Petition — Hudson v. Palmer

| oes s bia % US. |

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82-1630 |

APR '§ 1963

ALEXANDER L STEVAS,

ee

In The

Supreme Court of the United States

October Term, 1983

No.

TED S. HUDSON, Officer,

Petitioner,

V.

RUSSELL THOMAS PALMER, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

GERALD L. BALILES

Attorney General of Virginia

ALAN KATZ

Assistant Attorney General

QUESTIONS PRESENTED

1. Does a prisoner have a reasonable expectation of pri-

vacy, pursuant to the Fourth Amendment, in his cell in a

prison context so as to be entitled to damages for a search

conducted for security purposes?

2. If the Fourth Amendment provides no reasonable ex-

pectation of privacy, may such an expectation be found in

the general terms of the Fourteenth Amendment?

TABLE OF CONTENTS

Page

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Ctl. J pec ebewceecedecbeccedrsvecevececs 1

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Mic, “en. gee sacbbdcaseccsceesesoces 3

1. The Fourth Amendment Does Not Apply To A Search

Of A Prisoner’s Cell By Prison Authorities ............ 3

2. An Expectation Of Privacy Cannot Be Found In The

General Terms Of The Fourteenth Amendment ........ 12

Ee. lee Ge sone et decccccesscccesos 14

MY MW NOED sos ccc ccccccsdeccccccccene 14

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TABLE OF CITATIONS

Bell v. Wolfish, 441 U.S. 520 (1979) ..... 3, 5, 7, 8, 9, 10,12, A-15

Bonner v. Coughlin, 517 F.2d 1311, 1315-17 (7th Cir. 1975)

aff d on rehearing, 545 F.2d 565 (1976) (En Banc)

cert. denied, 435 U.S. 932 (1978) ......... 6, A-4, A-14, A-15

Christman v. Skinner, 468 F.2d 723 (7th Cir. 1972) ......... 6

Daugherty v. Harris, 476 F.2d 292 (10th Cir. 1973) ..10, 11, A-14

Gettleman v. Werner, 377 F.Supp. 445 (D.R.I. 1974) ........ 6

Hoitt v. Vitek, 361 F.Supp. 1238 (1973) ........5eeeeeees 6

Jones v. North Carolina Prisoners’ Union, 433 U.S. at 129 .... 6

Katz v. United States, 389 U.S. 347 (1967) ..........5. 9, 10,12

Lanza v. New York, 370 U.S. 139 (1962) ........0cceeeees G

Marrero v. Commonwealth, 222 Va. 754, 284 S.E. 811

i tech kdb es bns0sescseccentcoentedee 7

ii

Palko v. Connecticut, 302 U.S. 319 (1937) .......cceceeees 14

Parratt v. Taylor, 451 U.S. 527 (1981) ....12, 13, A-3, A-4, A-16

Paul v. Davids, 424 US. GBS (1976) ..ccccccccccccccsses 13,14

Robinson v. State, 312 S.2d 15 (Miss. 1975) ..........00065 7

Savedge v. United States, 482 F.2d 1371 (9th Cir. 1973)

ee, Gee, Gis Wee SEA (IGE) svc cnsceps vic vsnieners 10

State v. Brotherton, 465 P. 2d 749 (Ore. App. 1970) ........ 7

Stroud v. United States, 251 U.S. 15 (1919) ..........0405. 10

United States v. Edwards, 415 U.S. 800, 808 n.9 (1974) ...... 3

United States v. Hincklzy, 672 F.2d 115, 129-32 (D.C. Cir. ;

SNS oe a a Oh win wil sou Ou ata o ¢6 a axe ie we 2 6, A-14

United States v. Hitchcock, 467, 1107 (9th Cir. 1972)

cert. denied, 410 U.S. 916 (1973) ..........005. 6, A-14, A-15

United States v. Lilly, 576 F.2d 1240, 1244-47

Ll A) RE ee coe 6, A-14, A-15, A-17

United States v. Robinson, 414 U.S. 218 (1973) ............ 3

United States v. Stumes, 549 F.2d 831, 32 (8th Cir.

EMO £5 is CAG Meade Kon chee Ca eCmnaabe ee 6, A-14, A-15

Wolff v. McDonnell, 418 U.S. 539, 555-556

REET id vilanstetne¥ iievaakheeawws 4,5, A-6, A-10, A-15

Other Authorities

Ringel, Search and Seizures, Arrests and Confessions,

ee as SNE i/o obo chbehbectub s@hwnaduwademka 10

In The

Supreme Court of the United States

October Term, 1983

No.

TED S. HUDSON, Officer,

Petitioner,

v.

RUSSELL THOMAS PALMER, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the United States District Court is un-

reported and is included herein as Appendix A. The opinion

of the Court of Appeals from which the certiorari is sought

is as yet unreported and is included as Appendix B.

JURISDICTION

The Judgment of the United States Court of Appeals for

the Fourth Circuit was entered on January 6, 1983. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

2

STATEMENT OF THE CASE

On September 16, 1981, the plaintiff's cell at the Bland

Correctional Center was subjected to a shakedown search

for contraband by prison authorities. The plaintiff alleged

in his pro se suit filed on September 28, 1981, in the United

States District Court for the Western District of Virginia,

that during the course of this search certain of his property

was destroyed in an effort to harass him. Plaintiff further

alleged that the shakedown search was not routine and was

planned and carried out as a form of harassment.

Plaintiff also alleged that on September 17, 1981, he was

again harassed by the defendant and suffered disciplinary

action as a result of Correctional Officer Hudson’s place-

ment of a false charge against him.

By an Order of November 17, 1981, the District Court

accepted as true the plaintiffs allegations and found that

they did not rise to the level of a constitutional deprivation.

The Court of Appeals held that the District Court’s en-

tering summary judgment for Defendant Hudson was pre-

mature because inmate Palmer had a limited privacy right

from arbitrary and oppressive invasions of personal security.

Unless, the Court of Appeals opined, prison officials could

show that the search was done pursuant to an established

program of conducting random searches of single cells or

groups of cells reasonably designed to deter or discover the

possession of contraband or prison officials could show that

a reasonable basis existed for the beliefs that the prisoner

possessed contraband, the search was an impermissible in-

trusion on the prisoner’s privacy rights.

