Tribble v. Gardner

Decision Date25 October 1988
Docket NumberNo. 87-3982,87-3982
Citation860 F.2d 321
PartiesLanford D. TRIBBLE, Plaintiff-Appellee, v. Booth GARDNER; Amos Reed; Robert Trimble, et al.; W.L. Kautzky; James C. Spalding; Lawrence Kincheloe; Snell, Sgt.; J. King; J. Christy; P. Edwards; R. Jones; R. Hansen, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Glenn L. Harvey, Asst. Atty. Gen., Corrections Div., Olympia, Wash., for defendants-appellants.

Leo J. Driscoll, Winston & Cashatt, Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before BEEZER, HALL and WIGGINS, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The Governor of Washington and state prison authorities, defendants-appellants, appeal the district court's denial of their motion for summary judgment based on the defense of qualified immunity. Plaintiff-appellee Lanford D. Tribble, an inmate at the Washington State Penitentiary in Walla Walla, Washington, brought this action under 42 U.S.C. Sec. 1983 seeking damages, declaratory and injunctive relief based upon the digital body cavity searches routinely conducted whenever a prisoner is moved into the Intensive Management Unit, a secure housing unit within the maximum security prison. We affirm.

I

In June 1984, the Washington State Penitentiary in Walla Walla opened an Intensive Management Unit ("IMU"), a ninety-six cell secure housing unit within the maximum security prison. 1 Washington State Department of Corrections Policy Directive 420.110(A)(4)(a) provides that a digital body cavity search, including the rectum, shall be conducted on all inmates prior to initial placement in the IMU, and upon return to the IMU from other portions of the prison "when a good opportunity for concealment has occurred." In other words, when an inmate has left the direct supervision and custody of escorting officers, a digital rectal search is required to be conducted on the inmate upon re-entry into the IMU. The ostensible purpose of the policy is based on the need for security in the IMU.

On January 16, 1986, prison officials discovered contraband during a search of the general population three-man cell in which Tribble resided. Tribble, on the basis of a "cell tag" regulation, Wash.Admin.Code Sec. 137-28-031 (1986), 2 was cited for possession of the contraband. The following day, a prison officer told Tribble he was to be transferred to the IMU. The officer allegedly smiled and stated: "Today, you meet 'Mr. Big Finger,' Tribble...."

Prior to his move from the general population to the IMU, Tribble was handcuffed behind his back, placed in leg irons, chained around his waist, and taken to the prison hospital. 3 He was placed on an examination table and a physician's assistant conducted a digital body cavity search including digital penetration and examination of his rectum. This examination was videotaped by correctional officers. It is undisputed that the search occurred pursuant to policy, and was not based upon a suspicion that Tribble had secreted any item in his rectum. Tribble was then taken to the IMU.

Tribble brought suit alleging, in part, that the policy of conducting digital body cavity searches upon entry to the IMU from other portions of the prison without any individualized cause to do so constitutes an unreasonable search under the fourth amendment and cruel and unusual punishment under the eighth amendment. Appellants moved for summary judgment, in part, based upon the qualified immunity defense, contending that the constitutionality of the policy was an open question.

II

We have jurisdiction over this interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 529-30, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985) ("[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment."). See generally Kraus v. County of Pierce, 793 F.2d 1105, 1107-08 (9th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987).

We review de novo the denial of a qualified immunity defense. White by White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986). We review the evidence in the light most favorable to the nonmoving party. Id.

III

In this appeal, we do not determine whether the search conducted on Tribble violated the fourth amendment's proscription against unreasonable searches. Nor do we determine whether the particular search amounted to "unnecessary and wanton infliction of pain" forbidden by the eighth amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion)); see McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir.1986). 4 Instead, first we must determine whether, at the time of the search, Tribble had a clearly established right to be free from a digital rectal search conducted for purposes unrelated to security concerns. See Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). Second, we must determine whether, given the facts of this case, a reasonable person would have known that searches pursuant to Policy Directive 420.110(A)(4)(a) violated Tribble's clearly established rights. See Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987).

"[G]overnment officials performing discretionary functions[ ] generally are shielded from liability for civil damages [in a section 1983 action] insofar 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 "clearly established law" test requires more than an alleged "violation of extremely abstract rights." Anderson, 107 S.Ct. at 3038-39. Rather, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 3038. In other words, "in the light of preexisting law the unlawfulness must be apparent." Id.

