Petition for Writ of Certiorari — Ricketts v. Vaughan

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88-1843 9 riieep

JAN Li 1989

YOSEPH F. SPANIOL, JR,

—_—_— CLERK

No.

IN THE SUPREME COURT OF TH.

October Term, 1988

JAMES D. RICKETTS, et al.,

Petitioners,

Vv.

TRACY RAY VAUGHAN, et al.,

Respondents .

Petition for a Writ of Certiorari

to the United States Court

of Appeals for the Ninth Circuit

ROBERT K. CORBIN

Attorney General of the

State of Arizona

JONATHAN H. SCHWARTZ

Assistant Attorney General

for the State of Arizona

RONALD J. GREENHALGH*

Assistant Attorney General

for the State of Arizona

1275 W. Washington Street

Phoenix, Arizona 85007

Telephone: (602) 542-4951

Counsel for Petitioners

* Counsel of Record

QUESTION PRESENTED*’

Whether the Director of the Arizona

Department of Corrections and other prison

officials are entitled to qualified

immunity under JdHarlow v. Fitzgerald, 457 U.S.

800, 818 (1982), for ordering Or

conducting a series of body cavity

searches on male inmates of the maximum

security unit at the Arizona State Prison

on the 15th, 22nd, and 23rd days of March,

1984 in response to what the Director

perceived to be a life-threatening

Situation at the prison?

*/ In addition to the parties set

forth in the caption, the following are

parties to this action:

R. Plaintiffs: Gary W. Bernard,

Stephen A. Boyes, Eddie Cano, Ray Fell

Chatman, Raymond lL. Clevidence, Alex

Contreras, William Cunningham, Paul

Eppinger, Larry Howard, Mark Koch, Frank

Kozelou, Bruce Lowry, John Malone, Chester

Marks, Mario David Marquez, Donald kK.

Nelson, Mark Osborne, Frank Palmer,

Charles W. Shepherd, Richard L. Sisk,

Alfonso Ray Sisneros, Felipe Trevino, and

Ruben Zaragoza.

QUESTION PRESENTED*’ - Continued

2. Defendants: Lloyd Bramlett,

Donald Wawrzaszek, Alfred Grijalva,

Herbert Padilla, James Daniel Morgan,

Nolan Thompson, Aubrey McLeod, Joseph

Scalzo, Marvin Perry, T. Beatty, Lee

Holiday, Ted Jolly, John Doe Ohms, John

Doe Brahey, John Doe Hercules, Ernie

Salazar, Dr. Robert Cassidy, Robert

Goldsmith, Grady Allen DeCell, Dr.

DeGavyeou, Thomas Scott, Jan Froebe,

Joseph Savalas, Dr. Walton DeCarvalho, Ray

Wheeling, T. Anderson, Michael LaRue,

Steve Cordova, Jimmy Williams, Nolan

Morrow, CSO Bowman, and Dr. Patricia

Stapler.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..... + 6 « « « i

TABLE OF AUTHORITIES ......... iv

OPINIONS BELOW... .. ++ +6 © « « « 2

JURIGDICTION . . «© © e« 6 © © © © © © 2® 2

CONSTITUTION AND STATUTES ...... 3

STATEMENT OF THE CASE ......4.-. 4

THE QUESTION PRESENTED

IS SUBSTANTIAL . .... + «ee -« 8

Petitioners’ acts in ordering or

performing body cavity searches of the

male inmates of the maximum security

unit of the state prison in response

to what the Director perceived to be a

life-threatening situation did 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).

CONCLUSION . . . «© © © © © © © © © © © 690

APPENDICES

TABLE OF AUTHORITIES

CASES Page

Anderson v. Creighton,

U.S. P

107 &§.Ct. 3034 (1987) .... 27, 39

Augustine v. Doe,

740 F.2d 322 (5th Cir. 1984). . 44, 45

Baker v. McCollan,

“ge by BO ) py ) Sr s

Bell v. Wolfish,

441 U.S. 520

Cee 6 © « « « Se 33, 12, 14, 168, BE

Birkenholz v. Sluyter,

857 F.2d 1214 (8th Cir. 1988) ... 44

Block v. Rutherford,

468 U.S. 576 (1984) ... .412, 16, 19

Butz v. Economou,

EO. 7. 5 i Pe >

City of Columbus v. Leonard,

GGn Weems wee Gaetey «© we we eo eo it ow ew FEF

City of Oklahoma City v. Tuttle,

Cen eee rrr re «nw 5g 6 6 tlt kw ae

Cruz v. Beto,

403 U.B. S39 (i972) 2. w+ ws wen vne F

is ———_—_- —----

TABLE OF AUTHORITIES - Continued

Page

Daniels v. Williams,

U.S. , |

106 S.Ct. 666 Dee <¢ 4 « ¢ < «= =e

Davis v. Scherer,

U.S. P

Bee wae C2984) . « 2 20 ew ow ts 6 6G

Estelle v. Gamble,

429 @.8. 97 (1976) . . . « « «© 1, 37

Gaut v. Sunn,

792 F.2d 874 (9th Cir. 1986) . 40, 43

Harlow v. Fitzgerald,

457 @sGs BOG (1962)... 3S. 7, 8. 21

Hewitt v. Helms,

Gu seemeenee £2903) « «© «© «© «© ow ow to kb

Hudson v. Palmer,

468 0.8. 517 (19864) .... 412, 16, 32

Johnson v. Avery,

GN”) ae a

Johnson v. Glick,

481 F.2d 1028 (2d Cir.), cert.

denied 441 U.S. 1033 (1973)... 42

i” Ll aah a

+e ere 2

Le Se

TABLE OF AUTHORITIES - Continued

Page

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

Ome Gee BAD CRGTT) «+ 2 tw ow te we

Lanza v. New York,

eS eS lL | >) 31

Lee v. Washington,

390 U.S. 333 (1968) ......2+. 9

Logan v. Zimmerman Brush Co.,

Gm ame Gee Ghee) « « 2 tl tll lw lw

Malley v. Briggs,

Rae eee £3986) . 1. 6 ew ow ow oe st ee

Mann v. City of Tucson

782 F.2d 790 (9th Cir. 1986) . 43, 44

McRorie v. Shimoda,

795 F.2d 780 (9th Cir. 1986)... 41

Meredith v. Arizona,

baa -7.a8 SO. (Sth Cir. 1975) ... 40

Mitchell v. Forsyth,

Gian Sums Ban CEPOR) . . « « Ay 24, 26

Monell v. New York City Dept. of Social

Services, 436 U.S. 658 (1978) ... 34

vii

TABLE OF AUTHORITIES - Continued

Page

Monroe v. Pape

meee was Ber C2062) 2. ss eo wh os

Olim v. Wakinekona,

mee mama mee Capes) «2 « ew ew ow 8 le he

O' Lone v. Estate of Shabazz,

U.S. P

ay aes weee £967) . . « « « By ee

Parratt v. Taylor,

eee wee, Ga? €2981) . . -« « « G6, Fe O82

Pell v. Procunier,

oy a SS ee ey! ) ee | Pee o

Price v. Johnston,

moe ames ce 4 ESEGB) 2 wt lt lt ll lt 12

Procunier v. Navarette,

See wan ee £2878) . « te BL, 28, BS

Rhodes v. Chapman,

ae, ee | ae |

Robb v. Connolly,

Ee ! ee ee ee 47

Rutledge v. Board of Regents,

660 F.2d 1345 (9th Cir. 1981) ... 41

viii

TABLE OF AUTHORITIES - Continued

Page

Sampley v. Ruettgers

704 F.2d 491 (10th Cir. 1983)

Stroud v. United States,

251 U.S. 15 (1919)

Turner v. Safley, U.S. ‘

Sy ees ee Geer 6 lt ltl le tw BO,

Vaughan v. Ricketts,

859 F.2d 736 (9th Cir. 1988)

Vaughn v. Ricketts,

663 F.Supp. 401 (D. Ariz. 1987). .

Whitley v. Albers, 475 U.S. P

106 S.Ct. 1078 (1986) .... 10, 18,

Wilson v. Beebe,

770 F.2d 578 (6th Cir. 1985)

Wolff v. McDonnell,

Gi5 Uses Bae (1974) . « « « 2 « 4D,

Wood v. Ostrander,

851 F.2d 1212 (9th Cir. 1988). .

Wood v. Strickland,

420 U.S. 308 (1975)

TABLE OF AUTHORITIES - Continued

Page

STATUTES

OS ok >.” 6 | a a a ae a a 1

@2 U.8.€: § 1963 .....- 4, 8, 42

MISCELLANEOUS

Brennan, William J., Jr. “The Bill

of Rights and the States: The

Revival of State Constitutions

as Guardians of Individual Rights."

61 N.Y. Univ. L. Rev. 535 (1986). . 48

Brennan, William J., Jr., “State

Constitutions and the Protection of

Individual Rights.”

90 Harv. L. Rev. 489 (1977). ... 48

Levin and Colliers, “Containing the

Cost of Litigation,”

37 Rutgers L. Rev. 219 (1985) ... 43

IN THE SUPREME COURT OF THE UNITED STATES

‘i October Term, 1988

JAMES D. RICKETTS, et al.,

Petitioners,

TRACY RAY VAUGHAN, et al.,

Respondents .

Petition for a Writ of Certiorari

to the United States Court

of Appeals for the Ninth Circuit

Petitioners, Dr. James G. Ricketts,

former Director of the Arizona Department

of Corrections, et al., respectfully pray

that a writ of certiorari issue to review

the judgment and opinion of the United

States Court of Appeals for the Ninth

Circuit filed in the above-entitled

proceedings on October 14, 1988.

OPINIONS BELOW

The decision of the United States

Court of Appeals for the Ninth Circuit

(App. A), filed October 14, 1988, is

reported at 859 F.2d 736, and the district

court's decision (App. B) is reported at

663 F.Supp. 401.

JURISDICTION

Petitioners perfected A timely

appeal of the district court's denial of

their motion for summary judgment based

upon qualified immunity pursuant to this

Court's decision in Mitchell v. Forsyth, 472

U.S. $11 (1985). The judgment of the

court of appeals affirming the decision of

the district court was entered on October

14, 1988. This petition was filed within

ninety days from the entry of that

decision. The Court has jurisdiction

under 28 U.S.C. § 12541).

CONSTITUTION AND STATUTES

The Fourth Amendment to the United

States Constitution provides:

The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall 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 persons or

things to be seized.

The Eighth Amendment to the United

States Constitution provides:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted.

The Fourteenth Amendment to the

United States Constitution provides, in

pertinent part:

e 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

ceo ga = anda

deny

to any person within its

jurisdiction the equal protection of

the laws.

United

Section 1983 of Title 42 of

States Code provides:

~ 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

Constitution 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 applicable

exclusively to the District of

Columbia shall be considered to

be a statute of the District of

Columbia.

STATEMENT OF THE CASE

Prison administrators are in

quandary. They are charged with

the

responsibility of maintaining the security

of their institutions and with insuring

the safety of all inmates and correctional

personnel. This Court has indicated that

prison administrators are to be accorded

“wide-ranging deference” in carrying out

these responsibilities. Bell v. Wolfish, 441

U.S. 520, $47 (2979). In addition, this

Court has indicated that immunity is

available to shield them from liability

even when they violate constitutional

rights, provided that the constitutional

rights violated were not “clearly

established” at the time. See Harlow v.

Fitzgerald, 457 U.S. 800 (1982), and Davis v.

Scherer, U.S. » 104 §.Ct. 3012

(1984). However, this Court has failed to

Clearly define what protection, if any, is

available under the Fourth or Fourteenth

Amendments to prisoners confined in the

maximum security unit of a state prison.

This case presents the Court with an

—— ae

opportunity to define the Fourth = and

Fourteenth Amendment rights of maximum

security prisoners on the issue of body

cavity searches. The case also provides

an opportunity to clarify the role of

Parratt v. Taylor, 451 U.S. 527 (1981), with

respect to substantive constitutional

violations.

The respondents in this case are

male prisoners of the maximum security

unit of the Arizona State Prison at

Florence, Arizona who were subjected to

body cavity searches on the 15th, 22nd,

and 23rd days of March, 1984. The sole

motivation for the searches was a genuine

concern for the life and safety of inmates

and staff at the Arizona State Prison.

Subsequent to the searches,

prisoners began filing complaints in the

United States District Court for’ the

District of Arizona challenging the

searches on a variety of constitutional

z = eee -

> ned °

4 _

Pernt gee

ee aetigtton

ES FoR RE EAI OE RING Bis EE

i ee tte ee

LOD ets

theories. The complaints alleged

violations of the Fourth, Eighth, and

Fourteenth Amendments to the United States

Constitution, as well as various

principles of state tort law. The

individual complaints were consolidated,

attorneys were appointed for the

prisoners, and amended complaints were

filed. After allowing counsel for

respondents the opportunity to complete

substantial discovery, counsel -— for

petitioners filed a -motion for summary

judgment on the ground that petitioners

were shielded from liability in this case

by the doctrine of qualified immunity as

refined by this Court in Harlow _v.

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

were filed and the issue submitted, the

district court issued its order denying

the motion. An appeal was taken to the

Ninth Circuit, and a panel of that court

affirmed the order of the Gistrict

court in an opinion issued October 14,

1988.

THE QUESTION PRESENTED IS SUBSTANTIAL

eh iF GE RR aA” Wd

Petitioners’ acts in ordering

Or performing body cavity

searches of the male inmates of

the maximum security unit of

the state prison in response to

what the Director perceived to

be a life-threatening situation

did 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).

Confined felons contending that

institutional security measures

intrude impermissibly upon their

“constitutional rights” bear a burden

which makes recovery rare. The

remedies provided by 42 U.S.C. § 1983

i are unavailable to prisoners’ unless

the prison policy or practice

complained of violates some

eit Src tot A Sianeli bi tan tC

constitutional right. See Parratt v.

Teylor, 451 U.S. 527, 535 (1981) and

Baker v. McCollan, 443 U.S. 137, 140

(1979).

This is an exacting requirement

because the judicially recognized

constitutional rights of prisoners are

few in number. For example, prisoners

are protected against invidious racial

discrimination by the Equal Protection

Clause of the Fourteenth Amendment,

Lee v. Washington, 390 U.S. 333 (1968);

they retain the constitutional right

to petition the Government for the

redress of grievances, Johnson v. Avery,

393 U.S. 483 (1969); they enjoy a

restricted religious freedom under the

First and Fourteenth Amendments, Cruz

v. Beto, 405 U.S. 319 (1972); they

retain those First Amendment rights

that are not inconsistent with their

atin

status as prisoners or with’ the

legitimate penological objectives of

the corrections system, Pell v.

Procunier, 417 U.S. 817 (1974); they

enjoy the protections of due process,

Wolff v. McDonnell, 418 U.S. 539 (1974);

they are protected from “deliberate

indifference” to their serious medical

needs, Estelle v. Gamble, 429 U.S. 97

(1976); they are protected against the

“unnecessary and wanton infliction of

pain,” Whitley v. Albers, 475 U.S. _,

106 S.Ct. 1078 (1986); and they enjoy

a constitutionally protected marital

relationship, Turner v. Safley,

U.S. —..0 207 CO. 2254 (3967).

Although there may be ae few

more constitutional rights announced

in some lower court opinions’ and

although there are certainly more

according to the prisoners and their

attorneys, the preceding few cases

compose this Court's complete catalog

‘of constitutional rights retained by

prisoners .2/’

This Court's typical opinion in

a prisoner case begins with a general

statement like -- “convicted prisoners

do not forfeit all constitutional

protections by reason of their

conviction and confinement in

prison[,]” Bell v. Wolfish, 441 U.S. 520,

545 (1979), but ends with a specific

finding that the Constitution does not

a.2/

contain the protection claime

The reason for this

l/ Conspicuously and significantly

absent from this catalog of constitutional

rights is Fourth Amendment protection.

2/ In Wolff v. McDonnell, 418 U.S.

539 (1974), this Court prefaced its

opinion, finding due process’ protection

for prisoners, with this statement:

"There is no iron curtain drawn between

the Constitution and the prisons of this

country.” Id. at 555-56. (continued)

judicial ambivalence on the _ subject of

constitutional rights of prisoners is that

extension of the panoply of constitutional

protection to the prison context would

threaten the core functions of prison

administration, Fe preventing escape

and maintaining internal security.

Since 1948 this Court has counseled

that -- “Lawful incarceration brings about

the necessary withdrawal or limitation of

many privileges and rights, a retraction

justified by the considerations underlying

our penal system." Price v. Johnston, 334

2/ (cont) The Court subsequently

paid lip service to this statement in six

other opinions, but failed to find a

Single constitutional violation in any of

the six cases. See Jones v. North Carolina

Prisoners’ Labor Union, Inc., S23 Gis. 119

(1977); Bell v. Wolfish, 441 U.S. 520 (1979);

Hewitt v. Helms, 459 U.S. 460 (1983);

Olim v. Wakinekona, 461 U.S. 238 (1983);

Block v. Rutherford, 468 U.S. 576

(1984); and Hudson v. Palmer, 468 U.S. 517

(1984).

12.

U.S. 266, 285 (1948). This principle was

reiterated as recently as June, 1987 and

given this Clarification: “The

limitations on the exercise of

constitutional rights arise both from the

fact of incarceration and- from valid

penological objectives = including

deterrence of crime, rehabilitation of

prisoners, and institutional security.

O’Lone v. Estate of Shabazz, U.S. ’

107 S.Ct. 2400, 2404 (1987).

Security is the raison d'etre of our

prison system. All other correctional

‘goals are dependent upon it. “[C)Jentral

to all other corrections goals is the

institutional consideration of internal

security within the corrections facilities

themselves.” Pell v. Procunier, 417 U.S.

817, 823 (1974). Guided by this paramount

principle, this Court has _ consistently

upheld correctional security measures that

arguably impinged upon constitutional

ot ahi a

ee oe : - ee re ee , bade

Ne ge | ee ee eee | - 4 ve ii” hi es Oe es a 4 ™ - a ns =

athe

Another guiding principle in

prisoner civil rights cases is that of

judicial deference to the decisions of

prison officials on security issues. In

its landmark case of Bell v. Wolfish, 441

U.S. 520 (1979), this Court laced its

Opinion with instructions on this theme.

