986 F.2d 1521 (9th Cir. 1993), 90-35307, Jordan v. Gardner

Docket Nº:90-35307, 90-35552.
Citation:986 F.2d 1521
Party Name:Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz; Yvonne Wood, Plaintiffs-Appellees, v. Booth GARDNER; Chase Riveland; Lawrence Kincheloe, Warden; Eldon Vail; Richard Alfresio, Defendants-Appellants, and Washington State Corrections Employees Association, Defendant-Intervenor. Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz; Yvonne Wood,
Case Date:February 25, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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986 F.2d 1521 (9th Cir. 1993)

Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz;

Yvonne Wood, Plaintiffs-Appellees,


Booth GARDNER; Chase Riveland; Lawrence Kincheloe, Warden;

Eldon Vail; Richard Alfresio, Defendants-Appellants,


Washington State Corrections Employees Association,


Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz;

Yvonne Wood, Plaintiffs-Appellees,


Booth GARDNER; Chase Riveland; Lawrence Kincheloe, Warden;

Eldon Vail, Defendants-Appellants,


Washington State Corrections Employees Association,


Nos. 90-35307, 90-35552.

United States Court of Appeals, Ninth Circuit

February 25, 1993

Argued and Submitted Aug. 27, 1992.

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Kathleen D. Mix, Asst. Atty. Gen., Olympia, WA, for defendants-appellants.

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, for plaintiffs-appellees.

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


O'SCANNLAIN, Circuit Judge:

The Governor of Washington and officials of the Washington Corrections Center for Women ("WCCW") appeal from the district court's order enjoining them from implementing a policy that requires male guards to conduct random, non-emergency, suspicionless clothed body 1 searches on female prisoners. The district court found that such policy violates the female prisoners' First, Fourth, and Eighth Amendment rights. We vacate our earlier three-judge panel decision, Jordan v. Gardner, 953 F.2d 1137, reh'g en banc granted, 968 F.2d 984 (9th Cir.1992), which reversed the district court. Sitting en banc, we now affirm the district court on Eighth Amendment

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grounds and do not reach the inmates' other constitutional claims.


The WCCW is an all-female prison which, in December of 1989, housed approximately 270 convicted felons. The inmates are classified at the minimum, medium, and maximum security levels. Since its opening in 1971, both male and female guards have staffed the institution. Before mid-1989, routine, suspicionless searches of inmates were performed only at fixed checkpoints by female guards. Male guards were permitted to search inmates only in emergency situations.

In late 1988, members of the correctional staff filed a grievance against the same-gender search policy at the institution. The female guards were unhappy that their meal breaks, taken while they were still officially on duty, were occasionally interrupted to conduct searches at the fixed checkpoints. The Washington Department of Corrections ("DOC") denied the first level grievance.

In January 1989, Eldon Vail took over as the new WCCW Superintendent. Vail believed that the prison's policy of conducting suspicionless searches only at fixed checkpoints was ineffective in controlling the movement of contraband through the facility, and decided to institute a policy of random searches. He was concerned, however, that to order an increase in the number of searches performed, while retaining the policy that only female guards could perform them, would lead to additional grievances and an eventual lawsuit by the female guards. On February 26, 1989, after consultation with the Director of the DOC, Superintendent Vail decided to change the policy at the institution and to order routine cross-gender clothed body searches of WCCW inmates. Despite warnings from psychologists on his staff that the cross-gender clothed body searches could cause severe emotional distress in some inmates, Vail instituted the policy which became effective on July 5, 1989.

During the cross-gender clothed body search, the male guard stands next to the female inmate and thoroughly runs his hands over her clothed body starting with her neck and working down to her feet. According to the prison training material, a guard is to "[u]se a flat hand and pushing motion across the [inmate's] crotch area." WCCW, Pat-Down Searches of Female Inmates (n.d.). The guard must "[p]ush inward and upward when searching the crotch and upper thighs of the inmate." Id. All seams in the leg and the crotch area are to be "squeez[ed] and knead[ed]." Id. Using the back of the hand, the guard also is to search the breast area in a sweeping motion, so that the breasts will be "flattened." Id. Superintendent Vail estimated that a typical search lasts forty-five seconds to one minute. A training film, viewed by the court, gave the impression that a thorough search would last several minutes. At a minimum, each response and movement officer was expected to perform ten random searches per shift during the two daytime shifts.

