of the statute are familiar: “Every person who * * * sub-

jects or causes to be subjected, any citizen * * * to the deprivation of any

rights, privileges, or immunities * * * shall be liable to the party injured

* * *” 42 U.S.C. § 1983 (emphasis added).

ll -¢

Liberties Litigation, the Law of Section 1983, 121-123 (2d

Ed. 1986.)*

In responding to defendants’ summary judgment motion

in the District Court, Tribble made no showing as to the role

any of the named defendants in developing or implementing

the policy. Further, there was absolutely no evidence even

circumstantially showing that any named defendant’s actions

were motivated by a punitive intent. Thus, Tribble did not

make a showing of an essential requirement of his claim—

that is the element that the individual named defendants in

fact caused the claimed violation of his constitutional rights.

Yet this Court has recently held that Fed. R. Civ. P. 56

mandates the entry of summary judgment if a claimant is

unable to make a sufficient showing to establish any essential

element of the claim—i.e. one upon which the claimant will

bear the burden of proof at tria! Celotex Corp. V. Catrett,

___ U.S. __, 106 S.Ct. 2548, 2553 (1986), See also Anderson

v. Liberty Lobby, _ U.S. —_, 106 S.Ct. 2505 (1986). Sum-

mary judgment is mandated even if there may be disputes of

fact regarding other elements of the claim. A complete failure

of proof regarding an essential element of the nonmoving

parties’ case necessarily renders all other facts immaterial—

thus, there can be no genuine issue as to any material fact. Jd.

The Celotex opinion emphasized that there was “no ex-

press or implied requirement in Rule 56 that the moving

party support its motion with affidavit or other similar mate-

rials negating the opponent’s claim”. Celotex, USS. ;

106 S.Ct. at 2553 (emphasis added). Therefore, the moving

party does not have the burden of disproving any essential

element. It is the claimant who must demonstrate that there

is sufficient evidence on each essential element in order to

warrant sending it to the jury.

In contrast, below, the Court of Appeals indicated that a

defendant is entitled to summary judgment only “* * * if he

makes a showing by affidavit or otherwise that he did not

commit those acts * * *”. Appendix A, p. 13. Thus, the deci-

sion below puts the burden on each defendant to show what

* Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), contains an analy-

sis of § 1983 causation requirements, particularly as to each individual

defendant. Leer at 632-634.

12

role—if any—he or she played in creating or carrying out the

policy and that his or her actions were not motivated by the

claimed improper purpose. This is so despite the fact that

Tribble has not shown any evidence that any particular de-

fendant created or carried out the policy, or acted with the

purported improper purpose.

While forcing the defendants in this case to go to trial

absent evidence that they personally participated in a viola-

tion of constitutional rights, the Court of Appeals not only

has departed from well-established law in this Court, it also

conflicted with a decision in the Tenth Circuit.

In Pueblo Neighborhood Health Centers v. Losavio, 847

F.2d 642 (10th Cir. 1988), the plaintiffs filed suit in a case

arising out of the seizure, .nspection, copying, and retention

of medical records by government officials from private

health centers alleging, inter alia, that defendants were moti-

vated by a racial animus. The defendants sought summary

judgment in each case on qualified immunity grounds.

In its discussion of the plaintiff’s first amendment claim

based on an alleged improper purpose, the Pueblo court

found that the plaintiffs must prove that the defendant oper-

ated with improper motive by producing some specific fac-

tual support for the claim of unconstitutional motive. /d. at

648-649."

The Pueblo court found that a plaintiff may avoid sum-

mary judgment only if he can point to “* * * specific evi-

dence that the official’s actions were improperly motivated.”

Id. at 649. Thus Pueblo stands for the proposition that plain-

tiff must show actions by the defendant which demonstrate

improper motivation.

Pueblo illustrates the proper individualized causation

analysis required in a § 1983 case, when underlying intent is a

key element in the plaintiff's claim. This requirement was

clearly jettisoned in the instant case by both the District

Court in denying summary judgment and the court below in

affirming that denial. Each erred in allowing the issue of the

policy’s purpose to go to trial and in subjecting the named

*The Pueblo court reiterated the Celotex teaching that the moving

party has no burden to disprove unsupported claims of his opponent.

Pueblo, 847 F.2d at 649.

13

defendant to the risk of a damage award, without any evi-

dence connecting those defendants to the allegedly improper

purpose.

If an inmate plaintiff is allowed to force a prison official

to the rigors of discovery and trial without having even any

evidence that the individual official in fact acted to deprive

him of a constitutional right through an improper purpose or

motive, the requirements of Celotex and Liberty Lobby, will

be evaded.

The result of the Court of Appeals’ decision is to place

prison officials at all levels in an impossible quandry. Policy

makers who in good faith develop a facially constitutional

policy risk liability if the unauthorized act of one subordinate

circumstantially taints the policy with an improper purpose.

Line staff, on the other hand, who merely follow the direc-

tives of their superiors, face liability for failing to discern

that beneath those directives lurks an improper purpose.

This Court should avoid this unworkable result by re-

versing the Court of Appeals and holding that $1983 liability,

if based on an improper purpose underlying a prison policy,

only attaches to those who were in fact motivated by such a

purpose in creating or carrying out the policy.

CONCLUSION

For all of the aforegoing reasons, the Writ of Certiorari

should be granted.

DaTeD this 18th day of January, 1989.

Respectfully submitted,

KENNETH QO. EIKENBERRY

Attorney General

WILLIAM L. WILLIAMS

Sr. Assistant Attorney General

Counsel of Record

GLENN L. Harvey

Assistant Attorney General

7th Floor, Highways-Licenses Building

Mail Stop: FZ-11

Olympia, WA 98504

(206) 586-1445

A-1

APPENDIX A

NO. 87-3982

LANFORD D. TRIBBLE,

Plaintiff-Appellee,

v.

BootH GARDNER; AMOS AEED; ROBERT TRIMBLE, et al.: W. L.

KAUTZKY; JAMES C. SPALDING; LAWRENCE KINCHELOE; SNELL,

Sert.; J. Kine; J. Curisty; P. Epwarps; R. Jones; R. HANSEN,

Defendants-Appellants.

No. 87-3982.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 8, 1988.

Decided Oct. 25, 1988.

Inmate brought § 1983 action against governor and state

prison officials to recover damages and to obtain declaratory

and injunctive relief based upon digital rectal searches rou-

tinely conducted whenever inmate is moved into secure hous-

ing unit within maximum security prison. The United States

District Court, Eastern District of Washington, Justin L.

Quackenbush, J., denied motion for summary judgment

based on qualified immunity defense and appeal! was taken.

The Court of Appeals, Cynthia Halcombe Hall, Circuit

Judge, held that: (1) if searches were conducted for purposes

unrelated to security considerations, searches would violate

the Fourth Amendment and might violate the Eighth

Amendment; (2) reasonable individual would have known

that searches conducted for punitive purposes would violate

inmate’s clearly established rights; (3) genuine issues of ma-

terial fact, as to whether searches were reasonably related to

legitimate penological goal and as to whether officials reason-

ably could have believed that searches were conducted for

legitimate penological goal, precluded summary judgment;

and (4) inmate was not entitled to attorney’s fees.