Bell was viewed, rightfully Or

wrongfully, by prison administrators as an

attempt by this Court to cool what it

considered to be too =much_= judicial

involvement with correctional

administration. The opinion was viewed as

an admonition from this Court, in plain

English, to the lower federal courts to

implement a policy of judicial deference

to the decisions of prison administrators

on issues of institutional security.

Prison administrators found the

following passages reassuring:

Prison officials must be free

to take appropriate action to

ensure the safety of inmates

5 =

and corrections personnel and

to prevent escape or

unauthorized entry.

Accordingly, we have held that

even when an institutional

restriction infringes a

specific constitutional

i guarantee . . . the practice

must be evaluated in the light

of the central objective of

prison administration, safe-

guarding institutional security.

~ o . .

Prison administrators therefore

should be accorded wide-ranging

Geference in the adoption and

execution of policies and

practices that in their

judgment are needed to preserve

internal order and discipline

and to maintain institutional

security

; eis

Aiddaiiasiatiavitaw “Ne

- «+ «+ judicial deference is

accorded not merely because the

adminstrator ordinarily will,

as a matter of fact in a

particular case, have a better

grasp of his domain than the

reviewing judge, but also

because the operation of our

correctional facilities is

peculiarly the province of the

Legislative and Executive

Branches of our Government, not

the Judicial.

Pepe ey le eee

Id. at 547-48.

cee

In Block v. Rutherford, 468 U.S. 576

(1984), the Court had this comment on the

principles it had emphasized in Wolfish:

In Wolfish itself, we

characterize the maintenance of

security, internal order and

discipline as “essential

goals,” which at times require

the “limitation or retraction

of retained constitutional

rights.” Government, we said,

“must be able to take steps to

maintain security and order at

[an] institution and make

certain no weapons or elicit

drugs reach detainee.

Id. at 586 n. 8 (citations omitted).

In Rhodes v. Chapman, 452 U.S. 337, 349 n.

14 (1981), this Court said simply -- "A

prison's internal security is peculiarly

and normally left to the discretion of

prison administrators ..." In Hudson v.

Palmer, 468 U.S. 517 (1984), the Court

gave specific support=” for its policy

3/7 “Prisons, by definition, are

places of involuntary confinement of

persons who have a demonstrated proclivity

for antisocial criminal, (continued)

= EF

of judicial deference on security issues

and said:

Within this - volatile

‘community, ' prison

administrators are to take all

necessary steps to ensure the

safety of not only the prison

staffs and administrative

personnel, but also visitors.

They are under an obligation to

take reasonable measures to

guarantee the safety of the

inmates themselves. They must

3/7 (cont) and often violent,

conduct. Inmates have necessarily shown a

lapse in ability to contol and conform

their behavior to the legitimate standards

of society by the normal impulses of

self-restraint; they have shown an

inability to regulate their conduct in a

way that reflects either a respect for law

Or an appreciation of the rights of

others. Even a partial survey of the

statistics on violent crime in our

Nation's prisons illustrates the magnitude

of the problem. During 1981 and the first

half of 1982, there were over 120

prisoners murdered by fellow inmates in

state and federal prisons. A number of

prison personnel were murdered by

prisoners during this period. Over 29

riots Or similar disturbances were

reported in these facilities for the same

time frame. And there were over 125

Suicides in these institutions.” Hudson,

468 U.S. at 526.

saline: he SNL ig Eg ON ai NOK Cites Plt ay

pap eKe

Lita in a. Sak Sad towed Rein

be ever alert to attempts to

introduce drugs and other

contraband into the premises

which, we can judicially

notice, is one of the most

perplexing problems of prisons

today; they must prevent, so

far as possible, the flow of

illicit weapons into the

prison; they must be vigilant

to detect escape plots, in

which drugs or weapons may be

involved, before the schemes

materialize.

Id. at 526-27.

Last year, the Court stated in

Whitley v. Albers, 475 U.S. » 2s. Bick.

1078 (1986), that during periods of unrest,

. the admonition that ‘a

prison's internal security is

peculiarly a matter normally

left to the discretion of

prison administrators’ Rhodes v.

Chapman, 452 U.<.S., at 349,

n.14, 101 S.Ct., at 2400, n.14,

carries special weight.

‘Prison administrators Ah

should 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 discipline

and to maintain institutional

security.’ Bell v. Wolfish, 441

U.S., at 547, 99 8.Ct., at

1878. That deference extends

to a prison security measure

taken in response to an actual

confrontation with riotous

inmates, just as it does to prophylactic

or preventive measures intended to reduce

the incidence of these or any other

breaches of prison discipline. It does

not insulate from review

actions taken in bad faith and

for no legitimate purpose, but

it requires that neither judge

nor jury freely substitute

their judgment for that of

officials who have made 8

considered choice.

106 S.Ct. 1078, 1085 (emphasis added).

To cap this summary of this Court's

consistent comments on its’ policy of

judicial deference, we have this statement

from O’Lone vv. Estate of Shabazz,

U.S. 107 S.Ct. 2400 (1987),

We take this opportunity to

reaffirm our refusal, even

where claims are made under the

First Amendment, to ‘substitute

our judgment on... . difficult

and sensitive matters of

institutional administration,’

Block v. Rutherford, 468 U.S.

576, 588, 104 &.Ct. 3227, 3233,

82 L.Ed.2d 438 (1984), for the

determination of those charged

=-20-

with the formidable task of

running a prison.

Id. at 2407.

Since Wolfish, the rule in prison

cases has been one of judicial deference

to the decisions of prison officials on

security issues. Not a single case has

been found where this Court has sustained

a lower court in substituting its judgment

for that of prison officials on a security

matter .2/ The role of the prison

administrator is not an easy one. Danger

and uncertainty come with the job. Swift

and vigorous decision-making is often

4/ The only caveat is the recent

case of Turner v. Safley, U.S. P

107 S.Ct. 2254 (1987). There, a Missouri

prison regulation prohibited marriages

between inmates and civilians and between

inmates and inmates. Both security and

rehabilitation concerns were urged in

Support of the regulation. This Court

correctly concluded, however, that it was

not reasonably related to either of

purported pendlogical interests. Id. at

2266.

aZie

required in order to save lives’ and

protect property. Lawsuits inevitably

follow most major decisions and many minor

ones. Under such circumstances, an

immunity defense is the sine qua non for

fearless and effective governance of our

penal institutions, and accordingly,

prison officials are included in the class

of public officials who are covered by

qualified immunity.

In Procunier v. Navarette, 434 U.S.

555 (1978), this Court held that qualified

immunity protects prison officials at both

the supervisory, high discretion level and

at the subordinate, ministerial, minimal

discretion level. This official immunity

defense, however, was not judicially cast

as an effective shield against liability

until Harlow v. Fitzgerald, 457 U.S. 800

(1982).

Prior to Harlow, the immunity

defense envisoned by the Court in Butz v.

“5

a2.

Economou, 438 U.S. 478 (1978), and

extended to corrections officials in

Procunier v. Navarette, 434 U.S. 555 (1978),

had been vitiated by the lower court

practice of habitually allowing cases to

proceed to trial. In order to revitalize

the defense so that it would accomplish

the purposes alluded to in Butz, this

Court adopted a purely objective standard

for determining the applicability vel non

of qualified immunity:

Consistently with the

balance at which we aimed in

Butz, we conclude today 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. We therefore hold

that government officials

performing discretionary

functions generally are

shielded from liability for

Civil damages insofar as their

conduct does not violate

Clearly established statutory

or constitutional rights of

which a reasonable person would

it ote ts. HO | Aint alee aan

Harlow,

«23~

have known. See Procunier v.

Navarette, 434 U.S. 555, 565, 98

S.Ct. 855, 861, 55 L.Ed.2d 24

(1978); Wood v. Strickland, 420

U.S., at 322, 95 &.Ct. at 1001.

457 U.S. at 817-18.

The Court explained its reasons

adopting a purely objective standard

follows:

Reliance on the objective

reasonableness of an official's

conduct, as measured by

reference to Clearly

established law, should avoid

excessive disruption of

government and permit the

resolution of many

insubstantial claims on summary

judgment. On summary judgment,

the judge appropriately may

determine, not only the

currently applicable law, but

whether that law was clearly

established at the time an

action occurred. If the law at

that time was not’ clearly

established, an official could

not reasonably be expected to

anticipate subsequent legal

developments, nor could he

fairly be said to “know” that

the law forbade conduct not

previously identified as

unlawful. Until this threshold

immunity question is resolved,

discovery should not be

for

~24-

allowed. If the law was

clearly established, the

immunity defense ordinarily

should fail, since a reasonably

competent public official

should know the law governing

his conduct. Nevertheless, if

the official pleading the

defense claims extraordinary

circumstances and can prove

that he neither knew nor should

have known of the relevant

legal standard, the defense

should be sustained. But

again, the defense would turn

primarily on objective factors.

Id. at 818-19.

In Harlow, this Court refined the

qualified immunity defense so as_ to

facilitate “the resolution of many

insubstantial claims on summary judgment”

and to avoid “subject[ing] government

officials either to the costs of trial or

to the burdens of broad-reaching

discovery” if the norms the officials were

charged with violating were not clearly

established at the time. Id. at 817-18.

In Mitchell v. Forsyth, 472 U.S. 511

(1985), the Court vitalized its

en OT AB RCE

| =

decision in Harlow by holding 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 decision’ within the meaning of 28

U.S.C. § 1291 notwithstanding the absence

of a final judgment." Id. at 530. The

Court explained why immediate

appealability was a practical necessity in

light of Harlow as follows:

Harlow thus recognized an

entitlement not to stand trial

or face the other burdens of

litigation, conditioned on the

resolution of the essentially

legal question whether the

conduct of which the plaintiff

complains violated clearly

established law. The

entitlement is an _ immunity from

suit rather than a mere defense

to liability; and like an

absolute immunity, it is

effectively lost if a case is

erroneously permitted to go to

trial. Accordingly, the

reasoning that underlies’ the

immediate appealability of an

order denying absolute immunity

indicates to us that the denial

of qualified immunity should be

Similarly appealable: in each

case, the district court's

ile ttc

decision is effectively

unreviewable on appeal from a

final judgment.

Id. at 526-27.

The concerns the Court expressed as the

basis for its decision in Harlow are _ so

Significant that they justify an exception

to the normal requirement of a “final

judgment” as the predicate for an appeal.

Under Harlow, the critical

consideration is -- whether the law was

“clearly established" at the time of the

conduct which is the gravamen of the

complaint. 457 U.S. at 818. If it was

not, public officals have the right not to

stand trial and must be dismissed from the

suit. See Malley v. Briggs, 475 U.S. 335,

341 (1986) (qualified immunity protects

“all but the plainly incompetent or those

who knowingly violate the law") and Mitchell

v. Forsyth, 472 U.S. 511, 528 (1985) (public

officials are immune unless “the _ law

Clearly proscribed the actions"

they took).

On June 25, 1987, the Court

provided additional guidance to the lower

courts concerning _ the process for

determining “clearly established” law:

The contours of the right must

be sufficiently clear that a

reasonable official would

understand that what he is

doing violates that right.

This is not to say that an

official action is protected by

qualified immunity unless’ the

very action in question has

previously been held unlawful,

see Mitchell, 472 U.S., at 535,

m. Sa, see §.CE., 8 2820, BR.

12; but it is to say that in

the light of preexisting law

the unlawfulness must be

apparent.

Anderson v. Creighton, u.8. , 107

S.Ct. 3034, 3038-39 (1987).

Under the Anderson’ clarification

of Harlow, a public official is entitled

to immunity unless the contours of the

right at issue are “sufficiently clear

that a reasonable official would

understand that what he is doing violates

that right." Id. at 3039.

=28-

The sole motivation for the

searches complained of in this case was a

genuine concern for the life and safety of

inmates and staff at the Arizona State

Prison at Florence. On March 15, 1984,

Dr. James G. Ricketts, Director of the

Department of Corrections, received

information from his Inspector General,

Lloyd Bramlett, that there was a serious

security problem at the prison, i.ée.,

explosives in the maximum security unit,

Cell Block 6 (CB-6). See App. C at 3la.

Director Ricketts believed that the

facility was in danger of being blown up

and that immediate action was necessary.

Id. at 32a. And since it was a

life-threatening situation, he did not

consider alternatives to digital rectal

cavity searches. Id. at 33a-34a.

Approximately thirteen inmates were

searched on March 15, 1984, and explosives

were recovered as a result of those

ee re Pe ate ian AM ima a tht

-29-

searches. Id. at 39a.

Subsequent to the searches on March

15, 1984, a second set of searches was

conducted involving the entire population

of the maximum security unit. In Director

Ricketts's opinion the second set of

searches was necessary in order to get the

contraband out of CB-6. Id. at 35a-36a.

He felt that the second set of searches

needed to be broader than the first set

because the contraband could have been in

any area of CB-6. Id. at 37a. He

believed the searches to be legal.

Q. You ~believed it to be

legal?

A. Totally legal. If I had

a doubt whatsoever, I wouldn't

have done it. :

Q. What would have made it

illegal? I'‘m sorry, what would

have made the searches

illegal?

A. I don't know. If there

had been case law that

indicated that this was

violating someone's

fee ed at clean Wt

ati.

constitutional right to do

that, I wouldn't have done it.

Q. You weren't aware of any

case law?

A. That indicated that it

was violating their

constitutional -- no, and I'm

still not.

Id. at 38a.

In light of contemporaneous case law,

Director Ricketts's belief that the

searches were legal was not unreasonable.

In March of 1984 it was not

apparent, in the light of preexisting law,

that the searches approved by Director

Ricketts were unlawful. The only relevant

opinion at the time was Bell v. Wolfish, 441

U.S. 520 (1979), and that opinion had

upheld the practice of conducting visual

body cavity searches without articulating

any particularized cause for doing so.

Consequently, the signal sent by that case

to correctional officials was not a red

light or even a yellow light, but rather a

wii

green light.

The issue of whether prisoners have

any interests which are subject to Fourth-

Amendment violation has never been

resolved by this Court. In Bell, the

Court said:

However, assuming for present

purposes’ that inmates, both

convicted prisoners and

pretrial detainees, retain some

Fourth Amendment rights upon

commitment to a corrections

facility, see Lanza v. New York,

supra; Stroud v. United States, 251

U.8s 25, -213, 46 8.6. 30, Bae

64 L.Ed. 103 (1919), we

nevertheless conclude that

these searches do not violate

that amendment.

441 U.S. 520, 558.

The signal sent by the Court's reference

to Lanza v. New York, 370 U.S. 139 (1962)

and Stroud v. United States, 251 U.S. 15

(1919) was -- prisoners probably have no

Fourth Amendment rights, but even if they

do, it doesn't make any difference here.

Both Lanza and Stroud suggest that

nt ies

prisoners retain no interests which are

protected by the Fourth Amendment.

Convicts' claims to Fourth

Amendment coverage were made even more

Gubious by this Court's decision in Hudson

v. Palmer, 468 U.S. 517 (1984):

A right of privacy in

traditional Fourth Amendment

terms is fundamentally

incompatible with the close and

continual surveillance of

inmates and their cells

required to ensure

institutional security and

internal order. Wwe are

satisfied that society would

insist that the prisoner's

expectation of privacy always

‘yield to what must be

considered the paramount

interest in institutional

security.

Id. at 527-28.

The language that the “right of privacy in

traditional Fourth Amendment terms. is

fundamentally incompatible with the close

and continual surveillance of inmates"

could reasonably be interpreted to mean

that inmates have no Fourth Amendment

protection. In sum, aethine in Bell or

any subsequent decision of this Court

would cause a reasonable official to pause

before ordering digital rectal cavity

searches as a response to a serious threat

to institutional security.

The panel of the Ninth Circuit

which affirmed the district court's

refusal to grant Director Ricketts, and

the other petitioners, qualified immunity

did so solely on the ground that the

manner in which the searches were

conducted violated “clearly established

standards:"

Although the information

regarding the presence of

explosives in the maximum

security unit of the ASP may

have provided reasonable cause

for the searches, we find it

unnecessary to resolve whether

it was clearly established that

prison officials must have

reasonable cause for such a

search or whether such cause

existed here. Regardless of

the strength of the officials'

justification, the manner in

which Vaughan alleges the

searches were conducted

violated clearly established

standards. A refusal to grant

qualified immunity on the

fourth amendment claim was

appropriate on that ground

alone.

Vaughan v. Ricketts, 859 F.2d 736, 740

(9th Cir. 1988).

The issue of whether qualified

immunity is available to those petitioners

like Director Ricketts, and others, who

participated in the decision-making that

authorized the searches, but who did not

participate in conducting the searches is

left unresolved by the Ninth Circuit's

opinion. Moreover, in deciding to

5/ Principles distilled from Monell

v. New York City Dept. of Social Services, 436 U.S.

658 (1978), and City of Oklahoma City v. Tuttle,

471 U.S. 808 (1985), indicate that if the

sole basis for denying immunity was the

manner of searching, then those

petitioners who did not participate in

conducting the searches could not have

violated “clearly established statutory or

constitutional rights.”

et Sete te Deb eres lt eae, AA, a ae

«§§.

predicate the denial of immunity solely on

the manner in which the searches were

conducted, the Ninth Circuit leapfrogs

over the threshold issue of Fourth

Amendment applicability in order to decide

the contingent issue of Fourth Amendment

compliance.

Our position on the primary issue

of applicability vel non of the Fourth

Amendment to convicted felons in maximum

security is that prior to March 1984,

neither the decisions of this Court nor:

the decisions of the Ninth Circuit clearly

established a maximum security prisoner's

right to any protection under the Fourth

Amendment. In fact, the decisions of this

Court could reasonably be interpreted as

denying such protection.

