Bono v. Saxbe, Civ.No. 74-81-E.
| Decision Date | 24 December 1980 |
| Docket Number | Civ.No. 74-81-E. |
| Citation | 527 F. Supp. 1182 |
| Parties | Victor BONO et al, Plaintiffs, v. William E. SAXBE et al, Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
James R. Burgess, Jr., U. S. Atty., S. D. Ill., E. St. Louis, Ill., for defendants.
New Hampshire Legal Assistance, Concord, N. H., Howard Eglit, American Civil Liberties Union, Dennis Cunningham and Michael Deutsch, Chicago, Ill., David Johnson, Land of Lincoln Legal Assistance, Marion Prisoners' Rights Project, Carbondale, Ill., for plaintiffs.
This matter is before the Court on remand from the United States Court of Appeals for the Seventh Circuit in Bono v. Saxbe, 620 F.2d 609 (7th Cir. 1980). Proceedings in this Court prior to appeal are recorded at 450 F.Supp. 934 (E.D.Ill.1978) and 462 F.Supp. 146 (E.D.Ill.1978).1 As the Court of Appeals stated in its order, "we affirm with respect to most of the matters treated in the District Court's two opinions but remand for further proceedings involving two matters as set forth herein." 620 F.2d at 611 (emphasis added). Those two matters concern strip searches of Control Unit (or H-Unit) inmates before and after non-contact visits with family and friends, and the adequacy of lighting in the H-Unit cells. This Court was ordered to hear evidence and make a determination whether these two conditions imposed upon inmates in H-Unit are reasonably related to the need for institutional security at the United States Penitentiary, Marion, Illinois, and thus comport with the mandate of substantive due process. At the opening of the proceedings, plaintiffs' counsel urged upon this Court that the Court of Appeals' opinion was intended to open the issues on remand beyond the two specifically mentioned. Plaintiffs' Motion for Additional Relief on Remand is currently pending in this matter. The Court cannot accept plaintiffs' interpretation of the order of the Court of Appeals and hereby DENIES plaintiffs' motion. The opening language of the appellate opinion is clear that the scope of the remand is restricted to two matters. Thus, the Court will proceed to those two issues.
At the hearing held in this matter on November 3 and 4, 1980, inside Marion Penitentiary, plaintiffs argued that this Court should categorically order that every cell in H-Unit be equipped with a 100 watt light bulb so that inmates may see better in their cells. Prison officials offered uncontradicted testimony that inmates complain often that the naked light bulbs of even lesser wattage in their cells are too bright. The Court actually visited in H-Unit and observed makeshift devices inmates had devised to diffuse and filter the bright light. It appears to the Court that the matter is better settled by the prison officials' offer to furnish either a 40, 60 or 100 watt light bulb upon request of an individual inmate. In this case, service of individual preference undercuts the constitutional dimension of the complaint. Thus, the prison officials should develop a reasonable procedure for giving to an inmate either a 40, 60 or 100 watt light bulb for his cell immediately.
The Court of Appeals was particularly concerned with strip searches of inmates before and after non-contact visits with family and friends. The Court of Appeals did not believe that the rationale announced in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) justified the strip searches. Addressing this issue, the Court stated:
The Supreme Court in Wolfish relied on the possibility of contraband being brought into the prison during contact visits to justify the use of strip searches. Those contact visits were not closely supervised by guards. Wolfish should not be extended to the facts of this case without a showing that there is some risk that contraband will be smuggled into Marion during non-contact supervised visits, or that some other risk within the prison will be presented.
Bono, 620 F.2d at 617. The Court of Appeals also expressed concern in a footnote that the evidence in the proceeding below indicated that strip searches are not required in connection with inmates' contact visits with their counsel, but are required when they visit family and friends. Bono v. Saxbe, 450 F.Supp. 934, 939 (E.D.Ill.1978) (Findings of Fact Nos. 40 and 41). With the issue before the Court so framed, and based on the hearings at Marion November 3 and 4, 1980, and the personal inspection of the visiting area and H-Unit by the Court at that time, the following findings of fact are made.
1. An H-Unit inmate must submit to a visual body search, commonly referred to as a strip search, each time he leaves H-Unit for a visit.
2. An H-Unit inmate must submit to a strip search whether his visit is a non-contact visit with family or friends or a contact visit with an attorney.
3. Upon completion of either a non-contact or contact visit, each H-Unit inmate must submit to another strip search, which in most instances, is administered by correctional officers in an area adjacent to the visiting room area.
