Daughtery v. Harris
| Decision Date | 09 May 1973 |
| Docket Number | No. 72-1363 (L-2035),72-1620 (L-2132).,72-1363 (L-2035) |
| Citation | 476 F.2d 292 |
| Parties | Benjamin F. DAUGHTERY, Appellant, v. Warden HARRIS, U. S. Leavenworth Prison, Appellee. Thomas J. PIPER, Jr., Appellant, v. C. E. HARRIS, Warden, Leavenworth Penitentiary, Individually and in his Official capacity, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Donald E. Cordova, Denver, Colo., for appellants.
Bruce E. Miller, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Topeka, Kan., with him on the brief), for appellee.
Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge.
Rehearing Denied in No. 72-1363 May 9, 1973.
Appellants appeal from separate judgments of the United States District Court for the District of Kansas denying injunctive and declaratory relief from rectal searches conducted by officials of the United States Penitentiary at Leavenworth, Kansas. The proceedings in both cases were in forma pauperis. Because the basic facts and issues are identical the appeals were consolidated for argument before this court.
Appellants are inmates at the United States Penitentiary, Leavenworth, Kansas. Appellant Daughtery was subjected to two rectal searches by a physician's assistant preparatory to being transferred to the custody of the United States Marshal's Office for transportation to a court appearance. Appellant Piper was also given a rectal examination prior to the United States Marshal's transporting him to testify in court. The purpose of these searches is to locate any concealed contraband1 which could be used to threaten the security of a marshal or the court.
The authority to undertake rectal searches stems from a grant of power to the Bureau of Prisons, 18 U.S.C. §§ 4041, 4042, to manage and regulate all federal penal and correctional institutions. The Director of the Bureau of Prisons is empowered to formulate policies and procedures for commitment, control and treatment of inmates in federal institutions. 28 C.F.R. §§ 0.95, 0.96, 0.97. Prison officials at local institutions are also authorized to promulgate procedures consistent with their peculiar needs and problems. Pursuant to this authority the Bureau of Prisons and officials at the United States Penitentiary, Leavenworth, Kansas established procedures concerning the discharge of inmates to the United States Marshal's Office.
Policy Statement No. 7300.53 of the Bureau of Prisons requires a United States Marshal to exercise every precaution when transferring prisoners, including conducting thorough searches of the person. Due to specific problems which have arisen with the transfer of prisoners in the District of Kansas, prison officials at Leavenworth developed local procedures concerning contraband and searches before releasing prisoners to the United States Marshal's Office. This directive states:
Effective immediately, dress-out procedures for all inmates to be released to the custody of the U. S. Marshals or U. S. Deputy Marshals will be conducted in the basement of the Administration Building. The Receiving and Discharge Officer will carry the dress-out clothing and escort the inmate to the release room at the time the Marshal arrives to assume custody. The inmate will be given a "strip shake-down" removing all institutional clothing and a rectal examination given by the M.T.A., and dressed in release clothing which will be thoroughly shaken down in the presence of the Marshal or his Deputy. (Director of the United States Penitentiary, Leavenworth, Kansas, October 18, 1971.)
It is the validity of this "strip shakedown" and rectal examination procedure which is brought into question on appeal by appellants' contention that such procedures violate constitutional...
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