Walker v. Sumner

• Decision Date: 13 December 1989
• Docket Number: No. 88-15644,88-15644
• Citation: 917 F.2d 382
• Parties: Andrew John WALKER, Plaintiff-Appellant, v. George W. SUMNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 382

917 F.2d 382

59 USLW 2312

Andrew John WALKER, Plaintiff-Appellant, v. George W. SUMNER, Defendant-Appellee.

No. 88-15644.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 13, 1989 ^*.

Decided Oct. 22, 1990.

Andrew John Walker, Marion, Ill., in pro per.

J. Marty Howard, Nevada Atty. General's Office, Carson City, Nev., for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before REINHARDT, BEEZER and KOZINSKI, Circuit Judges.

REINHARDT, Circuit Judge:

Andrew Walker, a former inmate of Nevada State Prison, brought an action against the director of the Nevada Department of Prisons and various prison officers and administrators under 42 U.S.C. Sec. 1983 (1982) alleging that his fourth, eighth, and fourteenth amendment rights were violated. He contends the violation occurred when prison guards forced him to submit to a blood test--purportedly in connection with an AIDS testing program being administered in the state prisons--by threatening to shoot him with "taser" guns. ¹ The district court, adopting the Report and Recommendation of a magistrate, granted defendants' motion for summary judgment and Walker appealed. A review of the record reveals that defendants offered no evidence that the AIDS test, if such was the purpose of the blood sampling, was "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987). Moreover, the record reveals that a material issue of fact exists regarding the prison officials' purpose in drawing Walker's blood. Accordingly, summary judgment in favor of the prison officials was inappropriate. We reverse.

I. FACTS

Pursuant to a Department of Prisons directive to obtain blood samples from all inmates, a prison nurse and security personnel approached Walker's cell with the intent of extracting blood from him. When the nurse asked Walker to put his arm through the food slot in his cell door so that she could draw his blood, he refused. She therefore directed that he be "red-tagged;" as a result, Walker was not allowed to shower or engage in recreational activities.

The following day, a security squad and two nurses returned to Walker's cell. When asked to put out his arm, he again refused, stating that he did not want to give blood. Sergeant P.C. Johnstone, a defendant in this case, told Walker that the warden had authorized him to use force if necessary to obtain the blood sample. Johnstone then told the nurses to leave, and he and the other security guards present drew their clubs and at least one turned on his taser gun. Walker tried to render any use of the taser gun ineffective by blocking part of his cell. However, Johnstone was ultimately able to aim his gun at Walker; he then ordered him to submit to the blood test, and Walker ended his physical resistance. The nurses then returned, and one of them reached through the cell door, took Walker's arm, and drew his blood. Walker alleges that the nurse was in "civilian" rather than "medical" clothing and that the needle she used was carried in an open cardboard box.

Walker admits that prior to the forced withdrawal of his blood he saw a memorandum addressed to prison staff explaining that blood tests would be conducted, but he asserts, correctly, that the memorandum did not state either that the tests were mandatory or that their purpose was to screen for AIDS. The prison officials, on the other hand, contend that the blood tests were in fact administered in order to determine if any prisoners were carriers of the AIDS virus; they also allege that they delivered a letter to Walker explaining that such was the reason for the tests and that the tests were mandatory. Walker asserts that he never received any such letter. ² He also asserts that the blood samples were collected in order to help train medical personnel in the administering of tests for the AIDS virus. He alleges that each inmate was screened for AIDS upon entering the prison, and that the prison officials knew that no prisoners had AIDS at the time the disputed samples were taken. Defendants do not contest the latter two allegations.

Walker brought this section 1983 action in propria persona. Alleging violations of his fourth, eighth, and fourteenth amendment rights, he sought money damages for the involuntary withdrawal of his blood. Defendants moved for summary judgment. Walker did not respond within the allotted time, but rather filed a motion to compel the prison officials to comply with the discovery requests he had served on them several months earlier. He also asked the court to "vacate" the motion for summary judgment on the ground that defendants had not produced requested documents or answered written interrogatories. The magistrate denied the discovery requests, in part because Walker did not state that the material was necessary to oppose the motion for summary judgment. The magistrate did, however, permit Walker to file an opposition to defendants' motion.

The magistrate recommended that the motion for summary judgment be granted. She concluded that the prison officials had a paramount interest in identifying carriers of the AIDS virus, and that an AIDS test is reasonably related to that legitimate penological objective. The magistrate also determined that the degree of force used by the prison guards was reasonable. Thus she found no violation of Walker's constitutional rights. The district court adopted the magistrate's Report and Recommendation without modification, and granted summary judgment to the defendants.

II. DISCUSSION

Walker asserts that the involuntary withdrawal of his blood following the threatened use of taser guns constituted an unreasonable search and seizure under the fourth amendment as well as a violation of his eighth amendment rights. For several reasons, we conclude that the district court erred in granting summary judgment on the record before it.

Prisoners, despite their conviction and confinement, do not forfeit all constitutional rights. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. at 84, 107 S.Ct. at 2259. Nevertheless, prisoners' constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987); Bell v. Wolfish, 441 U.S. at 546-47, 99 S.Ct. at 1877-78. In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners' constitutional claims. The Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. at 89, 107 S.Ct. at 2261. The Court identified four factors relevant in analyzing the reasonableness of a regulation: (1) "there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)); (2) the court should determine whether there are alternative means of exercising the constitutional right that remain open to the inmates; (3) the court is to consider the impact that accommodation of the asserted constitutional right will have on guards, other inmates, and on the allocation of prison resources; and (4) the court should assess whether there are ready alternatives to the prison regulation--the absence of such ready alternatives suggests that the regulation is reasonable while their existence may be evidence of the opposite. Turner v. Safley, 482 U.S. at 90-91, 107 S.Ct. at 2262-63. The first of these factors constitutes a sine qua non. Because defendants failed to make the case necessary for summary judgment as to that factor, we need not consider the others; rather, we are required to reverse.

The Supreme Court has repeatedly emphasized that, in determining the validity of regulations impinging on the constitutional rights of inmates, courts are to accord great deference to prison officials' assessments of their interests. See, e.g., Turner v. Safley, 482 U.S. at 84-85, 89, 107 S.Ct. at 2259-60, 2261-62; Estate of Shabazz, 482 U.S. at 349, 107 S.Ct. at 2404 ("To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights."); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 2538, 53 L.Ed.2d 629 (1977) ("Because the realities of running a penal institution are complex and difficult we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators."). Nevertheless, deference does not mean abdication. Prison officials must "put forward" a legitimate governmental interest to justify their regulation, Turner v. Safley, 482 U.S. at 89, 107 S.Ct. at 2261-62, and must provide evidence that the interest proferred is the reason why the regulation was adopted or enforced. Swift v. Lewis, 901 F.2d 730, 732 (9th Cir.1990) ("prison officials must at least produce some evidence that their policies are based on legitimate penological justifications"); Caldwell v. Miller, 790 F.2d 589, 598 (7th Cir.1986) ("the governmental interest asserted in support of a restrictive policy must be sufficiently articulated to allow for meaningful review of the regulation in question and its effect on the inmate's asserted rights"); Wilson v. Schillinger, 761 F.2d 921, 925 (3rd...