Goff v. Nix

• Decision Date: 21 December 1984
• Docket Number: Civ. No. 84-129-E.
• Citation: 626 F. Supp. 736
• Parties: George GOFF, Terry Schertz, David D. Heaton, Plaintiffs, v. Crispus NIX, et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

626 F. Supp. 736

George GOFF, Terry Schertz, David D. Heaton, Plaintiffs, v.Crispus NIX, et al., Defendants.

Civ. No. 84-129-E.

United States District Court, S.D. Iowa, C.D.

December 21, 1984.

COPYRIGHT MATERIAL OMITTED

Barbara Schwartz, Prisoner Assistance Clinic, Iowa City, Iowa, for plaintiffs.

John Parmeter, Asst. Atty. Gen., Des Moines, Iowa, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

DONALD E. O'BRIEN, Chief Judge.

This case was tried to the Court on the grounds of the Iowa State Penitentiary(ISP) at Fort Madison, Iowa.Previously, the Court granted Plaintiff Goff part of his requested preliminary injunction which enjoined certain visual body cavity (vbc) searches at ISP.¹After trial, the Court permanently enjoins the defendants in substantially the same way as set out in the preliminary injunction order with some modifications.

I.FINDINGS OF FACT

At the beginning of the preliminary injunction evidentiary hearing, the parties stipulated to certain facts.Transcript, March 15, 1984Hearingpp. 9-12(hereinafter Tr. ____).The Court summarized the stipulated facts in the preliminary injunction order.Goff v. Nix,Civil No. 84-129-E, slip op. 4-9(S.D.IowaMarch 22, 1984).The Court incorporates the summary of stipulated facts by reference with two clarifications.

First, the paragraph enumerated 2 should read as follows:

2.When an inmate from cellhouse 20 is to be taken to the exercise area, he hands his clothes to an officer standing outside his cell.The clothes are then shaken down and handed back.The inmate is then taken to a shower and strip searched.

The testimony at trial shows that strip searches conducted prior to exercise did not include a vbc search.

Second, the paragraph enumerated 12 should read as follows:

12.One tower, Tower 7, has responsibility for viewing the four 319 exercise pens as well as other areas.

The Court will not restate all of the Findings of Fact which it made in the preliminary injunction order.In that Order, the Court reserved the right to make additional findings; thus, the Court supplements those findings as follows:

Plaintiffs do challenge the visual anal cavity search which is set forth in PolicyNo. 84-3-2-567, Procedure B., 10.²This procedure provides that the inmate is to be searched by a member of the same sex in an area as private as is possible, without jeopardizing the safety of the searcher or the effectiveness of the search.The inmate's anal cavity is not to be physically probed nor is the inmate touched by the searcher during the search.

The Court further finds that a visual body cavity search which requires the inmate to bend over and spread his buttocks so that the anus is visible to the searcher is intrusive, degrading, humiliating, embarrassing, and greatly increases an inmate's feelings of vulnerability.The Court further finds that these feelings of humiliation, degradation, and vulnerability are increased when a vbc search is accompanied by verbal harassment from the correctional officer(s) conducting the search.Such verbal harassment during a vbc search, including comments with homosexual references or allusion, does not further or promote any institutional security concern and is totally without legitimate purpose.Indeed, verbal harassment during a vbc search has a negative impact upon the security of ISP in that it causes some inmates to become more resentful, more hostile, and more likely to rebel against other assertions of authority.Thus, verbal harassment causes an increase in the tensions at ISP.The evidence and the reasonable inferences therefrom show that many of the correctional officers at ISP perform the vbc searches in an orderly manner without verbal harassment.However, the Court finds that some correctional officers, in some situations, conduct vbc searches in less than an appropriate manner.In other words, the evidence showed that some vbc searches are accompanied by teasing, rude and offensive comments, and other verbal harassment.

In the preliminary injunction Order,³the Court granted authority to ISP officials of the status of Security Director or above to conduct a vbc search of an inmate upon "a reasonably clear indication that an inmate is actually concealing something in a body cavity."To date, the Court has received no notice that this authority has been used despite the injunction.

