860 F.2d 328 (9th Cir. 1988), 86-1549, Michenfelder v. Sumner

Docket Nº:86-1549.
Citation:860 F.2d 328
Party Name:Robert MICHENFELDER, Plaintiff-Appellant, v. George SUMNER; Lieutenant Koon; C/O Horn; C/O Leslie; Sgt Jenae Holmes; Sgt Stuffelbeam; James Parker, Defendants-Appellees.
Case Date:October 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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860 F.2d 328 (9th Cir. 1988)

Robert MICHENFELDER, Plaintiff-Appellant,


George SUMNER; Lieutenant Koon; C/O Horn; C/O Leslie;

Sgt Jenae Holmes; Sgt Stuffelbeam; James Parker,


No. 86-1549.

United States Court of Appeals, Ninth Circuit

October 26, 1988

Argued Dec. 15, 1987.

Submitted Oct. 21, 1988.

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Robert Michenfelder, Carson City, Nev., for plaintiff-appellant.

David F. Sarnowski, Deputy Atty. Gen., Carson City, Nev., for defendants-appellees.

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

Before FLETCHER, WIGGINS and NOONAN, Circuit Judges.

FLETCHER, Circuit Judge:

Robert Michenfelder, a maximum security prisoner, appeals an adverse judgment in his Sec. 1983 action against Nevada state prison officials for conducting strip searches and otherwise exposing unclothed male inmates to view by female guards in the course of their duties in violation of the

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fourth and eighth amendments. The district court found the searches reasonable, given the prison's legitimate security concerns and female prison employees' rights to equal employment opportunities. It also found that the prison's taser gun policy did not violate the Eighth Amendment. We affirm.


When this action commenced Michenfelder was an inmate in the Nevada State Prison's (NSP) Unit 7, the maximum security unit for the state's 40 most dangerous prisoners. Defendant Sumner was then warden of the NSP and is now Director of the Nevada Department of Prisons. Other named defendants are correctional officers and prison administrators at NSP.

Strip searches are conducted every time a Unit Seven inmate leaves or returns to the unit, as well as after movement under escort within the unit, such as for sick call, recreation, disciplinary hearings, and visits. The strip searches complained of here include visual body cavity searches, but not physical contact searches. They are conducted at the end of the tier's hallway, in front of a barred gate behind which the guards conducting the searches stand (in an area known as the "sally port"). The searches are visible to the tier's other prisoners whose cell doors open onto the corridor, and, through a small window, to guards controlling the cell doors from the "lock box" located in the main corridor outside the tier. The searches also can be observed indirectly by officers in the "control bubble", a room with video screens for monitoring activity on the tiers by means of video cameras located at either end of the hallways. Female officers are permitted to work in the control bubble, at the lock box, and any other position available to a correctional officer (including shower duty). They do not conduct strip searches except in severe emergencies.

Prison regulations allow officers at NSP to carry "taser" guns. The taser operates by firing a tiny dart, attached to the gun with wires, into the prisoner, and by administering a low amperage, high voltage electrical shock which temporarily incapacitates the prisoner. See People v. Heffner, 70 Cal.App.3d 643, 647, 139 Cal.Rptr. 45, 46 (1977). NSP officers have threatened and in some instances actually fired tasers to enforce compliance with the strip searches and have also used the tasers in other disciplinary situations in the prison.


Michenfelder commenced this Sec. 1983 action on July 5, 1984. The complaint seeks a declaratory judgment that the frequent searches, conducted where other inmates and female correctional officers could observe him naked and subject to threatened use of the taser, violated Michenfelder's constitutional rights. He simultaneously filed a separate motion for a preliminary injunction prohibiting prison officials from strip searching him in view of female officers and and other inmates, from conducting searches before and after transport to certain activities within Unit Seven when he would be under escort at all times, and from using the taser at any time.

The magistrate consolidated the hearing of the preliminary injunction motion with the trial of the action by minute order dated August 27, 1984. Over Michenfelder's objections the district court affirmed the consolidation by order filed September 19, 1984. The trial was held on October 3 and October 24, 1984. On March 29, 1985 the magistrate recommended denial of the injunction and grant of judgment for the defendants. She found that the location and frequency of the searches was a reasonable response to a legitimate security interest within the prison, and that using female correctional officers for tasks that offer occasional views of nude prisoners is a good faith attempt to comply with the officers' equal employment opportunities. The magistrate further found that use of tasers was a reasonable method of ensuring compliance with the strip search policy, and thus was not cruel and unusual punishment. See Michenfelder v. Sumner, 624 F.Supp. 457, 459-60 (D.Nev.1985). Over Michenfelder's timely objections, the district court accepted the magistrate's report

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and recommendations in their entirety. Id. at 464. This appeal followed. We have jurisdiction under 28 U.S.C. Sec. 1291.


We review the trial court's findings of fact for clear error. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.1984). We will affirm the trial court's determinations unless we are left with a definite and firm conviction that a mistake has been committed. Pullman-Standard v. Swint, 456 U.S. 273, 284-85 n. 14, 102 S.Ct. 1781, 1788 n. 14, 72 L.Ed.2d 66 (1982). Conclusions of law are reviewed de novo, McConney, 728 F.2d at 1201, as are most mixed questions of law and fact, especially those implicating constitutional rights. Id. at 1203.


"[C]onvicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). However, "[t]he limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives--including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Recently, the Supreme Court emphatically set forth the standard for reviewing alleged infringements of prisoners' constitutional rights. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2260-61, 96 L.Ed.2d 64 (1987), the Court rejected a standard of heightened scrutiny in favor of the following rational relationship test: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." See also O'Lone, 107 S.Ct. at 2404. The Court provided four factors to guide reviewing courts in applying this test: 1) the existence of a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; 2) the existence of alternative means of exercising the right that remain open to prison inmates; 3) the impact that accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and 4) the absence of ready alternatives as evidence of the reasonableness of the regulation (the presence of obvious easy alternatives may evidence the opposite). Turner 107 S.Ct. at 2262. 1

In applying the Turner v. Safley test we must accord great deference to prison officials' assessments of their interests: "Prison administration is ... a task that has been committed to the responsibility of [the legislative and executive branches], and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in [Procunier v.] Martinez [416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) ], additional reason to accord deference to the appropriate prison authorities." 107 S.Ct. at 2259. The Court reasoned, "In our view, such a standard is necessary if 'prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.' " Id. at 2262 (quoting Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977)).

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Michenfelder contends that NSP's strip search policy, which calls for visual body cavity searches whenever an inmate leaves or returns to the unit, as well as when he travels under escort within the unit--including when leaving to or returning from sick call, recreation, disciplinary hearings, and visits--is constitutionally infirm. The district court deferred to the prison officials' judgment regarding the searches' necessity, finding Michenfelder failed to show the searches were an exaggerated or excessive means of providing needed security. Michenfelder, 624 F.Supp. at 462.

The fourth amendment guarantees "[t]he right of the people to be secure ... against unreasonable searches and seizures." This right extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context. In Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), the Supreme Court set forth a balancing test for determining a search's reasonableness:

"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...

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