Elliott v. Lynn

United States Court of Appeals,

Fifth Circuit.

No. 92-3759.

Keith David ELLIOTT, Plaintiff-Appellant,

v.

Bruce N. LYNN, Secretary, Louisiana Department of Corrections,
Defendant-Appellee.

Nov. 17, 1994.

Appeal from the United States District Court for the Middle
District of Louisiana.

Before GARWOOD, JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from an institution-wide "shakedown" of the

Louisiana State Penitentiary, ordered by the defendant Bruce N.

Lynn, secretary of the Louisiana Department of Corrections, because

of an increasing number of murders, suicides, stabbings, and

cuttings among the inmate population. Under Lynn's order, the

plaintiff, David Keith Elliott, along with all other prisoners,

submitted to a visual body cavity search at the prison. The search

was conducted in the general presence of other inmates, several

guards, and three other bystanders. Following this search, Elliott

filed suit pursuant to 42 U.S.C. § 1983 against Lynn. The United

States District Court for the Middle District of Louisiana granted

Lynn's motion for summary judgment and dismissed Elliott's

complaint. The court held that the search did not violate

Elliott's Fourth Amendment right to be free from unreasonable

search and seizure, nor did it deprive Elliott of a state created

1
liberty interest without due process of law.

Elliott appeals the dismissal of his complaint, contending

that the search violated his Fourth and Fourteenth Amendment rights

under the United States Constitution. He also contends that Lynn

is not entitled to the protection provided by qualified immunity.1

I

During the period immediately preceding June 9, 1989, an

extraordinary number of murders, suicides, stabbings, and cuttings

occurred within the Louisiana State Penitentiary. These

circumstances created an emergency situation, and the defendant

Lynn ordered an institution-wide shakedown on June 9, 1989. All

3,164 prisoners, including Elliott, were subjected to a visual body

cavity search over a period of two and one-half days. To

facilitate this massive search effort, Lynn brought in additional

correctional officers.

Elliott, along with all the members of his prison camp, were

gathered for inspection in one area of the camp's dormitory. The

prisoners were searched in groups of five or six with one officer

visually searching each inmate, while the other fifty-five members

of the camp were present and awaited their inspections. Several

non-searching officers also were present in the room for safety

purposes, along with the defendant Lynn. Two news media personnel

and the airplane pilot for Lynn stood in a wide walkway-hall that

1
Lynn included in his motion for summary judgment a claim of
qualified immunity. Although the district court did not consider
qualified immunity in its judgment, the parties include this
issue for review on appeal.

2
opened into the large room and, if interested, could have observed

the strip search.

Ten days following this institution-wide shakedown, a district

court judge declared the Louisiana State Penitentiary a state of

emergency relying on facts submitted to the judge prior to the

strip search.

Elliott filed this suit against Lynn in the United States

District Court for the Middle District of Louisiana pursuant to 42

U.S.C. § 1983. After considering the parties' motion and

cross-motion for summary judgment, the district court denied

Elliott's motion, granted Lynn's motion and dismissed the complaint

with prejudice. 2 The court held that the search did not violate

Elliott's Fourth Amendment rights because the institution-wide

search was a legitimate means to regain control, discipline, and

security within the prison. The court further determined that

although the search could have been conducted with more privacy,

the correctional officers were not required to use the least

restrictive means in performing the search. Finally, the court

found that although the regulation defining a visual body cavity

search created a protected liberty interest under the Fourteenth

Amendment, Elliott was not deprived of liberty without due process

of law because adequate post-deprivation remedies were available to

2
The district court referred the motions to a magistrate
judge who issued a report recommending that summary judgment be
granted in favor of Lynn. The district court granted Lynn's
motion for the reasons set forth in the magistrate judge's
report. Accordingly, we will refer to the district court's
opinion in this case, as the recommendation of the magistrate
judge.

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protect Elliott's rights of due process.

On appeal, Elliott argues that (1) the search was conducted in

such a place and manner that his privacy rights under the Fourth

Amendment were violated; (2) state prison regulations created a

liberty interest that restricted body cavity searches and this

search deprived him of his protected liberty interest without due

process in violation of the Fourteenth Amendment; and (3) Lynn is

not entitled to the protection provided by qualified immunity.

II

We review a grant of summary judgment de novo, applying the

same standard used by the district court. Calpetco 1981 v.

Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993).

Under Rule 56(c) of the Federal Rules of Civil Procedure, we

examine evidence presented to determine that there is "no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed.R.Civ.P. 56(c). Once a

properly supported motion for summary judgment is presented, the

burden shifts to the non-moving party to set forth specific facts

showing that there is a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91

L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th

Cir.1994). We must review "the facts drawing all inferences most

favorable to the party opposing the motion." Matagorda County v.

Russell Law, 19 F.3d 215, 217 (5th Cir.1994).

A

Elliott contends that the strip search violated his rights

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under the Fourth Amendment to be free from unreasonable searches.

