Vaughan v. Ricketts

Decision Date14 October 1988
Docket NumberNo. 87-2526,87-2526
Citation859 F.2d 736
PartiesTracy Ray VAUGHAN, et al., Plaintiffs-Appellees, v. James D. RICKETTS, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Ronald J. Greenhalgh, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellants.

Robert Bartels and Cindra White, Arizona State University Law School Clinic, Tempe, Ariz., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Arizona.

Before HUG * and BOOCHEVER, Circuit Judges, and STEPHENS, ** District Judge.

BOOCHEVER, Circuit Judge:

Ricketts, the director of the Arizona Department of Corrections, and other prison officials (Ricketts) appeal the district court's denial of their summary judgment motion. Ricketts contends that he is entitled to qualified immunity from suit under 42 U.S.C. Sec. 1983 by Vaughan and other plaintiffs (Vaughan), all inmates at the Arizona State Prison at Florence (ASP), alleging that a series of digital rectal cavity searches violated their constitutional rights. Ricketts also suggests that the individual liability of particular defendants is before the court on this appeal. We find that the district court did not err in denying Ricketts' claim of qualified immunity. The denial of summary judgment is AFFIRMED.

FACTS

Vaughan and approximately eighty inmates of the maximum security unit at ASP were subjected to a series of digital rectal cavity searches on the 15th, 22nd, and 23rd of March 1984. Vaughan alleges that correctional medical assistants untrained in involuntary rectal cavity searches conducted them on a table in an open hallway, within view of prison personnel and some inmates. He alleges that the conditions were unsanitary, that some inmates who resisted were forced to submit, and that those searching made no effort to determine whether any of the inmates had medical conditions that would make a digital rectal cavity probe medically inadvisable. Ricketts had ordered the searches in response to information that there were explosives in the maximum security unit; the March 15 searches recovered some gunpowder.

Vaughan filed suit under 42 U.S.C. Sec. 1983 alleging deprivation of rights under the fourth, eighth, and fourteenth amendments of the United States Constitution. Ricketts moved for summary judgment, claiming a qualified immunity from suit because the law governing body cavity searches of inmates was not clearly established as of March 1984. In its order denying Ricketts' motion, the district court held that Supreme Court and Ninth Circuit decisions before March 1984 clearly established a "reasonable grounds" standard for initiation of digital body cavity searches of inmates. The court concluded that it was also clearly established that body cavity searches must be "reasonably conducted in order to withstand fourth amendment scrutiny." Finally, the district court found that clearly established standards existed under the eighth and fourteenth amendments as well. The court thus refused to grant Ricketts qualified immunity on any of Vaughan's claims.

ANALYSIS

We generally do not permit appeals from denials of summary judgment. The Government officials performing discretionary functions enjoy a qualified immunity from liability for civil damages so long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The Harlow test focuses upon the "objective reasonableness" of the official's conduct. Id. Ricketts is entitled to summary judgment granting him qualified immunity if he can establish that "a reasonable officer could have believed that the search comported with [the Constitution] even though it actually did not." Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3036, 97 L.Ed.2d 523 (1987). For a finding that the right was "clearly established" at the time the action was taken, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. 107 S.Ct. at 3039.

                Supreme Court has held, however, that an interlocutory order denying qualified immunity is effectively unreviewable on appeal from final judgment, conclusively determines the issue in dispute, and is conceptually separate from the merits of the plaintiff's claim.  Mitchell v. Forsyth, 472 U.S. 511, 526-28, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985).  "[T]o the extent that it turns on an issue of law," such an order is immediately appealable.  Id. at 530, 105 S.Ct. at 2817.    Assuming that Vaughan can prove the acts attributed to Ricketts, we must decide the entirely legal issue of "whether the facts alleged ... support a claim of violation of clearly established law."    Id. at 528 n. 9, 105 S.Ct. at 2816 n. 9
                
FOURTH AMENDMENT

To determine whether, at the time of the searches in March 1984, Vaughan enjoyed "clearly established ... constitutional [fourth amendment] rights of which a reasonable person would have known," Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, we must review "all available decisional law including decisions of state courts, other circuits, and district courts to determine whether the right was clearly established." Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987).

Ricketts asserts that it was not clearly established that prisoners retain any fourth amendment rights. We disagree. By 1982, the majority of the circuits had considered the question, each holding that inmates retained some fourth amendment protection from unreasonable searches of their persons. See Bonitz v. Fair, 804 F.2d 164, 171 (1st Cir.1986) (citing opinions from the First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, and Tenth circuits). In United States v. Savage, 482 F.2d 1371, 1372 (9th Cir.1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974), this court held that "[a] prisoner is entitled to the fourth amendment's protection from unreasonable searches and seizures." That "abstract right[ ]" in itself, however, is not enough to show that the law was clearly established in this case; the law regarding body cavity searches of inmates in 1984 must be so clear that "the unlawfulness [of the officials' conduct is] apparent" to the reasonable official. Anderson, 107 S.Ct. at 3039.

In 1979, the Supreme Court held in Bell v. Wolfish that routine visual body cavity inspections of pretrial detainees must be reasonable under the fourth amendment. 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). A determination of whether a challenged search is reasonable

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.

Id. at 559, 99 S.Ct. at 1884.

In Ward, this court held that Wolfish clearly established as of 1981 that the justification The Supreme Court in 1979 emphasized that any consideration of whether routine visual body cavity searches of inmates were reasonable involved an assessment of the manner in which the searches were conducted. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884-85. In finding the search before it was reasonable, the Court pointed out that no touching was involved. Id. at 558 n. 39, 99 S.Ct. at 1884. The Court elaborated:

                for initiating blanket strip searches of minor offense arrestees must be "reasonable."    791 F.2d at 1332-33.    The district court in this case relied on Ward to find that the same standard of "reasonable grounds" was clearly established as regarded digital rectal cavity searches of inmates.  Although the information regarding the presence of explosives in the maximum security unit of the ASP may have provided reasonable cause for the searches, we find it unnecessary to resolve whether it was clearly established that prison officials must have reasonable cause for such a search or whether such cause existed here.  Regardless of the strength of the officials' justification, the manner in which Vaughan alleges the searches were conducted violated clearly established standards.  A refusal to grant qualified immunity on the fourth amendment claim was appropriate on that ground alone
                

We do not underestimate the degree to which these [visual] searches may invade the personal privacy of inmates. Nor do we doubt ... that on occasion a security guard may conduct the search in an abusive fashion. Such an abuse cannot be condoned. The searches must be conducted in a reasonable manner.

Id. at 560, 99 S.Ct. at 1885 (citations omitted).

Courts of appeals finding body cavity searches constitutional before the ASP searches in 1984 were careful to note that the manner in which the searches were conducted was reasonable. Daughtery v. Harris, 476 F.2d 292, 294 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973), held that routine physical rectal searches of inmates before court appearances were reasonable "unless contradicted by a showing of wanton conduct." The court continued:

Of course, any search should be conducted by prison officials under judicious circumstances .... The searches were here conducted according to the directives issued by the Bureau of Prisons ... and the examinations were carried out by trained para-professional medical assistants in a designated area and under sanitary conditions. Also, there was no attempt on the part of officials or medical personnel to humiliate or degrade the appellants.

Id. at 295 (citations omitted) (emphasis added). In United States v. Lilly, 576 F.2d 1240, 1246 (5th Cir.1978), the court required that body cavity "search[es] and any...

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