UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40840
JIMMY RAY MOORE,
Plaintiff - Appellant,
VERSUS
BARBARA CARWELL, Commanding Officer III, Beto I Individually and in
official capacity; DWAYNE DEWBERRY, Captain, Beto I Individually
and in official capacity; JEFFERY RICHARDSON, Lieutenant, Beto I
Individually and in official capacity; JAMES CARVE, Lieutenant,
Beto I Individually and in official capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
March 5, 1999
Before JOLLY, DUHÉ, AND EMILIO M. GARZA, Circuit Judges
JOHN M. DUHÉ, JR., Circuit Judge:
Jimmy Ray Moore (“Moore”), an inmate of the Texas Department
of Criminal Justice, filed this civil rights lawsuit in forma
pauperis under 42 U.S.C.A. § 1983 (West Supp. 1999) against prison
officials alleging that multiple strip and body cavity searches
performed by a female officer violated his First Amendment right to
free exercise of religion, Fourth Amendment right to be free from
unreasonable searches and seizures, and his Eighth Amendment right
to be free from cruel and unusual punishment.
After a United States Magistrate Judge held an evidentiary
hearing pursuant to Spears v. McCotter, 766 F2d 179 (5th Cir.
1985), overruled on other grounds, Neitzke v. Williams, 490 U.S.
319, 324, (1989), she dismissed Moore’s case as frivolous on the
following grounds: (1) Moore failed to show the searches were a
substantial burden upon his exercise of free religion; (2) Moore
failed to show that his objection to a female performing the
searches was a central tenet of his religion; (3) the searches
served the compelling state interest of ensuring security within
the state prison and were the least restrictive means of furthering
that interest; and (4) the law at the time of the searches clearly
established that the search was constitutionally permissible,
entitling the Defendants to qualified immunity. The magistrate
judge treated Moore’s pre-order Motion to Amend his complaint by
adding a request for injunctive relief as a Request to Alter or
Amend the Judgment under Fed. R. Civ. Pro. 59. The magistrate
judge rejected his request, and the Plaintiff appeals.
We hold that Moore’s Fourth Amendment claim is not frivolous;
that the Fourth Amendment, rather than the Eighth Amendment,
applies to this type of prisoner search; and that the magistrate
judge decided Moore’s First Amendment claim under the now defunct
Religious Freedom and Restoration Act (RFRA) standard. Therefore,
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we affirm the dismissal of Moore’s Eighth Amendment claim and
reverse and remand to the magistrate judge for further proceedings
on Moore’s remaining claims.
BACKGROUND
In 1996, Moore alleges that Barbara Carwell, a prison officer,
subjected Moore to strip and body cavity searches in the presence
and under the direction of prison officers Dwayne Dewberry, Jeffrey
Richardson and James Carve. Moore asserts that there were no
emergency circumstances justifying the searches and that male
guards were available to conduct the searches. He argues that the
sole purpose of the searches was to harass and intimidate him.
Moore contends that the searches violated his First Amendment
right to free exercise of religion because he is a Baptist. He
argues that the Baptist faith requires modesty and prohibits him
from being viewed naked by a female other than his wife. Moore
also argues that the searches violated his limited Fourth Amendment
right as a prisoner to be free from unreasonable searches and
seizures and that the magistrate erred by failing to weigh his
expectation of privacy against the government’s interests.
Finally, Moore asserts that the searches constituted cruel and
unusual punishment in violation of the Eighth Amendment.
Before the magistrate judge’s ruling, Moore filed a Request To
Amend his complaint adding two Defendants to the lawsuit and adding
a request for injunctive relief. The magistrate judge construed
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this as a Motion to Alter or Amend the Judgement under Fed. R. Civ.
P. Rule 59 and denied his request. Plaintiff appeals.
DISCUSSION
The magistrate judge dismissed Moore’s claims as frivolous
under 28 U.S.C.A. § 1915(e)(2)(B)(I) & (ii) (West Supp. 1999).