The Ninth Circuit's reliance upon

the Eighth and Fourteenth Amendments as

grounds for denying immunity is- also

without support in the decisions of this

=Bihin

Court. In Whitley v. Albers, U.S. ’

106 S.Ct. 1078 (1986), it was made clear

that prisoners could not successfully

sustain a claim for violation of

substantive due process under the

Fourteenth Amendment unless the complained

of conduct was egregious enough to

constitute a violation of the Eighth

Amendment :

Accordingly, we consider

whether the Due Process Clause

could serve as an alternative

basis for affirmance.

We need say little on this

score. We think the Eighth

Amendment which is specifically

concerned with-the unnecessary

and wanton infliction of pain

in penal institutions, serves

as the primary source of

substantive protection to

convicted prisoners in cases

such as this one, where the

Geliberate use of force is

challenged as excessive and

unjustified. . . . Because this

case involves prison inmates

rather than gpretrial detainees

Or persons enjoying

unrestricted liberty we imply

nothing as to the proper answer

to that question outside the

prison security context by

aSFe

holding, as we do, that in_ these

circumstances the Due Process Clause

affords respondent no greater protection

than does the Cruel and _ Unusual

Punishments Clause .

Id. at 1088 (emphasis added).

Consequently, the manner of

conducting these searches didn't violate

any constitutional rights unless it

violated “clearly established” rights

under the Eighth Amendment. The district

court and the court of appeals framed the

Eighth Amendment issue in terms of

“deliberate indifference" to serious

medical needs. See Estelle v. Gamble, 429

U.6. 37 €a976). This may be appropriate

for the few prisoners who had “serious

medical needs" as a consequence of the

searches, but it misses the mark for all

who did not. The correct standard is the

“unnecessary and wanton infliction of

pain” standard:

Not every governmental

action affecting the interests

a ee ee ee aS ee

«Si.

Or well-being of a prisoner is

subject to Eighth Amendment

scrutiny, however. “After

incarceration, only the

‘unnecessary and wanton

infliction of pain' ‘ ‘ ‘

constitutes cruel and _ unusual

punishment forbidden by the

Eighth Amendment. '

Whitley, 106 S.Ct. at 1084.

The Tenth Circuit has provided the

other circuits with this practical formula

for determining when conduct amounts to

the “unnecessary and wanton infliction of

pain:”"

First, ‘wanton’ requires’ that

the guard have intended to harm

the inmate. Second,

‘unnecessary’ requires the

force used to have been more

than appeared reasonably

necessary at the time of the

use of force to maintain or

restore discipline. Third,

‘pain’ means more than

momentary discomfort; the

attack must have resulted in

either severe pain or a lasting

injury.

Sampley v. Ruettgers, 704 F.2d 491, 495

(10th Cir. 1983).

~~ =

Respondents have the burden®’ of

showing that the facts alleged in their

complaints constitute the “unnecessary and

wanton infliction of pain.” We submit

that the application of the Sampley test

to those facts demonstrates that they have

not carried this burden.’

6/ The one part of the district

court's opinion with which we do not

Gisagree is its conclusion that the burden

of overcoming the qualified immunity

defense by demonstrating the existence of

a clearly established right rests with the

respondents. Vaughan iv. Ricketts, 663

F.Supp. 401, 403, n. 3 (D. Ariz. 1987).

7/ Perhaps, there may have been an

isolated incident Or two where 3

particular petitioner intended to harm a

particular respondent or used more force

than was reasonably necessary to effect

the search of a particular respondent, and

perhaps, there may have been aé- few

isolated incidents where a particular

respondent suffered either severe pain or

a lasting injury. The district court,

however, did not identify any such

incidents nor base its order upon any such

incidents. If counsel for respondents can

point to any such incidents in the record,

a remand may be appropriate to determine

the question of qualified immunity for

those petitioners involved in any _ such

incidents. See Anderson v. Creighton, 107

S.Ct. at 3042-43 n. 6.

1 i Aa hp VS ODER N EE RAE AAEL RO EI

-40-

A comparison of the alleged

misconduct in this case with the

misconduct in those cases in which the

Ninth Circuit has found the misconduct

egregious enough to constitute

constitutional encroachment also

demonstrates that respondents have not met

their burden. For example, in Meredith v.

Arizona, 523 F.2d 481 (9th Cir. 1975), the

complaint alleged an “unprovoked assault

and battery by [a] guard upon a prisoner

known by the guard to be suffering from an

attack of emphysema, by striking him in

the solar plexus, hard enough that the

‘attack rendered the patient plaintiff

totally handicapped.'" 523 F.2d at 485.

In Gaut v. Sunn, 792 F.2d 874 (9th

Cir. 1986), the plaintiff alleged that “he

was severely beaten, kicked, choked, and

thrown against the wall by several guards

when he shuffled his feet during a

alin

prison ‘shakedown,' and was beaten again

while handcuffed after he was taken to a

holding unit.” 792 F.2d, at 875. And in

McRorie v. Shimoda, 795 F.2d 780 (9th Cir.

1986), plaintiff accused a guard of

injuring him during a strip search by

attempting to plunge a riot stick into his

anus. One of his hemorrhoids was ruptured

by the guard's alleged brutality. 795

F.2d at 781-782.

In all three of these cases, the

Ninth Circuit held that the egregious

conduct and serious harm alleged was

sufficient to constitute a violation of

the Constitution. But it has also held

that less serious conduct and less serious

harm does. not. See Rutledge v. Board of

Regents, 660 F.2d 1345, 1352 (9th Cir. 1981).

It is well settled that the protection

provided by the Eighth Amendment against

Cruel and unusual punishment is “nowhere

wh Do

nearly so extensive as that afforded by

the common law tort action for battery.”

Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir.), cert.denied 414 U.S. 1033 (1973).

What is not so well settled is the

point of demarcation. 2”

Here, both the

district court and the court of appeals

erred by drawing the line between cruel

and unusual punishment and assault and

battery where they did. The Ninth Circuit

should have adopted the Tenth Circuit's

analysis in Sampley.

However, drawing a line between

constitutional torts under 42 U.S.C. § 1983

and common law torts under principles of

state law is not a satisfactory

8/ Judge Friendly's guidelines in

Johnson are helpful. They, of course,

require a finding of serious injury as one

prerequisite for converting an ordinary

tort into a constitutional tort.

EE ——eEooOw

-43-

2/ to a serious problem. It is

10/ A

solution

also very expensive. sensible

solution to this problem was. recently

proposed by a veteran judge of the Ninth

Circuit. See Gaut v. Sunn, 792 F.2d 874,

876 (9th Gar. 1986) (Sneed, Sie

concurring) and Mann v. City of Tucson, 782

F.2d 790, 798 (9th Cir. 1986) (Sneed, J.,

concurring). Judge Sneed's proposal would

extend this Court's decision in Parratt v.

Taylor, 451 U.S. 527 (1981), to all

constitutional injuries cognizable under

§ 1983 except those based upon an alleged

unconstitutional state law, policy,

9/ Where the line is drawn

inevitably varies from district court to

district court and from court of appeals

to court of appeals.

10/ In 1985 a single hour spent by

a federal judge on a case cost taxpayers

Six Hundred Dollars ($600.00). Levin and

Colliers, “Containing the Cost of

Litigation,” 37 Rutgers L. Rev. 219, 227

(1985).

~44-

procedure, pattern, or practice. See Mann

v. City of Tucson, 782 F.2d at 798. Cf. Logan

v. Zimmerman Brush Co., 455 U.S. 422 (1982).

Several circuits have already

extended Parratt to cover ~deprivation of

liberty situations. See, e.g., Birkenholz v.

Sluyter, 857 F.2d 1214, 1217 (8th Cir.

1988) and Wilson v. Beebe, 770 F.2d 578, 584

(6th Cse. 1985) (en banc). Other

circuits, however, have placed a

“substantive due process" limitation on

the use of Parratt. See, e.g., Wood v. Ostrander,

851 F.2d 1212 (9th Cir. 1988), Mann v. City

of Tucson, 782 F.2d 790 (9th Cir. 1986),

and Augustine v. Doe, 740 F.2d 322 (5th Cir.

1984). The circuits imposing the

“substantive due process” limitation?’

ll/ In these circuits the Parratt

bar is inapplicable if tthe plaintiff

alleges the violation of a substantive

right under either the Bill of Rights or

the Due Process Clause.

i cael

-45-

on Parratt are fond of the _ following

passage:

Parratt v. Taylor is not a

magic wand that can make any

section 1983 action resembling

a tort suit disappear into thin

air. Parratt applies only when

the plaintiff alleges a

Geprivation of procedural due

process; it is irrelevant when

the plaintiff has alleged a

violation of some. substantive

constitutional proscription.

Further, in the context of

procedural due process, Parratt

applies only when the nature of

the challenged conduct is such

that the provision of

predeprivation procedural

safeguards is impracticable or

infeasible.

Augustine v. Doe, 740 F.2d at 329.

Read broadly, however, Parratt

could be transformed into a magic wand

that would transfer cases such as this

from federal court to state court.

Parratt could be read to free the federal

courts from the current confusion and

consumption of resources caused by

constitutional line-drawing. Parratt

could be utilized to place beyond the

=~ oo

reach of §1983 any loss that “did not

occur as a result of some established

state procedure.” Parratt, 451 U.S. at

543. This broad reading of Parratt would

weed out of federal court all actions for

which remedies were available in state

court, except those “based upon an alleged

unconstitutional state law, policy,

procedure, pattern, oor practice.” 782

F.2d at 798.

This solution to the tension

inherent in § 1983 litigation would have

several benefits. First, it would restore

vitality to § 1983. The stature of the

statute has been diminished in the past

two decades due to the trivial concerns

commonly urged pursuant to $8. A

broadening of Parratt would restore

§ 1983 to its proper, pristine, powerful

role in our constitutional order .+4/

12/ "Our Constitution deals with

the large concerns of the (continued)

Second, it would result in a tremendous

Savings in terms of federal judicial

resources .2°/ And third, it would

result in these cases being handled by the

tribunals that should be handling

them. +47

12/ (cont. ) governors and_ the

governed, but it does not purport to

supplant traditional tort law in laying

down rules of conduct to regulate

liability for injuries that attend living

together in society.” Daniels v.

Williams, U.S. , 106 S.Ct. 666 (1986).

13/ Our Gistrict court and,

presumably, other district courts around

the country are presently engaged in time

management studies in an effort to

quantify the amount of time spent on

prisoner litigation.

14/ The protection of

constitutional rights is not the exclusive

domain of the federal courts. State

courts share this responsibility. "Upon

the state courts, equally with the courts

of the Union, rests the obligation to

guard, enforce, and protect every right

granted or secured by the Constitution of.

the United States . . .” Robb v. Connolly,

111 U.S. 624, 637 (1884). In recent years

state courts have demonstrated both

competency and commitment in (continued)

a ae a ee

Se ee ee eee ee alii ed he —

-48-

In Monroe v. Pape, 365 U.S. 167

(1961), Justice Frankfurter argued in

Gissent that the majority opinion would

constitutionalize every act by a state

official. See 365 U.S. at 240-42. His

argument has proven prophetic.22/

Ten years ago, the Chief Justice

suggested that “the time may now be ripe

for a reconsideration of the Court's

conclusion in Monroe that the ‘federal

14/ (cont) protecting

constitutional rights. See, e.g., Brennan,

William J., Jr., “State Constitutions and

the Protection of Individual Rights." 90

Harv. L. Rev., 489 (1977) and _ Brennan,

William J., Jr., “The Bill of Rights and

the States: The Revival of State

Constitutions as Guardians of Individual

Rights." 61 N.Y. Univ. L. Rev. 535 (1986).

A strong case can be made for the argument

that state courts are better equipped than

federal courts to deal with the cases in

which a public official's conduct could be

either tortious or unconstitutional in

nature.

15/ Presently, § 1983 has

practically supplanted traditional tort

law for all cases in which the plaintiff

is a prisoner, except those involving

injury to or loss of property.

~—

remedy is supplementary to the state

remedy... t City of Columbus v. Leonard,

443 U.S. 905, 910 (1979) (Rehnquist, J.,

Gissenting). Now, ten years later, it is

definitely time to do so. Today, there is

no reason to believe that state courts

cannot or will not’ provide adequate

remedies for all deprivations, whether

constitutional or tortious in nature, that

are not “a result of some established

state procedure.” Parratt, 451 U.S. at

541.

aR.

CONCLUSION

For the reasons set forth herein,

this petition for certiorari should be

granted and the decision of the United

States Court of Appeals for the Ninth

Circuit reversed.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General of the

State of Arizona

JONATHAN H. SCHWARTZ

Assistant Attorney General

oy for the State of Arizona

RONALD J. GREENHALGH*

Assistant Attorney General

for the State of Arizona

1275 W. Washington Street

Phoenix, Arizona 85007

Telephone: (602) 542-4951

Counsel for Petitioners

* Counsel of Record

January 10, 1989

TABLE OF APPENDICES

Page

Opinion of Court of Appeals .

October 14, 1988 la

Opinion of District Court

May 29, 1987 13a

Testimony From the Depositions of

Dr. James D. Ricketts

and James D. Morgan 18a

APPENDIX A

Opinion of Court of Appeals

October 14, 1988

FOR PUBLICATION

UNITED STATES COURT OF &PPEAIS

FOR THE NINTH CIRCUIT

Tracy Ray Vaucuan, et al., 4

Plaintiffs-Appellees, No. 87-2526

‘ D.C. No.

. CIV 84-624-PHX-CAM

JAMES D. RICKETTS, et al.,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

C. A. Muecke, District Judge, Presiding

Argued and Submitted

April 15, 1988—San Francisco, California

Filed October 14, 1988

Before: Procter Hug, Jr.* and Robert Boochever, Circuit

Judges, and Albert Lee Stephens, Jr.,** District Judge.

Opinion by Judge Boochever

*Judge Hug was drawn to replace Judge Anderson.

**Honorabie Albert Lee Stephens, Jr., Senior United States District

Judge for the Central District of California, sitting by designation.

12943

ie te el

12944 VAUGHAN V, RICKETTS

SUMMARY

Search and Seizure/Criminal Procedure

Affirming a judgment denying qualified immunity to a

prison official for body cavity searches, the court held that. at

the time of the searches, there was a reasonable grounds stan-

dard for initiation of digital body cavity searches of inmates

and that such searches failed to withstand fourth amendment

scrutiny.

Appellee Tracy Vaughan and other inmates were subjected

to a series of digital rectal cavity searches in March 1984.

Vaughn sued under 42 U.S.C. § 1983 alleging deprivation of

his constitutional rights. Appellant James Ricketts, the direc-

tor of the Arizona Department of Corrections, and others,

appeal the district court’s denial of their summary judgment

motion. Ricketts claimed a qualified immunity from suit

because the law governing body cavity searches of inmates

was not clearly established as of March 1984.

[1] Government officials performing discretionary func-

tions enjoy a qualified immunity from liability for civil dam-

ages so long as their conduct does not violate clearly

established statutory or constitutional rights of which a rea-

sonable person would have known. [2] By 1982, courts’ had -

found that inmates retained some fourth amendment protec-

tion from unreasonable searches of their persons. [3] Regard-

less of the strength of the officials’ justification, the manner in

which Vaughan alleges the searches were conducted violated

clearly established standards. [4] Privacy, hygiene, training of

those conducting the searches and the place where the search

was conducted are relevant issues determining whether the

manner of the search was reasonable. [5] Established law at

the time of the searches provided that deliberate indifference

to serious medical needs of prisoners constitutes the unneces-

sary and wanton infliction of pain proscribed by the eighth

VAUGHAN V,. RICKETTS 12945

amendment. [6] The manner in which Vaughan alleges the

searches were conducted constitutes an unnecessary use of

force showing a wanton disregard for the health and safety of

the inmates. [7] At the time of the searches, the fourteenth

amendment prohibited prison officials from treating prison-

ers in a fashion so brutal and offensive to human dignity as to

shock the conscience. Under the facts alleged, a reasonable

prison official in 1984 would have understood that the

searches were conducted in a brutal fashion that was not justi-

fied by a need for force.

COUNSEL

Ronald J. Greenhalgh, Assistant Attorney General, Phoenix,

Arizona, for the defendants-appellants.

Robert Bartels, Arizona State University Law School Clinic,

Tempe, Arizona, for the plaintiffs-appellees.

OPINION

BOOCHEVER, Circuit Judge:

Ricketts, the director of the Arizona Department of Cor-

rections, and other prison officials (Ricketts) appeal the dis-

trict court’s denial of their summary judgment motion.

Ricketts contends that he is entitled to qualified immunity

from suit under 42 U.S.C. § 1983 by Vaughan and other

plaintiffs (Vaughan), all inmates at the Arizona State Prison

at Florence (ASP), alleging that a series of digital rectal cavity

searches violated their constitutional rights. Ricketts also

suggests that the individual liability of particular defendants

is before the court on this appeal. We find that the district

court did not err in denying Ricketts’ claim of qualified

immunity. The denial of summary judgment is AFFIRMED.

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12946 VAUGHAN V. RICKETTS

FACTS

Vaughan and approximately eighty inmates of the maxi-

mum security unit at ASP were subjected to a series of digital

rectal cavity searches on the 15th, 22nd, and 23rd of March

1984. Vaughan alleges that correctional medical assistants

untrained in involuntary rectal cavity searches conducted

them on a table in an open hallway, within view of prison per-

sonnel and some inmates. He alleges that the conditions were

unsanitary, that some inmates who resisted were forced to

submit, and that those searching made no effort to determine

whether any of the inmates had medical conditions that

would make a digital rectal cavity probe medically inadvis-

able. Ricketts had ordered the searches in response to infor-

mation that there were explosives in the maximum security

unit; the March 15 searches recovered some gunpowder.

Vaughan filed suit under 42 U.S.C. § 1983 alleging depriva-

tion of rights under the fourth, eighth, and fourteenth amend-

ments of the United States Constitution. Ricketts moved for

summary judgment, claiming a qualified immunity from suit

because the law governing body cavity searches of inmates

was not clearly established as of March 1984. In its order

denying Ricketts’ motion, the district court held that

Supreme Court and Ninth Circuit decisions before March

1984 clearly established a “reasonable grounds” standard for

initiation of digital body cavity searches of inmates. The

court concluded that it was also clearly established that body

cavity searches must be “reasonably conducted in order to

withstand fourth amendment scrutiny.” Finally, the district

court found that clearly established standards existed under

the eighth and fourteenth amendments as well. The court thus

refused to grant Ricketts qualified immunity on any of

Vaughan’s claims.

