Michenfelder v. Sumner

• Decision Date: 26 December 1985
• Docket Number: No. CV-R-84-279-ECR.,CV-R-84-279-ECR.
• Citation: 624 F. Supp. 457
• Parties: Robert MICHENFELDER, Plaintiff, v. George SUMNER, et al., Defendants.
• Court: U.S. District Court — District of Nevada

624 F. Supp. 457

Robert MICHENFELDER, Plaintiff, v. George SUMNER, et al., Defendants.

No. CV-R-84-279-ECR.

United States District Court, D. Nevada.

December 26, 1985.

COPYRIGHT MATERIAL OMITTED

Robert Michenfelder, in pro per.

Brian McKay, Atty. Gen. by: David F. Sarnowski, Deputy, Carson City, Nev., for defendants.

ORDER

EDWARD C. REED, Jr., District Judge.

This civil rights action was commenced by Plaintiff, an inmate of the Nevada State Prison, by the filing of a complaint on July 5, 1984. He complained of repeatedly being strip searched on the tier outside of his cell where female correctional officers and other inmates could observe him naked. He also complained of being threatened with a taser gun if he didn't cooperate as to the strip searches. The strip search procedure is degrading and dehumanizing, according to Plaintiff, whereas the use of a taser gun is too forceful a means to employ against an inmate, such as himself, who is merely resisting peacefully a degrading strip search. The prayer of the complaint requests a declaratory judgment establishing that the defendants' conduct is violative of Plaintiff's constitutional rights. Injunctive relief also is prayed for prohibiting the defendants from: (1) strip searching Plaintiff when he can be observed by female correctional officers and the other inmates; (2) using a taser gun at any time; and (3) searching Plaintiff at all when he is on his way to sick call, recreation or classification, or under escort anywhere in Unit Seven, where he is housed. Compensatory and punitive damages also are demanded.

A separate motion for a preliminary injunction was filed at the same time. In it, Plaintiff contended that the strip search procedure and the threatened use of a taser gun caused psychological distress. By minute order dated August 27, 1984, U.S. Magistrate Phyllis Halsey Atkins, to whom the case had been referred, consolidated the hearing of the motion for a preliminary injunction with the trial of the action, and advanced the trial date to October 3, 1984. Plaintiff objected to the consolidation, asserting that the safety of taser guns is a matter for experts. He claimed that an extended discovery period would be needed to obtain technical information concerning taser guns. In addition, time would be needed to consult with an expert on such guns and have him appointed by the Court to testify for Plaintiff, who is proceeding pro se in forma pauperis. This Court affirmed the Magistrate's consolidation ruling by order filed September 19, 1984, in which it was explained that the Magistrate's ruling was neither clearly erroneous nor contrary to law.

Trial commenced October 3, 1984. It then was continued until October 24, 1984, when it was completed. Magistrate Atkins filed her Report and Recommendation on March 29, 1985. She noted that Unit Seven is the most secure housing in the Prison, which is a maximum security facility. The forty inmates whose cells are in Unit Seven are considered the most dangerous and escape-prone in the Nevada prison system. An inmate must go through a classification process before being assigned to the Unit. Unless the inmate has caused trouble in prison or is an escape risk, he is not housed in Unit Seven. Conversely, a Unit Seven inmate may be reclassified to less secure housing after a classification procedure.

The Magistrate found that the strip search policy has the objective of preventing the Unit Seven inmates from obtaining or possessing contraband that could be used to injure correctional officers or other inmates. She held that the policy is not an exaggerated response to a legitimate security interest. Further, Magistrate Atkins felt that proper deference should be given the expertise and informed discretion of the prison authorities in such matters. She found no violation of Plaintiff's Fourteenth Amendment rights by reason of his being strip searched routinely, no matter where he is going or coming from.

As to the searches being conducted outside Plaintiff's cell, the Magistrate found that a correctional officer is placed at a dangerous disadvantage when he must search an inmate in the latter's cell. Thus, the outside searches are reasonably related to the governmental interest in security within the Prison. Further, she found that there is not available any more private site for searches that would not present unreasonable security risks.