4. A strip search consists of an inmate removing all of his clothing, whereupon the correctional officer inspects the inmate's body orifices for contraband. An inmate must lift his genitals and bend over to spread his buttocks for visual inspection. The inmate is not touched, except for an occasional situation where an inmate's hair style requires an officer to run his hands through the hair of the inmate to insure that no contraband is being secreted.
5. During non-contact visits, H-Unit inmates use "controlled visiting booths" in which the inmate is separated by a plexiglass partition from his visitor. The inmate and the visitor speak through a telephone.
6. The same "controlled visiting booths" are used by open population inmates, segregation inmates, and H-Unit inmates.
7. The ceiling of the controlled visiting booth in which the inmate is seated during non-contact visits is made of wire mesh which is not impenetrable and which could allow for limited contact with the adjoining booth.
8. There is no constant or direct supervision by correctional officers of inmates seated in the individual controlled visiting booths. The guard on duty cannot see into all the booths at once.
9. On at least one occasion, the plexiglass partition has been compromised by means of burning a hole in the partition.
10. Articles of contraband, including homemade weapons and homemade handcuff keys, have been found in the cells of inmates housed in H-Unit, as well as on the inmates of H-Unit themselves.
11. A cursory search of the controlled visiting booth is conducted by a correctional officer before an inmate enters to visit. Regular maintenance of these booths is performed during non-visiting hours by inmate orderlies.
12. Prisoners testified at the hearing as to taunting and baiting which occasionally accompanies the strip searches.
The Court has no doubt that visual body searches may invade personal privacy and may be a humiliating experience for the inmate, but these practices must be viewed in connection with the realities of prison life in general and Marion, in particular. The Court must decide whether the strip searches, both before and after non-contact visits, are reasonably related to the dictates of institutional security.
Plaintiffs contend that there is no need for a strip search before or after the non-contact visit in that the purpose of the strip searches, especially the second search, is to harass, humiliate and subjugate the inmates. Relying on the testimony of H-Unit inmates, plaintiffs argue that the "demeaning remarks, the sexually perverted taunting and baiting which frequently accompany the searches, together with the frequent harassment of the visitors, is only another aspect of the Control Unit regimen, and the anti-human philosophy which informs its operation." (Plaintiffs' Memorandum of Proposed Findings of Fact and Conclusions of Law at 3.) Defendants, on the other hand, while acknowledging that strip searches may invade personal privacy and be humiliating to the inmate, argue that the security needs of the United States Penitentiary at Marion outweigh the privacy of the inmates, and that the strip searches, before and after visitation, are rationally related to security needs. The Court agrees with defendants.
Although body searches may violate the Fourth Amendment, Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 60 L.Ed. 543 (1925), the Supreme Court in Bell v. Wolfish, 441 U.S. 521, 99 S.Ct. 1864 (1979), sanctioned visual body searches in contact visit situations when the practice meets the test of reasonableness. Other courts have condoned strip searches. See, e.g., Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); Hodges v. Klein, 412 F.Supp. 986 (D.N.J.1976). The test enunciated in Bell is clearly applicable to the present case. Although Bell dealt with contact visits and the instant matter concerns non-contact visits, the "reasonableness" test encompasses that difference and only requires a stronger showing of justification.
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 invasion, the manner in which it is conducted, the justification for initiating it and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884.2 Applying this test, the strip searches, before and after non-contact visits, emerge as constitutionally permissible.
The search itself is a visual search with no actual intrusion into the body cavities by correctional...
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...it is conducted, ... and the place in which it is conducted." Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884; Bono v. Saxbe, 527 F.Supp. 1182, 1185 (S.D.Ill.), aff'd in part, 620 F.2d 609 (7th Cir.1980).12 Any policy permitting strip searches must be tightly drawn to assure that ......
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Cobell v. Norton
...a forty-, sixty-, or hundred-watt light bulb, but determined that the strip searches were constitutionally permissible. Bono v. Saxbe, 527 F.Supp. 1182 (S.D.Ill. 1980). A year later, the plaintiffs asked the district court to issue an order directing the defendants to show cause why they sh......
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Cobell v. Norton, Civil Action Number 96-1285 (RCL) (D. D.C. 9/25/2003), Civil Action Number 96-1285 (RCL).
...a forty-, sixty-, or hundred-watt light bulb, but determined that the strip searches were constitutionally permissible. Bono v. Saxbe, 527 F. Supp. 1182 (S.D. Ill. 1980). A year later, the plaintiffs asked the district court to issue an order directing the defendants to show cause why they ......
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Bonitz v. Fair
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