Hodges v. Klein, Civ. A. No. 75-2260.

• Decision Date: 30 April 1976
• Docket Number: Civ. A. No. 75-2260.
• Citation: 412 F. Supp. 896
• Parties: Louis W. HODGES et al., Plaintiffs, v. Ann KLEIN, Commissioner etc., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

412 F. Supp. 896

Louis W. HODGES et al., Plaintiffs, v. Ann KLEIN, Commissioner etc., et al., Defendants.

Civ. A. No. 75-2260.

United States District Court, D. New Jersey.

April 30, 1976.

Louis W. Hodges, pro se.

Earnest Pace, pro se.

Leora Mosston, Prisoners' Rights Organized Defense, Newark, N. J., Charles H. Jones, Jr., Stephen Latimer, Prison Law Clinic, Rutgers University School of Law, Newark, N. J., for plaintiffs.

William F. Hyland, Atty. Gen. of New Jersey by Joseph T. Maloney, Richard H. Mills, Deputy Attys. Gen., Trenton, N. J., for defendants.

Jeffry Mintz, Dept. of the Public Advocate, Trenton, N. J., for amicus curiae.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CLARKSON S. FISHER, District Judge.

This matter comes before the Court on an order to show cause why anal examinations of certain inmates, defined in the class action certification made by this Court, should not be enjoined as violative of their constitutional rights. This is an emergent matter arising within the context of a broader civil rights action initiated by the inmates who occupy an area of the Trenton State Prison known as the Management Control Unit,¹ (hereinafter referred to as M.C.U.). As to the creation of this Unit, its operation and legality, more will be said in a subsequent opinion following the completion of current hearings. Suffice it to say that the M.C.U. is a maximum security area within a maximum security prison² in which certain inmates, determined to be disruptive or assaultive, are confined under twenty-four hour lock-up conditions.

The anal search aspect of this civil rights action initially involved the anal examinations performed on M.C.U. inmates, and this Court issued a temporary restraining order which enjoined such searches,³ except in certain circumstances. During the hearings held on this matter, the entire subject of anal search procedures at Trenton State Prison was examined in some detail, and the Court is of the opinion that this aspect of the case must be dealt with as it applies to the entire prison.⁴

FINDINGS OF FACT

From the testimony taken in this matter, it was determined that as part of the internal security procedures at Trenton State Prison a "strip search" of inmates is employed by prison guards under certain conditions. This requires the inmate to take off all of his clothes, which are then searched, and submit to a body search. The inmate raises his arms, opens his mouth for inspection and removes his dentures, if any. He must also spread his legs apart, lift his penis and scrotum to reveal the area directly between his legs. He must also bare the soles of his feet. The inmate must then bend over and spread his buttocks to reveal his anus to the guard. It is this latter portion of the strip search which is in issue here.

As to the circumstances under which the strip search with anal examination is required, the testimony indicates that it is performed whenever any inmate leaves or enters the institution, after a contact visit with his friends or relatives, and when entering or temporarily leaving disciplinary segregation/solitary confinement⁵ or administrative segregation⁶ for any reason (i. e. appearance at Adjustment or Classification Committee hearings, prison hospital, etc.). Such a search will also be performed on any occasion where there is "probable cause"⁷ to believe that the inmate is concealing contraband or a weapon. It should be noted, however, that testimony from both the prison warden, defendant Hoffman, and the Director of Corrections and Parole, defendant Fauver, indicated that for some time the anal inspection portion of the strip search had not been a regular part of that search under all of the above circumstances. In any event, it is clear that the anal examination was reinstituted as a regular part of the strip search after a January 19, 1976 disturbance.

The M.C.U. inmates are subject to the same procedures as outlined above, and, since they are in a lock-up condition not unlike administrative segregation, they have been required to submit to a strip search with anal inspection whenever they leave and return to the Unit for any reason regardless of whether they were escorted or unescorted. Prior to the Court's restraining order, M.C.U. inmates had to submit to a strip search with anal examination before and after use of their segregated exercise yard. This was so despite the fact that these inmates were under continuous lock-up with little or no contract with any other inmates.