3

ARGUMENT FOR GRANTING

WRIT OF CERTIORARI

1,

The Fourth Amendment Does Not Apply To A Search Of A

Prisoner’s Cell By Prison Authorities.

The paramount interests of prison security and internal

order vitiate any reasonable expectation of privacy a pris-

oner may have so as to make the Fourth Amendment in-

applicable in a prison setting. The question of whether a

prisoner has Fourth Amendment rights in a prison setting

was expressly left open by this Court in United States v.

Edwards, 415 U.S. 800, 808 n.9 (1974). The Court stated

in that case: “We thus have no occasion to express a view

concerning those circumstances surrounding custodial

searches incident to incarceration which ‘violates dictates

of reason either because of their number or their manner of

perpetration’.

However, in United States v. Robinson, 414 U.S. 218

(1973) Mr. Justice Powell stated, in his concurring opinion:

“The Fourth Amendment safeguards the right of ‘the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures. .. .’

There are ideas of an individual's life about which he

entertains legitimate expectations of privacy. I believe

that an individual lawfully subjected to a custodial

arrest retains no significant Fourth Amendment inter-

ests in the privacy of his person. Under this view a cus-

todial arrest is a significant intrusion of state power

into the privacy of one’s person. If the arrest is lawful,

the privacy interests guarded by the Fourth Amend-

ment is subordinated to a legitimate and overriding

governmental concern.”

In Bell v. Wolfish, 441 U.S. 520 (1979) although the

Court expressly refused to address the question of whether

a

4

prisoners possessed any privacy rights, in considering the

scope of the opinion, it is clear that the Court did not con-

sider the Fourth Amendment as one of the constitutional

rights retained by prisoners. On two separate occasions in

the opinion, this Court refused to acknowledge that inmates

retained any Fourth Amendment rights when it could have

easily done so. 441 U.S. at 556, 558. The Court merely

assumed the applicability of the Fourth Amendment

arguendo for purposes of the case. Furthermore, in its opin-

ion, the Court upheld the most intrusive type of searches,

i.e. anal and genital inspections, without any showing that

such a search would prove fruitful.

Wolff v. McDonnell, 418 U.S. 539, 555-556 (1974) is

often cited for the proposition that, as a general rule,

prisoners should be accorded those constitutional rights

which are not inimical to prison administration or security.

The Court noted that prisoners have been held to enjoy

substantial religious freedom under the First and Fourteenth

Amendments, that they retain the right of access to. the

Courts, and are protected under the Equal Protection clause

of the Fourteenth Amendment from invidious discrimination

based on race. However, the Court further reiterates that

the fact that prisoners retain rights under the due process

clause in no way implies that these rights are not subject

to restrictions imposed by the nature of the regime to

which they have been lawfully committed. The Court fur-

ther notes that in Wolff due process rights attached to the

prisoners because the state itself had provided a statutory

scheme for good conduct credit time and also specified

that it was only to be forfeited for serious misbehavior.

Under these circumstances this Court found that the state

having created the right and recognizing that its deprivation

is a sanction authorized for major misconduct, the prisoner

5

had a real interest so as to be sufficiertly embraced within

Fourteenth Amendment “liberty” to entitle him to those

minimum procedures appropriate under the circumstances

to ensure that the state created right was not arbitrarily

abrogated.

The Court went on to note that there must be some

mutual accommodation between institutional needs and ob-

jectives in the provisions of the constitution that are of

general application. It is, thus, submitted that the real

significance of Wolff appears when it is read in conjunction

with Bell v. Wolfish, which clarifies the proposition that

Fourth Amendment rights are, in the language of Wc/f,

inimical to prison administration or security.

In the matter of the existence of the Fourth Amendment

rights in a prison context, the language of Bell v. Wolfish

is informative because it clearly indicates that prison ad-

ministrators must be given great latitude in preserving in-

ternal order and discipline and in maintaining institutional

security. Mr. Justice Rehnquist specifically notes that al-

though Wolff v. McDonnell indicates that “there is no iron

curtain drawn between the Constitution and the prisons of

this country”, Wolff v. McDonnel at 555-556, simply be-

cause prison inmates retain certain constitutional rights does

not mean that these rights are not subject to restrictions and

limitations. (Emphasis added.) Mr. Justice Rehnquist fur-

ther notes that “lawful incarceration brings about the neces-

sary withdrawal or limitation of many privileges and rights,

a retraction justified by the considerations underlying our

penal system.” (Emphasis added.) 441 U.S. at 545, 546.

He further indicates that maintaining institutional security

and preserving order and discipline are essential goals that

may require limitation or retraction of the retained con-

stitutional rights of both convicted prisoners and pretrial

6

detainees. Central to all other corrections goals is the

institutional consideration of internal security within the

corrections facilities themselves. Prison officials must be free

to take appropriate action to ensure the safety of inmates

and corrections personnel and to prevent escape or unau-

thorized entry. Prison administrators, therefore, should be

accorded wide-ranging deference in the adoption and execu-

tion of policies and practices that in their judgment are

needed to preserve internal order and discipline and to main-

tain institutional security. Citing Jones v. North Carolina

Prisoners’ Union, 433 U.S. 119 at 129 (1977), Mr. Justice

Rehnquist noted that this Court has held that even whea

an institutional restriction infringes a spe: ific constitutional

guarantee, such as the First Amendment, ine practice must

be evaluated in light of the central objective of prison ad-

ministration, safeguarding institutional security.

A further reason for granting certiorari in the instant

case is that the number of courts which have had occasion

to consider whether an inmate retained any Fourth Amend-

ment rights in a prison context are hopelessly split. Those

courts finding that some minimal Fourth Amendment rights

persist in prison are represented by United States v. Hinck-

ley, 672 F.2d 115, 129-32 (D.C. Cir. 1982); United States

v. Lilly, 576 F.2d 1240, 1244-47 (Sth Cir. 1978); United

States v. Stumes, 549 F.2d 831, 32 (8th Cir. 1977); and

Bonner v. Coughlin, 517 F.2d 1311, 1315-17 (7th Cir.

1975), aff'd on rehearing, 545 F.2d 565 (1976) (en Banc),

cert. denied, 435 U.S. 932 (1978). Examples of courts

finding that an inmate retains no Fourth Amendment rights

are United States v. Hitchcock, 467 F.2d 1107 (9th Cir.

1972), cert. denied, 410 U.S. 916 (1973); Christman v.