- ANALYSIS

We generally do not permit appeals from denials of sum-

mary judgment. The Supreme Court has held, however, that

tar elie SRB ond et-.0°8 Pe ai o° . — “" . ee ste

VAUGHAN V, RICKETTS 12947

an interlocutory order denying qualified immunity is effec-

tively unreviewable on appeal from final judgment, conclu-

sively determines the issue in dispute, and is conceptually

separate from the merits of the plaintiff's claim. Mitchell v.

Forsyth, 472 U.S. 511, 526-28 (1985). “[T]o the extent that it

turns on an issue of law,” such an order is immediately

appealable. Jd. at 530. Assuming that Vaughan can prove the

acts attributed to Ricketts, we must decide the entirely legal

issue of “whether the facts alleged . . . support a claim of vio-

lation of clearly established law.” Jd. at 528 n.9.

[1] Government officials performing discretionary func-

tions enjoy a qualified immunity from liability for civil dam-

ages so long as their conduct does not violate “clearly

established statutory or constitutional rights of which a rea-

sonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). The Harlow test focuses upon the

“objective reasonableness” of the official’s conduct. /d.

Ricketts is entitled to summary judgment granting him quali-

fied immunity if he can establish that “a reasonable officer

could have believed that the search comported with [the Con-

stitution] even though it actually did not.” Anderson v.

Creighton, 107 S. Ct. 3034, 3036 (1987). For a finding that the

right was “clearly established” at the time the action was

taken, “the contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Jd. at 3039.

FOURTH AMENDMENT

To determine whether, at the time of the searches in March

1984, Vaughan enjoyed “clearly established ... constitu-

tional [fourth amendment] rights of which a reasonable per-

son would have known,” Harlow, 457 U.S. at 818, we must

review “all available decisional law including decisions of

state courts, other circuits, and district courts to determine

whether the right was clearly established.” Ward v. County of

12948 VAUGHAN V, RICKETTS

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

107 S. Ct. 3623 (1987).

[2] Ricketts asserts that it was not clearly established that

prisoners retain any fourth amendment rights. We disagree.

By 1982, the majority of the circuits had considered the ques-

tion, each holding that inmates retained some fourth amend-

ment protection from unreasonable searches of their persons.

See Bonitz v. Fair, 804 F.2d 164, 171 (ist Cir. 1986) (citing

opinions from the First, Second, Fourth; Fifth, Seventh,

Eighth, Ninth, and Tenth circuits). In United States v. Savage,

482 F.2d 1371, 1372 (9th Cir. 1973), cert. denied, 415 U.S.

932 (1974), this court held that “[a] prisoner is entitled to the

fourth amendment’s protection from unreasonable searches

and seizures.” That “abstract right[ ]” in itself, however, is

not enough to show that the law was clearly established in this

case; the Jaw regarding body cavity searches of inmates in

1984 must be so clear that “the unlawfulness [of the officials’

conduct is] apparent” to the reasonable official. Anderson,

107 S. Ct. at 3039.

In 1979, the Supreme Court held in Bell v. Wolfish that rou-

tine visual body cavity inspections of pretrial detainees must

be reasonable under the fourth amendment. 441 U.S. 520,

558 (1979). A determination of whether a challenged search

is reasonable

requires a balancing of the need for the particular

search against the invasion of personal rights that

the search entails. Courts must consider the scope of

the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the

place in which it is conducted.

Id. at 559.

[3] In Ward, this court held that Wolfish clearly established

as of 1981 that the justification for initiating blanket strip

VAUGHAN V. RICKETTS 12949

searches of minor offense arrestees must be “reasonable.” 791

F.2d at 1332-33. The district court in this case relied on Ward

to find that the same standard of “reasonable grounds” was

clearly established as regarded digital rectal cavity searches of

inmates. Although the information regarding the presence of

explosives in the maximum security unit of the ASP may

have provided reasonable cause for the searches, we find it

unnecessary to resolve whether it was clearly established that

prison officials must have reasonable cause for such a search

or whether such cause existed here. Regardless of the strength

of the officials’ justification, the manner in which Vaughan

alleges the searches were conducted violated clearly estab-

lished standards. A refusal to grant qualified immunity on the

fourth amendment claim was appropriate on that ground

alone.

The Supreme Court in 1979 emphasized that any consider-

ation of whether routine visual body cavity searches of

inmates were reasonable involved an assessment of the man-

ner in which the searches were conducted. Wolfish, 441 U.S.

at 559. In finding the search before it reasonable, the Court

pointed out that no touching was involved. Jd. at 558 n.39.

The Court elaborated:

We do not underestimate the degree to which

these [visual] searches may invade the personal pri-

vacy of inmates. Nor do we doubt .. . that on occa-

sion a security guard may conduct the search in an

abusive fashion. Such an abuse cannot be condoned.

The searches must be conducted in a reasonable

manner.

Id. at 560 (citations omitted).

Courts of appeals finding body cavity searches constitu-

tional before the ASP searches in 1984 were careful to note

that the manner in whick-the searches were conducted was

reasonable. Daughtery v. Harris, 476 F.2d 292, 294 (10th

12950 VAUGHAN V, RICKETTS

Cir.), cert. denied, 414 U.S. 872 (1973), held that routine

physical rectal searches of inmates before court appearances

were reasonable “unless contradicted by a showing of wanton

conduct.” The court continued:

Of course, any search should be conducted by

prison officials under judicious circumstances. ...

The searches were here conducted according to the

directives issued by the Bureau of Prisons ... and

the examinations were carried out by trained para-

professional medical assistants in a designated area

and under sanitary conditions. Also, there was no

attempt on the part-of officials or medical personnel

to humiliate or degrade the appellants.

Id. at 295 (citations omitted) (emphasis added). In United

States v. Lilly, 576 F.2d 1240, 1246 (Sth Cir. 1978), the court

required that body cavity “search[es] and any consequent sei-

zure [must be] conducted in a reasonable manner.” Lilly

upheld the constitutionality of a body cavity search of a

female inmate where the “search was conducted by a female

medical officer in the prison clinic in the presence of only the

medical officer and a female correctional officer.” Jd. at 1247.

The Sixth Circuit in 1983 found the strip search of a felony

arrestee proper under Wolfish where the search was visual

only, conducted in private by a same-sex attendant, and there

was “no claim of offensive behavior . . . beyond that inherent

in the nature of the inspection itself.” Dufrin v. Spreen, 712

F.2d 1084, 1087 (6th Cir. 1983).

In a case involving qualified immunity issues similar to

those presented here, the First Circuit found that in light of

the law prevailing in 1981, inmates had a clearly established

fourth amendment right to be free from a body-cavity search

conducted in an unreasonable manner. Bonitz v. Fair, 804

F.2d 164, 173 (1st Cir. 1986). The court emphasized that

facts alleged by the female inmates made the search unreason-

—

ee a i ee

VAUGHAN V. RICKETTS 12951

abie under the then-prevailing case law: The physical body

cavity searches involved touching by police officers, not med-

ical personnel, who did not change gloves between searches,

and male officers peered through doors to observe the

searches. Jd. at 169, 172.

[4] We hold that it was clearly established by 1984 that

body cavity searches of inmates must be conducted in a rea-

sonable manner, and that issues of privacy, hygiene, and the

training of those conducting the searches are relevant to

determining whether the manner of search was reasonable. It

was also clear that the place in which the search was con-

ducted must be considered in judging the search’s reasonable-

ness. Wolfish, 441 U.S. at 559. We now address the “fact-

specific” question whether Ricketts could have believed the

March 1984 searches “to be lawful, in light of clearly estab-

lished law.” Anderson, 107 S. Ct. at 3040.

Vaughan alleges he was searched on a table in an open hall-

way, by medical assistants untrained in involuntary body

cavity searches. The table was not sanitary, and the medical

assistants did not wash their hands between searches. The

area was clearly visible to other inmates and prison person-

nel, and some personnel made jokes and insulting comments.

No official made an inspection of medical records to ensure

that individual inmates did not have medical conditions that

made the searches dangerous. Inmates who resisted were

forced to submit. At least one inmate search repeated later in

the medical unit was visible to female personnel. No reason-

able officer could believe that such searches were conducted

in a reasonable manner, and so Ricketts was not entitled to

qualified immunity on Vaughan’s fourth amendment claim.

EIGHTH AMENDMENT

[5] Clearly established law at the time of the searches in

March of 1984 provided that “deliberate indifference to sen-

ous medical needs of prisoners constitutes the ‘unnecessary

Dapeng apes ie

12952 VAUGHAN V. RICKETTS

and wanton infliction of pain’ ... proscribed by the Eighth

Amendment” and its prohibition against cruel and unusual

punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). It

was also clearly established that deliberate indifference to the

“safety needs” of prisoners, as shown by prison administra-

tors’ indifference to brutal behavior by guards toward

inmates, was sufficient to state an eighth amendment claim.

Hoptowit v. Ray, 682 F.2d 1237, 1249-50 (9th Cir. 1982). On

appeal, Ricketts does not dispute that clearly established law

existed on the eighth amendment issue, but instead asserts

that the searches did not violate the prevailing standard.

‘Vaughan alleges that deliberate indifference to the inmates’

medical needs was shown by the lack of hygiene during the

searches, by the lack of training of the searchers, bythe failure

to check inmates’ medical records before performing the

searches, and by further rectal cavity searches made on

inmates who were removed tothe prison health unit after the

searches in the hallway. At least one of the inmates removed

to the health unit was subjected to a rectal probe by a female

doctor with a metal clamp, even though he resisted, and his

- subsequent rectal bleeding was left unattended.

[6] Taking all Vaughan’s allegations as true, Ricketts can-

not claim that the prison officials enjoy qualified immunity

from suit for eighth amendment violations. As réquired for

an eighth amendment violation the searches as described

show more than mere negligence. The manner in which

Vaughan alleges the searches were conducted constitutes an

unnecessary use of force showing a wanton disregard for the

health and safety of the inmates. Compare United States v.

Caldwell, 750 F.2d 341 (5th Cir. 1984) (no eighth amendment

violation where rectal search was called off when possibility

of injury arose, and no unnecessary force was used), cert.

denied, 471 U.S. 1007 (1985).

Ricketts claims that it may be more difficult to show an

eighth amendment violation in light of a prison security mea-

VAUGHAN V. RICKETTS 12953

sure. In Whitley v. Albers, 475 U.S. 312 (1986), the Supreme

Court held that in the context of quelling a prison distur-

bance, the question of whether an eighth amendment viola-

tion occurred turns on “whether force was applied in a good

faith effort to maintain or restore discipline or maliciously

and sadistically for the very purpose of causing harm.” /d. at

320-21 (quoting Johnson vy. Glick, 481 F.2d 1028, 1033 (2d

Cir.), cert. denied, 414 U.S. 1033 (1973)). The circumstances

under which Ricketts orderéd the searches, while involving a

threat to security, did not constitute an ongoing prison distur-

bance. Unlike Whitley, the officers were not confronted with

an instantaneous decision whether to conduct the searches in

the manner described.

We find that a reasonable official would understand, under

law clearly established in 1984, that the conditions and man-

ner under which Vaughan alleges the searches were con-

ducted constituted deliberate indifference to the inmates’

medical and safety needs. Ricketts was not entitled to sover-

eign immunity on Vaughan’s eighth amendment claim.

FOURTEENTH AMENDMENT

[7] At the time of the searches in March of 1984, it was

clearly established that the fourteenth amendment prohibited

prison officials from treating prisoners in a fashion so

“brutal” and “offensive to human dignity” as to “shock the

conscience.” Rochin v. California, 342 U.S. 165, 172, 174

(1952) (quoted in Meredith v. Arizona, 523 F.2d 481, 483 (9th

Cir. 1975). Conduct that amounts to brutality violates a lib-

erty interest protected by the fourteenth amendment’s due

process clause, the right to be secure in one’s person.

Meredith, 523 F.2d at 482. In determining whether force

amounts to brutality,

a court must look to such factors as the need for the

application of force, the relationship between the

need and the amount of force that was used, the

lla

12954 VAUGHAN V, RICKETTS

extent of injury inflicted, and whether force was

applied in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the very

purpose of causing harm.

Id. at 483 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir.), cert. denied, 414 U.S. 1033 (1973)). a

[8] This standard was clearly established in 1984. Thus, in

order for Vaughan to avert Rickett’s claim of qualified immu-

nity under the fourteeneth amendment, he must show that a

reasonable prison official would have known that the digital

rectal searches, conducted as alleged, were “maliciously and

sadistically applied for the purpose of causing harm.” Under

the facts as alleged by Vaughan, a reasonable prison official in

1984 would have understood that the searches were con-

ducted in a brutal fashion that was not justified by a need for

force. The extent of possible injury was great, and at least one

inmate suffered significant injury. The joking and insults

directed at the inmates support an inference that the force

was maliciously and sadistically applied. Ricketts was not

entitled to qualified immunity on Vaughan’s fourteenth

amendment claim.

CONCLUSION

We AFFIRM the district court’s refusal to grant Ricketts

qualified immunity from Vaughan’s claims under the fourth,

eighth, and fourteenth amendments.

PRINTED FOR

ADMINISTRATIVE OFFICE—U.S. COURTS

BY BARCLAYS / ELECTROGRAPHIC—SAN FRANCISCO—{41 5) 588-1155

The summary, which does not constitute a part of the opinion of the court, is

12a

APPENDIX B

Opinion of District Court

May 29, 1987

TRACY RAY VAUGHN,

Plaintiff,

JAMES D. RICKETTS, et al.,

Defendants.

No. CIV 84-624 PHX-CAM

United States District Court,

D. Arizona.

May 29, 1987.

ORDER

MUECKE, District Judge.

Having considered the Defendants’

Motior. for Summary Judgment, filed

Novem er 20, 1986, the Plaintiff's

Response, filed February 18, 1987, and the

Defendants' Reply, filed March 13, 1987,

this Court hereby finds and concludes as

follows:

FACTS

This action concerns the constitu-

l3a

tional implications raised by a series of

Gigital rectal cavity searches conducted

by prison authorities at the Arizona State

Prison at Florence. Approximately eighty

residents of the maximum security unit at

the prison were subjected to the

searches. The searches were conducted on

the 15th, 22nd and 23rd of March in 1984.

The prisoners subjected to the searches

subsequently filed suits alleging

deprivation of their rights under the

fourth, eighth and fourteenth amendments

of the United States Constitution pursuant

to 42 U.S.C. Section 1983.4 In their

Motion for Summary Judgment, the

Defendants argue that they are currently

immune from any suit arising from the

Rs The individual actions have _ been

consolidated into the above captioned case.

14a

—--~—

searches because the law governing body

cavity searches of prisoners was not

Clearly established at the time of the

searches. Since the issue ‘presented in

the Defendants’ Motion is purely a

question of law, there is presently no

need to delve into the factual

particularities involved in the case.”

ae In a slightly different context, the

Supreme Court recently noted that when a

court is presented with a claim of

qualified immunity, *{ajll it need

determine is a question of law: whether

the legal norms allegedly violated by the

defendant were clearly established at the

time of the challenged actions....”

Hence, at this juncture, this Court will

accept the Plaintiffs alleged facts as

true and ascertain whether Defendants'

alleged conduct may have violated any

rights that were clearly established at

the time of the contested conduct. Mitchell

v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,

2816, 86 L.Ed.2d 411 (1985). The

Defendants’ Reply Memorandum argues that

even if the Plaintiffs’ rights were

Clearly established at the time of the

search, certain Defendants who did not

actually participate in the (continued)

15a

ANALYSIS

Prison officials enjoy a qualified

immunity from liability arising from their

official conduct, unless such conduct is

in violation of a clearly established law

of which the officials were reasonably

aware. Procunier v. Navarette, 434 U.S.

555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978).

2. (cont.) searches are nonetheless not

liable because the doctrine of respondeat

superior is not applicable to claims

arising under 42 U.S.C. § 1983. See Monell

v. Department of Social Services, 436 U.S. 658,

98 §.Ct. 2018, 36 &.88.26 611 (1976).

However, since this argument was not

presented initially in their Motion for

Summary Judgment and is extraneous to the

question of qualified immunity, the Court

will not presently consider this

contention.

3. The burden of overcoming an official's

qualified immunity by demonstrating the

existence of a clearly established right

rests with the plaintiff. Davis v. Scherer,

468 U.S. 183, 197, 104 S.Ct. 3012, 3017,

82 L.Ed.2d 139 (1984).

l6a

As the United States Supreme Court stated

in Harlow v. Fitzgerald, 457 #4xU«.S. 800,

817-818, 102 §.Ct. 2727, =2737-38, 73

L.Ed.2d 396 (1982), “government officials

performing discretionary functions’ are

shielded in their liability for civil

damages insofar as their conduct does not

violate clearly established statutory or

constitutional rights of which 3

reasonable person would have known." See

also Davis v. Scherer,468 U.S. 183, 191, 104

S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984).

Accordingly, the Defendants argue that

Since there were no clearly established

standards governing the search of

prisoners at the time the searches

presently at issue were conducted, they

are immune from any suit resulting from

the searches.

The Plaintiffs have challenged the

17a

ee a ee ee ee ee ee ee ee ee © Oe te, ag ate wey on mee oe

constitutionality of the searches at their

inception and the manner in which the

searches were actually conducted. Each

issue will be examined in turn.

A. The Right to Search

The Defendants argue that neither

the Ninth Circuit nor the United States

Supreme Court “has ever declared .. .

that probable cause or any lesser degree

of cause is a constitutionally required

predicate” for digital cavity searches.4

Perusal of the case law in this area,

however, indicates the _ contrary. For

example, in Bell v. Wolfish, 441 U.S. 520,

558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447

(1979), pretrial detainees challenged the

constitutionality of visual body cavity

4. The Defendants are under the

impression that in order for a right to be

“clearly established,” there (continued)

18a

searches on fourth amendment grounds.”

In upholding the constitutionality of the

searches, the Supreme Court explicitly

limited its holding to the question of

whether visual cavity searches could be

“ever be conducted on less than probable

cause.” Id. at 560, 99 §.Ct. at 1885

4. (cont. ) must be "a case on point

setting forth the precise constitutional

right at issue." Defendants’ Reply

Memorandum at p. 4-6. However, there is

no “case on point setting forth” this

standard as to what actually constitutes

“clearly established." To the contrary,

it has been specifically held that direct

precedent is not required to demonstrate a

Clearly established right. See Lynch v.

Cannatella, 810 F.2d 1363, 1375 (CA5 1987).

S. The fourteenth amendment prohibits

States from violating a citizen's fourth

amendment’ rights. Wolf v. Colorado, 338

U.8. 25, 69 8.Ct. 1359, 93 L.B8. 1782

(1949).

19a

(emphasis in the original).° Thus,

while the Supreme Court ruled that visual

body cavity searches can sometimes be

conducted on less than probable cause, it

is clear from the opinion that prison

official require some measure of cause to

conduct such searches. As the Court

stated in Bell, "[t]he test of

reasonableness under the Fourth Amendment

is not capable of precise definition or

mechanical application .. . . Courts must

6. By emphasizing the word “ever,” the

Supreme Court obviously suggested that in

some cases probable cause would be

required to conduct even a visual body

Cavity search. In this regard, it should

be noted that the searches in Bell were

only conducted after contact visits.

Thus, the natural implication is that

probable cause would be required if the

detainee had no recent outside contact.

While the searches in the present case did

not follow contact visits, this Court does

not conclude that probable cause was

required to conduct the searches because

the Plaintiffs are not mere pretrial

detainees.

20a

¥ Ee ee

~ ae

consider the scope of the particular

intrusion .. . [and] the justification

for initiating it.” Id. at 559, 99 §.Ct.

at 1884. Such a statement would be

superfluous if, as the Defendants contend,

body cavity searches could be conducted

without any reason whatsoever. Hence, at

the very minimum, prison official must

have reasonable cause to conduct digital

body cavity searches.

Moreover, and most significantly,

the Bell court repeatedly emphasized that

the searches were entirely visual and

involved no touching. In the words of

the Court:

‘If the inmate is a male, he

must lift his genitals and bend

over to spread his buttocks for

visual inspection. The vaginal

and anal cavities of female

inmates are also visually

inspected. The inmate is not

touched by security personal at

2la

any time during the visual

search procedure.

Id. note 39, 558, 99 §.Ct. at 1884

n. 39 (emphasis in the original).

Accordingly, if prison official needed

some cause, albeit less than probable

cause, to conduct a visual body cavity

search, it necessarily follows that such

officials would also need at least some

cause to conduct an exceedingly more

intrusive digital body cavity search.

Ward v. San Diego County, 791 F.2d

1329 (CA9 1986), is also instructive. In

Ward, the court rejected the defendant's

qualified immunity defense and held that a

1981 visual body cavity search of a

misdemeanor arrestee conducted in the

absence of a reasonable grounds was a

violation of clearly established fourth

amendment rights. Although Ward involved

22a

merely a misdemeanor arrestee, in contrast

to a prison inmate, the search was also

merely a visual inspection. In the

present case, while those searched were

subjected to a much more severe form of

incarcerétion, they were also subjected to

@ much more severe form of search. Thus,

it follows that the same standard of

“reasonable grounds” applies.’

Accordingly, it is apparent that

the decisions of both the United States

Supreme Court and the Ninth Circuit

Clearly established prior to March of 1984

that prison officials needed reasonable

grounds to initiate digital body cavity

7. This reasoning, of course, is equally

applicable to the pretrial detainees in

Bell and the prisoners in the _ present

controversy.

23a

searches of prisoners.®

B. The Manner of Search

The Plaintiffs also argue that even

if the law was unclear as to what

standard, if any, governed prison

officials’ right to initiate the searches,

the standards governing the manner in

which the searches were actually conducted

were clearly established. The Plaintiffs

adduce Bell v. Wolfish, 441 U.S. at 560, 99

S.Ct. at 1885, in support of their

argument. In Bell, the Court’ stated

8. Of course, as already stated, the

question of whether the Defendants

actually possessed reasonable grounds to

search the Plaintiffs is one of fact and

is consequently beyond the scope of this

Order. The Court will note, however, that

the Plaintiffs are incorrect in

interpreting the July 1, 1986 Order of

this Court to hold that this Court will

not consider the information provided to

the Defendants by their informant. In

determining the reasonableness of the

searches, the informant's information will

be appraised in camera.

24a

“InJor do we doubt .. . that on occasion

a security guard may conduct the search in

an abusive fashion. Such an abuse cannot

be condoned. The searches must _ be

conducted in a reasonable manner."

[Citations omitted. ] Obviously, this

conclusion is underscored when such

searches are digital rather than merely

visual. Thus, the unequivocal language of

the Supreme Court plainly established

prior to searches presently at issue that

rectal cavity searches must be reasonably

conducted in order to withstand fourth

amendment scrutiny.

Moreover, the manner in which the

Plaintiffs were searched may have violated

Clearly established standards of the

eighth and fourteenth amendments. For

instance, in Estelle v. Gamble, 429 U.S. 97,

105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251

25a

(1976), the Supreme Court ruled “that

Geliberate indifference to the serious

medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of

pain’ - « + proscribed by the Eighth

Amendment.” Since the searches involve

a potentially adverse health impact, the

Plaintffs argue their “serious medical

needs” have been implicated. The

9. The eighth amendment is made

applicable to the States by the fourteenth

amendment. Robinson v. California, 370 U.S.

660, 82 &.Ct. 1417, 8 L.Ed.2d 758 (1962).

10. Even aside from the medical

implications of the searches, prison

officials are also prohibited by the

eighth amendment from exhibiting A

"deliberate indifference” to the welfare

of prisoners. E.g. Hopowit v. Ray, 682 F.2d

1237, 1250 (CA9 1982) (deliberate

indifference to the “safety needs” of

prisoners violated the eighth amendment);

Rhodes v. Chapman, 452 U.S. 337 347, 101

S.Ct. 2392, 2399, 69 L.B4.26 $9 (1981)

(grossly inadequate conditions of

confinement violate the eighth amendment) ;

Wright v. Wagner, 641 F.2d 239, (continued)

26a

Defendants allegedly conducted the

searches without initially inquiring

whether the searches posed a threat to the

health concerns of the particular

Plaintiffs. Moreover, the searches were

allegedly conducted in an_ unsanitary,

public area by personnel untrained in

administering involuntary digital rectal

examinations. The Plaintiffs also contend

that the examiners failed to even wear

gloves on both hands during the searches.

Nor did they wash their hands after each

examination or permit the Plaintiffs to

wash themselves upon being searched. In

light of the increasing danger of

communicable diseases in prisons, the

10. (cont.) 241-42 (CA5 1981) (deliber-

ately indifferent failure to place a self-

destructive inmate in padded cell would

violate the eighth amendment).

27a

allegedly unsanitary nature of the

searches acquires special significance.

Obviously, if proved, these allegations

might constitute a deliberate indifference

to the medical needs of the Plaintiffs and

hence establish violations of the

Plaintiffs’ Clearly established eighth

amendment rights.?2

In a similar vein, the fourteenth

amendment forbids prison officials from

treating inmates in a fashion so “brutal”

or “offensive to human dignity” so as to

ll. While the Defendants are correct in

stating that the eighth amendment 's

“unnecessary and unwanton” standard

creates an “onerous burden for the

plaintiff to meet” in the context of a

prison disturbance, see Whitley v. Albers, 475

U.S. 312, 106 S.Ct. 1078, 1089, 89 L.Ed.2d

251 (1986) (Marshall J. dissenting), even

assuming a Whitley type disturbance

existed in the present case, this

consideration is irrelevant for purposes

of determining whether A qualified

immunity applies.

28a

“shock the conscience.” Meredith v. Arizona,

523 F.2d 481, 483 (1975). While this test

is very fact specific in application, the

standard itself was well established far

in advance of the searches in question.

See Rochin v. California, 342 U.S. 165, 174,

72 §.Ct. 205, 210, 96 L.Ed. 183 (1952).

Thus, the Defendants were obliged to

conduct the searches in a manner that was

not brutal, offensive to human dignity, or

otherwise shocking to the conscience. The

question of whether the Plaintiffs can

actually substantiate that the Defendants

violated this (or any other) obligation is

reserved for a future determination.

CONCLUSION

Based on the foregoing, this Court

concludes that the Plaintiffs have demon-

29a

strated the existence of clearly

established laws prohibiting the

Defendants’ alleged conduct. Consequent-

ly, the Defendants’ claim of qualified

immunity fails and their Motion for

Summary Judgment on that ground is denied.

30a

APPENDIX C

Testimony From the Depositions of

Dr. James D. Ricketts

and James D. Morgan

A. He indicated that he had

information, credible information,

from Florence that there was a serious

problem in Cell Block 6, and I believe

it was the facility administrator that

had called, but his calls sometimes

came from the intelligence officers or

the inspectors, investigators down

there.

Anyway, he had some, what he

felt, was valid information that there

was a serious security problem which

apparently was given to the staff by

informants in Cell Block 6, inmate

informants. He indicated to me that

there were explosives or there were

supposed to be explosives in Cell

Block 6.

Deposition of Dr. James G. Ricketts, p.17,

lines 1-14.

3la

A. Let me ask a qvestion to

Clarify it. Did I call together a

group of people to discuss that

problem or that issues? |

Q. Yes.

A. No, it was no time for a staff

meeting or committee meeting. We had

a facility was in danger, from my

perspective, of being blown up. We

needed some immediate action.

Deposition of Dr. James G. Ricketts, p.28,

lines 4-1l.

32a

A. Places I've been. What would

I do if I had to do it over? No, I

would do exactly what we did. If I

had it -- after two lawsuits and two

depositions and countless number of

hours, I would do identically the same

thing I did that day. I would make

the same decision.

Q. Well, Dr. Ricketts, that

réally wasn't my question. What I was

going to ask was, would you ordinarily

give an inmate an opportunity to

select an alternative to a digital

rectal cavity search?

A. Would I ordinarily do that?

Q. Uh-huh.

A. In a situation where there

was, what we felt like, was a life

threatening situation, we felt like we

33a

didn't know what kind of contraband,

we Gon‘t know that it wasn't blasting

explosives, I don’t think so. I don't

think I would have, in that situation,

give that option.

I guess it's for someone else

to determine whether it would have

been wiser to do that. You're asking

me whether I considered, whether I --

I don't know.

Deposition of Dr. James G. Ricketts, p.43,

lines 3-24.

34a

Q. And then you have another

conversation sometime between the 15th

and the second set of searches, which

you were not real sure -- you're not

real sure about, but you have another

conversation that there's ongoing

problems; is that accurate? -

A. Yeah, that there was still

contraband in that cell block.

Q. And the nature of the

contraband, you discussed the nature

of the contraband?

A. Oh, yes.

Q. And it was still of a

dangerous nature?

A. Oh, yes, that's the reason why

the original search was conducted,

because of the danger. If it was

other types of contraband, you know,

35a

Bris: eee

iarinienseian bce sioraian

we would have not done a rectal search.

Q. And then -- and so you must

have -- did you advise Mr. Bramlett to

carry on with the seond set of

searches then?

A. Yeah, I indicated that we'd be :

negligent if we didn't do something if %

we have information from similar

sources as the first time. We need to 3

make certain that we try to get the

contraband out of the cell block.

Q. And the searches were

performed then? 3

A. Searches were performed.

Deposition of Dr. James G. Ricketts, p.90, 4

lines 1-25. ;

’

36a

Deposition of Dr. James G. Ricketts, p.94,

Q. Did you think about limiting

the searches to those inmates with

whom Mr. Bramlett had information?

A. No, I did not have that kind

of conversation with him, but the

normal procedure would be to -- you

know, we were conducting a search in

an area that we were advised that

there was contraband in that cell

block area, it was Cell Block 6, and

that it could be in any area because

inmates moved in and out to go to

court, to have visits.

I think at that time we were

still having contact visits, and there

was -- there was no reason to restrict

and say that we will not search

anybody in a certain area. It would

have almost been counterproductive to

have done that at that time.

37a

2-8 are

a * tans = Wa we TP yg =

Q. You believed it to be legal?

A. Totally legal. If I had a

doubt whatsoever, I wouldn't have done

it.

Q. What would have made it.

illegal? I‘m sorry, what would have

made the searches illegal?

A. I don't know. If there haa

____been case law that indicated that this 4

was violating someone's constitutional

right to do that, I wouldn‘t have done

it.

Q. You weren't aware of any case

law?

A. That indicated that it was

violating their constitutional -- no,

and I‘m still not.

Deposition of Dr. James G. Ricketts, p.96,

lines 1-12.

38a

Ne Sey Oe Pe Fe mee Oe Oe ty PR EN tae AOE 1, PORE eT OE Peep es PE OE OO PEE) 2 eR eS MR on a

_—

Q. Do you recall what was found

on the 15th?

A. About 19 ounces of gun powder

and 12 or 13 inches of black fuse and

a couple of blasting caps and a hype

kit.

Deposition of James D. Morgan, p.60, lines

18-21.

39a

73)

Supreme Court, U.S.

FILED

MAR 1D l¥uy

JOSEPH F. SPANIOL, JR

CLERK |

No. 88-1345 ¢/

JPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

JAMES D. RICKETTS, ET AL.,

Petitioners,

Vs.

TRACY RAY VAUGHAN, ET AL.,

Respondents.

Writ of Certiorari to the United S

Court of Appeals for the Ninth Circe

ae.4

BRIEF IN OPPOSITION TO CERTIORARI

Robert Bartels

A.S.U. Law School Clinic

College of Law

Arizona State University

Tempe, Arizona 85287

(602) 965-7053

COUNSEL FOR RESPONDENTS

tates

5 yi

QUESTIONS PRESENTED

1. Whether the District Court and Court of Appeals correctly ‘

held that reasonable prison officials in the position of the

petitioners should have known that subjecting inmates to grossly

and unnecessarily abusive digital rectal cavity searches by

inadequately trained personnel, in open prison hallways, with no

inguiry into potential medical hazards, and without any

meaningful effort to maintain sanitary conditions, would violate

clearly established eighth and fourteenth amendment standards.

2. Whether the District Court and Court of Appeals correctly 3

held that the manner in which the digital rectal cavity searches

described in the preceding question were conducted violated

clearly established fourth amendment standards.

3. Whether this Court should grant certiorari to consider

abstract interlocutory questions concerning the applicability of 3

the Fourth Amendment to oentties of the rectal cavities of prison ‘

inmates when the District Court and Court of Appeals were correct _

in rejecting the petitioners' defense of qualified immunity to ¢

the respondents' eighth and fourteenth amendment claims, with the B

resuit that the petitioners must stand trial on those claims,

involving the same material facts, in any event.

TABLT OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

II.

IIr.

Iv.

Introduction

The Court of Appeals was Correct in Holding

That the Grossly and Unncessarily Abusive

Manner in Which the Digital Rectal Cavity

Searches were Conducted in This Case Violated

Clearly Established Eighth Amendment Standards.

The Court of Appeals Correctly Held That the

Petitioners' Conduct Violated Clearly

Established Fourteenth Amendment Standards.

The Court of Appeals' Rejection of the

Petitioners' Defense of Qualified Immunity

to the Respundents' Fourth Amendment Claims

was Correct, and Provides No Basis for

Granting Certiorari.

This is not an Appropriate Case for a

Massive Expansion of Parratt v. Taylor That

Would Effectively Eliminate Virtually alli

Federal Civil Rights Actions.

CONCLUSION

APPENDIX D

ie BRR ae SF PERE: SETS eg RE A ne OES ee ae ieee ds St ais

en Sears AO ee Pete

TABLE OF AUTHORITIES

Cases

Adicxes v. $.H. Kress & Co.,

$96 U.S. i44 (1970).

Allison v. Wilson,

434 F.2d 646 (9th Cir. i970)

Anderson v. Creighton,

i 2 , 207 S.Ct. 90484. 42967).

Beil v. Wolfish,

441 U.S. 529 (1979).

Birkennholz v. Siuyter,

857 F.2d 1214 (8th Cin. 1968).

Bonitz v. Fair,

804 F.2d 164 (ist Cir. 1986)

Breauit v. Chairman of the Bd. of Fire Comm'rs.,

$i3 3.2.24 2277: (Mace. Sup... Jud. Ct. 2987),

cert. denied, 108 S.Ct. i076 (1988).

Celotex Corp. v. Catrett,

477 U.S. 337 (1986).

Estelie v. Gamble,

429 U.S. 97 (1976)

Gaut v. Sunn,

792 F.2d 874 (9th Cir. 1986)

Gillespie v. Civiletti,

629 F.2d 637 (9th Cir. i980)

Harlow v. Fitzgerald,

457 U.S. 800 (1982)

Hodges v. Stanley,

732° 8.240 34 (2€ Cir. 1983)

Hoptowit v. Ray.

682 F.2d 1237 (9th Cir. 1982).

Hudson v. Palmer,

468 J.S. 517 (1984).

Huriey v. Ward, ‘

584 F.2d 609 (2d Cir. 1978).

Lanza v. New York,

370 U.S. 139 (1962)

L.J. V. Massinga,

838 F.2d 118 (4th Cir. :987), cert. denied;

$66 3. Ct Zeer 42 On) ha ae oe ee eee

“

Pace

Cases

LOuUAn Shealv,

660 2.2a 1507 23%. Gis 5982) Zs. 26

Logan v. Zimmermac Brush Co.,

455 U:S. 422 (1962) é 18

McRorie v. Shimoda,

795 F.2d 750 (9th Cir. 1986) 3

Meredith v. Arizona,

Bes ae eee ee cra ERT a ee ea es 43

Mitchell v. Forsyth,

472 U.S; S32. (1985) Pits {ae een OME oe od: tah, HE Te 9,:7

Monroe v. Pape,

365 0.8. 267 (1961) & eee a ar te eee an Va te Fe ; i8

Parratt v. Taylor, ¥

457 ‘U.Bs Ban. (a981) ee eRe er Pe ae ke Woke ae mal enne - S 727,48

Rochin v. Caiifornia,

342 0.8. 168 (1952) Stats panera eee. (eee a. at eI 13

Rutledge v. Board of Regents,

660 F.2d 1345 (9th Cir. i963) ae RE ENS hoes ee Cee 12

Stroud v. United States, See

aoa Giese ae. £329) Sut pE ee uahie YF ta ae hs ca ae eS 16

Stubbs v. Dudiey,

849 F.2d 83 (2d Cir. 1988), cert. denied,

57 U.S.L.W. 3546 (1969) Sm rn ae teres Smee gg gt agi g hotel hg i3

Turner v. Safiey,

co 4s , £07: B.OU 2254 (1987) Ce iia? baer eee -

United States v. Savage,

482 F.2d 1371 (sth Cir. 19793) Lay entae nn eey e Seay a ye i6

Vaughan v. Ricketts,

GOs Fees. £04 (CARES. TEST) a ose 8 passim

Vaughan v. Ricketts,

859 F.2d 736 (9th Cir. 1988) Boeken Os Fa Ea gm ig passim

Whitiey v. Albers, —

475 €.3. 322 (1966) Phy. <2 Perea nytt eM yy cng ae Ae Re se |: ae ae

Wilson v. Beebe,

7a wee ere beth Cit... SORGF ee a ea eee 18

Wilson v. Lane,

85i 2.2d@ 867 (7th Cir. i988), cert. denied,

Be ee es a CPO re eile Ua er itig eo es oe i9

Cases

Le Cn

S: he

Wiltsie v. Caz.

406 F.2d 515 (9th Cir. 1968)

Wr ev v. G

rect.ons

842 F.2d 955 (7th Cir. 1988),

57 U.S.L.W. 3148 (1989)

on tutio rov

U.S. CONSTITUTION, AMENDMENT

42 U.S.C. § 1983 ripe te

cert. deniec,

. . . . . . .

> «

:,8i@2

1,8,9,16<3)

— This case involves severai consulidated actions ‘»rought under

42 U.S.C. § 19635. The plaintiffs’ respondents, inmates at the

Arizona State Prison at Fiorence, arizona, alleged that the

Gefendants/petitioners, officiais of the Arizona Department of

corrections, violated their clearly estabiished rights under the

Fourtn, Zighth, anc Fourteenth Amenéments when, without aceciuat=

CAUSe, They sudfected 1.2 sespondent; to digitai recta. cavity

searches in a grossiy and unnecessariiy abusive manner.

fter extensive discovery had been completed, the vetitioners

fiiec a motion for summary judgment in the District Court on the

ground that they were entitied to quaiified immunity. The

District Court denied this motion. Vaughan y. Ricketts, 663

F.Supp. 401, 405 (D. Ariz. 1987) (Pet. at 29a-30a).

The petitioners appealed to thé United States Court of

Appeals for the Ninth Circuit. Vaughan v. Ricketts, 359 F.2d 736

(9th Cir. 1988) (Pet. App. A). The Court cf Appeais affirmed the

District Court's ruling that the petitioners were not entitled to

summary judgment on the basis of qualified immunity, holding that

no reasonable prison official could have believed that the

searches were conducted in a constitrtionaily permissible manner

under then clearly established fourth, eighth, and fourteenth

amendment standards. id. at 742 (Pet. at 12a). The Court of

Appeals further held that it was unnecessary to decide whether

the petitioners had sufficient justification for the searches.

Id. at 740 (Pet. at Ta).

~ The Petition for a Writ of Certiorari seeks further

interlocutory review of the judgment of the Court of Appeals.

B. Facts.

The Petition for a Writ of Certiorari studiously avoids any

meaningful discussion of the fects on the basis of which the

courts below rejected the petitioner's claim of qualified

immunity. However, as this Court made clear in Anderson v.

Creighton, U.S. , 107 3.Ct. 3034, 3038-39 (i987), a

motion for summary judgment on qualified immunity grounds must be |

decided with reference to the defendants' particular conduct. =

Because this action invoives a motion for summary judgment by the —

- a

defendants/petitioners, the facts must be viewed in the light

most favorable to the plaintifis/ respondents, based on the

depositions, affidavits, and other evidentiary materials

submitted by the parties in connection with the motion for

summary judgment. Adicxes v. S.H. Kress & Co., 398 U.S. 144,

(1970).

On March 15, 1984, approximately 13 to 16 inmates in

Gellibiock 6 (hereafter "CB6") at the Arizona State Prison

(hereafter "ASP"), including a number of the respondents, were 4

subjected to a series of digital rectal cavity searches and other

procedures by or at the direction of the petitioners. (SER 2- 3

1i).+ Initially, digital rectal cavity searches were performed a

at a table in a hallway of CB6, in full view of a number of a.

correctional personnel and some inmates. (SER 2-5). Neither the

€

hallway nor the table was cleaned in any way before or during the

) fe

searches, and the Correctional Medical Assistants (hereafter

"CMA's") who performed the searches did not wash their hands

between searches. (SER 3-4). The CMA's had no experience or

i "SER" refers to the Supplemental Excerpts of Record

filed in the Court of Appeais, consisting primarily of

Plaintiffs' [Locai} Rule ii1(i)}) Statement of Facts, which was

filed in the District Court in connection with the

petitioners' motion for summary judgment. The Rule ii(i) é

Statement of Facts, which sets out the facts in some detaii,

is appended hereto as Appendix D, and is paginated to

correspond with the SER page references in this Brief in

Opposition.

trainc.. . in performing involuntary rectal cavity searches, and

they had receivec no instructions on now to conduct then. (SER

The inmates did not uave any choice about whether they wouic

be searched rectaliy, and they were not offered any less

intrusive aiternatives such as X-rays or voluntary surrender of

contraband. (SER 3, 5) The petitioners did not conduct any

visual rectal cavity searches prior to the digital rectal cavity

searches. (SER 5). The petitioners also made no effort to

ascertain, from the inmates or from their medical records,

whether any inmates hac nedicai conditions that would make

digital rectal cavity probes medicaily inappropriate. (SER 5-

6).

During each search, a CMA inserted a finger into the inmate's

rectal cavity and probed for foreign material. (SER 4). Inmates

who indicated any resistance to the rectal cavity searches,

verbally or otherwise, were physically forced to submit. (SER

3). All inmates were physically restrained by Correctional

Service Officers (hereafter "CSO's") even if they did not resist

{(Id.) During the search procedures, ASP employees joked,

laughed, and made insulting comments. (SER 5). The inmates were

not given an opportunity to clean themselves after they were

searched. (SER 4).

After the initial d‘gital rectal cavity searches in CB6 on

March 15, i984, several of the inmates were taken to the ASP

Central Health Unit, where they were subjected to further digital

rectal cavity searches and X-rays (by non-licensed personnel),

all without their consent. (SER 9). At least one respondent,

inmate Frank Palmer, was subjected to a continuing series of

painful rectal probes by a female doctor. (SER 9). After an

initial digitai rectal cavity search, the doctor inserted a

sigmoidoscope into Palmer's rectum. Palmer then was searched

any digital rectal cavity searches for security purposes. (Id.)

digitally twice more. (id.) Finaiiy, a metal "clamp" and two es

fingers were insertec into Palmer's rectum. Aithough the doctor

noticed dieeding in Paimer’s rectum during the probe, she did

provide or arrange for any foilow-up treatment. (SER :0)}). a

Palmer was not asked to consent to any of these procedures. (SER

9). :

In the opinio: of a petitioner/CMA and a petitioner’ prison

doctor, various aspects of the manner and circumstances of the

search procedures were not medically appropriate. (SER 5-7, 9-

30).

On March 22 and 23, i984, the petitioners subjected a much

larger group of CBo inmates to digital rectal cavity searches

under essentially the same conditions and in essentially the same

i‘

manner as the searches in CB6 on March 15. (SER 11-14). The css

off

inmates who already had been searched on March 15 were included

in the group of inmates who were searched on March 22 and 23,

even though they had been placed in isolation ceils, without

their property and without any opportunity for contact visits

with outsiders, between March i5 and March 22. (SER ii, i4).

Prior to March 15, 1984, the petitioners had never conducted —

The petitioners also have not conducted any such searches since

April of 1984. (id.)

SUMMARY OF THE ARGUMENT

Ae There is no dispute in this case that the constitutiona:

rights of prisoners are limited by valid penological objectives

such as institutional security, or that the judgments of prison

officials r-garding institutional security are entitled to

substantial judicial deference. However, prison inmates do

retain some constitutional rights, and the grossiv and

unnecessarily abusive manner in which the digital rectai cavity

searches a’ issue in this case were conducted was wholly

unrelatea to any conceivable interest in institutional security.

2. The petitioners seek further interlocutory review of the

District Court's and Court of Appeals' denial of their motion for

summary judgment on qualified immunity grounds. Consequently,

the central question is whether reasonable prison officials in

the position of the petitioners should have understood that the

egregious manner in which the digital rectal cavity searches were

conducted -- as shown by the record before the District Court --

violated the respondents' then-established fourth, eighth, and

fourteenth amendment rights. Anderson v. Creighton, 0.3.

2s £07 $.Ct 3034 (1967).

3. The Court of Appeals correctly found that as of March

1984, it was clearly established that the Eighth Amendment

prohidited the “unnecessary axn< wanton infliction of pain" and

“deliberate indifference" to the health and safety of prison

inmates. The Court of Appeals also correctly held that no

reasonable prison official could have failed to realize that the

unnecessarily abusive digital rectal cavity searches in this case

violated those eighth amendment standards.

4. The Court of Appeais correctly held that the digital

rectal cavity searches in this case were conducted in a fashion

that was so "brutal" and

offensive to human dignity" as to

"shock the conscience"; that they were "maliciously and

sadistically applied for the purpose of causing harm"; and that

they therefore violated eiaetiy. cetebi sane fourteenth amendment

standards of which the petitioners should have been aware. The

petitioners' only response to this holding -- that this Court's

decis‘on in Whitley v. Albers, 475 U.S. 312 (1986), indicates

that the test for a fourteenth amendment due process violation in

the prison context is the sae as 7+ “est for a violaticn of the

Eighth Amendment's Cruel and Unusual Punishment Clause --

provides no basis for granting certiorari in this case, since the

Court :£ Appeais' rejection of the petitioners' qualified

immunity defense to the respondents' eighth amendment claims

pliainiy was correct.

5. The Court of Appeals correctly held that no reasonable

prison official could have believed that the digital rectal

cavity searches in this case were conducted in a reasonable, non-

abusive manner, and that those searches therefore violated fourth

amendment standards that were Clearly established in March 1984.

The petitioners' argument -- which is not that the digital recta]

cavity Ssv.u:ches in question were conducted in a reasonable

manner, but rather that prison inmates have absolutely no fourth

amendment rights, even with respect to highly intrusive manual

searches of their body. cavities -- is not supported by the

Gecisions of this Court or any federal circuit court. Moreover,

granting certiorari to review abstract questions of the

“applicability of the Fourth Amendment to searches of prison

inmates' body cavities would not be appropriate in the

interlocutory context of this case, since the petitioners must

stand trial on the respondents' eighth and fourteenth amendment

Claims -- which involve the same factual issues as the

respondents’ fourth amendment claims -- in any event.

6. The petitioners' argument that Parratt .. Taylor, 457

U.S. 521 (1981), sShouid be extended to deprive the federal courts

of their jurisdiction over essentially all federal constitutional

claims is inconsistent with the rationaie of Parratt -- which is

limited to fourteenth amendment procedural due process claims --

and is unsupported by any decision of this Court or the circuit

courts of appeals.

7. The petitioners have failed to show that the judgment of

the Court of Appeals conflicts with any decision of this Court or

another circuit court, or that there is any other reason for this

Court to grant further interlocutory review of the denial of the

petitioners’ motion for summary judgment on qualified immunity

grounds. The Petition for a Writ of Certiorari therefore should

be denied.

~? INTRODUCTION

Approximately one-third of the Argument section of the

Petition for a Writ of Certiorari (pp. 8-21) is devoted to the

development of two related propositions: that the consti tutioail

rights of incarcerated felons are iimited by such valic

penclogical odjectives as deterrence, rehabilitation, and

institutional security; and that the judgments of prison

officials on matters of institutional security-are entitled to

considerable judicial deference. These are propositions with

which the respondents do not quarrel, and with which the decision —

of the Court of Appeais is not inconsistent. At the same time, |

however, it is clear from decisions of this Court which the

petitioners themseives cite (Pet. at 9-i0) that prison inmates

are not wholly without constitutional rights, and that

“institutional security" is not a shibboleth the mere invocation.

of which automatically vitiates those rights. See, e.g., Turner 3

v. Safiey, __ U.S. __, 107 S.Ct. 2254, 2265-66 (1987).

In this case, the egregious conduct of the petitioners, as

demonstrated by the record before the Court of Appeals,

constituted violations of "clearly established" constitutional

rights that could not possibiy be justified by reference to

institutional security. Certainly there was no legitimate

reason, in terms of institutional security or otherwise, why the

searches had to be visibie to numerous institutionai employees or

other inmates: why the inmates had to de subjected to verbal -

abuse; why the defendants made no efforts to ascertain whether

Bt RP OSA Ne PRE Te ea Gears T rs

OTS wee ee

Gigita: recta: cavity searches would pose medical risks to any of

the inmates; why inmates were subjected to further rectal cavity

searches even after they nad defecated; or why any inmate was

ion

subjected to a rectal cavity probe with a metal clamp that cause

cleeding that was not attended to.

The Petition for a Writ of Certiorar: also devotes a

considerable amount of space to developing the standards that

this Court has articulated for adjudicating claims of quaiifiec

immunity. (Pet. at 21-27). Again, the respondents have no

quarrel with these standards. in the summary judgment context,

the basic question is whether the respondents have produced

sufficient evidence to support their claims that the petitioners

violated "ciearly y established" constitutional rights. Mitchel.

v. Forsyth, 472 U.S. 51:1, 528, n. 9 (1985); Harlow v. Fitzgeraic,

457 U.S. 800, 818 (i962). The answer to this question depends on

whether a “reasonabie official” would have understood that his

particular conduct violated the rights being claimed. Anderson

v. Creignton, U.S. , 107 S.Ct. 3034, 3038 (1987).2 As the

succeeding paragraphs will show, any reasonable prison official

in the position of the petitioners should have understood that

the manner in which the digital rectal cavity searches were

conducted in this case violated the respondents' then-established

fourth, eighth, and fourteenth amendment rights.

« “This is not to say that an officias action ‘is protected

unless the very action in question “re previousiy been neic

uniawfui . . > But it Se to eay th in the iight of

preexisting law the unlawfuiness int be apparent.” id. at 3036-

3039.

II. THE COURT OF APPEALS WAS CORRECT IN HOLDING THAT THE

GROSSLY AND UNNECESSARILY ABUSIVE MANNER IN WHICH THE

DIGITAL ASCTAL CAVITY SSARCHSS. WERE CORDSCTEO Gy ke

CASE VIOLATED CLEARLY =STASLISEED EIGHTH AMENDMENT

STANDARDS.

A. The Court of Appeals began its anaiysis of the

petitioners’ assertion of quaiifiec immunity from the

respondents’ eighth amendment claims by finding that it was

clearly established in March 1984 that prison officials’

"deliberate indifference" to inmates' serious medical and safety

4 : 57 ie i ha pron

NS Ber Sebo ee ee REO OE

eis io)

needs consituted the "unnecessary and wanton infliction of pain”

cet

that the Cruel and Unusual Punishments Clause prohibits. 859

F.2d at 741 (Pet. at 9a-i0a) (citing Estelle v. Gambie, 429 U.S.

pra

97, 105 (1976), and Hoptowit v. Ray, 682 F.2d 1237, 1249-50 (9th :

Cir. 1982)). Noting that the petitioners did not dispute the |

existence of clearly established eighth amendment standards, the 3

Court of Appeais then followed this Court's directive in-Anderson

v. Creighton, supra, i07 S.Ct. at 3038-39, and turned to an iE

examination of the petitioners’ specific conduct. On the record 4

vefore it, the Court of Appeals concluded that the searches in 3

question constituted "an unnecessary use of force showing a 2

wanton disregard for the health and safety of the inmates," and

that "a reasonable official would understand, under law clearly

CBRN gender GA

established in 1984, that the conditions and manner under which .

the searches were conducted constituted deliberate

indifference to the inmates' medical and safety needs." 859 F.2d :

at 741, 742 (Pet. at 10a, lia).

Me, WN de rtd Oe eg Ln a Nata

B. In this Court, the petitioners' primary compiaint about

the Court of Appeals' eighth amendment holding is that the court

relied on the "deliberate indifference to serious medicai needs"

;

standard from Esteiie v. Gamdie, supra, rather than the 2

“unnecessary and wanton infiiction of pain" standard from Whitley

v. Albers, 475 U.S. 312 (1986). (Pet. at 37-38). This complaint

is without merit, for severa. reasons:

1. The Court of Appeais expiicitiy recognized that ‘the

"Geliberate indifference” standard was derived from the

“unnecessary and wanton infliction of pain" standard -- and found

that the search procedures in question were “maliciously and

sadistically applied for the purpose of causing harm." 659 F.2d

at 741, 742 (Pet. at 9a-i0a, i2a).

2. The Court of Appeais referred not only to deliberate

indifference to the inmates’ medical needs, but also to

deliberate indifference to the inmates' safety needs, reiying on

its own pre-1984 decision in Hoptowit v. Ray, supra. 859 F.2d at

741 (Pet. at i0a, lia).

3. Given the nature of the "searches" at issue in this

case, and the petitioners’ faiiure to provide minimai sanitation

or check on the inmates' medical conditions, the petitioners’

conduct plainly did implicate the inmates' serious mecicai needs.

5. In any event, the proper resolution of this case does

not depend on whether one applies the "deiiberate indifference"

standard or the “unnecessary and wanton infliction of pain”

standard: No reasonable prison official could have believed that

the manner in which the digital rectal cavity searches in this

case were conducted was consistent with either standard.