Affirmed.

1. Federal Courts

Court of Appeals reviews de novo denial of qualified

immunity defense in § 1983 action. 42 U.S.C.A. § 1983.

2. Federal Courts

In reviewing denial of qualified immunity defense in §

1983 action, Court of Appeals reviews evidence in light most

favorable to nonmoving party. 42 U.S.C.A. § 1983.

3. Civil Rights

Government officials are charged with knowledge of

constitutional developments, including all available deci-

sional law, for purposes of determining whether officials are

entitled to qualified immunity from § 1983 liability. 42

U.S.C.A. § 1983.

4. Prisons

To avoid constitutional infirmity, prison regulation that

infringes on inmates’ constitutional rights must be reasona-

bly related to legitimate penological objectives.

5. Civil Rights

Rule, which provides that prison regulation infringing

on inmates’ constitutional rights must be reasonably related

to legitimate penological need, was clearly established law,

for purposes of qualified immunity defense to § 1983 liability,

at time inmate was subjected to digital rectal search. 42

U.S.C.A. § 1983.

6. Criminal Law

Prisons

Digital rectal search conducted on inmates for purposes

unrelated to security considerations would violate the Fourth

Amendment and might also constitute “cruel and unusual

punishment” under the Eighth Amendment as unnecessary

and wanton infliction of pain. U.S.C.A. Const. Amends. 4, 8.

See publication Words and Phrases for other judi-

cial constructions and definitions.

7. Civil Rights

Generally, official’s state of mind is not factor in deter-

mining application of qualified immunity in § 1983 action;

however, when governing precedent identifies official’s intent

as essential element of constitutional claim in the action,

A-3

plaintiff must be afforded opportunity to overcome asserted

immunity with offer of proof of official’s alleged unconstitu-

tional purpose. 42 U.S.C.A. § 1983.

8. Federal Civil Procedure

Genuine issues of material fact, concerning whether dig-

ital rectal searches performed on inmates were reasonably

related to legitimate penological goal and concerning whether

governor and state prison officials reasonably could have be-

lieved that searches were conducted to further legitimate

purpose, precluded summary judgment on qualified immu-

nity defense in § 1983 action arising out of policy requiring

digital rectal search whenever inmate is moved into secure

housing unit within maximum security prison. 42 U.S.C.A. §

1983.

9. Federal Civil Procedure

Any named defendant who shows that he did not play

role in creating digital rectal search policy or that he did not

participate in search upon inmate would be entitled to sum-

mary judgment, in inmate’s § 1983 action based on policy

requiring digital rectal search whenever inmate is moved into

secure housing unit within maximum security state prison. 42

U.S.C.A. § 1983.

10. Civil Rights

In some circumstances, person may be “prevailing

party,” for purnoses of determining entitlement to attorney

fees in civil rights action, without having obtained favorable

final judgment on the merits; however, person is not entitled

to attorney fees unless he has established entitlement to

some relief on the merits of his claims. 42 U.S.C.A. §§ 1983,

1988.

See publication Words and Phrases for other judi-

cial constructions and definitions.

11. Civil Rights

Inmate, who presented sufficient evidence to withstand

summary judgment motion based on qualified immunity de-

fense, was not “prevailing party” entitled to attorney fees, in

§ 1983 action arising out of policy requiring digital rectal

search whenever inmate is moved to secure housing unit

A-4

within maximum security state prison. 42 U.S.C.A. §§ 1983,

1988.

Glenn L. Harvey, Asst. Atty. Gen., Corrections Div.,

Olympia, Wash., for defendants-appellants.

Leo J. Driscoll, Winston & Cashatt, Spokane, Wash., for

plaintiff-appellee.

Appeal from the United States District Court for the

Eastern District of Washington.

Before BrEEzER, HALL and Wicarns, Circuit Judges.

CyntTHiA Hotcoms Hatt, Circuit Judge:

The Governor of Washingion and state prison authori-

ties, defendants-appellants, appeal the district court’s denial

of their motion for summary judgment based on the defense

of qualified immunity. Plaintiff-appellee Lanford D. Tribble,

an inmate at the Washington State Penitentiary in Walla

Walla, Washington, brought this action under 42 U.S.C. §

' 1983 seeking damages, declaratory and injunctive relief

based upon the digital body cavity searches routinely con-

ducted whenever a prisoner is moved into the Intensive Man-

agement Unit, a secure housing unit within the maximum

security prison. We affirm.

I

In June 1984, the Washington State Penitentiary in

Walla Walla opened an Intensive Management Unit

(“IMU”), a ninety-six cell secure housing unit within the

maximum security prison. Washington State Department of

Corrections Policy Directive 420.110(A)(4)(a) provides that a

digital body cavity search, including the rectum, shall be con-

ducted on all inmates prior to initial placement in the IMU,

and upon return to the IMU from other portions of the

prison “when a good opportunity for concealment has oc-

curred.” In other words, when an inmate has left the direct

Assignment to the IMU occurs when “in the judgment of the super

ntendent, the presence of such inmate in the general inmate population

* * *" Wash. Admin. Code § 137-32-005

would constitute a serious threat

1286)

A-5

supervision and custody of escorting officers, a digital rectal

search is required to be conducted on the inmate upon re-

entry into the IMU. The ostensible purpose of the policy is

based on the need for security in the IMU.

On January 16, 1986, prison officials discovered contra-

band during a search of the general population three-man

cell in which Tribble resided. Tribble, on the basis of “cell

tag” regulation, Wash. Admin. Code § 137-28-031 (1986),’

was cited for possession of the contraband. The following

day, a prison officer told Tribble he was to be transferred to

the IMU. The officer allegedly smiled and stated: “Today,

you meet ‘Mr. Big Finger,’ Tribble. * * *”

Prior to his move from the genera! population to the

IMU, Tribble was handcuffed behind his back, placed in leg

irons, chained around his waist, and taken to the prison hos-

pital.’ He was placed on an examination table and a physi-

cian’s assistant conducted a digital body cavity search

including digital penetration and examination of his rectum.

This examination was video-taped by correctional officers. It

is undisputed that the search occurred pursuant to policy,

and was not based upon a suspicion that Tribble had secreted

any item in his rectum. Tribble was then taken to the IMU.

Tribble brought suit alleging, in part, that the policy of

conducting digital body cavity searches upon entry to the

IMU from other portions of the prison without any individu-

alized cause to do so constitutes an unreasonable search un-

der the fourth amendment and cruel and unusual

punishment under the eighth amendment. Appellants moved

for summary judgment, in part, based upon the qualified im-

munity defense, contending that the constitutionality of the

policy was an open question.

Il

We have jurisdiction over this interlocutory appeal pur-

* The “cell tag” regulation provides that each cellmate is responsible

“for an infraction that occurs within the confines of such cell unless he/she

can establish a lack of involvement in the infraction.” The propriety of

such a rule presently is not before us.

All inmates who are subject to a digital rectal search are similarly

bound prior to the search.

A-6

suant to Mitchell v. Forsyth, 472 U.S. 511, 529-30, 105 S.Ct.