However, Elliott substantially narrows our review by conceding that

the scope and justification for the search were not unreasonable.

Consequently, the focus of our inquiry is whether the manner and

the place of the strip search were unreasonable under Fourth

Amendment standards. In essence, Elliott argues that there were

three areas—a gameroom, a bathroom, and a television room—a few

feet from the location of the actual search where individual

searches could have been conducted with substantially more privacy

and minimal inconvenience. Thus, he contends that the search was

constitutionally unreasonable because it was unnecessarily

conducted en mass in a non-private area and in the presence of

non-essential personnel.

B

A prisoner's rights are diminished by the needs and

exigencies of the institution in which he is incarcerated. He thus

loses those rights that are necessarily sacrificed to legitimate

penological needs. United States v. Lilly, 576 F.2d 1240, 1244

(5th Cir.1978). The Fourth Amendment, however, requires that

"searches or seizures conducted on prisoners must be reasonable

under all the facts and circumstances in which they are

performed."3 Lilly, 576 F.2d at 1244. Because a prison

3
We have noted in Valencia v. Wiggins, 981 F.2d 1440, 1443-
44 (5th Cir.1993) and Brothers, 28 F.3d at 457, that the Fourth
Amendment's application in the prison context has been
significantly limited by the Supreme Court in Hudson v. Palmer,
468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984).
Hudson held only that prisoners have no justified expectation of
privacy in their prison cells. Hudson, 468 U.S. at 526, 104

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administrator's decisions and actions in the prison context are

entitled to great deference from the courts, the burden of proving

reasonableness is a light burden. Id. at 1245.

Under appropriate circumstances, visual body cavity searches

of prisoners can be constitutionally reasonable. See Bell v.

Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447

(1979).

The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In
each case it 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.

Bell, 441 U.S. at 559, 99 S.Ct. at 1884. We have interpreted this

statement of reasonableness as striking a balance "in favor of

deference to prison authorities' views of institutional safety

requirements against the admittedly legitimate claims of inmates

not to be searched in a humiliating and degrading manner." Watt v.

City of Richardson Police Dep't., 849 F.2d 195, 196 (5th Cir.1988).

We are required, as a matter of both common sense and law, to

accord prison administrators great deference and flexibility in

carrying out their responsibilities to the public and to the

S.Ct. at 3200. Furthermore, Brothers simply held that the Fourth
Amendment does not apply to the seizure of prisoners through an
official's use of excessive force. Brothers, 28 F.3d at 457. No
Supreme Court case has overruled the holding of Lilly that the
Fourth Amendment applies to body cavity searches of prisoners.
Thus, Lilly is still the law of this circuit concerning the
Fourth Amendment's application to visual body cavity searches in
the prison setting. See also Albright v. Oliver, --- U.S. ----,
114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (suggesting Fourth
Amendment has some applicability in prison context).

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inmates under their control, including deference to the

authorities' determination of the "reasonableness of the scope, the

manner, the place and the justification for a particular policy."

Hay v. Waldron, 834 F.2d 481, 486 (5th Cir.1987). Furthermore, we

have found that when evaluating the security policies adopted by

the prison administrators, the court is not required to apply a

"least restrictive means" test. Hay, 834 F.2d at 485.

We now turn to consider the conditions at the Louisiana State

Penitentiary on June 9, 1989.

C

The emergency situation created by an increasing number of

prison murders, suicides, stabbings, and cuttings clearly

justified, as conceded by Elliott, an immediate search of the

inmates to seize the weapons of this violence, as well as other

contraband, in order to restore and maintain security. Because

this crisis required immediate action and because of the large

number of inmates involved in the institution-wide shakedown, Lynn

was fully justified in conducting the strip search in the most

time-efficient place and manner available. Lynn decided that under

these emergency circumstances the search must be conducted on a

collective, as opposed to an individual basis. Elliott argues that

Lynn overlooked alternative methods and places to conduct the

search that would have been less intrusive on his privacy rights.

He argues that individual searches in nearby, smaller, more private

areas would have protected the privacy and personal dignity of the

prisoners. These considerations, he argues, were completely

7
ignored by the authorities conducting the search. As Lynn

explained, however, individual searches of the prisoners in private

areas in the dormitory, with one guard performing the search plus

one additional guard present for security purposes, would have been

extremely time consuming, especially considering the additional

time needed for the inmate to undress and redress. This lengthy

process, when applied to more than 3,000 individuals, would have

defeated the purpose of the swift institution-wide shakedown, by

allowing the inmates a greater opportunity to hide or dispose of

weapons and contraband and by prolonging the violence.

Furthermore, the presence of additional guards was clearly

appropriate because of the method of the search, the expediency

demanded by the circumstances, and the urgency of safety concerns.

Although the record reflects that Lynn's pilot and the two news

media personnel could have observed the search from the walkway

that opened into the large room, the record does not reflect that

they demonstrated any interest in viewing the searches.