Several inmates were searched by male guards on the first (and only) day of implementation. One, who had a long history of sexual abuse by men, unwillingly submitted to a cross-gender clothed body search and suffered severe distress: she had to have her fingers pried loose from bars she had grabbed during the search, and she vomited after returning to her cell block. 2 Later that day, the inmates filed this civil rights action under 42 U.S.C. § 1983 and obtained a preliminary injunction, which was later transformed into a permanent injunction. Random cross-gender clothed body searches have not been performed at the WCCW since that day, July 5, 1989.

The district court issued its order permanently enjoining the searches following a seven-day trial. The record includes over 1000 pages of trial testimony transcripts, about 300 court documents, and various

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exhibits including videotapes. Before reaching his decision, Judge Bryan heard six days of live testimony, reviewed eight written or videotaped depositions, and received fifty-six exhibits.


The inmates first contend that the search policy violates the Fourth Amendment. 3 The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections are not extinguished upon incarceration. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.1988). Judge Reinhardt's concurring opinion ably articulates the Fourth Amendment analysis developed by Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1979), and Turner v. Safley, 482 U.S. 78, 87-91, 107 S.Ct. 2254, 2260-62, 96 L.Ed.2d 64 (1987). We do not decide, however, whether the search policy violates the Fourth Amendment, because we conclude that the Eighth Amendment prohibition against the unnecessary and wanton infliction of pain forbids these searches under the circumstances of this case. We address the Fourth Amendment issue only to clarify our reasons for not deciding the case on that basis.

We agree that the conduct at issue plainly is a "search" that implicates the protections of the Fourth Amendment. Consequently, Judge Reinhardt's contention that we should decide this case on the basis of the Fourth Amendment, because a search reasonable under the Fourth Amendment "cannot, by definition," violate the Eighth Amendment, has surface appeal. Its fallacy lies in the failure to pinpoint precisely which legitimate Fourth Amendment interest is violated by these searches. Judge Reinhardt avoids the issue by simply presuming the inmates possess rights that are invaded by these searches. He proceeds directly to the Turner analysis of whether the search policy is valid, as reasonably related to legitimate penological interests, without examining how the inmates' Fourth Amendment rights are infringed.

Whether such rights exist--whether the inmates possess privacy interests that could be infringed by the cross-gender aspect of otherwise constitutional searches--is a difficult and novel question, and one that cannot be dismissed lightly. But we cannot assume from the fact that the searches cause immense anguish that they therefore violate protected Fourth Amendment interests. Far from it, our prior case law suggests that prisoners' legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. See Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) (pat-down searches of male inmates that included groin area by female guards do not violate Fourth Amendment); Michenfelder, 860 F.2d at 334 (occasional visual strip searches of male inmates by female guards do not violate Fourth Amendment). The frequency and scope of the searches in Grummett and Michenfelder were significantly less invasive than the searches at issue here, and hence those cases are not controlling. Most importantly, however, the prisoners in those cases rested their claims upon invasions of privacy. The gravamen of the inmates' charge here is that the cross-gender clothed body searches inflict great pain and suffering. The unnecessary and wanton infliction of pain upon prisoners constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (quotations omitted).

Although the inmates here may have protected privacy interests in freedom from

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cross-gender clothed body searches, such interests have not yet been judicially recognized. On the other hand, the Eighth Amendment right of incarcerated persons to be free from the unwarranted infliction of pain is clearly established. As both amendments are applicable, and we affirm the district court upon the basis of the Eighth Amendment, we do not reach the Fourth Amendment claims.


" 'After incarceration, only the "unnecessary and wanton infliction of pain" ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.' " Whitley v. Albers, 475 U.S. at 319...

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