C. The petitioners seem to suggest that their conduct was

permissible because other eighth amendment cases assertedly have

involved even more egregious conduct. (Pet. at 40-41, citing

Meredith v. Arizona, 523 F.2d 461i (9th Cir. 1975), Gaut v. Sunn,

792 F.2d 874 (9th Cir. 1986), and McRorie v. Shimoda, 795 F.2d

780 (9th Cir. i1966}}. Quite apart from whether the petitioners’

characterization of the comparative egregiousness of these cases

is correct, however, the fact that certain conduct has been heidc

to violate the eighth amendment does not imply that any and all

less egregious conduct is constitutional, or that any reasonable

prison official would think sc. Moreover, the petitioners simp

ignore other, pre-i964 Ninth Circuit decisions holding that

standards. See Hoptowit v. Fay, 682 F.2d 1237 (9th Cir. 1982)

{brutal behavior toward inmates, inciuding arbitrary shakedowns _

and theft and destruction of property); Giiiespie v. S% Letts,

629 F.2d 637 (9th Cir. 1980) (deniai of health needs, failure to

protect from inmate attacks, and placement in coid celi).3

D. Because the petitioners coud not reasonabdiy have

velieved that the respondents were searched in a manner

consistent with then-established eighth amendment standards,

their claim of qualified immunity properly was rejected by the

courts below. This aione is sufficient to warrant the denial of

the Petition for a Writ of Certiorari in this interlocutory

context -- since even if the petitioners were entitled to

qualified immunity un the respondents’ fourth and fourteenth

amendment claims, they still would have to stand tria. on the

eighth amendment ciains.

THE COURT OF APPEALS CORRECTLY HELD THAT THE

PETITIONERS’ CONDUCT VIOLATED CLEARLY ESTABLISHED

FOURTEENTH AMENDMENT STANDARDS.

Lan

A. In rejecting the petitioners’ defense of qualified

immunity with respect to the respondents’ fourteenth amendment

claims, the Court of Appeais began by noting that it was clearly

established in March 1984 that the Due Process Clause prohibited

treatment that was so "brutal" or "offensive to human dignity" as

to "“snock the conscience." 859 F.2d at 742 (Pet. at lia) (citing

3 The vetitioners' citation of Rutiedge v. B3oard of

Recents, 660 F.7¢ 2345 (9th Cir. 1961) (Pet. at 41), is

completely inapposite, since that case did not even mention the

Eighth Amendment -- perhaps because the plaintiff, who simply

alleged that his football coach had hit him once in the mouth,

was not a prisoner.

Hochin v. California, 342 U.S. 165, i72, i74 (1952), and Meredith

Vv. Ar=zona, $237.24 482, 483 (Sth Cir. 2375)). Tne Court of

Appeais then held that a reasonabie prison official would have

Known that the particular searches invoived in this cuse "were

conducted in a brutal fashion that was not justified by a need

for force"; that "the extent of possibie injury was great": and

that the record supported an inference that "the for-e was

maliciously and Sadistically applied." 659 F.2d at 742 (Pet. at

12a).

5B. The petitioners' oniy reai argument regarding the

respondents' fourteenth amendment claims (Pet. at 35-37) is that

they are not separable from the eighth amendment claims in light

of this Court's indication in Whitiey v. Albers, supra, that the

Due Process Clause affords prisoners "no greater [substantive}

protection than does the Cruel ane Unusual Punishments Clause.”

475 U.S. at 327. But this argument provides no reason for

granting certiorari in this case -- since the Court of Appeals

correctly rejected the petitioners' defense of qualified immunity

to the respondents’ eighth amendment claims.

Cc. At the same time, the fourteenth amendment issue, even if

co-extensive with the eighth amendment issue, lends further

support to the judgment of the Court of Appeals, since pre-1984

(and pre-Whitiey) substantive due process precedents gave the

petitioners additional notice that their conduct could not

reasonably be regarded as consitutional. See, e.g., Rochin v.

California, supra; Meredith v. Arizona, supra; Allison v. Wilson,

434 F.2d 646 (9th Cir. 1970); Wiitsie v. Caiifornia Department of

Corrections, 406 F.2d 515 (9th Cir. 1968).

RS ee ee Oe I ee Se Fe eee Se oe Pe ae EN Ae: ee ot ee ¥¢ a ae

me naa aw om : ee

IV. THE COURT OF APPEALS’ REJECTION OF THE PETITIONERS'

FOURTH AMENDMENT CLAIMS WAS CORRECT, AND PROVIDES NO

BASIS FOR GRANTING CERTIORARI.

A. The Court of Appeais rejected the etitioners’

claim of qualified immunity not oniy on the respondents' eighth

and fourteenth amendment claims, but also on their fourth

amendment claims, hoiding (i) that the petitioners should have

xnown that the abusive and unreasonable manner _in which the

@igital rectal cavity searches were conducted violated ciearly

dotihi tates fourth amendment standards, and (2) that it was

unnecessary to decide whether the petitioners had sufficient

cause to conduct even proper cavity searches. 659 F.2d at 740-

41 (Pet. at Ta-9a).

3. ith respect to the fourth amendment issue, the

Petition for a Writ of Certiorari does not argue that the

searches in question were reasonable or non-abusive. Rather,

the petitioners rely exclusively on the argument that prisoners

have no fourth amendment rights at all, even in their persons.

The petitioners' position essentially is that this Court has

given prison officials a "green light" to search inmates' body

cavities for any (or no) reason and in any manner, no matter

how abusive. (Pet. at 30-35). This expansive, abstract

“.3ent does not warrant the granting of certiorari in this

”

)

‘

ne foliowing reasons:

i. Given the quaiified immunity context of this case,

there is no reason to consider the applicability of the Fourth

Amendment to searches of prisoners' body cavities at the

current interlocutory stage of the proceedings. Because the

Court of Appeais was correct in rejecting the petitioners'

qualified immunity defense with respect to the eighth and

fourteenth amendment ciaims, the petitioners will have to stand

trial on those claims -- which involve the same factual issues

as the fourth amendment claims --in any event. Consequentiy,

sn terms of tne essentiai rationale for disposing of qualified

smmunity Claims at *he summary judgment stage -S =uTTTActing

a ORY ‘

pubiic officiais from the burdens of litigating non-meritocrious

claims -- granting certiorari to review the fourth amendment

issue would serve no purpose.* See Hariow v. Fitzgersid, 457

| U.S. 800, 814-19 (1982).

2. In any case, the petitioners' position that the

Fourth Amendment does not apply to prisoners in any context

whatsoever is simply without merit:

a. As the Court of Appeais recognized, 659 F.2d at 732

(Pet. at 7a), this Court clearly indicated in Beii v. Woifish,

441 U.S. 529, 528 (1979), that even visual rectal cavity

searches must be conducted in a reasonable, non-abusive manner.

While Beii heid that inmates couid be subjected to visual

”

cavity searches on "iess than probdabie cause," this Court was

careful to iimit the manner in which such searches could be

carried out: :

Nor do we douot . . . that on occasion a security guard

may conduct a search in an abusive fashion. ... Such

an abduse cannot be condoned. The searches must be

. conducted in a reasonabie manner.

Id. Obviously, if visual rectai cavity searches must be

carried out in a reasonabie, non-abusive manner, so must more

intrusive digital rectal cavity searches. Moreover, it is

clear from the context of the Bell opinion that its limitation

of rectal cavity searches to those that are reasonable and non-

abusive was derived from the Fourth Amendment. ic.

db. Contrary to the petitioners' assertions (Pet. at

31-32), the preceding conclusion is not inconsistent with the

Bei: opinion's citation to Lanza v. New Yorx, 370 U.S. i39

4 with respect to the burdens associated with pre-trial

procedures, the respondents wouid note that extensive ciscovery

aiready has *taxen piace, and that the District Court has set a

@eacéiine of March 24, i$5$, Sor the completion of discovery.

(1962), and Stroud v. Snited States, 25: U.S. i5 (i919), or

with this Court's decision in Hudson v. Paimer, 466-%.S. 517

(1964). Stroud simply heid that the seizure of a prisoner's

letter was not unreasonabie under the Fourth Amendment; and

Lanza merely suggested, in @ictum. that a prisoner did not have

a reasonable expectation of privacy in his prison ceil. 370

U.S. at 143. Both cases were an-lyzed under the Fourth

Amendment, and they suggest, if anything, that prisoners do

have some fourth amendment rights. Hudson, iixe Lanza, dealt

only with a prisoner's reasonable expectation of privacy in his

ceili, and does not speak at ali « a prisoner's reasonable

expectation of freedom from invasions of his body cavities --

especialiy invasions that are abusive and unreasonable.

c. The Court of Appeais' hoiding that the Fourt!

Amendment applies to searches of the persons of prisoners is

supported by several other circuit court cases. See, e.g.,

Bonitz v. Fair, 804 F.2d 164 (ist Cir. 1986) (involving facts

similar to those in this case); Hodges v. Stanley, 712 F.2d 34

(2d Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981);

Hurley v. Ward, 584 F.2d 609 (2d Cir. °978); United States v.

Savage, 482 F.2d 1371, 1372 (9th Cir. i973), cert. denied, 415

U.S. 932 (1974). The petitioners cite no circuit court

decisions to the contrary.

C. Addressing the “fact specific" question of whether the

petitioners could have believed that the digitai rectal cavity

searches to which the respondents were subjected in undies on

1964 were lawful "in liight of cliearly established law," the

Court of Appeals conciuded that no reasonable prison official

could have believed that the manner of those searches was

reasonabie and non-abusive under the Fourth Amendment. 3859

T.t2 at 741i (Pet. at 9a). No other conciusion would have been

possivie on the egregious record in this case, and the

petitioners do not argue otherwise

). S438 28 NOT Aw N

OF PARRATT V. 7

VIRTUALLY ALL F

A. Ironically, the weaxness of the petitioners’

pos.t.ion, in tai:s case is i.iuminated by their finai argument

that this Court should "excend" its decision in Parratt v.

Tayior, 451 U.S. 527 (1961), to remove from the purview of the

federa: courts “all constitutional injuries cognizable under

section 1963 except those based upon an alieged! iy:

constatutliona. state iaw, policy, procedure, pattern, or

practice.” [Pet at 43-44). This attempt to turn Parratt into

what the petitioners characterize as a “magic wand" ‘Pet. at

45 is supported neither by the rationale of Parratt nor y any

the lecisiv »f this Court or the cir t courts of appeals

3. in Parrats, this Court heid that a state prisoner who

a..eged that prison *fictals negliigentiy had ios? . “BAe

hobby materiais vaiued at $23.50 had not stated a valid

fourteenth amendment claim for d-privation of property "without

S At two points in the Petition for a Writ of Certiorari,

the petitioners briefly hint at an additional issue that is not

inciuded in their Question Presented: the individual liabilit

of particular petitioners to particular respondents for

Particular incidents. (Pet. at 34, 39, n. 7). This issue,

however, is not properly tefore this Court, for at least two

reasons. First, the petitioners' Motion for Summary Judgment,

asserting that its argument was "narrow and single-barreled,"

raised oniy one issue, namely the petitioners'collectiv

qualified immunity from damages, and it made no mention of any

issue of individual liability. (District Court Record Entry

216). Consequentiy, as the District Court noted, 663 F. Supp.

at 402 (Pet. at 15a-i5b), n. 2, the petitioner's Motion was

insufficient to raise such an issue as a basis for granting

summary judgment. Celotex Corporation v. Catrett, 477 U.S. 317

(1986). Second, under Mitcheli v. Forsyth, 472 U.S. 511

(2965), a defendant may take an interlocutory appeal as of

right only from a denial of summary judgment on qualified

sammunity grounds. Therefore, even if the individual iiability

issue had been properly presented to the District Court, it

could not have been included in the petitioners’ interlocutory

appeal to the Court of Appeals. See also Bonitz v. Fair, 804

F.2d 164, 266-69 (ist Cir. i986).

‘

due process" -- because the state did provide "due process"

through an adequate postdeprivation procedural remedy. 45:

U.S. at 536-564. This Court was careful to note that the

ciaims of the plainti tf in Parratt were brought under the Due

Process Clause of the Fourteenth Amendment simpliciter, and

consequentiy differed from claims involving violations of the

Fourth Amendment or the Eighth Amendment. 451 U.S. at 536

— ee!

(contrasting Monroe *". Pape, 365 U.S. 167 (i961), and Estelie

v. Gambie, 429 U.S. 97 (1976)). Thus, Parratt was strictly

limited to procedural due process claims.

C. This Court has applied the reasoning of Parratt to

intentional deprivations of property, Hudson v. Paimer, 468

U.S. 5:7, 533 (1984); and some circuit court decisions have

applied Parratt to alleged deprivations of liberty without

procedural due process, see, e.g., Birkenhoiz v. Siuyter, 857

F.2d 1214, 1217 (8th Cir. 19868), and Wiison v. 3eebe, 770 F.2d

578, 584 (6th Cir. i986) (en banc). However, the petitioners

have not cited, and the respondents are not aware of; any

decisions of this Court or the circuit courts that have

extended Parratt beyond the procedural due process context .§

In fact, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 436

(1982), this Court held that Parratt was inapplicable even to

procedural due process challenges to deprivations of property

under “established state procedures."

D. None of the respondents' claims in this case invoive

alleged violations of procedurai due process. Consequently,

Parratt v. Taylor provides no basis for granting the Petition

for a Writ of Certiorari.

6 Page 44 of the Petition could be read to imply that

Birkenhoiz v. Siuyter and Wiison v. Beebe, supra, applied

Parratt to substantive, rather than procedurai, Gue process

Ciaims. Any such implication, however, would be incorrect, as

both Birkenhoiz and Wiison are procedural due process cases.

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+. Plaintitis were incarcerated in Cell Block 6

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“4 3 rectal cavity search, the CMA put a Gcove on ais sight

+ Ranc, applied KY gel to a finger, and then inserted ch

5 finger s2ts che inmate's rectun. (Perzty Sepo. 26).

6 | ++. Upon completing a search, the CMA would remove

7 She glove with the ungloved hand. The CMA would then

| y

3 use the free hand to place another glove on the hand to 3

9\|3e usec in the next cavity search. (Teeples tepo. 32; ;

. 2

Perry Dero. §3). The CMA's ¢id not wash cthei> hands | a

11 | follcwing she removal of the used glove or at any other

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; 12, time Setween the searches. (Whittington Devo. 43,44; | &

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17) MA's to wash Sheir hands. (Perry Depo. 28; Teeples

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27 4d

; 2 ‘ ,

(Rletcer Sesc. 26: Dickey Sesc. 23). Other s=2ates

— — 4

Some cs: tne searches seins conduc-ed.

‘

)

4 —i5. Inmates 4i¢d soz G-ve sSnei> consent ‘sr che

5 searches. (Cummingham Aff. 4 <0. wowry Aff. ¢ 6,22).

A rectal exam is considered a mecical procedure which an

8 (SeCarvains Seppe. 156).

3 26. Ne alternatives <5 :h recta. searches were

'0 citerec ts any of the ‘nma-es. (Seaty Seppe. 24,728).

‘7 lmmates were net siven an OPrortamity tc voluntarily

- 2

a +9 acm i ’ °

5 «+ pass any suspected contrasancd. (Roefter Sere. 3:3: Ferry

> :

=s8B ‘3 3epe. $2).

3.3

5 Par 14 i7. The CMA's serformed xo visua: searches <2 the

295 - ;

SER «('S «6sAmates' rectal cavities. The -Rhm@ates' mcuths and xcses

228

~™ 6 were net searched. (Lewry Aff. 49; Cumningham ass.

18 28. Guards were saughing and ‘cking while -h

ieee t2s were Seing subiected <5 she rectal cavity

20 searches. Teeples Sepc. 27; Cumningham Af?. 47 §; =cwr

21 || ASS. - 9-22).

2 +3. Defendants sade so astenst °c examine inmates’

23. mecical records srisr 2s concucting she reccal cavicy

4 s@arcnes t5 see if the exam woule PCSSiS.7 agsravacta a

whether chev

2 Teetles Serco. 22). <Inmaces we>e@ sc? aske

aE ee ee ee Oe ee at ey

1 | Rag any history of sedical srodiens

2 “aggravated sy she seasch. (Teeples a

3!;aAsz. 49 7). IS is pessible that a rectal exam would :

4, aggravate a pre-existing condition suck as a hemorrhoid 3

$ or rectal fistula.- (Persy Depo. 38; SeCasvalho Desc. | a

6 150) | 3

? 20. Mone of the prison personnel, iacindis

§ mecical serscennel, had ever received any ‘raining or 4

9 snstructicon regarding hew ‘to perform a rectal cavity ‘

10,| searcn on inmates whe were resisting the search. :

11. | (WhRLesstagsen Depo. 37; SeCarvaihno Depo. :08; Perry Seso.

> i

. 12,37). The searcnes ¢concucted on March :5, :984, were che

2 = i !

== 1 ,

=N 13,| 22st rectal searches of any sort that some of che CMA's

-23 ~

223

+ a ‘

rr 14 Rad ever performed. (Beaty Sepo. :2). ee

2-5 ;

s2— 8/1 22. No training ¢iia was ever shown on hew to | 7

353 |

<-> ig | conduct iamate searches. (Seaty Depo. 24). The prisen

{

17';Geecser €id aot train or ineteuct the CMA's oF

1g | PRysician's Assistants cn how to properly sertorz a

eR PAeE es eather

19 :|¢igital rectal examination. (DeCarvalho Seppo. 46).

20. 22. In one CMA's opinion, the setting in which the

1 (recta. search csok slace was not an aporspriate nedical

“settings and it was ct necicaiiy sound *9 perfcsra the

tTecta. searches without washing Sands sSetween each

: % 2 2 - \

2 |}seascn. (Whisvsagten Jeso. 49, $0}.

| @ — é : — # <

25 23. ca She cpénicn of a detendant srisen ecetae,;

: F Re Nee ee .

