Spear v. Sowders

• Decision Date: 19 December 1995
• Docket Number: No. 93-5528,93-5528
• Citation: 71 F.3d 626
• Parties: Tina SPEAR, Plaintiff-Appellant, v. Dewey SOWDERS, individually and in his official capacity as Warden of the Northpoint Training Center; and Dave Doe, Lois Doe, Lucy Doe, Phoebe Doe, Jennie Doe, Winslow Doe and Herman Doe, in their individual capacities as named unknown employees of the Northpoint Training Center, Defendants-Appellees. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 626

71 F.3d 626

Tina SPEAR, Plaintiff-Appellant, v. Dewey SOWDERS, individually and in his official capacity as Warden of the Northpoint Training Center; and Dave Doe Lois Doe, Lucy Doe, Phoebe Doe, Jennie Doe, Winslow Doe and Herman Doe, in their individual capacities as named unknown employees of the Northpoint Training Center, Defendants-Appellees.

No. 93-5528.

United States Court of Appeals Sixth Circuit.

Reargued June 14, 1995.

Decided Dec. 19, 1995.

David A. Friedman (argued and briefed), Taustine, Post, Stosky, Berman, Fineman & Kohn, Louisville, KY, for Plaintiff-Appellant.

John T. Damron (argued and briefed), Office of the General Counsel Corrections Cabinet, Frankfort, KY, for Defendants-Appellees.

Before: MERRITT, Chief Judge; KENNEDY, MARTIN, JONES, MILBURN, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, and MOORE, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which MERRITT, C.J., KENNEDY, MILBURN, NELSON, RYAN, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. JONES, J. (pp. 634-36), delivered a separate opinion concurring in part and dissenting in part, in which MARTIN, DAUGHTREY, and MOORE, JJ., joined.

BOGGS, Circuit Judge.

Tina Spear ¹ wanted to visit a Kentucky prison inmate. Believing that she could be bringing drugs into the prison, the prison staff refused to allow her to visit unless she submitted to a strip and body cavity search, and refused to allow her to leave without a similar search. Spear sued the various defendants (collectively referred to as "Sowders") under 42 U.S.C. Sec. 1983 and now appeals a grant of summary judgment to the defendants on the ground of qualified immunity. A panel of this court reversed the grant of summary judgment. The court vacated that decision and placed the matter on the en banc calendar. Spear v. Sowders, 33 F.3d 576 (6th Cir.1994). For the reasons set out more fully below, the judgment of the district court is reversed.

I

On October 3, 1990, Corrections Officer Brock, an employee at Northpoint Training Center, received information from a confidential prison informant that Daniel Wade, an inmate at NTC, "was receiving drugs every time a young unrelated female visitor visited." This informant had given reliable information on at least one previous occasion, which resulted in the termination of a prison guard for engaging in a romance with an inmate.

Wade had a history, stretching over a period of years, of drug offenses. On February 24, 1987, guards had found Wade with a marijuana cigarette in his possession. Fourteen months later, on May 8, 1988, guards again found Wade with two marijuana cigarettes. The next day, guards found Wade with a dime bag of marijuana. On March 29, 1989, guards again found Wade possessing marijuana, this time two cigarettes. Finally, on April 27, 1990, guards found Wade with four Darvocet pills. Prison medical authorities had prescribed these pills for Wade. However, when the medical staff distributed a pill to him, he would hold the pill in his mouth without swallowing it. He eventually accumulated four pills through this ruse.

Finally, a review of Wade's visiting record revealed that Tina Spear had been his only unrelated female visitor. No records are available with respect to visitors before 1990. On October 12, 1990, Sowders authorized a strip and body cavity search of Spear during her next visit.

Two and one-half months later, on Christmas Day, 1990, Tina Spear went to NTC to visit Daniel Wade. Upon her arrival, NTC officials informed her that she would not be permitted to visit unless she submitted to a strip and body cavity search and a search of her clothing, purse, pocketbook and car. Spear alleges, and we accept as true for purposes of summary judgment, that NTC officials told her that if she did not consent to the searches, she would be detained while they obtained a warrant, and that she would thereafter be barred from NTC. Wishing to see Wade on Christmas, she consented to the search.