The Magistrate found that the use of female correctional officers where they occasionally can observe Plaintiff in the nude is a good faith attempt to comply with the law requiring that equal prison employment opportunities be afforded women. She emphasized that female correctional officers may not actually conduct strip searches of male prisoners except in case of emergency. The Magistrate concluded that the Prison policy is a reasonable accommodation of the inmates' right to privacy and the female correctional officers' right to equal employment opportunity.

The Report of Magistrate Atkins acknowledged that an inmate disabled by a taser gun could be injured if he fell against something pointed or hard. However, she noted that the inmates who have been subjected to hits from taser guns reported only slight headaches and some nausea after the immediate pain from the taser darts had ceased. Other than "sustained long-term anger," no psychological effects appear to have been suffered by the targets of the taser guns. Further, the Magistrate commented that the use of fists or clubs by correctional officers, as an alternative to taser guns, would result in confrontations where someone likely would be hurt. Stun guns were labeled ineffective, because the inmate can shield himself from the bean bag that is expelled by such a gun. The disadvantages of tear gas as an alternative were considered obvious. Magistrate Atkins held that the use of taser guns is a reasonable method of ensuring compliance with the strip search policy, so that the use on an inmate does not constitute cruel and unusual punishment in an Eighth Amendment sense.

In conclusion, the Magistrate summarized that the Prison policies do not violate Plaintiff's constitutional rights. Nor did Plaintiff introduce any evidence that would support a damages award, she indicated. Magistrate Atkins recommended that Plaintiff's motion for a preliminary injunction be denied and that judgment be entered in favor of the defendants and against Plaintiff.

Timely objections to the Magistrate's Report and Recommendation have been filed by Plaintiff. He contends that strip searches can, and in this case do, invade personal rights protected by the Constitution. This is especially so because Unit Seven prisoners are transported or escorted while handcuffed and manacled. Plaintiff urges that the strip search policy is unreasonable in that light. He also reargues the feasibility of conducting strip searches in the cells, rather than out on the tier. Testimony was given that in-cell searches have been, and still are, conducted in the Prison without any violence. In addition, Plaintiff contends that female correctional officers could be employed in the Prison without being assigned to posts where they routinely may observe male prisoners in the nude.

Plaintiff has renewed his objection to the Magistrate's consolidation of the hearing on his motion for a preliminary injunction with the trial itself. He insists that a psychiatrist would have helped him prove that strip searches leave long-lasting psychological effects on inmates.

In objecting to the Magistrate's Report re the use of taser guns, Plaintiff emphasizes that he and other prisoners are willing to be strip searched in their own cells. It is the humiliation they incur before the eyes of others, when searched out on the tier, about which he complains. Less drastic alternatives than the use of taser guns should be used to overcome peaceful resistance, he insists. Damages should be awarded him for being threatened unnecessarily with a taser gun, in Plaintiff's estimation.

The defendants have filed a response to Plaintiff's objections. In it they emphasize how regularly Unit Seven inmates have been found in possession of deadly weapons and have attacked others. They conclude that the Unit Seven strip search procedures are reasonably designed to thwart such illegal and dangerous conduct. The defendants further point out that Plaintiff made no serious attempt to obtain a psychiatrist as an expert witness until some eleven months after the filing of the complaint. This is in answer to his objections to the consolidation of the preliminary injunction hearing with the trial. Also, they argue that no psychiatrist's testimony could change the fact that the safety of correctional officers would be jeopardized by any alternatives to the existing strip search and taser gun policies exercised in Unit Seven.

Consolidation

The propriety of Magistrate Atkins' consolidation of the hearing on Plaintiff's motion for a preliminary injunction with the trial of the action already has been considered by this Court. There is nothing in the Magistrate's Report and Recommendation that could serve as a basis for Plaintiff's renewed objection to the consolidation. Objection is permitted only to specific portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

Nevertheless, the Court has reconsidered the matter because it involves the fundamental fairness of the consolidated hearing and trial. Where such consolidation is ordered, sufficient notice is required to permit the parties to develop their cases fully. Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 418 (5th Cir.1981). "Although each case will depend on its own circumstances, the ten-day notice requirement of Rule 56 for summary judgment motions might be taken as suggestive of the minimum amount of time necessary to permit a litigant to prepare a showing upon which the final outcome of the case may...