# Petition for Writ of Certiorari — Ricketts v. Vaughan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0906%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1012 ## Text 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. ii 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 iv 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 ) 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) 31 20 34 39 36 44 11 23 ix 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, v. 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 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 eo 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 - i : -- > ned ° vs 4 _ Pernt gee ee aetigtton ES FoR RE EAI OE RING Bis EE i ee tte ee LOD ets 3 = $ 4 R + x 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 4 § 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 a ; 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 vo 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. + 5% ° ms ; ye x oe 5 4 ee 4 P} - » 13 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 Ta 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 copynghted © 1988 by Barclays Law Publishers. 12a APPENDIX B Opinion of District Court May 29, 1987 TRACY RAY VAUGHN, Plaintiff, v. 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 3 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 5 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 9 Amendment.” Since the searches involve a potentially adverse health impact, the Plaintffs argue their “serious medical 10 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 F ta 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 m4 = a a m 73) On 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 I. 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 ii ~ iv o 10 - nN 14 17 19 1d 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. « :,8i@2 1,8,9,16 But it Se to eay th in the iight of preexisting law the unlawfuiness int be apparent.” id. at 3036- 3039. = 9 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 7 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 et oe that the Cruel and Unusual Punishments Clause prohibits. 859 F.2d at 741 (Pet. at 9a-i0a) (citing Estelle v. Gambie, 429 U.S. Ls pra f 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" ; : 5 x standard from Esteiie v. Gamdie, supra, rather than the 2 8 “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 ii ae 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 significantly iess offensive conduct violated eighth amendment © 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. 4 Lan 4 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. 32 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' -DEFENSE OF QUALIFIED IMMUNITY TO THE RESPONDENTS’ © 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 ” . th ) ‘ t ~ 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 i4 - 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. 25 (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. ié6 Ne) Renee ae by oo ase a) Laie xy 74 . : —* ae | 2 7 = ¥ Pera ae Cee im ; in Oe thee : se Ae ra es rs ; ww + o- tw~ J 2 eS - wry ‘oat 7 | ‘ tn 4 Se 4 Jown ’ 1 . > ‘s a { A bee ay " z i ge St ig ao ee ae tay ihe Mahi 200 ‘SOME of Appeals Orpplenente} Sxoerpts os pt Record eg, 1-15) ai % : yaw Pog i ae i ‘ ~ " . ofa ede aes EGRESS RT ps Reps Fes AT e SOR es PEPER Re PRY uB tog : Ot we, ek 4 gs ~ ~. 4 aK _ TORO FE ABER + {ex sity ule Oba lempe AZ 85207 (602) 965 6964 “Mbdtnhe nw om ws al on Gesesise is caronelogica: oe” Rotter: Sarce: A.$.2. saw S$ekco: Clisic Cos eeGe of Taw psa 1 © ‘Se? Arizona State Universizy gia Son ta, ag sempre, -rizcna 38287 a $62) $18-7083 : oe -~ ? «a 9 é 4144 ~SURS@, fOr Plaiatisss Lead Aa . = mim UNa Tso -~A- www Ne i “a 2sScRice 7am An a ~e RS ZONA TRACY RAY No. Cov PLALSNTIF?s' + ] 7 eee : - ) Sewhee ed, OT a.. Defendants. ) or otate Univelsity e,AZ tb2u) (602) 965 6968 s) *NttZoha Temp obtain addicionat Pealntisis' astidavics if the Cours deems i: necessary. Tne Statement of Facts is divided ines cwo sections: (1) Eveats of Maren 1$, 1984; and (2) Events of March 22 and 23, 1984. +. Plaintitis were incarcerated in Cell Block 6 (C36) at the Arizona State Prison on March +3, 1984. (Defendants' Answer to Lowry Complaint, 45: wowry Als. 19; Cumningham Aff. § 2). 