Skinner, 468 F.2d 723 (2nd Cir. 1972); Gettleman v.

Werner, 377 F.Supp. 445 (D.R.I. 1974); Hoitt v. Vitek,

7

361 F.Supp. 1238 (1973); Robinson v. State, 312 §.2d 15

(Miss. 1975), State v. Brotherton, 465 P. 2d 749 (Ore.

App. 1970); and Marrero v. Commonwealth, 222 Va. 754,

284 S.E.2d 811 (1981).

An examination of the Marrero case is particularly in-

formative because it is in direct conflict with the opinion of

the Fourth Circuit Court of Appeals and supports the

Commonwealth’s position. In Marrero the plaintiff alleged

that drugs were seized in a constitutionally impermissible

search of his prison locker. There was no testimony that

prison officials suspected that the plaintiff had marijuana

in his locker, or that they considered him a “troublemaker”

or a security risk. The only explanation for the search was

that a prison official had ordered it. The plaintiff contended,

further, that prison officials were required to show some

legitimate, articulable need for the search and that the

absence of justification for the search rendered the search

unreasonable and, therefore, the evidence obtained from it

inadmissible.

In responding to the plaintiff's contentions, the Supreme

Court of Virginia, citing Bell v. Wolfish, supra, noted that

while this Court did not explicitly hold that prisoners forfeit

their Fourth Amendment rights, it recognized that these

rights are basically inconsistent with the close and constant

monitoring of inmates necessary to preserve an institution’s

security. The Virginia Supreme Court noted that prisons

are not absolutely secure, and no one method of searching

can eliminate the possession of contraband by prisoners and

the security danger it presents. The court went on to hold:

“For one to advocate that prison searches must be con-

ducted only pursuant to an enunciated general policy

or when suspicion is directed at a particular inmate

is to ignore the realities of prison operation. Random

8

searches of inmates, individually or collectively, and

their cells and lockers are valid and necessary to en-

sure the security of the institution and the safety of the

inmates and all others within its boundaries. This type

of search allows prison officers flexibility and prevents

inmates from anticipating, and thereby thwarting, a

search for contraband. Such searches may be con-

ducted by prison authorities without notice, and in

the absence of probable cause or specific information

that contraband is present. Marrero’s locker afforded

him a right of privacy in relation to other inmates, but

not as to prison security officers.”

It is apparent that in Virginia a direct conflict exists

between the Fourth Circuit Court of Appeals and the Vir-

ginia Supreme Court on the issue of what privacy interests

an inmate has in his cell, and Virginia prison officials have

been placed in the untenable position of being given no

guidance on the appropriate standard of conduct in carry-

ing out their duties.

The confusion among both state and federal courts as

to the applicability of the Fourth Amendment in the prison

context must be resolved by this Court because continued

uncertainty by prison administrators of the parameters

of their authority to conduct searches leads to inaction and

could create a potentially dangerous security problem in

prisons throughout the country.

It is submitted that a prisoner’s retention of Fourth

Amendment rights is inherently inconsistent with the cor-

rectional process in that the prisoner must be monitored

as closely as possible to ensure that he is complying with

the security needs of the institution. To apply the Fourth

Amendment, even on a diminished scope, in a prison setting,

will ultimately cause a collision with legitimate security in-

terests. It is submitted that ell v. Wolfish indicates that

9

in those circumstances the paramount interest of prison

security should control and the Fourth Amendment must be

deemed to not apply in the prison context.

As further support for the proposition that the Fourth

Amendment does not obtain in the prison context, in Lanza

v. New York, 370 U.S. 139 (1962) this Court made it

clear that a public jail is not equivalent to a person’s home

for Fourth Amendment purposes. In Lanza the Court upheld

the surreptitious electronic interception of a jail inmate’s

conversation with his brother. In addressing the Fourth

Amendment question the Court said:

“But to say that a public jail is the equivalent of a

man’s ‘house’ or that it is a place where he can claim

constitutional immunity from search or seizure of his

person, papers, or his effects, is at best a novel argu-

ment. To be sure, the Court has been far from nig-

gardly in construing the physical scope of Fourth

Amendment protection . . . yet, without attempting

either to define or to predict the ultimate scope of

Fourth Amendment protection, it is obvious that a jail

shares none of the attributes of privacy of a home, an

autom bile, an office, or a hotel room. In prison, offi-

cial surveillance has traditionally been the order of thc

day.” Id. at 143.

While it is true that protected areas is a concept which Katz

v. United States, 389 U.S. 347 (1967) rejects, as recently

as in the case of Bell v. Wolfish, 441 U.S. at 556 (1979),

this Court stated that it could “well be argued that a person

confined in a detention facility has no reasonable expecta-

tion of privacy with respect to his room or cell and that

therefore the Fourth Amendment provides no protection

for such a person.” As one legal commentator views it,

the decision in Bell v. Wolfish puts an end to any doubt

10

about the practical impact of the Fourth Amendment inside

prison walls and rejects the view that an inmate retains

a limited Fourth Amendment right behind bars. Ringel,

Search & Seizures, Arrests and Confessions, § 17.4 (2d

ed. 1980).

It is submitted ‘hat Katz is not inconsistent with the

holding of Lanza because Katz requires there be a reason-

able expectation of privacy and, second, that the expecta-

tion be one that society is prepared to recognize as “reason-

able.” See Katz v. United States, 389 U.S. at 361. It is

submitted that as previously indicated, this Court recognized

in Bell v. Wolfish that the maintenance of prison security and

internal order and discipline are so essential in a prison

setting that achieving these goals may require not only

limitations on the constitutional rights of convicted felons,

but the withdrawal of the rights of pretrial detainees who

retain the presumption of innocence. Surely given this view

of the court, it cannot be said that the retention of Fourth

Amendment rights by prisoners can be said to be an expec-

tation which this Court could find that society is prepared

to recognize as reasonable under Katz.

Still another reason for the granting of certiorari is the

misapplication of this Court’s holding in Bell v. Wolfish

by the Court of Appeals. The Fourth Circuit Court of Ap-

peals has confused the operation of the exclusionary rule

with the existence of Fourth Amendment rights in prisoners.

It is submitted that those cases holding that the Fourth

Amendment is applicable in the prison context when closely

examined are founded on cases such as Stroud v. United

States, 251 U.S. 15 (1919); Savedge v. United States, 482

F.2d 1371 (9th Cir. 1973) cert. denied, 415 U.S. 932

(1974) ard Daugherty v. Harris, 476 F.2d 292 (10th Cir.