2806, 2817-18, 86 L.Ed.2d 411 (1985) (“{A] district court’s

denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstand.ng the

absence of a final judgment.”). See generally Kraus uv.

County of Pierce, 793 F.2d 1105, 1107-08 (9th Cir. 1986),

cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763

(1987).

[1,2] We review de novo the denial of a qualified im-

munity defense. White by White v. Pierce County, 797 F.2d

812, 814 (9th Cir. 1986). We review the evidence in the light

most favorable to the nonmoving party. /d.

Ill

In this appeal, we do not determine whether the search

conducted on Tribble violated the fourth amendment’s pro-

scription against unreasonable searches. Nor do we deter-

mine whether the particular search amounted to

“unnecessary and wanton infliction of pain” forbidden by the

eighth amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97

S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Geor-

gia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859

(1976) (joint opinion)); see McRorie v. Shimoda, 795 F.2d

780, 784 (9th Cir. 1986).‘ Instead, first we must determine

whether, at the time of the search, Tribble had a clearly es-

tablished right to be free from a digital rectal search con-

———— :

ducted for purposes unrelated to security concerns. See

Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82

L.Ed.2d 139 (1984). Second, we must determine whether,

given the facts of this case, a reasonable person would have

known that searches pursuant to Policy Directive

420.110(A)(4)(a) violated Tribble’s clearly established rights.

See Anderson v. Creighton, __ U.S. __, 107 S.Ct. 3034,

3040, 97 L.Ed.2d 523 (1987).

‘While the constitutionality of such searches, if based on legitimate

penological objectives, may be an open question, we are faced with a differ-

ent question in this appeal. Here, we must consider the searches in light of

Tribble’s evidence that they are conducted for reasons other than legiti-

mate penological goals.

A-7

“{G]overnment officials performing discretionary func-

tions[] generally are shielded from liability for civil damages

[in a section 1983 action] insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982). The “clearly established law” test re-

quires more than an alleged “violation of extremely abstract

rights.” Anderson, 107 S.Ct. at 3038-39. Rather, “[t]he con-

tours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Jd. at 3038. In other words, “in the light of preexisting

law the unlawfulness must be apparent.” Jd.

[3] To determine whether a right is clearly established,

“in the absence of binding precedent, a court should look at

all available decisional law including decisions of state

courts, other circuits and district courts. * * *” Ward v.

County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986),

cert, denied, __. U.S. ___, 107 S.Ct. 3263, 97 L.Ed.2d 762

(1987). An additional factor that may be considered is “a

determination of the likelihood that the Supreme Court or

this circuit would have reached the same result as courts

which have previously considered the issue.” Capoeman v.

Reed, 754 F.2d 1512, 1515 (9th Cir. 1985). Government offi-

cials are charged with knowledge of constitutional develop-

ments, including all available decisional law. Gutierrez v.

Municipai Court, 838 F.2d 1031, 1048 (9th Cir. 1988).

[4] We begin with the well-settled principle that “a

prison inmate ‘retains those [constitutional] rights that are

not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.’ ”

Turner v. Safley, _— U.S. ——, 107 S.Ct. 2254, 2265, 96

L.Ed.2d 64 (1987) (quoting Pell v. Procunier, 417 U.S. 817,

822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)) (brackets in

original). Supreme Court decisions express the general prin-

ciple in this area. Procunier v. Martinez, 416 U.S. 396, 94

S.Ct. 1800, 40 L.Ed.2d 224 (1974), Pell v. Procunier, 417 U.S.

817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), Jones v. North

Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53

L.Ed.2d 629 (1977), and Bell v. Wolfish, 441 U.S. 520, 99

A-8

S.Ct. 1861, 60 L.Ed.2d 447 (1979), established the principle

that, to avoid constitutional infirmity, a prison regulation

that infringes on inmates’ constitutional rights must be rea-

sonably related to legitimate penological objectives. See

Turner, 107 S.Ct. at 2257-62 (discussing cases).

Accordingly, because digital rectal searches are highly

intrusive and humiliating, the Second and Fifth Circuits have

stated that the government must show that a legitimate pe-

nological need necessitated the search. United States v.

Lilly, 576 F.2d 1240, 1246 (5th Cir. 1978); Sostre v. Preiser,

519 F.2d 763, 764 (2nd Cir. 1975) (dicta).°

In Lilly, defendants attempted to smuggle contraband

into prison and were subjected to a digital rectal cavity

search. Acknowledging that “[t]he history and purpose un-

derlying the fourth amendment * * * require that prisoners

retain at least some degree of their fourth amendment pro-

tection,” 576 F.2d at 1244, the court opined that “[i]t is now

settled law * * * that a prisoner loses only those rights that

must be sacrificed to serve legitimate penological needs.” /d.

(citing United States v. Savage, 482 F.2d 1371, 1372 (9th Cir.

1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d

491 (1974)).

[5,6] In view of these decisions, were this court to face

the constitutionality of the precise type of search conducted

in this case, we would have reached the same result as the

‘Cases that have upheld the constitutionality of digital rectal search

policies are distinguishable in view of the nature of the security risk in-

volved and the evidence presented here that the digital rectal searches are

conducted for purposes unrelated to security concerns. In Daughtery v.

Harris, 476 F.2d 292 (10th Cir.), cert, denied, 414 U.S. 872, 94 S.Ct. 113, 28

L.Ed.2d 91 (1973), the court upheld a policy requiring a digital rectal ex-

amination prior to transferring an inmate out of the prison to the custody

of U.S. Marshals. In Bruscino v. Carlson, 654 F.Supp. 609, 620

(S.D.111.1987), decided after the search at issue in this case, the district

court upheld a policy requiring a rectal examination upon “Control Unit”

inmates each time the prisoner re-entered the Control Unit “following

contact with the public.” Jd. at 619. Further, the policy examined in Brus-

cino provided that “{i]nmates may request that an x-ray be taken in lieu of

the digital search.” Jd. In Jeffries v. Reed, 631 F.Supp. 1212 (E.D. Wash.

1986), also decided after the search at issue here, the district court upheld

a policy requiring a digital rectal search of Death Row inmates who are to

be permanently housed in the IMU because such prisoners “present partic-

ular and heightened security risks.” Id. at 1214.

A-9

Second and Fifth Circuits. See United States v. Savage, 482

F.2d 1371 1373 (9th Cir. 1973) (warrantless search of pris-

oner’s cell violates the fouth amendment unless it serves a

justifiable purpose of imprisonment or prison security), cert.

denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974).

Accord United States v. Vallez, 653 F.2d 403, 406 (9th Cir.

1981), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d

223 (1982); United States v. Hearst, 563 F.2d 1331, 1344-45

(9th Cir. 1977). cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56

L.Ed.2d 90 (1978); United States v. Dawson, 516 F.2d 796,

806 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46

L.Ed.2d 80 (1975). Therefore, we hold that this rule, that the

regulation must be reasonably related to a legitimate peno-

logical need, was clearly established law at the time Tribble

was subjected to the digital rectal search.‘

The district court found that Tribble produced substan-

tial probative evidence that the searches are conducted for

purposes unrelated to security considerations.’ We agree. In

addition, viewing the evidence in the light most favorable to

Tribble, there is sufficient evidence that a reasonable person

would have known that such searches violated Tribble’s

clearly established rights.

