dissenting:
Because I believe that the manner in which the prison officials conducted the body-cavity search and urinalysis violated clearly established law, I dissent from all but Part B of the Discussion Section of the opinion.
As the majority notes, it is clear that under the law of this circuit, incarcerated prisoners retain a limited Fourth Amendment right to bodily privacy. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988); see also Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir.1993) (en banc). The Seventh Circuit is the only circuit that has interpreted Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984), to strip prisoners of all Fourth Amendment rights. See Johnson v. Phelan, 69 F.3d 144, 150 (7th Cir.1995), cert. denied, — U.S. -, 117 S.Ct. 506, 136 L.Ed.2d 397 (1996).
In assessing the reasonableness of a search of a prison inmate, courts must consider the manner in which the search was conducted. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1979); Vaughan v. Ricketts, 859 F.2d 736, 740 (9th Cir.1988). It is clearly established that an important element of this assessment is whether the particular search was hygienic. Id. at 741 (‘We hold that it was clearly established by 1984 that ... issues of privacy, hygiene, and the training of those conducting the searches are relevant to determining whether the manner of search was *704reasonable.”) (emphasis added). See also Bonitz v. Fair, 804 F.2d 164, 172 (1st Cir.1986). (noting that “in reviewing the reasonableness of particular body-cavity searches, courts have stressed that they were conducted ... in a hygienic manner”), rev’d, on other grounds, Unwin v. Campbell, 863 F.2d 124 (1st Cir.1988).
In this case, the conditions under which prison officials conducted the body-cavity search and urinalysis were unhygienic.1 After directing Thompson to touch his genitals and to use his hands to display his anus, prison officials ordered him to run his fingers around his gums. Following the body-cavity search, which was performed at approximately 2:15 a.m., officials placed Thompson in a room with seven other prisoners until 7:00 a.m. The room lacked toilet facilities, and at least one of the prisoners urinated on the floor. An official then led Thompson, in his bare feet, to a damp toilet stall, where he was directed to give a urine sample. No one cleaned the toilet stall area between the collection of each inmate’s urine.
The majority reasons that the search did not violate clearly established law because the prison officials did not touch the prisoners. Yet the principle that this circuit has articulated as central to the Fourth Amendment inquiry is the more general one that searches must be conducted in a sanitary fashion. Vaughan, 859 F.2d at 740. Certainly, searches that involve touching may present uniquely unhygienic circumstances, as, for example, when officials fail to change gloves between searches of each prisoner, see Bonitz, 804 F.2d at 169, or fail to wash their hands between searches, see Vaughan, 859 F.2d at 741. Searches that involve touching may be reasonable, however. See Hemphill v. Kincheloe, 987 F.2d 589, 592 (9th Cir.1993) (holding that digital rectal probe searches of inmates did not violate clearly established law). The important question is not whether touching occurred, but whether the search was hygienic. Because of the strikingly unsanitary conditions under which the officials searched Thompson and performed the urinalysis, I believe that the prison officials in the instant case violated clearly established law.
Nor could the prison officials reasonably have believed that their conduct was lawful. See Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993) (holding that if official has violated clearly established law, he is entitled to qualified immunity only if reasonable official could have bélieved conduct was lawful). The California Department of Corrections Operations Manual directed the prison officials in this case to inspect each prisoner’s genitals only after viewing his mouth and gums, and to view the prisoner’s anal area at the end of the search:
The inmate shall face the staff member who shall visually inspect the inmate’s hair, ears, mouth, nose, body, armpits, hands, scrotum, genitals, and legs. The inmate shall turn away from staff upon instruction and staff shall then inspect the inmate’s back, buttocks, thighs, toes, bottom of the feet and lastly, the anal area by having the inmate bend over, spread the cheeks of their [sic] buttocks and cough.
California Department of Corrections, Operations Manual § 52050.18.3 (1989) (emphasis added). Because the officials violated the applicable regulations in conducting the search, it was not reasonable for them to think that the search conformed with the law.
I respectfully dissent.