1973). These cases all involve the application of the ex-

11

clusionary rule to the fruits of a search allegedly conducted

in violation of the Fourth Amendment. These cases, it is

submitted, do not stand for the proposition that such a

violation in a prison context amounts to a violation of con-

stitutional rights pursuant to 42 U.S.C. § 1983 entitling

the piaintiff to damages.

in Stroud, as an example, certain letters were offered in

evidence at the plaintiff's trial which contained expressions

tending to establish his guilt. These letters were written

while the accused was an inmate at the Penitentiary at

Leavenworth, Kansas, they were voluntarily written, and

under the practice and procedure in effect at the time were

turned over to the warden who furnished them to the Dis-

trict Attorney. Although the accused requested a return of

these letters on the grounds that they were tainted by their

seizure and should be excluded at the accused’s trial, under

the circumstances of the Stroud case, it was held that the

letters were admissible evidence and not the product of an

unreasonable search or seizure. Consequently, the Stroud

line of cases merely stands for the proposition that the ex-

clusionary rule could be applied to evidence seized from a

prisoner’s jail cell. This, however, is quite a different propo-

sition than the one found by the Fourth Circuit that the

plaintiff in such a seizure has a cause of action for damages.

In Daugherty v. Harris, supra, the Court specifically held

that the “known cause” comparable to that required for a

search warrant in private life is not a condition precedent

to the conducting of a prison search. Daugherty concludes

that such a result would be completely unrealistic in light

of the fact that it is usually the totally unexpected that dis-

rupts prison security. It is, therefore, submitted that contrary

to the premise of the Fourth Circuit that prisoners have a

limited privacy interest and should be free from unreasop-

12

able searches and unjustifiable confiscations, the founda-

tion for the cases cited by the Court of Appeals is merely

the principle that where faced with a criminal prosecution

as a result of evidence seized from a cell, the exclusionary

rule might be applicable to prisoners. As noted in Bell v.

Wolfish, a constitutional protection such as the application

of the exclusionary rule to potential criminal liability by an

inmate is not inconsistent with the withdrawal of a specific

constitutional guarantee when weighed against the interest

in maintaining order and security.

Ih.

An Expectation Of Privacy Cannot Be Found In The

General Terms Of The Fourteenth Amendment.

In its opinion in the instant case, the Fourth Circuit

Court of Appeals states that it is the primary purpose of the

Fourth and Fourteenth Amendments to protect individuals

from arbitrary and oppressive invasions of personal security.

However, the Court attempts to distinguish Parratt v. Tay-

lor, 451 U.S. 527 (1981), om the grounds that in the

instant case it is the substantive right to privacy and not

a right to procedural due process which is in question. This,

however, ignores the fact that Katz v. United States, supra,

specifically holds that the Fourth Amendment cannot be

translated into a general constitutional “right to privacy.”

The amendment protects individual privacy against certain

kinds of governmental intrusions, but its protection goes

further and often has nothing to do with privacy at all. In

fact, Katz notes that “the protection of a person’s general

right to privacy—his right to be let alone by other people—

is, like the protection of his property and of his very life,

13

left largely to the law of the individual states.” (389 U.S.

at 350-1).

It is, therefore, submitted that there is no right to privacy

under the Fourth Amendment. Consequently, it is sub-

mitted that since this is the case, the Fourth Circuit Court

of Appeals’ interjection of the Fourteenth Amendment into

the instant case is inapposite, and its conclusion that Parratt

v. Taylor “does not trench upon the right to a § 1983

remedy for an unreasonable search” is erroneous. This re-

sult obtains because absent a Fourth Amendment right to

privacy, the only remaining right alleged to have been

violated in the instant case is plaintiff's Fourteenth Amend-

ment right to be free from harassment. As has been noted

in Parratt, supra, where there is available an adequate post-

deprivation remedy, there is no denial of procedural due

process. In the instant case it is submitted that plaintiff's

alleged need for relief from harassment does not dictate the

annihilation of the delicate balance between security and

a prisoner’s rights in the prison context. The need for pro-

tection from harassment, further, does not create an expec-

tation of privacy in a prison search, with all its dire security

implications, because the protection may be obtained by

suing directly under the common law of Virginia or the

Virginia Tort Claims Act as embodied in §§ 8.01-195.1 ef

seq. of the Code of Virginia. It is noted that in Paul v.

Davis, 424 U.S. 693 (1976), this Court held that the mere

fact that a legally cognizable injury is inflicted by a state

official acting under color of state law does not establish

a violation of the Fourteenth Amendment so as to authorize

a claim pursuant to 42 U.S.C. § 1983. The due process

clause of the Fourteenth Amendment does not extend to a

person the right to be free from injury wherever the state

may be characterized as a tort feasor. This Court went on

14

to note that federal civil rights statutes do not constitute

a body of general federal tort law. Certainly, it is suomitted,

“harassment” can be given equal dignity in state court as

well as federal court in an action for defamation or libel.

It is further noted that as this Court stated in Paul v.

Davis “the personal right of privacy must be limited to those

rights which are fundamental or implicit in the concept of

ordered liberty as described in Palko v. Connecticut, 302

U.S. 319 (1937).” It is submitted, therefore, that where the

specific language of the Fourth Amendment does not estab-

lish a right to privacy on the part of inmates, the general

language of the Fourteenth Amendment cannot be con-

strued to create such a right.

CONCLUSION

For the reasons stated above, the petitioner respectfully

prays that this Court will grant his Petition for a Writ of

Certiorari, and reverse the judgment of the court below.

Respectfully submitted,

GERALD L, BALILES

Attorney General of Virginia

ALAN KATz

Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

I, Alan Katz, Assistant Attorney General of Virginia, of

counsel for petitioner, and a member of the Bar of the

15

Supreme Court of the United States, do hereby certify that

on the 5th day of April, 1983, I mailed 3 copies of the

foregoing Petition For Writ of Certiorari to Deborah C.

Wyatt, Esquire, 917 East Jefferson Street, Charlottesville,

Virginia 22901, and to Russell T, Palmer, Bland Correc-

tional Center, Route 2, Box 111, Bland, Virginia 24315-

9616.

