UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-60667
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JOHN M. JACKSON,
Plaintiff-Appellant,
versus
CALLIE DANTZLER, individually and in her
official capacity; JOHN DONNELLY, individually and
in his official capacity,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:97-CV-866-WS)
_________________________________________________________________
September 13, 1999
Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
For the dismissal of John Jackson’s in forma pauperis (IFP)
and pro se § 1983 action against prison officials, primarily at
issue is whether he stated a claim for relief under the Fourth
Amendment by alleging that he was strip searched by a female guard.
We AFFIRM in part, REVERSE in part, and REMAND.
I.
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Jackson, a Mississippi prisoner, claims in his pro se
complaint that, in July 1997, Sergeant Dantzler (a female)
subjected him to a strip search (having the inmate remove his
clothing and performing a nonintrusive body-cavity search). After
exhausting his administrative remedies, Jackson and two other
inmates filed an action against Sergeant Dantzler and
Superintendent Donnelly. The district court required separate
complaints. Jackson refiled his IFP complaint, claiming that,
contrary to the Fourth, Fifth, and Fourteenth Amendments, his
rights to privacy and to be free of sexual harassment were violated
by the strip search and by Sergeant Dantzler and other female
guards watching him and other inmates use the restroom and shower.
Following a hearing pursuant to Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985), and relying on Letcher v. Turner, 968 F.2d 508
(5th Cir. 1992), the magistrate judge recommended that the
complaint be dismissed for failure to state a claim under 42 U.S.C.
§ 1983, on the bases that female officers may conduct such searches
and monitoring, because they serve a legitimate security purpose.
Jackson objected to the report. The district court overruled the
objections, adopted the report and recommendation, and dismissed
the complaint.
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II.
As amended by the Prison Litigation Reform Act (PLRA), 28
U.S.C. § 1915 requires dismissal of a prisoner’s IFP civil rights
complaint if the action fails to state a claim upon which relief
may be granted. Black v. Warren, 134 F.3d 732, 733 (5th Cir.
1998); see also 28 U.S.C. §§ 1915(e)(2)(B)(ii). A §
1915(e)(2)(B)(ii) dismissal is reviewed de novo, applying the
standard used for FED. R. CIV. P. 12(b)(6). Black, 134 F.3d at 734;
see also Harper v. Showers, 174 F.3d 716, 718 n.3 (5th Cir. 1999).
“To test whether the district court’s dismissal under § 1915
was proper, this Court must assume that all of the plaintiff’s
factual allegations are true.” Bradley v. Puckett, 157 F.3d 1022,
1025 (5th Cir. 1998). “The district court’s dismissal may be
upheld only if it appears that no relief could be granted under any
set of facts that could be proven consistent with the allegations.”
Id. (internal quotation omitted).
As noted, the district court relied upon Letcher, in which our
court affirmed a summary judgment against the claim that female
guards’ presence during a strip search invaded an inmate’s
constitutional right to privacy. 968 F.2d at 509. The search
occurred while the inmate was on cell restriction, after being
involved “in an organized food throwing incident, in which [18 or
19] inmates threw their food trays, banged on their cell bars, and
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cursed the guards”. Id. at 509, 510 n.1. The search had been
“conducted in a situation where a maximum show of force was
required because of the earlier unruly behavior of the inmates”.
Id. at 510.
A.
In affirming, Letcher relied on Barnett v. Collins, 940 F.2d
1530 (5th Cir. July 31, 1991)(Table, No. 91-1038)(unpublished),
which “held that no constitutional violation occurs when naked male
inmates are viewed by female guards if the presence of the female
guards is required to protect a legitimate government interest such
as maintaining security at a correctional facility”. Letcher, 968
F.2d at 510. Barnett involved the “use of female guards in guard
towers giving a full view of male inmates taking showers”. Id.
Accordingly, Jackson’s claim concerning female guards viewing
him in the restroom and shower is without merit and was properly
dismissed.
B.
Citing Letcher, the magistrate judge also recommended (adopted
by the district court) that “female prison officers ... may perform
searches on male inmates”. But, Letcher addressed only whether a
female officer may be present during, not whether she may conduct,
a strip search.
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Subsequent to the dismissal of Jackson’s complaint, our court
addressed this search issue in Moore v. Carwell, 168 F.3d 234, 235
(5th Cir. 1999); a male inmate claimed that his Fourth Amendment
rights were violated. The district court dismissed the action as
frivolous, holding, inter alia, that “the searches served the
compelling state interest of ensuring security within the state
prison and were the least restrictive means of furthering that
interest”. Id.
In reversing, our court distinguished Letcher, which, as
noted, addressed only female officers’ presence during a strip
search. Id. at 236. Our court recognized that prisoners forfeit
certain rights due to legitimate penological needs, but held that
all prisoner searches must be reasonable under the circumstances
and that “[w]e must balance the need for the particular search
against the invasion of the prisoner’s personal rights caused by
the search”. Id. at 236-37.1 Our court concluded that, accepting
1
See also Elliott v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994)
(great deference is given to prison security policies and “[u]nder
appropriate circumstances, visual body cavity searches of prisoners
can be constitutionally reasonable”); Canedy v. Boardman, 16 F.3d
183, 186 (7th Cir. 1994) (“while the Supreme Court has permitted
prison officials to conduct body cavity searches of prisoners after
every visit with a person from outside the prison, it has
emphasized that the ‘searches must be conducted in a reasonable
manner’”) (quoting Bell v. Wolfish, 441 U.S. 520, 560 (1979)). But
see Somers v. Thurman, 109 F.3d 614, 622 (9th Cir.), cert. denied,
118 S. Ct. 143 (1997) (granting qualified immunity to prison guards
because right of inmates to be free from strip searches by guards
of opposite sex not clearly established).
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the inmate’s allegations and reasonable inferences therefrom
(search was performed in absence of “emergency or extraordinary
purposes” and male guards available to conduct the search), this
“could entitle him to relief for a Fourth Amendment violation”.
Id. at 237 (emphasis added).
Jackson’s Spears hearing is not included in the record on
appeal. Therefore, we cannot determine whether the allegations in
his complaint, clarified by the hearing, reach whether, for
example, there was an emergency situation or whether male guards
were available to conduct the search.
However, in the light of Moore, we conclude that Jackson’s
allegations state a claim which could entitle him to relief under
§ 1983; therefore, the district court erred in dismissing his
Fourth Amendment strip search claim. See also Hayes v. Marriott,
70 F.3d 1144, 1147 (10th Cir. 1995) (male inmate stated cognizable
claim where complaint alleged strip search in front of 100 people,
including women, because “a prisoner’s right to privacy may be
violated by a single search”).
III.
In the light of the foregoing, the dismissal of all of
Jackson’s claims, except his Fourth Amendment strip search claim,
is AFFIRMED; the dismissal of that Fourth Amendment claim is
REVERSED; and the case is REMANDED to the district court for
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further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; REMANDED
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