First, digital rectal searches are one of the most intru-

sive methods of detecting contraband; yet, Tribble has pre-

° This rule applies to both fourth and eighth amendment claims. If the

search were conducted for purposes unrelated to security considerations,

not only would it violate the fourth amendment, Lilly, 576 F.2d at 1244,

but also it may constitute cruel and unusual punishment under the eighth

amendment. After incarceration, the eighth amendment prohibits the

“ ‘unnecessary and wonton infliction of pain.’ ” Estelle, 429 U.S. at 104, 97

S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909,

2925, 49 L.Ed.2d 859 (1976) (joint opinion)). As noted above, when a prison

regulation burdens fundamental rights, the government must show that

the regulation is reasonably related to a legitimate penological goal. In the

absence of such a showing, an intent to punish may be inferred, Bell v.

Wolfish, 441 U.S. at 539 & n. 20, 99 S.Ct. at 1874 & n. 20; consequently, to

the extent that the digital rectal search inflicts pain, the eighth amend-

ment’s requirement of wantonness may be shown.

* Subsequent to the filing of this lawsuit, the Washington State Peni-

tentiary has withdrawn its policy of conducting a digital rectal search upon

entry to the IMU. The prison now conducts such searches only upon a

reasonable suspicion that the inmate has secreted contraband in his rec-

tum.

A-10

sented evidence that the prison staff do not search clothing,

hair, hands or any body cavity other than the rectal cavity. Of

all the evidence Tribble submitted, this evidence is most tell-

ing of the actual purpose of the digital rectal search policy.

Allen Breed, a penologist who testi..ed in related pro-

ceedings in the Eastern District of Washington and whose

report was submitted to the district court in this case, re-

viewed “a number of videotapes of forced digital searches”

and found that in those cases

no effort was made to search the clothing, other body

cavities, hair, or even hands. The entire focus and effort

of the exercise was the finger probe, after which the in-

mates’ clothing was pulled up and he was carried to a

van and transported to IMU. The inmates viewed were

placed in their cells at IMU with the same clothing on

that they were wearing when the forced move was

started!

In addition, Tribble submitted an affidavit from an in-

mate who stated that, despite carrying a full pack of tobacco

in the pocket of his overalls,” he was not subjected to any

method of search other than a digital rectal cavity probe

upon his entry to the IMU. One can draw an inference that a

search limited to the rectal cavity may be done for punitive

purposes because prisoners can smuggle contraband into the

IMU by concealing it elsewhere.

Second, Tribble presented evidence that the prison

guards use the digital rectal search policy as a threat to influ-

ence inmates in the general population to conform to prison

regulations.

Finally, Tribble contends that, because the prison staff

conducted an unnecessary digital rectal search upon his re-

turn from the prison hospital in April 1986, the policy must

be based upon a punitive purpose. At the hospital, Tribble

had x-rays which indicated that he had no contraband con-

cealed in his rectum. Tribble claims that the prison staff was

aware of his x-ray results yet conducted the search because of

a prison policy purportedly based on a need to detect such

items.

Defendants contend only that Tribble’s assertions tend-

*Tobacco is considered contraband within the confines of the IMU.

A-11

ing to show a purpose unrelated to security considerations

were improperly relied upon by the district court in denying

their motion. In particular, defendants claim that the district

court erred as a matter of law by inquiring into their motiva-

tion for the implementation and execution of the digital rec-

tai search policy.

[7] Generally, an official’s state of mind is not a factor in

determining the application of qualified immunity. Ander-

son, 107 S.Ct. at 3040; Harlow, 457 U.S. at 817, 102 S.Ct. at

2737. This rule is based upon the substantial costs of subject-

ing government officials to the risks of trial. Judicial inquiry

into subjective motivation “may entail broad-ranging discov-

ery and the deposing of numerous persons, including an offi-

cial’s professional colleagues. Inquiries of this kind can be

peculiarly disruptive of effective government.” Harlow, 457

U.S. at 817, 102 S.Ct. at 2737-38.

We recently opined, however, that in one class of cases

an inquiry into defendanis’ motive is permissible. In Gutier-

rez v. Municipal Court, 838 F.2d 1031 (9th Cir. 1988), plain-

tiff challenged as unconstitutional an English-only rule

enacted by a judicial district of the Los Angeles Municipal

Court. Plaintiff claimed, in part, that the rule constituted

racial and national origin discrimination in violation of the

equal protection clause of the fourteenth amendment. Such a

claim required the plaintiff to prove intentional discrimina-

tion. Vhe defendants in that case moved for summary judg-

ment on the basis of qualified immunity. We held that

““twjhen the governing precedent identifies the defendant’s

intent (unrelated to knowledge of the law) as an essential

element of plaintiff’s constitutional claim, the plaintiff must

be afforded an opportunity to overcome an asserted immu-

nity with an offer of proof of the defendant’s alleged uncon-

stitutional purpose.’” Jd. at 1050 (quoting Martin v. D.C.

Metro. Police Dep't, 812 F.2d 1425, 1433, vacated in part,

817 F.2d 144 (section IV of opinion and dissenting opinion),

reh’g denied, 824 F.2d 1240 (section IV of opinion, dissenting

opinion and judgment reinstated) (D.C.Cir.1987)).

Defendants rely on the District of Columbia Circuit’s

decision in Martin for the principle that, in cases where the

court does inquire into the defendants’ motivation, “some

A-12

direct evidence that the officials’ actions were improperly

motivated must be produced if the case is to proceed to trial.”

812 F.2d at 1435. “Where the defendant’s subjective intent is

an essential component of plaintiff’s claim, * * * then plain-

tiff, to avert dismissal short of trial, must come forward with

something more than inferential or circumstantial support

for his allegation of unconstitutional motive.” /d.

While we are mindful of our responsibility not to reim-

pose the burden upon government officials Harlow sought to

prevent, we are presented with a different type of case than

Martin. In Martin, the plaintiff charged officers of the

United States Capitol Police, in part, with violations of the

fifth amendment. As part of his constitutional claims, the

plaintiff needed to establish that the officers acted with an

unconstitutional motive. Jd. at 1431. Here, in contrast, we are

not concerned with the defendants’ subjective malice in con-

ducting the particular search upon Tribble; rather, Tribble

asks us to examine the purpose of the policy requiring such

searches. See Note, Qualified Immunity for Government Of-

ficials: The Problem of Unconstitutional Purpose in Civil

Rights Litigation, 95 Yale L.J. 126 (1985). In cases where the

purpose of a prison regulation is at issue, there is no “direct

evidence” equivalent to legislative history that plaintiffs may

examine. To hold plaintiffs in such cases to a “direct evi-

dence” standard would effectively insulate arbitrary govern-

mental action from judicial scrutiny.

