Madyun v. Franzen

• Decision Date: 05 April 1983
• Docket Number: No. 81-2867,81-2867
• Citation: 704 F.2d 954
• Parties: 31 Fair Empl.Prac.Cas. 817, 31 Empl. Prac. Dec. P 33,576 Yusaf Asad MADYUN, Plaintiff-Appellant, v. Gayle M. FRANZEN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 954

704 F.2d 954

31 Fair Empl.Prac.Cas. 817,

31 Empl. Prac. Dec. P 33,576

Yusaf Asad MADYUN, Plaintiff-Appellant, v. Gayle M. FRANZEN, et al., Defendants-Appellees.

No. 81-2867.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 2, 1982.

Decided April 5, 1983.

Ross B. Bricker, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Steven F. Molo, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before PELL, BAUER, and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

Appellant Madyun, an inmate at the Pontiac Correctional Center, Pontiac, Illinois, appeals from a summary judgment entered in the United States District Court for the Central District of Illinois, Harold A. Baker, District Judge, dismissing his civil rights action, pursuant to 42 U.S.C. Sec. 1983 (1976 & Supp. IV 1980), in which he sought damages, as well as declaratory and injunctive relief. Madyun claims that the prison authorities, by punishing him for his religiously-motivated refusal to submit to a "frisk search" by a woman guard, violated his constitutional rights.

We hold that the state may require male prison inmates--even those with religious

objections--to submit to frisk searches by women guards, that the punishment meted out to Madyun for his refusal to submit was not excessive, and that the state may authorize opposite sex searches of male prisoners without requiring the same of female prisoners. We affirm.

I.

On March 28, 1978, Madyun, who was serving a 100 to 300 year sentence at Pontiac for murder, reported to the visitors' room at the prison in preparation for a scheduled visit with his wife. Before he was allowed to pass through the security gate into the visitors' area, he was asked by the guard on duty at that gate, a woman officer named D. Howard, to submit to the standard frisk search--an outside-the-clothes check for concealed weapons. ¹ Madyun told Officer Howard that he would submit only to a frisk search by one of the male guards who happened to be standing by because Madyun's Islamic religion forbade such physical contact with a woman other than his wife or mother. After this explanation Officer Howard ordered Madyun to submit to her search. He refused to do so. Eventually a male correctional officer had to perform the search. A report was filed citing Madyun for his disobedience of a direct order and an institutional rule. A hearing on this charge was held two days after the incident. Madyun was found guilty of the violation alleged in the report. He thereupon was sentenced by the prison disciplinary committee to 15 days in segregation, i.e. confinement apart from other inmates.

In April 1979 Madyun commenced the instant action against Franzen, then the Director of the Illinois Department of Corrections; Harvey, the Warden at Pontiac; Officer Howard; and the members of the prison disciplinary committee. Madyun claimed in his original and amended complaints that frisk searches by women guards violated his First Amendment rights of privacy and free exercise of his religion, his Fourth Amendment right to be free from unreasonable searches and his Fourteenth Amendment right to equal protection of the laws because female prisoners were not subjected to frisk searches by male guards. He also claimed that 15 days in segregation was so excessive a punishment for his failure to submit to the frisk search that it constituted cruel and unusual punishment in violation of the Eighth Amendment.

Defendants moved for summary judgment on Madyun's First, Fourth, and Fourteenth Amendment claims. Their motion was granted by an order of the district court entered February 15, 1980. Madyun then moved for reconsideration, which the court denied on May 1. Summary judgment on Madyun's remaining Eighth Amendment claim was granted in favor of defendants on October 16, 1981. This appeal followed.

II.

We need not tarry over Madyun's First Amendment privacy claim or his claim that the frisk procedures performed by women guards on male prisoners were unreasonable within the meaning of the Fourth Amendment. We recently have held that the limited frisk searches by female guards at this same prison did not violate First Amendment privacy rights or Fourth Amendment rights of male inmates. Smith v. Fairman, 678 F.2d 52 (7th Cir.1982). ²

Madyun attempts to distinguish Smith on factual grounds. He claims that the search found constitutionally permissible there was far less intrusive than the search involved here. Specifically, he asserts that the frisk search to which he was subjected required the guard to examine his "genital-anal" area. There is no evidence to support this claim. Even Madyun's description of the search does not amount to a search of the "genital-anal" area.

