Chestang v. Wiggins
| Decision Date | 23 February 2011 |
| Docket Number | NO. 2:09CV00068 JLH-JTK,2:09CV00068 JLH-JTK |
| Parties | KEONDRA MONTREL CHESTANG, ADC #134005 PLAINTIFF v. MARTHA WIGGINS DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Keondra Montrel Chestang, a male inmate of the Arkansas Department of Correction, alleges that Martha Wiggins, a female officer of the Arkansas Department of Correction, violated his Fourth Amendment rights by conducting a visual strip search on June 16, 2008, while Chestang was incarcerated in the administrative segregation unit of the East Arkansas Regional Unit. Wiggins moved for summary judgment, and the magistrate judge to whom this case was referred recommended that the motion be granted. For the reasons that will be explained, the Court declines to accept the magistrate judge's recommendation and denies the motion for summary judgment.
Chestang was in the East Arkansas Regional Unit, Max 6, which is a barracks that houses administrative segregation inmates, from May 14, 2008, through September 16, 2008. Administrative segregation inmates generally include those inmates who have committed assaults on officers and fellow inmates, those who have harbored prison shanks or contraband, and those who are on protective custody. Administrative segregation inmates are permitted one hour of recreation call each day. Before going to yard call, they must be searched in order to confirm that they are not harboring contraband or weapons on their bodies.
According to Chestang, on June 16, 2008, Wiggins came to his cell, which had a solid door. She looked through the window in the door and asked him if he wanted to go to yard call, and he saidthat he did. He testified in deposition that she required him to strip completely naked and then squat and cough, and lift his genitals, while she watched. Chestang says that the strip search took place in his cell and took approximately sixty seconds. Afterwards, Wiggins gave his clothing back instructed him to dress, handcuffed him, and escorted him to yard call.
On June 20, 2008, Chestang submitted a grievance pursuant to the ADC grievance policies. He stated in that grievance:
On the date of 6/16/08, I alledge that I was unproperly searched therefore causing humiliation & embarrassment (on the above date)[.] Before exiting my cell for yard call, I was directed by Sgt. Wiggins to drop my boxers, squat & cough. This complaint isn't brought against this particular officer1 due to I understand she was directed & trained through higher administration to conduct searches in the above mentioned order thereby as including this complaint is brought against: Chief of Security Major M. Williams, Deputy Warden S. Outlaw and Warden G. Harmon. This is an ongoing issue, more than one officer is conducting searches of this nature....
Warden Harmon denied the grievance, stating that the grievance was conducted according to Policy 9.08.0. Chestang appealed, contending that he was "strip searched in an unproper manner by Sgt Wiggins." The appeal was then reviewed by Ray Hobbs, who was then the assistant director of the ADC. After reiterating the necessity for strip searches of inmates in administrative segregation Hobbs said:
However, it is also noted in AD2 08-14, that strip searches shall be conducted in a professional manner by staff of the same gender as the inmate except in cases of emergency (i.e., escape, riot, etc.). Strip searches of inmates do not require reasonable suspicion that the individual is concealing contraband.
Based... upon my review, I did not find that there was an emergency taking place in this instance, therefore, I find that AD 08-14 was not adhered to when Sgt Wiggins (female) asked you to drop your boxers, squat & cough to be strip search[ed] to be taken for yard call. I therefore, find merit to this Grievance Appeal and I will advise Warden Harmon via this Grievance Appeal decision to follow up with Sgt. Wiggins on the importan[ce] of following AD 08-14.
In this action, Chestang originally named as defendants Sergeant Wiggins, an assistant warden named Steve Outlaw, Warden Greg Harmon, Ray Hobbs, and Larry Norris, who was then the Director of the ADC. The complaint against Norris, Hobbs, Harmon, and Outlaw was dismissed on defendants' motion for judgment on the pleadings. Wiggins's motion for judgment on the pleadings was denied. Wiggins thereafter moved for summary judgment. As noted above, the magistrate judge recommended that Wiggins's motion be granted.
In support of her motion for summary judgment, Wiggins submitted her own declaration in which she says that she has been trained not to participate in visual searches of male inmates outside the presence of male officers, and she cannot recall any occasion in which she, alone, conducted a visual search of a male inmate. She says that during her tenure at the ADC she has been present while male correctional officers conducted visual searches of male inmates but believes that if she had conducted a visual search of a male inmate she would remember doing so because it is her habit and practice not to participate in searches of male inmates unless a male correctional officer is present.
Warden Harmon has submitted an affidavit in which he says that Chestang received a disciplinary citation in October 2007 for attacking an officer and another on January 15, 2008, for possessing a shank in his cell, so there was an institutional need for Chestang to be searched before exiting his cell in the company of an officer. He says that it is important that women be permitted to participate fully in correctional efforts in order for female correctional officers to advance in rankin the same manner as male officers and that while he was the Warden at the East Arkansas Regional Unit Max, women comprised roughly one-half of the unit's workforce. He says that restricting female officers from being in the vicinity of searches of inmates before yard call would have a negative impact on guards, other inmates, and prison resources. Harmon does not, however, say in his affidavit that requiring visual strip searches to be performed by officers of the same sex would adversely affect prison operations. Indeed, it appears from the record that ADC policy requires that visual strip searches be conducted by an officer of the same sex as the inmate, absent emergency circumstances, even though officers of the opposite sex may be in the vicinity.3
The Fourth Amendment guarantees a person's right to be free from unreasonable searches. Whether a search is reasonable under the Fourth Amendment requires a case-by-case "balancing of the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447 (1979). The required factors for courts to consider include: (1) "the scope of the particular intrusion, " (2) "the manner in which it is conducted, " (3) "the justification for initiating it, " and (4) "the place in which it is conducted." Id.
Wiggins argues that the alleged strip search was constitutional using the Bell factors and, in the alternative, the factors set forth in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Although it is true that this and other courts have applied the Turner test in seizure cases see Williams v. Bradley, 5:05CV10 BD, 2008 WL 2954247 (E.D. Ark. Jul. 29, 2008), Turner seems less applicable than Bell. Turner is used to assess the constitutionality of prison regulations that limit an inmate's ability to exercise his constitutional rights: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S. Ct. at 2261. When applying Turner, the court considers: (1) whether there is a valid, rational connection between the prison regulation or practice and a legitimate governmental interest; (2) whether the regulation or practice allows inmates an alternative means of exercising the subject constitutional right; (3) the impact of accommodating the asserted right on guards, other inmates, and the allocation of resources generally; and (4) the absence of ready alternatives to the regulation or practice. Id. at 89-91, 107 S. Ct. at 2261-62.
Although Turner follows and in some ways may supersede Bell, it does not seem to apply here because a prison regulation is not in question; in fact, ADC regulations prohibited strip searches by officers of the opposite sex of the inmate. Moreover, a number of courts have continued to analyze the reasonableness of a strip search under Bell. Byrd v. Maricopa Cty. Sheriff's Dep't, 629 F.3d 1135, 1142-43 (9th Cir. 2011) (applying the Bell factors); see also Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 621 F.3d 296, 306 n.5 (3d Cir. 2010) () (internal citations omitted); Powell v. Barrett, 541 F.3d 1298, 1302 (11th Cir. 2008) ().
In McIllwain v. Weaver, 686 F. Supp. 2d 894 (E.D. Ark. 2010), this Court granted a male officer's motion for summary judgment after a female detainee alleged that she was subjected to a visual strip search in front of the officer. In granting the motion, the Court found...
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