2. Om March 15, 1984, defendant correctional | service officers (CSO's) for@tbly removed approximately 33 So 16 inmates, including.plaintit‘s, from their celis mn C56 anc escorted them to a hallway in Wing One. crccva Tepe. 23, 24; Perry Seno. 28). es 3. inmates were handcuffed behind the = oa /Accitional restraiats included leg shackles and Selly chains. (Rieffer Depo. 12, 13). 4. The Railway in Wing One has a counselor's 'office on ome side. There ‘is a window in che 9%, counse.cr's office that iceks ento the hallwav, and (‘there are windows approximately six inches sy three ‘eer jis Sne cocrs leading out of she hallway. Teeples leno. (23, 29). The walls of the hallway contain heavy glass its enacle che . @ vo id " wu ty fe) ( an] gt te } “1 ~t t ¢3 ” u w ” ¢ i] wv gs vu wu (a) ” s? o : y o ts $3 “We il ” c? r 8] w wo i © oe ” “9 ih "i “1 “! v 3} ye po | ” © 0 3 “ft ‘I 0 w ” w -f Oo ci] 4j “Fe . $ 1 ny % “oe 6 a > n Ss} me: £ yj ' — o © ess, 0 Oo ” oa) “t ” Se ” “A ; de o v % 3 te oT Be Ud Oo tn + wo o ~t “t >. “1 N ta i] w © Oo 0 rh te Oi v > -~ oO 4 z aS) ot - 5} q ~# Oo v o a ” CT) m™ Oo o ” o 0 i] t- ~t 3 rT) % 4 wo 0 “ 77 0 4 “ u £3 uU 3 nN 71) ~4 53 “4 | - " ot w ” A U . v a 34 1] " i ~@ oO ©” > m% © c3 Oo - +t : o n ” BY _ + | : o 64 uU uw F >| wv 4 “4 ” ” © ai Oo id 0] uv wa ~1 “”) Oo Be 5] “We v “4 “ a % ” iy v zx “3 ~f Oi “ @ oO ™ Oo H - vu ts a w Oi] -t oO tw Ui] ” uv .Y U ‘ te v Vt) Oo v i] z ” ” r | ce oe ad CT) ; a v - rT) n Dd. oof en | oO v ” > 4 SS v oO ” 0 o ” oO z ” a n i) - © 7 oO ~9 ao > Oo C1] o > © 0. Ol ~t 1] ve © w sf 3 tn te i} te Be uv o 0 3 3 te te “ f “i ” oO bu) 0 D> Be >: : 1) nn By vu 4 -~ a ” #4 ~e oO 7 J Stet o et ft wv 4] ” By oO rf v a nw ” ” rf $ Oo 0 ” n n. tf ar © ne? 0] vu o SS «3 ! o - te z ~t Ci] : 53 v ” wo ty © . - fe o o 2 s vu en Ae Se ee —- @ - w= & - Oo 0 v rT) by “ w Oo te 4 th v 0 a W ay o oO ” t- Le vs a o © ' (7) F | Oo o ” o te 4 n m 0 v ” © © : rt “ > + W ” % ~ > ~ wo i] By . w ; o NG 7) $4 —~ Se oO “ i oO Be ov - x . i] a jf . 6 : w oO o o 0 Ce) ri] ie Ba o w CT] a) oO t- w ” : a wv & Oo x +t + we > : w x3 CU oO ” 3 a © “ sa) oi] ~# v " as ” ga=s«+ 6 Oo ” ” Sf - W re] CT) @ «! Fj aQ gs wW v > @ tat foe ? & d son - st 8 @ Oo 8 4 " oO v v A ~ 0 m~ A ” ~ Oo vu a " v M s Ww U " nm ; n > o -~ ~ © ‘. @ ” © Oo be rt th w i) vi] “4 oO UV o ia) > we v vt 0 ” © 4 u zx te oa] ® a i z . ” ty cH) re 3 o no nn 53 uU O «4 ty ti] te ~f Ie a se wv " 3 "0 a] v a ww WY ® 0 ps | a o | % 3 us © 0 Be uU n bs G w ” m ” i] } v © Oo ne Oo 4 ue) Be ® Oi Gu w” i 4 e3 ® ~— 0 +f w ¥e te 8) “tf ~ o 3 v oO 7 © A, w z » (). Ye 8 of Ss ' in o ~- mo Js} ~t (yh 4 x £3 -- : cU 4 0 . 53 ty J og: 4s x ie " te 2 22-2 v @ ec vw @ & ly “f . a +4 u - ~# st mw » . oq wo © ® ” +) ; ”) ‘4 Ae o Ww st {et iu a] Ct] . o 73) ” te o 7) n ” 4 | ” i] ” | & oe: se > 2 oe ” © U . @ iw 6 ee Be CD 9 ty 4 " 4 Be it a w ty tr J ft “f oO ” “1 0 1 v u Q w oO “it i] oI w oO a Gg m re ee SS 0] vo Oi] o t i] te > oO CT) is] ° ae o S» «# a) ” ” a! ” 53 Be ” a o v0 i th th i ” te - “4 Teg ee. ee ee a 2 Oe ra eee 8969 S96 (Z09) (8298 ZV ‘edwoy Ausiaaquy) areig euoziny : 7S. Defendant CMA's serforned digital rec 2 cavity s@arches cn each of the inmates. 3 cond “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 > {| : 2 | ’ ; : ; 12, time Setween the searches. (Whittington Devo. 43,44; | & > H ; a) rt ; : i 33 13\| Beaty Sepo. 27). : 235 j : iP 14 || +2. The only zedical supplies in che hallway area | F consent ‘sr che 5 searches. (Cummingham Aff. 4 : =z =s8B ‘3 3epe. $2). 3.3 5 Par 14 i7. The CMA's serformed xo visua: searches 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 a ? 20. Mone of the prison personnel, iacindis : § mecical serscennel, had ever received any ‘raining or 4 3 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 : — # 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 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 * -_- - 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 mands setween searches (iaru Sepe. 25; Savinen Sepe. 4:), and the searches cherefcre were =ct performed in a nedicalcy scund zanser 3 rf i ai 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 $7. Nome of the AS? perscnnel invelived in the searches tried “so determine from the inmates o> thei: i) mecica. records whether they had any medical conditicns 3 i That would -naxe digital rectal cavity searches sedicaicy t$a ; i -~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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0906%3A1. Public record. Not legal advice.