A female NTC nurse conducted the strip and body cavity search with another female officer present. They had her remove her clothing and then visually inspected her body, including her vagina and her anus, and they further searched both those body cavities by inserting their fingers. NTC officials also searched Spear's clothing, purse, and pocketbook. They also searched her car, located in the NTC parking lot. Spear claims the search embarrassed, humiliated, and demeaned her. None of these searches revealed the presence of any contraband, and Spear proceeded to visit Wade.

Spear states that she has never possessed contraband at NTC, has never attempted to introduce contraband there, and has never given prison officials any cause to believe that she would attempt to introduce contraband. Also, she states that she has no criminal record of any kind.

The defendants filed a motion to dismiss, arguing that qualified immunity protected them from suit. Because the parties referred to material outside the pleadings, the judge treated the motion as one for summary judgment under Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(b). The district court acknowledged that Spear had a clearly established constitutional right not to be strip-searched unless the officials had reasonable suspicion that she was attempting to smuggle contraband into the prison. However, the court found that based on Wade's history of prior drug activity in prison and based upon the tip from the confidential informant, the defendants did in fact have "reasonable suspicion to target the Plaintiff for a strip search and that Plaintiff's constitutional rights were not violated by this strip and body cavity search." J.A. at 80. Consequently, the court concluded that qualified immunity protected Sowders from suit.

II

Courts have recognized a search such as the one Spear endured as "an embarrassing and humiliating experience." Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). Nonetheless, the Fourth Amendment does not afford a person seeking to enter a penal institution the same rights that a person would have on public streets or in a home. It is clear that a prisoner does not have a due process right to unfettered visitation. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (It cannot "seriously be contended, in light of our previous cases--that an inmate's interest in unfettered visitation is guaranteed directly by the Due Process Clause."). See also Sandin v. Conner, --- U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (limiting the ability of prison regulations to create liberty interests). A fortiori, a citizen simply does not have a right to unfettered visitation of a prisoner that rises to a constitutional dimension. In seeking entry to such a controlled environment, the visitor simultaneously acknowledges a lesser expectation of privacy. Blackburn v. Snow, 771 F.2d 556, 565 (1st Cir.1985). The Supreme Court itself has pointed out that the "unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country," Block v. Rutherford, 468 U.S. 576, 588-89, 104 S.Ct. 3227, 3234, 82 L.Ed.2d 438 (1984), and that "[a] detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs weapons, and other contraband is all too common an occurrence." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

This conclusion is not the result of some great leap of logic. Prisons are dangerous and filled with law-breaking because that is where the criminals are. Even the most secure prisons are dangerous places for inmates, employees, and visitors. See United States v. Fountain, 768 F.2d 790, modified, 777 F.2d 345 (7th Cir.1985) (describing murders of inmates and guards in "the Control Unit of the federal penitentiary at Marion, Illinois--the maximum-security cell block in the nation's maximum-security federal prison"), cert. denied, 475 U.S. 1124, 106 S.Ct. 1647, 90 L.Ed.2d 191 (1986); Gometz v. Henman, 807 F.2d 113 (7th Cir.1986) (describing the same murders as well as listing additional murders by members of the "Aryan Brotherhood" prison gang). Therefore, the Court has consistently "[struck] the balance in favor of institutional security," Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393 (1984), and accorded great weight to the "professional expertise of corrections officials." Bell, 441 U.S. at 548, 99 S.Ct. at 1879.

The natural extension of this principle is that prison authorities have much greater leeway in conducting searches of visitors. Visitors can be subjected to some searches, such as a pat-down or a metal detector sweep, merely as a condition of visitation, absent any suspicion. However, because a strip and body cavity search is the most intrusive search possible, courts have attempted to balance the need for institutional security against the remaining privacy interests of visitors. Those courts that have examined the issue have concluded that even for strip and body cavity searches prison authorities need not secure a warrant or have probable cause. However, the residual privacy interests of visitors in being free from such an invasive search requires that prison authorities have at least a reasonable suspicion that the visitor is bearing contraband before conducting such a search.

We agree with the district court that the law was clearly established by the time of the search in this case that the Fourth Amendment required reasonable suspicion before authorizing a body cavity search. Three circuits had reached this conclusion in the mid-1980s. See Blackburn, 771 F.2d at 564-66; Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 1199, 89 L.Ed.2d 313 (1986); Hunter, 672 F.2d at 674. This Circuit first implied that we agreed with this view in ...