The testimony also revealed that the anal inspection aspect of the strip search was used in a manner which would result in disciplinary charges against the M.C.U. inmates. If an inmate refused to submit to the anal inspection portion of the search he forfeited his opportunity to leave the Unit for whatever reason. In addition, however, he was given a disciplinary charge for refusing a direct order to submit to an anal inspection. This ultimately resulted in the inmate doing time in the "hole" — solitary confinement.

For an M.C.U. inmate to be transferred from his lock-up cell in the Unit to a solitary confinement cell, there is relatively little movement required. Since the solitary cells are located in the same maximum security wing of the prison, the inmate is escorted off his tier and down a few flights of stairs which are adjacent to the entrance of each tier in the wing. When he reaches ground level, he is escorted to a solitary confinement cell located on the lowest tier in that wing. The testimony revealed that before an M.C.U. inmate was permitted to enter his solitary cell, he was strip searched, as he was a few tiers above, and was ordered to submit to an anal examination. If he refused to submit, a forcible anal examination was conducted by prison guards. The testimony further revealed that these anal search orders and the forcible anal searches performed by guards, were done because it was a "rule". One guard stated that he ordered a forcible anal search even though he had no reason to believe that the inmate was secreting contraband in his anal cavity. These unfortunate confrontations occurred both before and after the Court's restraining order, and resulted in additional disciplinary charges.

Finally, the testimony of various inmates indicates that they view the anal inspection portions of the strip search as degrading, dehumanizing and abusive. The testimony of prison officials indicates their concern for stopping the flow of contraband into and within the prison, such contraband including everything from messages to narcotics to bullets. It is significant to note that wide-spread occurrences of narcotics, bullets or similar contraband being secreted in the anus or rectal cavity were not indicated.

CONCLUSIONS OF LAW

Federal courts are reluctant to interfere with the operation of state prisons, Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224, 235 (1974), and will do so only when inmate claims are of constitutional dimensions. The law is already clear that, ". . . there is no iron curtain drawn between the Constitution and prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950 (1974). Whether prisoners enjoy any Fourth and Fourteenth Amendment rights has never been decided by the United States Supreme Court, but has been considered by other courts. In Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975) an opinion by now Supreme Court Justice Stevens faced the question of ". . . whether the Fourth Amendment provides any protection at all to a person incarcerated as a result of conviction of a serious crime." Id., at 1315. The court, considering the limited expectation of privacy a prisoner could claim and the need for surveillance and control in a prison society, concluded:

". . . that the possible application of some measure of Fourth Amendment protection within a prison context may not be summarily rejected."

Id. Most significantly, the court, after noting that an inmate is not a mere slave, said:

"Respect for the dignity of the individual compels a comparable conclusion with respect to his interest in privacy. Unquestionably, entry into a controlled environment entails a dramatic loss of privacy. Moreover, the justifiable reasons for invading an inmate's privacy are both obvious and easily established. We are persuaded, however, that the surrender of privacy is not total and that some residuum meriting the protection of the Fourth Amendment survives the transfer into custody."

Id. at 1316. See also, Ferguson v. Cardwell, 392 F.Supp. 750, 752 (D.Ariz.1975) which, while acknowledging that prisoners must be monitored closely and approving the taking of blood samples to detect the presence of narcotics, noted that prisoners have some Fourth Amendment rights; Sostre v. Preiser, 519 F.2d 763, 764 (2d Cir. 1975); United States v. Savage, 482 F.2d 1371 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491. This Court agrees with the view taken in Bonner, supra, and the other cases cited — prisoners are protected against unreasonable search and seizures and do have a qualified right to privacy.

In Daughtery v. Harris, 476 F.2d 292 (10th Cir. 1973), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973) the court had before it a Fourth Amendment challenge to a directive issued at the United States Penitentiary at Leavenworth, Kansas. This directive required that before an inmate is released to the custody of the United States Marshal for a court appearance or for any other reason, the inmate must submit to a "strip shake-down" with a rectal examination given by medical assistants. Considering the type of inmates, the many known instances of contraband being carried by inmates in the rectal cavity and

". . . an increasing need to assure the safety of our law enforcement and court officials, this policy of allowing rectal searches must be considered

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