Moreover, as noted above, this suit is not an insubstan-

tial one; Tribble’s evidence is probative and significant. In

contrast, in attempting to support the policy below, defend-

ants relied solely on the presumed inherent propensity of

IMU inmates to violate prison regulations. In view of Trib-

ble’s evidence of how the digital rectal search policy is exe-

cuted, the policy does not reflect this justification.

[8] Accordingly, we agree with the district court that

Tribble has produced sufficient evidence to show that the

searches are conducted for punitive purposes unrelated to

security concerns and that a reasonable person would have

known that searches based on such motives violated Tribble’s

A-13

clearly established rights.’ Therefore, we hold that, viewing

the facts in the light most favorable to the plaintiff, the dis-

trict court was correct in denying defendants’ motion for

summary judgment on the basis of qualified immunity. Cf.

Allen v. Scribner, 812 F.2d 426, 436 (when motivation of de-

fendants is relevant to application of qualified immunity and

is in dispute, jury must decide issue), amended, 828 F.2d

1445 (9th Cir.1987).

IV

[9] Defendants also assert that Tribble has failed to

produce sufficient evidence linking any named defendant ei-

ther to the particular search of him or to the creation of the

digital rectal search policy. The difficulty, as defendants view

it, is that Tribble has not adequately alleged that any of the

named defendants harbored an unconstitutional motive.

Tribble’s suit, however, is not based upon the particular sub-

jective intent of the defendants; rather, it is based upon the

purpose of the policy.

Nevertheless, a defendant “is entitled to summary judg-

ment if he makes a showing by affidavit or otherwise that he

did not commit those acts and ‘discovery fails to uncover

evidence sufficient to create a genuine issue as to whether the

defendant in fact committed those acts.’ ” Kraus v. County of

Pierce, 793 F.2d 1105, 1108 (9th Cir.1986) (quoting Mitchell

v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.

2d 411 (1985)). Thus, to the extent that a named defendant

shows that he did not play a role in creating the digital body

cavity search policy or that he did not participate in the

search upon Tribble, he is entitled to summary judgment.

Here, however, no named defendant has attempted to make

such a showing.'°

* In view of the substantial evidence that, in enacting Policy Directive

420.110(A)(4)(a), defendants have exaggerated their response to purported

security considerations, we do not defer to their expert judgment in these

matters. See, e.g., Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078,

1086, 89 L.Ed.2d 251 (1986) (deference accorded to prison administrators

“does not insulate from review actions taken * * * for no legitimate pur-

pose”); Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d

495 (1974) (“Courts cannot * * * abdicate their constitutional responsibil-

ity to delineate and protect fundamental liberties.”).

'° Of course, a named defendant may make such a showing at trial.

V

[10] Tribble argues that he is entitled to attorney’s fees.

42 U.S.C. § 1988 authorizes a court to award attorney’s fees

to the prevailing party under any of several civil rights stat-

utes, including 42 U.S.C. § 1983. In some circumstances, a

person may be a prevailing party without having obtained a

favorable final judgment on the merits. Hanrahan v. Hamp-

ton, 446 U.S. 754, 756-57, 100 S.Ct. 1987, 1988-89, 64 L.Ed.2d

670 (1980) (per curiam). However, Congress intended to per-

mit an award of attorney’s fees “only to a party who has

established entitlement to some relief on the merits of his

claims. * * *” Jd. at 757, 100 S.Ct. at 1989. In Hanrahan, the

Supreme Court held that the respondents were not prevailing

parties merely because the court of appeals had found they

were entitled to a trial. Jd. at 758, 100 S.Ct. at 1989.

(11] Although we affirm the district court’s decision to

deny summary judgment on qualified immunity grounds,

Tribble has not yet succeeded on the merits of his claim.

Contrary to Tribble’s contention, our decision does not con-

firm that defendants are not immune from liability. Rather,

our decision simply allows Tribble a trial on the merits. At

trial, defendants may still be entitled to qualified immunity

if the trier of fact finds that the searches are reasonably re-

lated to a legitimate penological goal, or that the defendants

reasonably could have believed that the searches were con

ducted to further such a purpose. See Bilbrey by Bilbrey «

Brown, 738 F.2d 1462 (9th Cir.1984). Therefore, Tribble’s re

quest for attorney’s fees is denied.

AFFIRMED.

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NO. C-86-234-JLQ

LANFORD D. TRIBBLE,

Plaintiff

BootH GARDNER, et al..

Defendants

ORDER DENYING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

RE: DIGITAL CAVITY SEARCH

Plaintiff, Lanford Tribble, an inmate at Washington

State Penitentiary in Walla Walla, Washington, brings this

action under 42 U.S.C. § 1983 of the Civil Rights Act, alleging

violations of the Fourth, Eighth, and Fourteenth Amend-

ments. Plaintiff alleges (1) the “cell tag” regulation deprives

him of due process of law in that it provides that an infrac-

tion may issue without evidence of individual participation;

(2) he was deprived of due process in that he was not afforded

notice and an opportunity to be heard within a reasonable

time after his transfer to Administrative Segregation; (3) he

was deprived of due process regarding his transfer to the

Intensive Management Unit; and (4) the policy of conducting

digital body cavity searches upon entry to the Intensive Man-

agement Unit from other portions of the prison constitutes

an unreasonable search, cruel and unusual punishment, and a

“grievous loss” of liberty and privacy. This court appointed

counsel to represent the indigent plaintiff and stayed the

prosecution of the other prisoner actions filed in this court

challenging the digital cavity search.

Tribble seeks injunctive relief and compensatory and

punitive damages. He has named as defendants Booth

Gardner, Governor; Amos Reed, Department of Corrections

erica ele

B-2

former Secretary; Robert Trimble, Department of Correc-

tions Deputy Secretary; W. L. Kautzky, Director of the Divi-

sion of Prisons; James Spalding, Deputy Director of the

Division of Prisons; Lawrence Kincheloe, Washington State

Penitentiary Superintendent; R. Zabor, Washington State

Penitentiary medical staff; and Correctional Officers Ser-

geant Snell, J. King, J. Christy, P. Edwards, R. Jones, and R.

Hansen. Tribble has also named John Doe defendants who

have been dismissed by the court with leave to join them

upon learning their identities.

Defendants have moved for summary judgment solely

on the issue of the constitutionality of the digital body cavity

searches without a cause predicate, and the applicability of

the qualified immunity defense. (Ct. Rec. 7 & Ct. Rec. 46A).

Oral argument was heard on October 14, 1986, and on Octo-

ber 27, 1986, counsel requested this court stay disposition of

the motion for partial summary judgment pending settle-

ment negotiations. At this time, the parties have advised that

settlement appears unlikely and the parties have filed sup-

plemental briefs. Accordingly, the stay is removed. The mo-

tion for summary judgment will be limited to consideration

of the constitutionality of digital body cavity searches with-

out a cause predicate (excluding challenges to the manner of

the search) and the applicability of the qualified immunity

defense.

FACTS

In June, 1984, the Washington State Penitentiary

opened an Intensive Management Unit (IMU), a secure hous-

ing unit within the walls of this already maximum security

institution. Policy Directive 420.110 (A)(4) provides that a

digital body cavity search shall be conducted on a!l] inmates

prior to placement in IMU from other portions of the prison

or upon return to IMU from other portions of the prison

“when a good opportunity for concealment has occurred.”