ALAN KATZ

Assistant Attorney General

APPENDIX

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

Civil Action No. 81 -0290-A

$ %e 4

RUSSELL T. PALMER, JR.,

Plaintiff,

Vv.

Tep S. HuDSON,

Defendant.

ORDER

In accordance with the Memorandum Opinion entered

this day, it is ADJUDGED and ORDERED that defendant

motion for summary judginent be, and hereby is, granted

and that this case be stricken from the docket of the court.

The Clerk of Court is directed to send certified copies

of this Order to plaintiff and counsel of record for the

defendant.

ENTER: This 17th day of November, 1981.

/s/ TED DALTON

U.S. District Judge

App. 2

IN THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION

Civil Action No, 81-0290-A

RUSSELL T. PALMER, JR.,

Plaintiff,

Vv.

TepD S. HuDson,

Defendant.

BY: Ted Dalton

U.S. District Judge

MEMORANDUM OPINION

Russell T. Palmer, Jr., an inmate of the Bland Correc-

tional Center, brings this action pro se under 42 U.S.C,

§ 1983 alleging that the defendant, Ted S. Hudson, an offi-

cer at Bland, has deprived him of his constitutional rights.

He alleges that Hudson:

1) Destroyed certain of his non-contraband, personal

property;

2) Brought a false charge against him before the prison

disciplinary committee; and

3) Has engaged in a pattern of harassment against him,

as evidenced by the first two allegations.

App. 3

Defendant Hudson denies these allegations and has filed

a motion for summary judgment accompanied by his affi-

davit. Advised of his right to respond, plaintiff has filed a

further pleading, reiterating his claims, and affidavits from

two of his fellow inmates supporting his version of the

facts. As the factual allegations are now fully developed,

the court finds it timely to adjudge the merits of defend-

ant’s motion for summary judgment. Although this case is

replete with factual disputes, none is crucial to the appli-

cation of the relevant law. Accordingly, as plaintiff has

failed as a matter of law to state a claim cognizable under

§ 1983, the defendant’s motion for summary judgment will

be granted.

The essential facts underlying this dispute are as follows:

On September 16, 1981, defendant Hudson conducted a

shakedown of plaintiff's locker, in the coure of which plain-

tiff claims that Hudson, apart from leaving his locker in

disarray, destroyed certain personal, non-contraband prop-

erty. During the shakedown, Hudson discovered in a trash

can near plaintiff's bunk a pillow case that had been ripped

open and the cotten contents removed. Hudson then placed

a charge against plaintiff of “destroying, altering or dam-

aging State property”. A hearing was held on this charge

on September 24, 1981 and plaintiff was found guilty. A

written reprimand was entered in his inmate record and

he was ordered to make restitution for the cost of the

pillowcase.

Plaintiff claims that Hudson’s action in destroying his

personal property has deprived him of property without

due process of law in contravention of his fourteenth amend-

ment rights. This issue has been recently addressed by the

Supreme Court in Parratt vy. Taylor, .... U.S. ...., 101

S.Ct. 1908 (1981). Under the holding in that case, this

ad

App. 4

court is forced to conclude that plaintiff has failed to state

a claim of deprivation of property without due process of

law such as would be cognizable in an action under

§ 1983. In Parratt a prisoner alleged that a prison official

had negligently lost a certain item of his pruperty. He sued

under § 1983 for the value of the property, alleging that he

had been deprived of property without due process of law.

Initially, the Supreme Court noted that in any action under

§ 1983 two elements are essential: 1) action by a person

acting under color of state law resulting in 2) a depriva-

tion of rights, privileges, or immunities secured by the Con-

stitution or laws of the United States. In Parratt, as in this

case, the right claimed was the fourteenth amendment right

not to be deprived of property “without due process of

law”. The Court held, however, that where the state pro-

vides the plaintiff with a remedy to redress his loss that

satisfies the requirements of due process, then the plaintiff

cannot be said to have been deprived of his property “with-

out due process of law”.

“We may reasonably conclude, therefore, that the exis-

tence of an adequate state remedy to redress property

damage inflicted by state officers avoids the conclusion

that there has been any constitutional deprivation of

property without due process of law within the meaning

of the Fourteenth Amendment.”

Parratt v. Taylor, .... U.S. ...., ...., 101 S.Ct. 1908,

1916 (1981), quoting from Bonner v. Coughlin, 517 F.2d

1311, 1319 (7th Cir. 1975), mod. en banc, 545 F.2d 565

(1976), cert. denied, 435 U.S. 932 (1978). The Court in

Parratt concluded that the existence of a state statutory

tort remedy allowing inmates to recover against state offi-

cials for negligent loss of property satisfied the requirements

App. 5

of due process. Similarly, the court in this case must con-

clude that the tort remedies available to the plaintiff in

the Virginia courts, which plaintiff is advised to pursue to

compensate for the loss he alleges has occurred, satisfies

due process.

Plaintiff has alleged an intentional destruction of his

property by defendant Hudson. Where the tort is inten-

tional, the defendant employee of the state would enjoy no

immunity under Virginia law. Elder v. Holland 208 Va.

15, 155 S.E.2d 369 (1967). Accordingly, plaintiff may

proceed against the defendant in state court either for con-

version, see generally 19 Michie’s Jurisprudence, “Trover

and Conversion,” § 4 (1977), or for detinue, see Va. Code

§$§ 8.01-144 ei seg. (Repl. Vol. 1977). As these remedies

provide plaintiff with a “meaningful opportunity subsequent

to the initial taking for a determination of rights and liabili-

ties,” Parratt, supra, 101 S.Ct. at 1917, he has not alleged

that he has been deprived of his property without due process

of law. Therefore his allegation fails to state a claim cog-

nizable under § 1983.

Plaintiff's second claim is that defendant Hudson brought

a false charge against him before the prison’s disciplinary

committee. The affidavits of plaintiff's fellow inmates sub-

stantiate his claim that the prison disciplinary decision was

wrong and that, at the very least, there was a substantial

question whether the piliow cover found in the trash can

near his bunk was in fact his. Nevertheless, it is now well-

settled that federal courts do not sit as a further stage of

appeal or a board of review to determine the accuracy of

facts determined at a prison disciplinary hearing. Flvtie v.