Madyun alleged in his original complaint that "[a] 'frisk-search' conducted in accord with departmental practice and/or instruction would have entailed defendant Howard's touching plaintiff across his buttocks and between his legs in close proximity to or actual contact with plaintiff's genitals." Taking this allegation for the most that it might suggest, namely, that frisk searches might result in some incidental contact--through a prisoner's clothing--with the genital area, it is a far cry from proof that the instant frisk involved a deliberate search of the genital area. The instant case is distinguishable from Sterling v. Cupp, 44 Or.App. 755, 607 P.2d 206 (1980), modified, 290 Or. 611, 625 P.2d 123 (1981), in which the Oregon Supreme Court struck down, under the state constitution, a frisk search procedure whereby women prison guards manually examined the genital-anal area of male inmates. ³

The frisk search that Officer Howard was under orders to perform on Madyun on March 28, 1978 (note 1 supra) was not significantly different from Madyun's version of the search procedure. In his affidavit in response to Howard's affidavit, Madyun stated, "Defendant Howard's affidavit omits the fact that she ... is required, per department standards, to run her hands along the inside of a prisoner's legs well above 'mid-thigh' in the crotch area. Further, she is required to feel across a prisoner's buttocks in the event that he has concealed something in the back pocket of his pants."

We hold that there was no disputed material issue of fact. Assuming the truth of Madyun's allegations, the challenged search would have been no more than a simple frisk or pat-down, done outside the clothing, without any deliberate attempt to examine the "genital-anal" areas. ⁴ Since the search procedure would not have intruded unreasonably on Madyun's First Amendment privacy rights or his Fourth Amendment rights, his refusal to comply with Officer Howard's order was not justified by his reliance on those asserted rights.

III.

Madyun's three remaining constitutional claims--free exercise of religion, cruel and unusual punishment and equal protection of the laws--present questions that we did not have occasion to consider in Smith. We shall discuss each in order.

FREE EXERCISE OF RELIGION

Madyun is a member of the Islamic faith, an established religion. The sincerity of his beliefs is not questioned. Nor is it disputed that even the limited frisk searches conducted by women guards may be incompatible with the tenets of his religion. ⁵

The question before us, however, is whether the intrusion is justified by a state interest of sufficient magnitude. We hold that it is.

While belief is a citadel into which the state may not intrude, the individual's right of free exercise, although constitutionally protected, always has been balanced against the state's interest in applying its neutral rules of conduct evenhandedly to all citizens. E.g., United States v. Lee, 455 U.S. 252 (1982); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963); Reynolds v. United States, 98 U.S. 145 (1878). Incidental infringement on the exercise of religion that is caused by the application of a state rule or regulation ordinarily may be justified only if the limitation on religious liberty "is essential to accomplish an overriding governmental interest", United States v. Lee, supra, 455 U.S. at 257-58, or is required to serve a "compelling" state interest, Sherbert v. Verner, supra, 374 U.S. at 403, or an interest "of the highest order", Wisconsin v. Yoder, supra, 406 U.S. at 215.

Madyun invites us to analyze this case as an ordinary free exercise case, in which our responsibility undoubtedly would be to determine whether the state had shown a "compelling" interest, or an interest of the "highest order," in having female guards perform frisk searches on male prison inmates. The fact that Madyun is a prison inmate, however, changes the nature of our inquiry significantly; the balance between his right of free exercise and the state's interest in applying to him its prison rules and regulations tips toward the state. As an inmate, Madyun simply cannot expect the same freedom from incidental infringement on the exercise of his religious practices that is enjoyed by those not incarcerated.

It is true that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, supra, 441 U.S. at 545. And "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty." Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972). ⁶ But while inmates are not stripped of their constitutional rights at the prison gate, it also is true that these rights properly are subject to a much greater degree of intrusion than would be allowed outside the prison gate. The Supreme Court has made this clear in a series of cases. "[S]imply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations." Bell v. Wolfish, supra, 441 U.S. at 545. "A...