(Ct. Rec. 7, Affidavit of James Blodgett, App. A). Assignment

to IMU occurs when “in the judgment of the superintendent,

the presence of such inmate in the general inmate population

would constitute a serious threat * * *”. Washington Ad-

ministrative Code 137-32-005.

B-3

On January i6, 1986, contraband was discovered upon a

search of the general population three-man cell in which

plaintiff resided. Plaintiff, on the basis of the “cell tag” regu-

lation (each cellmate is responsible for all the contents of the

cel!) was infracted for possession of the contraband and was

transferred to the segregation unit. The following day, Janu-

ary 17, 1986, plaintiff was transferred to IMU.

Prior to his being moved from general housing to IMU,

plaintiff was handcuffed behind his back, which handcuffs

were attached to a chain, placed in leg irons and taken to the

prison hospital and placed on an examination table. A physi-

cian’s assistant then conducted a digital body cavity search

including digital penetration and examination of the anal ca-

nal. This examination was videotaped by correctional offi-

cers. It is undisputed that the search occurred pursuant to

policy, and was not based upon an individualized cause pred-

icate or suspicion that the plaintiff had secreted any item in

his anal canal. Plaintiff was thereafter taken by van to IMU,

and allegedly “stripped naked in full view of inmates and

guards, and was then walked up to IMU Cell F-12, where I

was left totally naked. The cell was cold and I used my mat-

tress for warmth. The next day, January 18, 1986, at approxi-

mately 1:30 P.M., clothes were given to me.” First Affidavit

of Lanford Tribble, at p.4 (Ct. Rec. 25).

Plaintiff argues that the digital body cavity search with-

out any cause predicate is an unreasonable search in violation

of the Fourth Amendment, constitutes cruel and unusual

punishment in violation of the Eighth Amendment, and in-

fringes upon a liberty and privacy interest protected under

the Fourteenth Amendment.

FOURTH AMENDMENT

The Fourth Amendment prohibits searches which are

unreasonable. The “reasonableness” test 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 justi-

fication for initiating it, and the place in which it is

conducted.

Bell v. Wolfish, 441 U.S. 520, 559.

ee

B-4

In the prison context, the reasonableness inquiry 1s lim-

ited by the Supreme Court’s admonishment that, as prison

officials ordinarily are better informed on security matters,

prison officials must “be accorded wide-ranging deference in

the adoption and execution of policies and practices that in

their judgment are needed to preserve internal order and dis-

cipline and to maintain institutional security. Bell, supra at

547

Under Bell, the first question is whether the digital

body cavity search without a cause predicate advances prison

security. Defendants argue that iMU inmates, as a group,

pose a threat of smuggling contraband, that is, that the nat-

ure of the inmates confined in IMU constitutes a cause predi-

cate.

This court agrees that digital body cavity searches ad-

vance prison security, and defendants’ policy is entitled to

deference unless there is substantial evidence in the record to

indicate that the officials have exaggerated their response to

these considerations. In this regard, plaintiff has put forth

several persuasive arguments.

First, plaintiff notes that more effective but less intru-

sive methods of detecting contraband are not utilized. Plain-

tiff argues that the use of a detection method which is of

limited effect in preventing the flow of contraband, but

which is probably the most intrusive method, constitutes an

exaggerated response. Plaintiff supports his argument by af-

fidavits of expert witnesses Herbert P. Mean, M.D. (as to

intrusiveness of the search) (Ct. Rec. 27 and 34) and Allen

Breed (as to limited effect) (Ct. Rec. 32). Plaintiff explains

that although the current technique utilized by inmates for

concealing contraband is to swallow the contraband, the

method for detecting ingested contraband, the “dry cell”, is

not utilized (Ct. Rec. No. 32). Further, plaintiff argues that

no effort is made by the prison staff to search clothing, body

cavities other than the rectal cavity, hair, or even hands. Cer-

tification of Allen Breed, p.33 (Ct. Rec. 32), and Affidavit of

Charles E. Long (Ct. Rec. 28).

Second, plaintiff contends the security risk in IMU is

lower than that present in the general prison, due to the con-

struction of IMU and the security precautions utilized once

+

B-5

an inmate is confined in IMU. IMU is composed of single

occupant units with solid doors except for a vent, a small tray

door, and a solid window. IMU inmates are never allowed to

be in the same room with another IMU inmate. Strip

searches are conducted any time an inmate leaves his cell for

any reason. Plaintiff argues that the risk of the use of contra-

band to injure prison staff or other inmates is far more lim-

ited than in the general prison population, and that “guards

can totally control any ability of the prisoners to pass contra-

band.” See Ct. Rec. 23, Answer 29.

Third, plaintiff contends that defendants have exagger-

ated their concern about the flow of contraband. This argu-

ment is based on the fact that digital body cavity searches are

not conducted on inmates leaving the general population

prison premises prior to transfer (Daugherty v. Harris, 476

F.2d 292 (10th Cir. 1973)) cert. denied, 414 U.S. 872, or even

where there is the probability of access to contraband, e.g.,

upon entry to prison following presence in an unrestricted

environment. See, e.g., United States v. Lilly, 576 F.2d 1240

(5th Cir. 1978) reh’g denied 599 F.2d 619; People v. Valen-

zuela, 589 P.2d 71 (41 Colo. App. 375 (1978); and People v.

Woods, 293 P.2d 901 139 (Call. App.2d 515 (1956), cert. de-

nied, 352 U.S. 1006. Plaintiff argues that although the courts

have found searches with reasonable suspicion to be reason-

able in that the risk of concealing contraband was clear, the

defendants in this case, in the face of such clear risk, do not

conduct body cavity searches under these circumstances.

Only prisoners entering or re-entering IMU are subjected to a

digital body cavity search in the absence of individualized

reasonable suspicion. (Ct. Rec. 23, Answers 3, 11, 12).

Fourth, plaintiff apparently contends that a policy

which endangers other legitimate penal concerns constitutes

an exaggerated response. Plaintiff argues that the IMU

search policy seriously impairs the penalogical concerns of

minimizing incidents of violence and modifying prisoner be-

havior. In support of his argument, plaintiff has submitted

the affidavits of Kenneth Schoen, Director of the Justice Pro-

gram of the Edna McConnell Clark Foundation (Ct. Rec. 26),

Dr. Herbert Beam, and the Certification of Allen F. Breed’s

report prepared by Mr. Breed as an independent expert in

oe.

B-6

the Hoptowit v. Ray proceedings. Hoptowit v. Ray, No. C-79-

359-RJM, United States District Court, Eastern District of

Washington. 2

Kenneth Schoen states that the reaction of inmates to a

forced rectal cavity search “can be so severe that the proce-

dure itself is a serious threat to the security of the institu-

tion.” (Ct. Rec. 26, p.3). Dr. Herbert Beam advises that

“{f]rom a prisoner’s point of view, an involuntary body cavity

search constitutes rape. Failure to recognize this and contin-

uation of these practices will seriously jeopardize attempts to

restore the prisoners to productive states.” (Ct. Rec. 27, p.4,

and Ct. Rec. 34).