The Court finds that vbc searches are ineffective in revealing contraband except in cases where a string or part of the item hidden is protruding from the anus or where signs such as excess lubricant, blood or feces are present.Where such signs are observable during a strip search, further inspection including the use of a vbc search would be permitted after approval by the Security Director or higher official.A vbc search will not reveal contraband completely hidden in the rectal cavity.

Security Director John Emmett testified that segregated inmates are vbc searched after, but not before, their exercise.At times during the exercise period, sixteen inmates are in the exercise pens and are watched by two guards, one of whom is in the tower.This occurs when four other guards are escorting inmates to or from the exercise pen.Otherwise, these four guards are observing the exercise pens.

The Court and the parties inspected the penitentiary premises; for an inmate to escape from the new visiting room at ISP, he would have to get by four locked doors, two sliding type and two with guard controlled locks.Four locked doors also protect the infirmary.Inmates taken to the infirmary are under constant supervision and are in restraints unless the treatment requires otherwise.Additionally, segregated inmates are prevented from having access to general population inmates while in the infirmary.The claimed justification for requiring a vbc search after an infirmary visit is that the administration does not have total control over who provides health care because these services are rendered under contract.Defendants are concerned that the company providing health care services may bring in a new doctor or a specialist who does not fully appreciate the security rules.In view of the other security measure surrounding infirmary visits, the Court finds that this security concern is exaggerated and does not justify use of the vbc search before or after such visits.

The justification for vbc searching an inmate before he goes to the visiting room is that he may take a weapon into the visiting room and use the weapon to take a hostage or attack someone.The Court enjoined vbc searches before contact visits with attorneys, legal interns, clergy, the prison chaplain, and the ombudsman.Vbc searches before other contact visits were not enjoined.The Court finds that the chance that an inmate would wish to attack an attorney, chaplain, clergyman or ombudsman is exceedingly remote and the evidence showed no history of any such attack.Second, because of the security measures which are readily apparent to the inmates, the possibility that an inmate would try to take a hostage as a way to escape from the visiting room is also remote.The Court finds the use of a vbc search prior to these visits is an exaggerated response to these security concerns.

The defendants' justification for searching an inmate after one of these five types of contact visits is that the visitor might give the inmate contraband which the inmate could hide in his rectal cavity and take back into the prison.There is no indication that these types of visitors have attempted smuggling in the past.For this concern to actually happen, the visitor would have to get the contraband into the institution without being detected, the item would have to be removed for its hiding place and then passed to the inmate, and the inmate would have to then conceal it in his rectal cavity.The chances of this sequence of events happening and going undetected is quite remote.First, attorneys, clergy, chaplains, legal interns, and the ombudsman are not the type of people who smuggle contraband to inmates.Second, the surveillance makes it nearly impossible for an item to be hidden by the inmate in his rectal cavity.Inmates do not wear their own prison garb on a visit; they are given "visiting clothing" after the strip search which is conducted prior to the visit.Thus, the clothes worn for a visit will not be split or torn to give the inmate easy access to his rectal cavity.After the visit is over, the prisoners are taken back to a private area, the "visiting clothing" is removed, and they are again strip searched.

Finally, the squat-and-cough search procedure is no longer condoned by the administration of ISP.The Court finds that the squat-and-cough search procedure is an ineffective type of anal body cavity search which accomplishes nothing other than to degrade and humiliate the inmate recipient.SeeTr. 210.

II.CONCLUSIONS OF LAW

The Fourth Amendment provides in pertinent part:

The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....

The Fourth Amendment protects people, not places.Katz v. United States,389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576(1967).Thus, individuals retain the right to be free from "unreasonable government intrusions into their legitimate expectations of privacy."United States v. Chadwick,433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538(1977).To pass muster under the Fourth Amendment, a search must be reasonable."Reasonableness" is determined by balancing the intrusiveness of the search on the individual's Fourth Amendment interest against the search's promotion of legitimate government interests.Delaware v. Prouse,440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660(1979).In the context of visual body cavity searches, the Supreme Court has stated:

The test of reasonableness under the Fourth Amendment is not capable of

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