Davis, 407 F. Supp. 137, 138 (W.D. Va. 1976). The role

of this court is to determine, rather, that the prisoner was

afforded the protections of procedural due process in his

App. 6

adjustment committee hearing. Russell v. Division of Cor-

rections, 392 F. Supp. 476, 477 (W.D. Va. 1975). In this

case it appears that plaintiff was given full benefit of those

procedures mandated by Wolff v. McDonnell, 418 U.S.

539 (1974). He was served with notice of the charges

against him, was given an opportunity to seek advice from

an attorney or an inmate or staff adviser, was present at

the hearing and was afforded the opportunity of presenting

witnesses and evidence on his behalf. These procedures,

established pursuant to published guidelines of the Virginia

Department of Corrections, fully comported with the re-

quirements of Wolff. Indeed, plaintiff makes no allegation

that they did not. He claims, however, that the hearing

panel disregarded his clear proofs in favor of supporting a

fellow officer's false charge. This claim, however, goes to

the very merits of the charge which this court, in deference

to the procedures established by the state, cannot review.

Accordingly, this claim also fails to state a cause of action

cognizable under § 1983.

Plaintiff's final claim is that he is being subjected to

harassment on the part of defendant Hudson. He points to

the two preceding allegations as supportive of this claim

and also to numerous other shakedowns which he has ex-

perienced at the hands of Officer Hudson. Plaintiff also

alleges that he was called into the office once late at night.

While there is no doubt that in extreme cases of harassment

and improper treatment a claim of cruel and unusual pun-

ishment proscribed by the sixth amendment may be stated,

see, e.g., Landam v. Royster, 354 F. Supp. 1302 (E.D.

Va. 1973), the court does not feel that the allegations made

in this case, even if taken as true, rise to the level of a

constitutional deprivation. It has long been recognized that

courts “possess no expertise in ‘se conduct and manage-

App. 7

ment of correctional institutions”. Finney v. Arkansas Board

of Corrections, 505 F.2d 194, 200 (8th Cir. 1974).

Courts are accordingly limited in their exercise of

power in this area to deprivations which represent con-

stitutional abuses and they cannot prohibit a given

condition or treatment in prison management unless it

reaches the level of an unconstitutional deprivation. It

has been well said that “[C]Jourts encounter numerous

cases in which the acts or conditions under attack are

clearly undesirable and are condemned by penologists,

but the courts are powerless to act because the prac-

tices are not so abusive as to violate a constitutional

right.” Note, Decency and Fairness: An Emerging Ju-

dicial Role in Prison Reform, 72 Va.L.Rev. 841, 843

(1971).

Sweet v. South Carolina Dep't of Corrections, 529 F.2d 854,

859 (4th Cir. 1975). This court is willing to accept as true

the plaintiff's allegations concerning “harassment” by de-

fendant Hudson. As the court has already noted, however,

Virginia state law provides plaintiff an adequate forum to

pursue his claim that Hudson has intentionally destroyed

his personal property. Concerning the “false charge” lodged

against him by Hudson, the court is powerless to review

the merits of this claim, as explained above. Finally, this

court stands ready to correct any abuse of plaintiff that

rises to the level of a deprivation of a constitutional right.

But the allegations of “harassment” contained in this com-

plaint simply do not, singly or in the aggregate, amount

to a matter of constitutional significance. Accordingly, the

court finds that plaintiff, in this regard also, has failed to

state a claim under § 1983.

For the reasons set forth above, defendant’s motion for

App. 8

summary judgment is granted. An appropriate order will be

entered.

ENTER: This 17 day of November, 1981.

/s/ TED DALTON

Ted Dalton

U.S. District Judge

App. 9

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-6967

RUSSELL I HOMAS PALMER, JR.,

Appellant,

Vv.

TeEp S. Hupson, Officer,

Appellee.

Appeal from the United States District Court for the

Western District of Virginia, at Abingdon. Ted Dalton,

Senior District Judge.

Argued October 5, 1982 Decided January 6, 1983

Before WINTER, Chief Judge, PHILLIPS and MURNA-

GHAN, Circuit Judges.

Deborah C. Wyatt (Wyctt & Rosenfield on brief) for

Appellant; Alan Katz, Assistant Attorney General (Gerald

L. Baliles, Attorney General of Virginia on brief) for the

Appellee.

App. 10

WINTER, Chief Judge.

Russell T. Palmer, Jr., an inmate of the Bland Correc-

tional Center in Virginia, brought this § 1983 action against

Ted S. Hudson, an officer of that facility, alleging, among

other things, that Officer Hudson destroyed his property, in

a non-routine shakedown search.’ The district court granted

defendant’s motion for summary judgment, reasoning that

under Parratt v. Taylor, 451 U.S. 527 (1981), the inten-

tional destruction of a prisoner’s property is not a violation

of due process, when the prisoner has an adequate remedy

under state law. The district court also ruled that, accepting

Palmer’s allegations of harassment as true, it could not con-

clude that the allegations were of constitutional significance.

We agree that under Parratt due process is not violated

when a state official intentionally deprives an individual of

his property by a random and unauthorized act if the state

provides an adequate postdeprivation remedy. However, we

reverse and remand for further proceedings on Palmer’s

claim that the alleged nonroutine shakedown of his property

by Officer Hudson was an unconstitutional search in viola-

tion of his Fourteenth Amendment right to privacy.

* Palmer's other claims are without merit and may be dis of

summarily. The district judge properly reasoned that defendant's

actions do not constitute cruel and unusual punishment and that the

procedures accorded to Palmer in the disciplinary proceedings suffice

under the standard of Wolff v. McDonnell, 418 U.S. 539 (1974).

The claim that defendant destroyed legal materials during the search

of his locker, and so infringed his right of access to the courts, is

meritless since there is no indication that Officer Hudson's acts were

in retaliation for Palmer’s legal activities, cf. Russell v. Oliver, 552

F.2d 115 (4 Cir. 1977), nor any indication that other avenues for

seeking legal relief were unavailable to Palmer. Cf. Williams v.

Leake, 584 F.2d 1336 (4 Cir. 1978).

App. 11

A.

In Parratt the Supreme Court held that the negligent loss

of a prisoner’s property by a prison official was not a due

process violation when the state provided an adequate post-

deprivation remedy. Parratt’s scope cannot easily be limited

to negligent deprivations of property. For, if the underlying

principle is, as Justice Rehnquist stated in a plurality opin-

ion, that when no practical way to provide a predeprivation

hearing exists, a postdeprivation hearing will satisfy the dic-

tates of procedural due process, then it as well applies to

an intentional deprivation for which meaningful prior re-

view was impractical. Accord Engblom vy. Carey, 677 F.2d

957 (2 Cir. 1982); Rutledge v. Arizona Bd. of Regents,

660 F.2d 1345, 1352 (9 Cir. 1981), cert. granted, sub nom

Rutledge v. Kush, 50 U.S.L.W, 3862 (1982).’