Allen Breed made two findings in this regard: “With the

exception of IMU, the inmates assigned to WSP demon-

strated little or no fear or tension related to their housing,

programming, or security” (emphasis added); “[C]urrent

practices which include * * * the routine use of anal probe

searches have created a climate in some sections of the prison

of hostility, humiliation, degradation and vengefulness. The

result of this climate has been an unusually large number of

‘uses of force’ by staff, and has resulted in unnecessary vio-

lence by those involved in such practices.” (Ct. Rec. 32, p.33,

Findings of Fact No. 6 and 10). Mr. Breed explains that “[i]n-

mates in most cases refuse such search unless force is to be

used. To maintain their own concept of manliness, and to

withstand the pressure of their peers, a stand of opposition

must be taken to prove that they did not submit voluntarily.”

(Ct. Rec. 32, p.32).

Fifth, plaintiff contends the digital body cavity search

policy has a chilling effect on an inmate’s exercise of the right

to obtain medical treatment which would entail departure

and re-entry to IMU. (Ct. Rec. 22, Exh. 3(e)).

Sixth, plaintiff argues that less-intrusive alternative

methods of detecting contraband are not utilized.

This court finds there is substantial evidence in the

record to indicate that the officials have exaggerated their

response to their security considerations. Accordingly, de-

fendants are not entitled to deference in the adoption of the

IMU search policy and the court must resort to the Fourth

Amendment “reasonableness” test as set out above. The bur-

B-7

den of proving the reasonableness of the search is, therefore,

upon the defendants, and the more intrusive the search, the

heavier the defendants’ burden of proving the reasonableness

of that search. United States v. Afanador, 567 F.2d 1325,

1328 (5th Cir. 1978).

Given the highly intrusive nature of the search, the de-

fendants’ reliance solely on the presumed inherent propen-

sity of the IMU inmates to violate prison regulations is

insufficient under the Fourth Amendment balancing princi-

ples. Further, the evidence is insufficient to sustain defend-

ants’ conclusion that IMU inmates comprise only inmates

who have demonstrated “assaultive behavior against staff or

other inmates or those inmates who are assigned to adminis-

trative segregation for extended periods of time.” (Affidavit

of James Blodgett, p.3) (Ct. Rec. 7).

In light of plaintiff's transfer to IMU, which transfer

purportedly was based upon a cell tag which requires no evi-

dence of participation in conduct violating regulations, it is

very difficult to categorize the inmate population in IMU as

the “most violent and the most disruptive of inmates.” (Affi-

davit of Amos Reed (Ct. Rec. 7)). (See also Affidavit of James

' Blodgett, Exh. H (Ct. Rec. 7), (initial placement reasons in-

clude refusing to lockup, refusing to stand for a search, refus-

ing to move to assigned bunk).

Summary judgment should only be granted if the plead-

ings, together with the affidavits, if any, show that there is no

genuine issue as to any material fact, and that the moving

party is entitled to judgment as a matter of law. Fed.R.

Civ.P.56(c). When considering a summary judgment motion,

the court must view all inferences drawn frem the underlying

facts in a light most favorable to the party resisting the mo-

tion. United States v. Diebold, Inc., 369 U.S. 654 (1962).

Further, where the nonmoving party contends there is a dis-

puted fact, the evidence of such disputed fact must be “sig-

nificantly probative” to overcome the motion for summary

judgment. Anderson v. Liberty Lobby, Inc., _ U.S. __ ,

106 S.Ct. 2505, 2511 (1986).

Plaintiff disputes both the security concerns and the

reasonableness of the method. Plaintiff has submitted evi-

dence of these disputed facts which is “significantly proba-

B-8

tive”. Therefore, summary judgment is not proper at this

time.

EIGHTH AMENDMENT

Plaintiff contends the IMU search policy was imple-

mented for the purpose of inflicting punishment and that the

search caused him great pain. The Eighth Amendment, as

applied to convicted inmates, applies only to the infliction of

pain. See Ingraham v. Wright, 430 U.S. 651, 670 (1977) (“Af-

ter incarceration, only the ‘unnecessary and wanton infliction

of pain’ * * * constitutes cruel and unusual punishment for-

bidden by the Eighth Amendment.”)

In regard to the infliction of pain in the course of a

prison security measure, the Supreme Court has held that

the infliction of pain

does not amount to cruel and unusual punishment sim-

ply because it may appear in retrospect that the degree

of force authorized or applied for security purposes was

unreasonable, and hence unnecessary in the strict sense.

{W]e think the question whether the measure taken in-

flicted unnecessary and wanton pain and suffering ulti-

mately turns on “whether the force was applied in a

good faith effort to maintain or restore discipline or ma-

liciously and sadistically for the very purpose of causing

harm * * *” “such factors as the need for the applica-

tion of force, the relationship between the need and the

amount of force that was used, [and] the extent of injury

inflicted,” are relevant to that ultimate determination

* * * But equally relevant are such factors as the extent

of the threat to the safety of staff and inmates, as rea-

sonably perceived by the responsible officials on the ba-

sis of the facts known to them, and any efforts made to

temper the severity of a forceful response.

Whitley v. Albers, _ U.S. , 106 S.Ct. 1078, 1084-85

(1986) (citations omitted).

Based upon the standard set forth in Whitley, the Ninth

Circuit has held that a prison official/guard violates an in-

mate’s Eighth Amendment right when the official’s conduct

constitutes “a use of force that the [official] could not plausi-

bly have thought necessary and [the conduct] evinces a wan-

ton disregard for the unjustified infliction of harm.” McRorie

vu. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986).

ke gM

B-9

As stated infra, there is substantial evidence in the rec-

ord to indicate that the officials have exaggerated their re-

sponse to security considerations. Accordingly, defendants

are not entitled to deference in the adoption of the IMU

search policy. The necessity of the force used is unresolved by

deference to the defendants and remains a disputed issue of

material fact precluding summary judgment.

FOURTEENTH AMENDMENT

Plaintiff contends that the search constitutes a “griev-

ous loss” of liberty with a concommitant right to due process.

Defendant opposes this cause of action solely on the basis

that the Fourteenth Amendment cannot be a separate basis

for relief where the cause of action is based on a specifically

protected interest.

Defendant bases his argument on the Supreme Court’s

decision in Whitley v. Albers, _— U.S. , 106 S.Ct. 1078

(1986), wherein the court held that where a cause of action

based on excessive force is asserted, the substantive due

process protections of the Fourteenth Amendment provided

no greater protection than the Eighth Amendment “which is

specifically concerned with the unnecessary and wanton in-

fliction of pain in penal institutions, [and which] serves as

the primary source of substantive protection * * *”. Whit-

ley, supra at 1088. However, plaintiff’s Fourteenth Amend-

ment cause of action is founded upon the “grievous loss” test,

which loss requires procedural due process. Vitek v. Jones,

445 U.S. 480, 491-93 (1979). Thus, plaintiff’s cause of action

based on a failure to aceord procedural due process is not

foreclosed by his Eighth Amendment claim.