“The Prison Litigation Reform Act (PRLA) amended § 1915 to require
the district court to dismiss a prisoner’s in forma pauperis (IFP)
civil rights suit if the court determines that the action is
frivolous or malicious or does not state a claim upon which relief
may be granted.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998). We review dismissal under § 1915 de novo, applying the same
standard used to review a dismissal pursuant to Fed. R. Civ. P.
Rule 12(b)(6). See id. In determining whether dismissal was
proper, we must assume that all of the plaintiff’s factual
allegations are true. See Ashe v. Corley, 992 F.2d 540, 544 (5th
Cir. 1993). We may uphold the magistrate judge’s dismissal of
Moore’s claims “only if it appears that no relief could be granted
under any set of facts that could be proven consistent with the
allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d
158, 160 (5th Cir. 1995).
The magistrate judge relied on Collins v. Scott, 961 F.Supp.
1009, 1016 (E.D. Tex. 1997), holding that Moore’s First Amendment
claim was frivolous. Collins was decided under the standard
outlined in the RFRA. The district court ruled one day after the
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Supreme Court held in City of Boerne v. Flores, 521 U.S. 507 (1997)
that RFRA was unconstitutional as to the states. As a result, we
remand Moore’s First Amendment claim to the magistrate judge for
review under the standard set forth in Employment Div., Dept. of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)(holding
that neutral, generally applicable laws may be applied to religious
practices even when not supported by a compelling governmental
interest).1
The magistrate judge dismissed Moore’s Fourth Amendment claim
holding that the Defendants were entitled to qualified immunity
because the constitutionality of the searches was clearly
established under Letcher v. Turner, 968 F.2d 508 (5th Cir. 1992).
In Letcher, we held that the mere presence of female officers
during a strip search of prisoners during emergency circumstances
did not violate the Fourth Amendment. See id. at 510 (emphasis
added). Assuming, without deciding, that the magistrate judge
could raise the Defendants’ qualified immunity defense sua sponte,
we hold that the constitutionality of the searches of Appellant was
not clearly established at that time. The facts are markedly
different than in Letcher.
“A prisoner’s rights are diminished by the needs and
exigencies of the institution in which he is incarcerated. He thus
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We remand rather than apply the Smith standard ourselves because
the record does not contain sufficient information for the
appropriate analysis.
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loses those rights that are necessarily sacrificed to legitimate
penological needs.“ Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir.
1994). However, “searches and seizures conducted of prisoners must
be reasonable under all the facts and circumstances in which they
are performed.” United States v. Lilly, 576 F.2d 1240, 1244 (5th
Cir. 1978). We must balance the need for the particular search
against the invasion of the prisoner’s personal rights caused by
the search. See Elliott, 38 F.3d at 191 (citing Bell v. Wolfish,
441 U.S. 520, 558 (1979)). We 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.” Bell, 441 U.S. at 559.
Moore alleges that Barbara Carwell conducted these searches
despite the absence of emergency or extraordinary circumstances.
Additionally, Moore contends that the male Defendants were present
during the search, suggesting that male officers were available to
conduct the searches. Assuming Moore’s allegations are true, we
hold that this claim is not frivolous because the facts he alleges
could entitle him to relief for a Fourth Amendment violation.
The magistrate judge did not rule on Moore’s claim that the
Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment. While in Elliott Judge Garwood
argued eloquently that the Eighth Amendment should govern the
searches of prisoners, the majority relied on Lilly holding that
the Fourth Amendment provides the correct analysis. See Elliott,
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38 F.3d at 191 n.3 (“Thus, Lilly is still the law of this circuit
concerning the Fourth Amendment’s application to visual body cavity
searches in the prison setting.”) As a result, we affirm the
magistrate judge’s dismissal of Moore’s Eighth Amendment claim.
CONCLUSION
For the above reasons, we affirm in part and reverse and
remand in part to the trial court for further proceedings
consistent with this opinion.
AFFIRMED in part; REVERSED AND REMANDED in part.
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