To determine whether a right is clearly established, "in the absence of binding precedent, a court should look at all available decisional law including decisions of state courts, other circuits and district courts...." 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). An additional factor that may be considered is "a determination of the likelihood that the Supreme Court or this circuit would have reached the same result as courts which had previously considered the issue." Capoeman v. Reed, 754 F.2d 1512, 1515 (9th Cir.1985). Government officials are charged with knowledge of constitutional developments, including all available decisional law. Gutierrez v. Municipal Court, 838 F.2d 1031, 1048 (9th Cir.1988).

We begin with the well-settled principle that "a prison inmate 'retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.' " Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)) (brackets in original). Supreme Court decisions express the general principle in this area. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), established the principle that, to avoid constitutional infirmity, a prison regulation that infringes on inmates' constitutional rights must be reasonably related to legitimate penological objectives. See Turner, 107 S.Ct. at 2257-62 (discussing cases).

Accordingly, because digital rectal searches are highly intrusive and humiliating, the Second and Fifth Circuits have stated that the government must show that a legitimate penological need necessitated the search. United States v. Lilly, 576 F.2d 1240, 1246 (5th Cir.1978); Sostre v. Preiser, 519 F.2d 763, 764 (2nd Cir.1975) (dicta). 5

In Lilly, defendants attempted to smuggle contraband into prison and were subjected to a digital rectal cavity search. Acknowledging that "[t]he history and purpose underlying the fourth amendment ... require that prisoners retain at least some degree of their fourth amendment protection," 576 F.2d at 1244, the court opined that "[i]t is now settled law ... that a prisoner loses only those rights that must be sacrificed to serve legitimate penological needs." Id. (citing 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)).

In view of these decisions, were this court to face the constitutionality of the precise type of search conducted in this case, we would have reached the same result as the Second and Fifth Circuits. See United States v. Savage, 482 F.2d 1371, 1373 (9th Cir.1973) (warrantless search of prisoner's cell violates the fourth amendment unless it serves a justifiable purpose of imprisonment or prison security), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974). Accord United States v. Vallez, 653 F.2d 403, 406 (9th Cir.1981), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d 223 (1982); United States v. Hearst, 563 F.2d 1331, 1344-45 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Dawson, 516 F.2d 796, 806 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975). Therefore, we...

To continue reading

Request your trial
94 cases
  • Buckley v. Alameida
    • United States
    • U.S. District Court — Eastern District of California
    • December 14, 2011
    ...of ordinary firmness from future First Amendment activities.' See Brodheim v. Cry, 584 F.3d 1262, 1271; cf. Tribble v. Gardner, 860 F.2d 321, 324-25 & n.6 (9th Cir. 1988).ii. Causation In Brodheim v. Cry, the Ninth Circuit found that even when there was a dispute as to whether Plaintiff's '......
  • Casey v. Lewis, No. 91-16513
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 23, 1993
    ...actual bases for their grooming policy" or "evidence that any of these interests justifies" the challenged policy); Tribble v. Gardner, 860 F.2d 321, 325 n. 6 (9th Cir.1988) ("when a prison regulation burdens fundamental rights, the government must show that the regulation is reasonably rel......
  • Ortiz v. New Mexico
    • United States
    • U.S. District Court — District of New Mexico
    • July 22, 2021
    ...search as "a brutal invasion of privacy, an illegal and frightening example of unlawful law enforcement"); Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir. 1988) (Hall, J.)("[D]igital rectal searches are one of the most intrusive methods of detecting contraband[.]"); Kennedy v. Los Angeles P......
  • Del Raine v. Williford
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 9, 1994
    ...of this nature falls under both the constitutional protections of the Fourth Amendment and the Eighth Amendment. See Tribble v. Gardner, 860 F.2d 321 (9th Cir.1988) ("If the search were conducted for purposes unrelated to security considerations, not only would it violate the fourth amendme......
  • Request a trial to view additional results
1 books & journal articles
  • Foreword: Is Civil Rights Law Dead?
    • United States
    • Louisiana Law Review No. 63-3, April 2003
    • April 1, 2003
    ...v. Long, 72 F.3d 70, 73-74 (8th Cir. 1995) (look to Supreme, Circuit, District, and State Supreme Court opinions); Tribble v. Gardner, 860 F. 2d 321, 324 (9th Cir. 1988) (same); Jermosen v. Smith, 945 F.2d 547, 551 (2nd Cir. 1991) (district court opinion cannot establish clearly established......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT