Covino v. Patrissi

• Decision Date: 17 June 1992
• Docket Number: D,No. 674,674
• Citation: 967 F.2d 73
• Parties: Robert H. COVINO, Plaintiff-Appellant, v. Joseph PATRISSI, Commissioner of Corrections; Heinz Arenz; David W. Martinson; Paul Pelletier; David A. Turner; Thomas Porwitzky; William D. Finnigan; and K.W. Oddy, Defendants-Appellees. ocket 91-2362.
• Court: U.S. Court of Appeals — Second Circuit

Page 73

967 F.2d 73

Robert H. COVINO, Plaintiff-Appellant, v. Joseph PATRISSI, Commissioner of Corrections; Heinz Arenz;

David W. Martinson; Paul Pelletier; David A.

Turner; Thomas Porwitzky; William D.

Finnigan; and K.W. Oddy,

Defendants-Appellees.

No. 674, Docket 91-2362.

United States Court of Appeals, Second Circuit.

Argued Nov. 4, 1991.

Decided June 17, 1992.

John L. Sander, New York City (Michael T. Mervis, Paul, Hastings, Janofsky & Walker, of counsel), for plaintiff-appellant.

Thomas J. Rushford, Asst. Atty. Gen., Waterbury, Vt. (Jeffrey L. Amestoy, Atty. Gen. State of Vt., Michael McShane, Asst. Atty. Gen., Dept. of Corrections, of counsel), for defendants-appellees.

Before: CARDAMONE, PIERCE, and MINER, Circuit Judges.

PIERCE, Circuit Judge:

Robert H. Covino appeals from an order of the United States District Court for the District of Vermont, Fred I. Parker, Chief Judge, denying his motion for a preliminary injunction in a suit brought pursuant to 42 U.S.C. § 1983 challenging the visual body-cavity search procedure employed in a Vermont state prison. We affirm the order of the district court.

BACKGROUND

In August 1988, plaintiff-appellant Robert H. Covino, then a pre-trial detainee ¹ in the custody of the State of Vermont was On August 17, 1990, Covino, proceeding pro se, filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of Vermont, naming as defendants Joseph Patrissi, the Commissioner of Corrections, Heinz Arenz, the Superintendent of NWSCF, and other employees at the facility. Covino alleged that on July 13, 1990, he was randomly selected and punished for not consenting to a visual body-cavity search during a random cell search at the institution. He asserted that the search procedure violated his fourth and fourteenth amendment rights as a pre-trial detainee to be free from unreasonable searches. He sought a declaratory judgment and compensatory and punitive damages. He moved also for a temporary restraining order or a preliminary injunction against the defendants' policy of conducting visual body-cavity searches of pre-trial detainees. The matter was referred to a magistrate judge who, on September 21, 1990, conducted a hearing on the motion at which both Covino and Arenz testified.

                transferred to the Northwest State Correctional Facility ("NWSCF"), where he was commingled with sentenced inmates.   NWSCF officials rely upon Procedure 300.10 of the Vermont Department of Corrections' Procedural Directives to conduct, inter alia, random visual body-cavity searches of inmates
                

On October 17, 1990, the magistrate judge issued a Report and Recommendation in which he reported the following: Eighty-five percent of the inmates at NWSCF have violence as a feature of their background and eighty percent have drug and/or alcohol abuse backgrounds. Pursuant to Procedure 300.10, random routine "shakedowns" of inmate rooms are conducted at NWSCF. ² Procedure 300.10 is designed to "effectively control the trafficking of contraband," and, according to the testimony of Arenz, Procedure 300.10 has been successful in achieving that objective.

Under Procedure 300.10, the inmates' room numbers are drawn from a container into which all the numbers in the particular unit of NWSCF are placed. The testimony at the hearing did not reflect whether the supervisor who draws the room numbers is able to see the number before it is drawn. Procedure 300.10 provides that one or two inmates' rooms are to be selected at random each night and subjected to a thorough search; also, the inmate-occupants of the rooms are required to undergo a visual body-cavity search. As part of the visual body-cavity search, the inmate is required to remove all his clothing, lift his genitals and spread his buttocks for a visual examination. This examination does not involve any touching of the inmate by NWSCF staff.

The magistrate judge also reported that although Covino had been at NWSCF since August 1988, his room number was drawn for the first time randomly in accordance with Procedure 300.10 on July 13, 1990. Covino cooperated with the search of his room; however, with respect to the search of his person, he refused to remove his underwear and to permit a visual body-cavity search. Covino was not forced to undergo the subject search, but he received a disciplinary report and was administratively punished. In his complaint, Covino alleged that he was placed in "lock up" for three days and lost two days of good-time credit.

On September 5, 1990, Covino's room number was selected again as part of the nightly shakedown procedure. Covino permitted the search of his room and a visual The magistrate judge identified the issue presented in the case as "whether plaintiff can demonstrate that a policy permitting routine and random [visual body-cavity] searches simply to deter the trafficking in contraband is unconstitutional." He observed that "[i]f the search policy at NWSCF is constitutionally infirm, the nature of the search conducted on plaintiff's person would constitute irreparable harm." Relying upon, inter alia, Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 1037, 108 L.Ed.2d 178 (1990) and Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), for the applicable legal standards, he reported that there was a legitimate connection between Procedure 300.10 and the State of Vermont's interest in deterring trafficking in contraband and in protecting the internal security of NWSCF. He also concluded that the routine visual body-cavity searches conducted pursuant to Procedure 300.10 were neither arbitrary nor irrational and that there was no need for NWSCF to provide inmates with an alternative that would allow NWSCF to achieve its security goals.

                inspection of his person, but he refused to permit a body-cavity search.   As a result, he received administrative sanctions.   In an amendment to his complaint, Covino alleged that he was in "lock up" for three days and lost one day of good-time credit for refusing to undergo the subject search.   According to supplemental papers submitted after the hearing before the magistrate judge, on October 7, 1990, Covino refused to undergo such a search, which resulted in him receiving a disciplinary report
                

Based upon a conclusion that Covino had not demonstrated a reasonable likelihood of success on the merits of his claim or that a balance of hardships tipped decidedly in his favor, assuming that there were serious questions going to the merits, the magistrate judge recommended that Covino's request for a preliminary injunction be denied. However, since it was not clear whether the search procedure was being applied in a purely random manner or whether it was conducted to harass, intimidate or punish Covino, he recommended that the complaint not be dismissed.

On July 29, 1991, the district judge, in an order, and over Covino's objections, adopted the Report and Recommendation and denied Covino's motion for a temporary restraining order or a preliminary injunction. Covino filed a timely appeal, pursuant to 28 U.S.C. § 1292(a)(1). A panel of this court granted Covino's request for an injunction pending the resolution of his appeal "insofar as the challenged regulation [was] to be applied to [him]."

On appeal, Covino argues that the district court erred in denying the motion for a preliminary injunction because the random visual body-cavity searches authorized by Procedure 300.10 are unconstitutional. He asserts that because of the other types of searches permissible at NWSCF the inclusion of the subject search as part of the random room search policy does not add "any meaningful penological value to the other extensive search procedures." ³ In any event, Covino argues that the testimony adduced at the preliminary injunction hearing did not provide sufficient evidence that the challenged search policy is effective or necessary and that the magistrate judge did not correctly apply the standard outlined in Turner. He also contends that, because that policy has not been applied in a random manner as to him, NWSCF should be enjoined from conducting random visual body-cavity searches of him pursuant to Procedure 300.10.

DISCUSSION

The standard for issuing a preliminary injunction is well-settled in this Circuit.

                The moving party must show (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking the injunctive relief.   See, e.g., Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991)
                

We review a district court's grant or refusal to grant a preliminary injunction under the abuse of discretion standard. A district court may abuse its discretion when it relies upon clearly erroneous findings of fact or an error of law in ruling on the preliminary injunction motion. Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir.1986).

A) Irreparable Harm

Subject to our discussion hereinbelow, we agree with the district court--given the fundamental right involved, namely, the right to be free from unreasonable searches--that Covino has sufficiently demonstrated for preliminary injunction purposes that he may suffer irreparable harm arising from a possible deprivation of his constitutional rights. See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984).

B) Likelihood of Success on the Merits or Serious Questions Going to the Merits

Covino contends that the visual body-cavity searches herein conducted pursuant to Procedure 300.10 violate his fourth and fourteenth amendment rights to be free from unreasonable searches.

It is fundamental that persons are protected from unreasonable searches and seizures by the fourth amendment and that this right is enforceable against the states through the fourteenth amendment. See Ker v. California, 374 U.S. 23, 30, 83 S.Ct....