26 | Sne@ sarer cm She examinacticn casie saculé save seer

49 3 6d

eS eee eee

SEMEN, ON ON BT MT Be ee ae

MIZONA Stale Uliiversity

Tempe, AZ 85287

(602) 065 6968

etween inmate searches in order ‘sr 2he

procecures <°o Se aedically appropriate. (JeCarvalko

24. <n the opinion of a CMA and a 725S0N Coctsr,

performing a rectal exam on an unwillin , Strugg.iae

samate is detrizental. Th song term effect could se

snjury or an increased chance sé rectal proctlems in the

Suture. (Perry Sepo. 37).

2s. in the opinion of a defendan: prison doctor,

+2 was unnecessary ‘to serforn rectal searches in tre

hallway when there were examining rcoms availaSie, and

/$% was not appropriate for other prison emp-cyees oF

(inmates 83 Se present Gu>ing the performance of recta!

searches. (SeCarvahio Depo. :45, 146). The searches

were mot comecucted in srivate and therefore visiated a

|Provision of DOC Policy #408. (Beaty Depo. 20).

26. Authorization for the rectal searches came -

\Srom Defendant Ted Jolley. Mer. Joiley did net say where

‘Ris orders came ‘rom cor explain why the searches were *=5

‘Se cone. No written instructions were given. (Teeples

ais Om March i3, i984, several of eh inmates who

“Rad seen subjected to rectal cavicy seascnes is C36,

or ° 2 Py _ : 444 - 9 . ¢ a

[enGseesisg Frasnes see, Suscsequentliv were taxen <2 the

Fe ee pees Ly j : ra

wORSTAa. Sealtn Unit at the AS? (Contreras v@sc. 23, 26;

“Amcerson lero. 13; TeCarvalks ~erc. .99), where al: ss

1 then except Plaintiltt Palmer were sub‘ected co furcher

- S-g+ta. rectal cavity searches sy Defendan: DeCar-valzc.

3/; (DeCarvalke Sepo. :69, 2190).

4) 28. While at the CEU, the inmates were handc fied

$ Sehind the back; additional restraints included leg

$§ shackles and telly chains. (Contreras Desc. 27;

7 DeCarvaihe Depe. 61; Morrew Dere. :2, :9).

29. Defendant SeCarvalho knew that the inmates +

9 | was searchin at the CEU already had seen subiected 29

— 10 | digita: rectal cavity searches in CB6 earlier that ¢ay.

- 1 i (DeCarvaino Depo. 1:0).

a 12 | 30. None of the defendants involved in the

28. 13 || searches at the CHU tried to determine from the inmates

i alles Snei> mecical records whether they had any nedica:

i §= ig | condiztens shat would make digital rectal cavity

zag 16 “searches shappropriate. (DeCarvalho Depo. 187; Stapler

17 Depo. 66, $2).

‘al 3. None of the inmates were asked i‘ they

19 || eanpented to the rectal cavity searches at the CzU

‘| ‘

20 || (DeCarvalno Depo. iii, i87; Stapler Depo. 35), and none

21 ic the cefencants involved in the searches offered she

22 | sentee any alternatives. (Contreras Depo. 42-43;

3 (‘Stapler Depo. 43, 44, 45; Cunningham Af¢. 4 24).

24 | 32. The inmates alsc were X-rayed az the CHU.

= 2g (Contreras Sepe. 24; Andersen Serc. 3:; SeCarvals

2 | 2@rc. :09, 1:0). The X-rays were caxen Sy cefendan<s

“

seal, in rien aa ; aa ee Pe fe

Ae A Se re 8 oe arte i SE 6 et ie Bel ete a ee hg es Pe

Ati2ond State University

lempe, AZ 8520/7

(602) 965 69648

DeCarvainc and Contreras, neither 54 whom was a licensed

Z-ray <echaiciaz. (SeCarvache Seppe. 73, 2:3, 224:

contreras Sesc. 24, 28).

33. The inmates were nct asked i sney ssnsencted

so X-rays. (Sontreras Sere. 43; DeCarvalhe Depe. 334).

In Defendant DeCarvalho's 5 snicn, i2 £8 snot znedical:v

appropriate ts perform X-rays cn individuals witheou-

she:r consent. (DeCarvalhe Tesc. 114).

34. in addition to the digital rectal cavicy

searches anc X-rays, Plaintis‘ Palmer was sz tected to a

palcnsul. rectal probe sy a ‘female prison doctor,

Defendant Stapler. (DeCarvalno lepe. 78, 3£:;: Contreras

Dero. 34, 38). Plaintif‘! Palmer was not asked -s

consent [9 Snis procecure (Stapler Dero. 38: DeCarvalzc

(Stapler Sepo. 43, 44, 48).

35. Defendant Stapler first perforned a é2¢i cal

\Tectal search on Plaintif‘ Palmer: then inserted a

Sigmoiccescsse into nis rectum: then searched sis

Gigitally again; and then inserted a "Clamp" and two

fingers 2229 Sis rectus. (Stapler Seppo. 47-40, £4).

‘Plaintiiit Palmer resisted this procedure anc was

(physically restrained sy fsur CSO's. (Cordova Sepe. 23,

SC; Svapier Sess. 4:1, 42: 3eCarvalho Desc. 3C).

36. in sefencant SeCasvalhe's cpinicsn, che =se 22

@ sc.amp scm an inmate whe ‘s Struggling is uct sedicaliy

ALiZ0td State Universit

Tempe, AZ 85207

(602) 965 6968

a) ae

;sublsected to a furcher disital rectas cavi

appropr-ate, and it would be more appropriate 5 piace

cae camate in an ‘isoiation ce::.

37. Defendant Stapler did not review Plaine:iss

Palmer's medical history prior tc the probe procedure

(Stapler Depo. 60, 61}. Although defendan: Stapler

noticed Sleeding in Plaintif‘ Palmer's reccum Gusiag th

proce, she cid not provide or arrange any Solliow-up

treatment. (Stapler Desc. 60, 83, 64).

38. At the CEU, at least one plaintiff‘, Lowry, was

first X-rayed without his consent. When that X-ray

sec t9 shew anything, a non-aedical asP emplovee

snsistec that a second X-ray be taken. After Plaintis?

nowry umsuccessfully attempted to defecate, he was

subjected to a further digital rectal cavity seasch,

without his consent. This search procecur @ was visible

|S female personel walking Sy the examining rcom.

{Lowry Af? . qq 412-17) ‘

39. Another plainti??, Cunningham, was ‘firs¢e

| She CHU, without his consent and witheut any

alternatives Seing offered. Pilaintit? Cunningham then

was X-rayed without his consent, and was told to

celecate. Alter he cefecated, ne was subtected <5 vet

amnctner <igita. sectal cavity search. At sicus *%ines

(Suring these procedures, AS? sersonnel sade ix So 352g

. 10d

; 4 a 6 a en ete tao

PE RE eres Oe VERIO EE RG RE ae a A PR oS

(DeCarvalne Sere. 86-

RAH at) * ws

Ser at eo

oP ae

Attzota State University

Tempe, AZ 65267

(602) 965 6968

remarks vesarding Piatneit? Cunnianghas. { Cuasisekan

Af2. 4 20-38).

40. YFerlowing che searcres it che S20 on Mares ¢

—

1984, at least some inmates were isclatec in special

ceils, or tn theis regucar ceiis, without any of thesis

propers<y or any contact with sther serscns stner chan

AS? serscnne.. These inmates remaine< in isciation at

Least untis March 22, :984. (Cumnsiagh SS. ¢ 36;

Gricvaiva Sepo. 43, 77; Wawrzaszek Depo. 33).

4.1. Om Marck 1:5, 19864, contact visits fcr C36

immates were discontinuec. (Wawrzaszek cero. 328).

Ii. MARCHE 22 ane 23, 1984

42. Cm March 22 an¢ 23, :984, Cetendcants sertscr=ec

¢igical rectal cavity searches on approximate:y :60 —

samatces, including piaintit?s, Rouses .2 CB-6. (LaRue

| Dese. 34; Whictington Depo. 19-20).

43. S@fendanes conducted digita. scectal. cavity

‘searches wm tables set wp in Rallways in C3-6.

(Andersen Sepeo. :3; “taRue Segoe. 2:2. 4).

44. inmates were prysicaliiy res<tracnec with

\nandes2?s and leg isons sefsre and during “ne 3:¢:%a.

‘rectal cavity searches. (Anderscn Sepe. 22; Dickey

Sese. 37; csaRse Segoe. <2. 22).

48. The CMA's gestfssaing she 4i¢ica. recta. cavsit7

TAREE FERRER BFE CEw RE ote y

Tempe, AZ 6626/

(602) 965 6968

-_-

searcnres ¢.¢ ast search other sedy cavities for

.conerasanc. (laRue Sepo. 23: Fersy Seppo. 43).

#65. Nome so? che AS? serscnne: involved i= che

seartcnes citerec che inmater any alternatives to che

(Gig-ta. rectal cavity searches. (LaRue Sepo. 18; Perry

47. The rectal cavity *earches were "zandatory"

Ss> each iamate. (LaRue Depo. ::: Savinen Sete. 29).

438. i5 an camate resisted she disitai recca:

cavicy search, he was physicai:y forced to submit <5 che

search. (Amderson Sepo. 28; Sickey Seppe. :7, 18). Some

samates were physically neid ¢cown Sy AS? personnel

Guring che digital rectal cavity searches even <*hcugh

they ¢id act resist. (LaRue Deseo. i7, 22, 46: Perry

—s

(cape. 3:9).

49. The digital rectal cavity searches were

“conducted 22 Sail view of a number cf AS? personne: and

otnes inmates. (Acuma Sepe. 27; Anderson Seso. 26;

Savinen Sepe. 37, $3).

SO. Portcons of the <ig¢ita. sectal cavity searches

re vidcectapec Sy an AS? employee. (Acuna Seso. 2::

‘LaRue Depe. 22, 22).

$i. The Saccs :2 which the ¢i¢gita: recta: cavicy

searches were perisrned were =ct cleaned i= any way

selsre sr curing che searches (case Sesc. 32; Ferry

Depo. 26), amc the searches sherefsre were not conducted

ore

Se eee He ee ty me

ee eee tee

eMetcutia state CibiVveEersily

lene, AZ 65207

(602) 965 6968

searcres were psertcrmec were Act clLeanec cr ssvered sy

Sanitary yaper sefsre cr curing she searches. (taR<e

Sesc. :$, 32; Lowsy A??.-¥ 20).

$3. The CMA's who sestformed she searches csuched

tne Sccles cf the inmates with their unglcved nands

(\Cummingrasa Att. 4 40), and che searches cherefsre were

Rot sconéucted according <0 standard sedica. srocedure.

$4. The CMA's whe performed che seasches i= che

R@.cs sut on and remeved che sicve used tm each sears

Wich their free Band. (LaRue sepo. 24, 28; Ferry Sersc.

S$. TRe CMA's who yerfsrsed the searcnes in che

Raics 2:4 act wash cheir> mands setween searches (iaru

Sepe. 25; Savinen Sepe. 4:), and the searches cherefcre

were =ct performed in a nedicalcy scund zanser

scagten Depo. 44. 49, 30).

$6. The CMA's whe sertforsed the seassnes were =s*

esatsec¢ or experienced in gertoraisg éavecuncary éisitac

vecta. savity seasches. (caRte Seso. 37, 329: Fer=

2 -

eee. 33.36: MRStctecsgzsn sese. 3

$7. Nome of the AS? perscnnel invelived in the

searches tried “so determine from the inmates o> thei:

mecica. records whether they had any medical conditicns

i That would -naxe digital rectal cavity searches sedicaicy

< ehappropriate. (LaRue Depo. 32; Perry Depo. 38).

P $8. The inmates were act allowed to clean

’ | hénseives aiser the searches. (LaRue Depo. 3:;

A WRicctington Sepo. 45, 46). a

‘ $9. The inmates who were searched cn March 22 and

‘6 23, 1984, included inmates who had seen searched |

, Tepeateciyson March 18, i984, and then isclated.

3 ,, | (Caummiagham Af?.; sowry Af?.).

3 i 60. The defendants had not conecucted any digital |

123 7 rectal cavity searches ‘or security purposes at the :

733 ‘ | Arizona State Prison prior to March :8, 1984. (Grival‘a |

3$ :

:5¢ - Depe. 34; Wawrzaszex Depo. 20). The defendants save

*. | conducted no di ‘tal recta. cavity searches ‘for security |

_ purposes at the Arizona State Prison since April of

! | ;

2 142

state Uliversity

AZ US?b7

(002) 965 69608

ANG tld

Tene,

pis)

2384 Nawssaszek cesc. 20)

Teds avesvaws SusMicsnas Cais :8th day o

sae*

ee sr erat

A.$.9. sAW SCHECCL

Rooert 3arteis

Lead Counse. ¢

f *

Lawrence 3.

Counsel

Weexs

Sor Fiasntize

Cunningham and Low

Romna Hodges

Student

vames McXay

mwa - --- =

sudent Attorney

Cindra White

Stucent Attorney

Copies of she toregocag

aaicec Shis 13th day of

Feoruasy, i967, <0:

Remals Greenkaigh, Counsel for sefendancs

°¢ FI - ° a “ : <

Aoi¢@ 3encheizn, Lead Csunse. Yer Piaiacis

Michmae. Eiserer, ead Counses for F7iaist:

oy S

~~“

z RNAL MANAGEMENT i:

PCLICY AND 7ROCSUURE MANUAL

2aCz:

4 Z fYyZr-arm tan i

SROVE 7 oo ~e + es ~- ~

wit gt Fos eae

ye, i t¢4, so ~~ =EFPECEIYE

wihet YUE VIELE } sf ‘

wt * ~~ we we / . re

NMATE SEARCHES Revis

(Supercedes Policy #408 cated 7/23/80)

Pieeeirewerncalattaiticetsorioninm rence

To prev.c* policy and procedure ts ensure she control of weacsens and

in the various institutions Sy effeccive searches af facilisi

AUTHORITY :

A.2.8. 41-1604 - Duties and Powers of she Director

SOL ICY:

tt is the sciicy of the Sesarenent of Corrections that there is a comprenens ‘

stan for searches that wili inhibit inmate traffic in contraband, and that 22

is a staf* training proqram in effective search techniques that orotece both

staf’ and

inmates from bodily harm.

Fach shaxedown and/or search of faciiities and/or inmates must Se

specificaily authorized by the Chief Executive Officer or designee

exceot where routine searches are a part of a published ane acerevec

stancard operating arecadure.

require a minimum of two officers oresent Curing she searcna. [nmates

will be presens during a search of tneir living area uniess inseisus:

security dictates otherwise, in which case Socumentation is requires.

Searcnes ¢csnductad at a Community Treatment Center must de carried su

by two staff memoers unless authorization has been recaived from the ~

C.7.C. Supervisor or the Assistant Director of Aduls Community Services

for one officer to concucs the searcn. ze

‘Searches should 5e

Csnersi esrtrasand

soncucsed no more frequently shan Aecessary

and recover missing sropercy.

Searsnes will 3@ concuccad in such a manner so avoid unnecessary fereg

or IAGisnisy. £9 she inmate and °s ressece she -icht 27 she inmasa se

any orccerty ausnorized Sy inssictsutional regulations.

i6d

«ee

{ mm. | ? gt:

: bo- o @eve Ak MAS. ta =~3,. rs i

POLICY AND PROCEDURES .MAtVAL , —

ieee ee

2 of 2

| $V3SEC7: ) ele

| INMATE SEARCHES (Cont'd) frriccot.

} ‘Syoercedes Salicy sans dated 7/23 rep Smee ee

| \eovew wee wl i Ney TW ww “s~ jews / z 2)4454°-

PROC=SURE:

1. Csiseria for Conducting Searshes: (Cont'd!

f, The Chief Security Officer on duty will authorize an neciate searcn

only when circumstances justify concucsing a searcn oricr ss ootaining

the Chief Executive Officer's permission. When an immeciate search ‘:

concucsad, the Chief Executive Officer will se notified as tcon as

possibile after the search,

Procedures shall provide for appropriate use of sensors an

devices, the apercoriate searcn of all vehicular traffic

Scifstion and the search and supervision of trustees.

nh. Each Chief Executive Ifficer shall publish, for szaf! ane

asoroved inmate sersona! items.

2. S30odv Cavity Searches:

a. Body cavity searches may be authorized only wnen there is orccasie

Causé 9 Selieve that the person to be searched is in the sessess‘cn

of contraband. The determination of prscable cause, and the auther:-

zation Ss conduct a Sedy cavity search, will be nace sy she Chief

Executive Officer or designee.

3. Great discretion is required in the authorization of a Secy Cavity

search. in the evant this is authorized, it will be conducted by

health care personne! or correctional persenne! trained Sy Ae3i 8h

care personnel. -

¢. Staff will conduc: rcutine visual inssections of sedy cavicies as an

aperoved method to contro! contraband. This inspection will se cen-

ducted in private Sy trained sersonne!.

¢. Body cavity searches and visual inssections will be conducted ay $cal/

of she same sencer as she inmate.

2. Inmate Notification:

a: This policy will se sosted-in all inseitueionai living areas.

3. A 63ey of shis solicy wiil be keot on file in every cOC seiicy nanua!

and Mace availaoie co inmates uncn reques:.

[MPt SMEMTAT SOM

TAis policy will be implemented on effective daca.

174

Fey BN ee ee NE ye Se

- pa

i a Y

’ '

Seana

PTT ICATE VICE

The undersigned hereby certifies that on the

day of December, 1987, he mailed one copy of the

foregoing document, with first-class postage pre-paid,

te:

Ronald Greenhalgh, isq.

Assistant Attorney General

1275 West Washington

Phoenix, Arizona 88007

ROBERT 3ARTELS

t$a

;

-~iee

Certificate of Service —

The undersigned hereby certifies that om the i3th day of

March, 1989, he mailed one copy of the foregoing document, with

first-class postage pre-paid, to counsei for the petitioners:

Ronaid J. Greenhaigh

Assistant Attorney Generai

for the State of Arizona

1275 West Washington

ec Phoenix, Arizona 85007.

Robert Bartels

Counsel for Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.