Furthermore, the room in which the search was conducted was the

only one large enough to conduct the collective search. As the

commanding officer, the justification of Lynn's presence cannot be

questioned. Thus, on the record before us, we defer to Lynn's

sound judgment regarding all aspects of the search and will not

apply the benefit of hindsight to question the secondary details of

this search. Indeed, even with the benefit of hindsight, his

decisions seem appropriate under the exigent circumstances that

faced him. Although it is certainly true that the privacy of the

8
prisoners was compromised, we hold that the search was

constitutionally reasonable in the context of prisoner's rights

under the Fourth Amendment.4

III

In sum, we AFFIRM the district court's judgment finding that

the institution-wide visual body cavity search in the place and

manner conducted did not violate the Fourth or Fourteenth

Amendments to the United States Constitution. For the foregoing

reasons, the judgment of the district court dismissing Elliott's

complaint is

AFFIRMED.

GARWOOD, Circuit Judge, concurring specially:

I would hold that the Eighth Amendment, not the Fourth

4
Elliott argues that Louisiana Department of Public Safety
and Corrections Regulation 30-25 creates a protected liberty
interest relating to limitations on body cavity searches because
it contains an exclusive listing of the situations when such
searches may be conducted. Because a search pursuant to
emergency circumstances, such as the one in this case, is not
contained in this exclusive list, Elliott contends that the
search deprived him of liberty without due process of law.
Despite Elliott's argument to be free from such a search, we need
not decide whether the language of the regulation is sufficiently
mandatory to create a protected liberty interest. See Kentucky
Dep't. of Corrections v. Thompson, 490 U.S. 454, 464 n. 4, 109
S.Ct. 1904, 1910 n. 4, 104 L.Ed.2d 506 (1989) (finding protected
liberty interest exists if statute contains mandatory language
requiring application of certain substantive predicates before
reaching desired result). Elliott concedes that Lynn had a right
to suspend the regulation in an emergency, which includes the
alleged mandatory language contained in the regulation that
Elliott relies upon for creation of his liberty interest. We
hold that because Lynn effectively suspended the regulation prior
to the search, any liberty interest that might have otherwise
existed is not implicated.

Finally, disposing of this case on the merits renders
moot any further issues concerning qualified immunity.

9
Amendment, is the standard by which a prison inmate's protection

against searches by prison authorities is to be measured. In

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393

(1984), the Court stated:

"A right of privacy in traditional Fourth Amendment terms is
fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure
institutional security and internal order." Id. at 527, 104
S.Ct. at 3201 (footnote omitted).

"Our holding that respondent does not have a reasonable
expectation of privacy enabling him to invoke the protections
of the Fourth Amendment does not mean that he is without a
remedy for calculated harassment unrelated to prison needs....
The Eighth Amendment always stands as a protection against
"cruel and unusual punishments.' " Id. at 529, 104 S.Ct. at
3202.

The majority would restrict Hudson to searches of prison

cells. That was the setting in which Hudson arose, but its

language is not so limited. Nor is it logical to fracture the

Fourth Amendment in this bizarre manner, so that convicted inmates'

protection against certain prison searches is measured by the

Fourth Amendment while their protection against other such searches

is measured by the Eighth Amendment. See also Whitley v. Albers,

475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (Eighth

Amendment applied to inmate shot in quelling of prison riot);

Brothers v. Klevenhagen, 28 F.3d 452, 457 (5th Cir.1984) (Fourth

Amendment inapplicable to seizure claim of pre-trial detainee);

Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir.), cert.

denied, --- U.S. ----, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993)

(same).

I recognize that our decision in United States v. Lilly, 576

10
F.2d 1240 (5th Cir.1978), held that the Fourth Amendment constrains

prison officials in their body cavity searches of inmates. Lilly,

however, has been superseded by Hudson, which locates the

constraint on prison inmate searches within the Eighth Amendment.1

For reasons not significantly different from those given by

the majority in upholding this search under the Fourth Amendment,

I conclude that it did not violate Elliott's rights under the

Eighth Amendment.

Accordingly, I join in the judgment of affirmance, but would

rest that determination on the Eighth Amendment, not the Fourth.2

1
The majority also cites Bell v. Wolfish, 441 U.S. 520, 99
S.Ct. 1861, 60 L.Ed.2d 447 (1979), and Albright v. Oliver, ---
U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). As pointed out
in Brothers at 456 n. 3, 457, neither decision supports
application of the Fourth Amendment here. Fourth Amendment
applicability was expressly assumed arguendo only in Bell. Id.
at 557, 99 S.Ct. at 1884. The dicta in the Albright plurality
opinion merely says "The Framers considered the matter of
pretrial deprivations of liberty and drafted the Fourth Amendment
to address it." Id. at ----, 114 S.Ct. at 813 (emphasis added).
Albright does not address conduct in jail after booking, much
less in prison after conviction.
2
I join in the majority's discussion and resolution of the
procedural due process claim.

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