* See also Gilday v. Boone, 657 F.2d 1, 2.1 (1 Cir, 1981); Water-

street v. Central State Hospital, 533 F. wy 274 (W.D. Va. 1982);

v. Moore, 514 F.S, 1372 (M.D.N.C. 1981). Several courts

have stated that Parratt should not extend to intentional acts, Weiss

v. Lehman, 676 F.2d 1320, 23 (9 Cir. 1982); Yusuf Asad Madyun

v. Thompson, 657 F.2d 868, 873 (7 Cir, 1981); Schiller v. Strangis,

540 F. Supp. 605 (D. Mass. 1982); Howse v. DeBerry Correctional

Inst., 537 F. Supp. 1177 (M.D. Tenn, 1982); McCowen v, City of

Evanston, 534 F. Supp. 243, 49 (N.D, Ill. 1982); Peters v. Town-

ship of Hopewell, 534 F. Supp. 1324 (I), N.J. 1982); Tarkowski v.

Hoogasion, 532 F. Supp. 791, 794-95 (N.D. Ill, 1982); Parker v.

Rockefeller, 521 F. Supp. 1013, 16 (N.D. W. Va, 1981),

A common argument for so limiting Parrart is that extending its

scope to intentional acts drastically undercuts the use of § 1983 as

a check on wrongdoing by state officials, its congressionally intended

a. Howse v. Debarry Correction Inst., supra; Tarkowski v.

oogasion, supra; Parker v, Rockefeller, supra. However, § 1983 is

not a remed) for every wrong committed by state officials, it is only

remedy for those wrongs which are of a constitutional dimension

which a federal statute. Parratt, of course, did not restrict

the availability of § 1983 as a remedy for constitutional wrongs.

it held the constitutional requirement of procedural due

to be satisfied if the state provides a post facto remedy for

App. 12

Nor do we read any of the separate opinions in Parratt

to give any persuasive basis on which to conclude that its

holding does not encompass an intentional tort. It is true

that four justices stated that they would limit Parratt's scope

to negligent acts, but no persuasive rationale was provided

for doing so. Justice Blackmun, with whom Justice White

concurred, agreed with the plurality that the impracticality

of predeprivation review and the existence of a postdepriva-

tion remedy was relevant to determining if an action vio-

lated due process. However, he suggested that the existence

of a state tort remedy should not suffice to cure the uncon-

stitutional nature of a state official's intentional act, since

an intentional act would rarely be amenable to prior review

and since a state tribunal would be unlikely to provide due

process when reviewing the deliberate conduct of the state’s

employees, 451 U.S. at 545-546, Neither rationale for lim-

iting Parratt’s scope obtains here for there is no practical

mechanism by which Virginia could prevent its guards from

conducting personal vendettas against prisoners other than

by punishing them after the fact, nor have we been given

any cause to believe that Virginia courts would be less dili-

gent in protecting prisoners from intentionally inflicted in-

juries than in protecting them from negligently inflicted

injuries,

an injury inflicted by an official which was not done pursuant to an

established policy and was not amenable to prior control. Parratt

does not impinge upon the right to a § 1983 remedy for an ae

— + — + ye : an a

rem a ation of the requirement rae

ro v. Zimmerman Brush Co.,, 50 U.S.L.W, 4247, 4251 1 (Feb 23,

1982), or for an = act which violates a substantive

: t, such as the right to vote, Duncan v. P 657 F: F.2d saticuel

5 (5S Cir, 1981), or for an official act is sufficiently

in process, Schiller v. Strangis, 540 F, Supp. 5605, 613-15 (D, Mass.

to to amount to a violation of the requirement of substantive

App. 13

Justice Marshall intimated that he would limit Parratt’s

scope to negligent deprivations, but he, too, suggested no

rationale for the distinction that he was prepared to recog-

nize. 451 U.S. at 555. Justice Powell would limit Parratt

to nonintentional takings by making intent an essential

element of a due process claim on the theory that “depriva-

tion” as used in § 1983 “connotes an intentional act. . . or,

at the very least, a deliberate decision not to act to prevent

a loss.” 451 U.S. at 547-548. However, every other mem-

ber of the court agreed that a negligent deprivation of prop-

erty was a due process violation, and that the proper inquiry

was whether a postdeprivation remedy could cure the con-

stitutional wrong. As we state above, once it is assumed that

a postdeprivation remedy can cure an unintentional but neg-

ligent act causing injury, inflicted by a state agent which is

unamenable to prior review, then that principle applies as

well to random and unauthorized intentional acts,

We therefore conclude that plaintiff has no meritorious

cause of action under § 1983 for the allegedly intentional

destruction of his property.

We conclude, however, that the district court's entering

summary judgment for defendant with regard to an unrea-

sonable search of his property was premature. In his verified

complaint plaintiff alleged that “officer Hudson shook down

my locker and destroyed... my property... as a means of

harassment. . . . The shakedown was no routine shakedown.

It was planned and carried out only as hare ssment.” In mov-

ing for summary judgment, defendant filed his affidavit

asserting that he and Officer Lephew conducted “a routine

search of [plaintiff's] locker” and that “it was merely a rou-

tine search for contraband.” Plaintiff responded with a

App. 14

counteraffidavit reasserting that he “knows and believes that

the shakedown of Sept. 16, 1981 was not a routine shake-

cown, but or iy a form of harassment by [defendant].”

Thus the record reflects a sharp factual conflict as to

whether the search was routine or whether it was conducted

solely for purposes of harassment, Summary judgment was

therefore precluded, Rule 56 F.R. Civ. P., unless it can be

concluded that Palmer had no privacy interest in the locker.