As the moving party has produced no evidence in sup-

port of a motion for summary judgment on the cause of

action based on the Fourteenth Amendment, summary judg-

ment is not proper as to this cause of action.

QUALIFIED IMMUNITY

Defendants contend that, even if the digital body cavity

search without a cause predicate violated Mr. Tribble’s con-

stitutional rights, the defendants are entitled to immunity

from liability for damages pursuant to the “qualified immu-

B-10

nity” defense. Government officials performing discretionary

functions are shielded from liability for civil damages “if

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In determining whether a right is clearly established, “in

the absence of binding precedent, a court should look at all

available decisional law including decisions of state courts,

other circuits, and district courts * * *. An additional factor

is the likelihood that the Supreme Court or the Ninth Circuit

would have reached the same result as courts that have al-

ready considered the issue.” Ward v. County of San Diego,

791 F.2d 1329, 1332 (9th Cir. 1986), citing Capeoman uv.

Reed, 754 F.2d 1512, 1514-15 (9th Cir. 1985).

Defendants contend the issue is whether the searches, if

related to security considerations, are constitutionally per-

missible. Plaintiffs contend the issue is whether the searches,

if unrelated to security considerations, are constitutionally

permissible. The two issues are distinct and require a differ-

ent analysis and conclusion as to the applicability of the

qualified immunity defense.

As to defendants’ contention, the parties and the court

agree that there is no precedent concerning digital body cav-

ity searches without a cause predicate. However, some courts

have considered the issue of digital body cavity searches

based on a cause predicate, and have held that such searches

are constitutionally permissible. See, e.g., Daugherty v.

Harris, supra; United States v. Lilly, supra; People v. Va-

lenzuela, supra; and People v. Woods, supra. The issue at

bar is whether the nature of IMU inmates and the nature of

IMU detention constitute a sufficient cause predicate. It is

with this narrow question in mind that I consider application

of the qualified immunity defense.

It has been held that certain situations constitute a suf-

ficient cause predicate, e.g., prior to court appearances

(Daugherty v. Harris, supra; State v. Hartzog, 96 Wn.2d 383,

635 P.2d 694 (1981)), or where there is the probability of

access to contraband, e.g., upon entry to prison following

presence in an unrestricted environment (United States v.

Lilly, supra; People v. Valenzuela, supra; People v. Woods,

eee were!

B-11

supra; Vera v. State, 400 So.2d 1008 (Fla. App. 1981). It is

not clear whether certain classes of offenders constitute a

cause predicate.

The Ninth Circuit has consistently held the view that,

due to the “serious invasion of personal privacy and dignity,”

occasioned by a digital body cavity search, Henderson v.

United States, 390 F.2d 805, 808 (9th Cir. 1967), such

searches at a border must be based on “subjective suspicion

supported by objective, articulable facts.” U.S. v. Handy, 788

F2d 1419, 142 (9th Cr. 1986). The Henderson court held that

while it was judicially noted that narcotics were frequently

smuggled across the border in women’s body cavities, the

class composed of women crossing the Mexican border did

not constitute a cause predicate justifying body cavity

searches, 1.e., individualized suspicion was required. Hender-

son, supra at 808. It is noted that Judge McNichols of this

court, in a pro se prisoner case, held that the transfer of a

death row inmate into IMU constituted sufficient “cause

predicate” to justify a digital body cavity search without

other individualized suspicion. Jeffries v. Reed, 631 F.Supp.

1212, 1216 (E.D. Wash. 1986). Jeffries is to be distinguished

from other cases in that Jeffries was to permanently reside in

IMU until his death sentence was carried out or the sentence

was otherwise changed. It is further noted that in this and

related cases, Judge McNichols found the challenges of the

digital search policy to be of sufficient merit to warrant the

appointment of counsel for plaintiffs.

Certainly the law is unclear as to what class constitutes

a sufficient cause predicate to justify digital body cavity

searches. Accordingly, if the digital body cavity searches were

conducted on the basis of the class of IMU inmates, i.e., the

inherent security risk involved, defendants are entitled to im-

munity from damages.

However, as to the issue presented by plaintiff, the law

is clearly established that the search must be based upon

legitimate penalogical objectives, i.e., security considerations.

Plaintiff contends that the searches are conducted for puni-

tive purposes, and are unrelated to security considerations.

Plaintiff has set forth probative evidence to support the alle-

B-12

gation of an impermissible purpose; the evidence constitutes

neither conclusions nor mere allegations. '

The Supreme Court has held that an official’s state of

mind or intent is not a factor in determining application of

qualified immunity. Harlow, supra at 817-818. However, the

scope of the prohibition on any inquiry into an official’s sub-

jective intent does not extend to inquiry into an unconstitu-

tional purpose, where such purpose constitutes the violation.

In a similar case, where defendants claimed a search was

reiated to security concerns and plaintiff argued the search

was conducted for an impermissible purpose, the court held

that “a rational jury might conclude that the search * * *

did not serve a justifiable purpose [and, therefore,] violated

clearly established law.” Nakao v. Rushen, 545 F. Supp. 1091,

1092 (N.D. Cal. 1982), vacated on other grounds 766 F.2d

410 (1985). See also, Gannon v. Daley, 561 F. Supp. 1377

(N.D. Ill. 1983) (factual issue as to impermissible purpose

precluded summary judgment on qualified immunity); De-

horty v. New Castle County Council, 560 F. Supp. 889 (D.

Del. 1983) (factual issue as to impermissible purpose pre-

cluded summary judgment on qualified immunity).

The defendants’ motion for summary judgment is DE-

NIED. While the parties have informed the court that the

defendants voluntarily terminated the IMU entry digital rec-

tal search subsequent to the argument on defendants’ motion

Defendants have also submitted evidence which tends to support the

allegation that at least placement in IMU, if not the mandatory search at

time of placement, is a punitive measure. See Affidavit of James Blodgett,

App. H; Reasons For Placement In IMU (Ct. Rec. 7):

Initial Reason for Placement in IMU: “inmate refused to lockup

in his cell on 7-31-84.” The record notes the inmaie had filed 109

Grievances. The infraction record indicated 42 serious infractions

while in IMU — but it is not clear what infractions he received prior

to IMU placement.

Initial Reason for Placement in IMU: “for refusing a cell assign-

ment in 6/85. [His] record shows a continual and consistent pattern of

assaultive behavior.” Again, it appears placement in IMU was based

on previous behavior.

Initial Reason for Placement in IMU: “continued refusal to ac-

cept cell assignments.”

Initial Reason for Placement in IMU: “refusing to move to his

assigned bunk when ordered to do so and escalating infractions on 2-

21-85.”

SS TORAIT. 2h SOLAS a OM.

B-13

for summary judgment, the court suggests that this matter

next proceed, at plaintiff's option, either by way of a motion

for summary judgment filed on behalf of plaintiff or by way

of a preliminary or permanent injunction request.

IT iS SO ORDERED. The Clerk is directed to enter this

Order and forward copies to counsel.

DATED this 28th day of May, 1987.

/s/ Justin L. QUACKENBUSH

United States District Judge