While we have never considered this issue, numerous other

courts have held that prisoners have a limited privacy in-

terest and should be free from unreasonable searches and

unjustifiable confiscations." United States v, Hinckley, 672

F.2d 115, 129-32 (D.C. Cir, 1982); United States v. Lilly,

576 F.2d 1240, 1244-47 (5 Cir. 1978); United States v.

Stumes, 549 F.2d 831, 32 (8 Cir. 1977); Sostre v, Preiser,

519 F.2d 763, 764-65 (2 Cir. 1975); Bonner v, Coughlin,

517 F.2d 1311, 1315-17 (7 Cir. 1975), aff'd on rehearing,

545 F.2d 565 (1976) (in banc), cert, denied, 435 U.S, 932

(1978). United States v, Savage, 482 F.2d 1371, 1372 (9

Cir. 1973); Daughtery v. Harris, 476 F.2d 292, 294 (10

Cir.), cert. denied, 414 U.S, 872 (1973). But see United

*In Lanza v. New York, 370 U.S, 138, 142-43 (1962), the Court

ao that Fourth Amendment protections would not extend to

a prison cell. The continuing validity of this reasoning is haem

for in Katz v, United States, 389 U.S, 347 (1967), the

the ee protected area” test upon which the Lanse dicta

was based. In United States v, Edwards, 415 U.S. 800, 808 n.9

(1974), the Court pgs left open the question whether iw

n

comes Ee ~ o rights Wolff v. McDonnell, 418 ;

55-56 (1974), it stated that, as a general rule, prisoners should be

accorded those constitutional rights which are not inimical to

administration or security, In Bell v. Wolfish, 441 U.S, 520, 555-60

(1979), the Court again ex ly retused to address the question of

whether prisoners any privacy rights, holding -

whatever rights they retained were limited, and not

block shakedowns, or body cavity searches conducted after

contact with outsiders.

App. 15

States v. Hitchcock, 467 F.2d 1107 (9 Cir. 1972), cert.

denied, 410 U.S. 916 (1973).

In defining privacy rights in prison we are guided by the

general principle that prisoners should be stripped of only

those constitutional rights which would impair prison secur-

ity or administration. Cf. Wolff v. McDonnell, 418 U.S.

539, 555-56 (1974). However, this is not to say that pris-

oners have the same privacy interests as those not in prison.

Because of the legitimate demands of prison security, and

to a lesser extent a prisoner’s diminished expectation of

privacy,’ neither a warrant nor probable cause is a pre-

requisite to a search or seizure in prison. See, e.g., United

States v. Lilly, 576 F.2d at 1244; United States v. Stumes,

549 F.2d at 832; Bonner v. Coughlin, 517 F.2d at 1317.

Irregular, unannounced shakedown searches of prisoner

property are permissible, for they are an effective means of

ensuring that prisoners do not possess contraband. Bell v.

Wolfish, 441 U.S. 520, 555-57 (1979); Olson v. Kleeker,

642 F.2d 1115 (8 Cir. 1981). Shakedown searches of sin-

gle individuals are troubling, however, for there is an ever

present danger that the search was motivated by a guard’s

personal desire to harass or humiliate the inmate, and not

by legitimate institutional concerns. See Wayne R. Lafave,

3 Search & Seizure § 10.9 (1978). Needless to say, a pri-

mary purpose of the Fourth and Fourteenth Amendments

is to protect individuals from such arbitrary arid oppressive

invasions of personal security. Delaware v. Prouse, 440 U.S.

648, 653-54 (1979).

* Denying prisoner privacy rights merely because of the absence

of an expectation of privacy is circular reasoning. Prisoners will come

to —_ that level of privacy which is accorded to them. Giannelli

& gan “Prison Searches and Seizures: ‘Locking’ The Fourth

Amendm: ot Out of Correctional Faciliues”, 62 Va. L. Rev. 1045,

1058-63 (1976).

App. 16

But individual shakedown searches, such as that here,

may legitimately be grounded upon either a prison policy of

conducting random searches of single cells or blocks of cells

to deter or discover the possession of contraband, or upon

the existence of some reasonable basis for a belief that the

prisoner possesses contraband. We recognize that allowing

the prison authorities to adopt a program of random indi-

vidual searches may provide an increased opportunity for

prison Officials to abuse that power and utilize searches as

a means of harassment; however, the device is of such ob-

vious utility in achieving the goal of prison security that we

do not think that the risk outweighs the benefit.’ Prisoners

will be accorded some protection from abusive searches by

requiring prison authorities, if the validity of the search is

questioned, to prove that adequate grounds existed to justify

the search. Cf. United States v. Lilly, 576 F.2d at 1245.

When the search is a shakedown of a particular prisoner’s

property, this may be done in one of two ways: either by

proving that the search was done pursuant to an established

program of conducting random searches of single cells or

groups of cells reasonably designed to deter or discover the

possession of contraband, cf. United States v. Ready, 574

F.2d 1009, 1014 (10 Cir. 1978) (search permissible with-

out specific cause when done pursuant to routine reasonably

designed to promote institutional security); or, by proving

that some reasonable basis existed for the belief that the

prisoner possessed contraband. In assessing the validity of

a proferred justification for a search, a court should, of

* Some justification for an absolute prohibition of individual shake-

down searches can be found in Delaware v. Prouse, supra, where the

Supreme Court invalidated a state program of conducting random

spot checks of automobiles, in part because of the inherent danger of

arbitrary conduct by the police, despite the admitted utility of such

a practice.

|

}

App. 17

course, consider direct proof offered by the plaintiff that the

search was impermissibly motivated, by a desire to harass

or humiliate him, such as evidence of other acts of harass-

ment by the defendant.

If the defendant is unable to establish that the search was

permissibly motivated and conducted in a reasonable man-

ner, then the plaintiff is entitled to at least nominal damages.

In an appropriate case where his injury is greater, he may

be entitled to both actual and punitive damages. See United

States v. Calandra, 414 U.S. 338, 354 n.10 (1974); Baskin

v. Parker, 588 F.2d 965 (5 Cir. 1979); O’Connor v. Keller,

510 F. Supp. 1359 (D. Md. 1981). Parratt v. Taylor does

not trench upon the right to a § 1983 remedy for an unrea-

sonable search, for the right violated is the substantive right

to privacy and not a right to procedural due process. See

Parratt v. Taylor, 451 U.S. at 534-6 [distinguishing Monroe

v. Pape, 365 U.S. 167 (1961)].

Because we conclude that Palmer had a limited privacy

right which may have been violated, we re\erse the district

court’s judgment as to this claim and remand for an eviden-

tiary determination.

AFFIRMED IN PART,

REVERSED IN PART AND

REMANDED.