Wetmore v. Gardner

• Decision Date: 06 April 1990
• Docket Number: No. C-86-168-JLQ.,C-86-168-JLQ.
• Citation: 735 F. Supp. 974
• Parties: Terrence L. WETMORE, Plaintiff, v. Booth GARDNER, et al., Defendants.
• Court: U.S. District Court — District of Washington

735 F. Supp. 974

Terrence L. WETMORE, Plaintiff, v. Booth GARDNER, et al., Defendants.

No. C-86-168-JLQ.

United States District Court, E.D. Washington.

April 6, 1990.

Terrence L. Wetmore, Walla Walla, Wash., pro se.

Leo J. Driscoll, Winston & Cashatt, Spokane, Wash., for plaintiff.

John Scott Blonien, Linda A. Dalton, Pat L. De Marco, Glenn L. Harvey, Asst. Attys. Gen., Olympia, Wash., for defendants.

QUACKENBUSH, District Judge.

Before the Court is the defendants' Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial (Ct.Rec. 63), heard with oral argument on December 26, 1989. John Scott Blonien appeared on behalf of the defendants. Leo J. Driscoll entered an appearance on behalf of the plaintiff. Having reviewed the record, heard from counsel, and being fully advised in this matter, IT IS HEREBY ORDERED that the defendants' motion is DENIED.

BACKGROUND

This case is one of more than 100 filed in this district by prisoners at the Washington State Penitentiary who were subjected to digital rectal cavity probe searches. The general background of these cases is set forth in Tribble v. Gardner, 860 F.2d 321 (9th Cir.1988). However, some additional factual information was presented during the trial of this and other cases.

In 1984, the State of Washington completed construction of an Intensive Management Unit ("IMU") at the Washington State Penitentiary ("WSP") at Walla Walla, Washington. The IMU contains some 96 single-bed cells. Prisoners are housed at the IMU for a number of reasons, including the protection of the inmate(s) himself.

Prior to the opening of the IMU, the defendants instituted a Department of Corrections regulation, see WAC 137-32-005, which gave the Superintendent (Warden) complete discretion to order a prisoner transferred to the IMU if, in the judgment of the Superintendent, the presence of an inmate in general population would constitute a serious threat to the inmate himself, another inmate, or "the orderly operation of the institution."

In 1984, the defendants also instituted the policy at issue in these cases, that being that every inmate transferred to the IMU would be subjected to an involuntary digital rectal cavity probe search, without any showing of any suspicion or cause to believe that the inmate might be smuggling any contraband whatsoever. Once it was determined that a prisoner was to be taken to the IMU, the search and escort squad, composed of at least five prison guards, was assembled for the purpose of chaining the prisoner, taking him to the digital rectal probe area of the main institution and requiring him to submit to an involuntary search of his anal cavity by a nurse or physician's assistant.

In each instance, the search and escort squad, prior to taking the prisoner to the area of the digital rectal probe, required him to discard his regular denim prison garb and dress in orange coveralls. They then secured him in leg irons, placed another chain around the prisoner's waist, and cuffed his hands behind him. Testimony in the great majority of these cases, including this one, was that the prisoners were taunted by the search and escort officers with such statements as: "Today, you meet Mr. Big Finger...." The large number of guards assigned to transport each chained prisoner to the rectal probe is evidence of the distaste the prisoners held for this procedure, but also gives some credence to the claims of taunts.

The escorted prisoner was taken by the search and escort squad through the general population areas to an examining room, where the digital probe was performed. When the prisoner was dressed in orange coveralls, it was obvious to everyone that he was being escorted for the purpose of having a digital rectal probe conducted. After the prisoner arrived at the examining room, the orange coveralls were forcibly pulled down to his knees and the prisoner, while still chained, was forced to lie on or across an examining table with his anus exposed. A nurse or physician's assistant then came into the room, placed a rubber examining glove on his hand, and proceeded to probe the prisoner's anal cavity in search of alleged contraband.

As indicated, this digital rectal probe of the prisoner's anal cavity took place while the prisoner was still chained, and in the presence of the entire search and escort squad. At times, a member of this squad would video-tape the digital rectal probe search. The evidence indicated that even though hundreds of such searches were performed, no contraband was ever found in any of the prisoners' anal cavities.

Terrence L. Wetmore, an inmate incarcerated at the WSP, brought this civil rights action alleging that he was deprived of his fourth and eighth amendment rights when he was subjected to a digital rectal probe search on January 17, 1986, prior to his placement in the prison's IMU.

On October 30, 1989, after a jury trial in which Mr. Wetmore appeared pro se, the jury returned a verdict for the plaintiff and against four of the five defendants, awarding the plaintiff nominal damages of $1.00. The four defendants found to be liable were administrative personnel who were instrumental in the implementation of the digital probe search policy. The fifth defendant, Robert Zabor, the registered nurse who performed the search on the plaintiff, received a verdict in his favor.

The defendants now move for judgment notwithstanding the verdict or, in the alternative, for a new trial. The focal point of their attack is on certain jury instructions that either were given over the defendants' objection or were requested by the defendants and ultimately rejected. Defendants maintain that the effect of the challenged instructions was to shift the burden away from the plaintiff and, thus, force them to prove that their conduct did not violate the plaintiff's constitutional rights. The defendants also challenge various evidentiary rulings.

Discussion

The defendants base their motion on Rules 50(b)¹ and 59² of the Federal Rules of Civil Procedure. The two rules serve distinct functions and are governed by different standards. "The function of the directed verdict and the judgment n.o.v. is to order a final verdict for the moving party, whereas the function of the new trial is to order a redetermination of the issues before a new jury." Urti v. Transport Commercial Corp., 479 F.2d 766, 768 (5th Cir. 1973).

The authority to grant a new trial is "confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980). This discretionary power is useful in correcting prejudicial errors at trial and, under certain circumstances, may be used to remedy the harsh consequences of erroneous evidentiary rulings, see Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985); Alma v. Manufacturers Hanover Trust Co., 684 F.2d 622, 625 (9th Cir.1982), improper jury instructions; see Rinker v. County of Napa, 831 F.2d 829, 832 (9th Cir.1987); and verdicts that are against the clear weight of the evidence, see Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir.1987).

In contrast, the trial court's discretion when ruling on a motion for judgment notwithstanding the verdict is quite limited. "JNOV is appropriate only when the evidence, viewed in the light most favorable to the non-moving party, could not reasonably support the verdict." Dean v. Trans World Airlines, Inc., 893 F.2d 1123, 1226 (9th Cir.1990). In reviewing the motion, the court is not permitted to weigh the evidence or the credibility of the witnesses, and may not reach a contrary result simply because it is thought to be more reasonable. Rinker, 831 F.2d at 831.

A. Burden of Proof

The defendants assign error to the court's Instruction No. 7. That instruction states:

You are instructed that on January 17, 1986, the date of the digital rectal probe performed on Mr. Wetmore, the law was clearly established that a prisoner could not be subjected to a digital rectal probe unless it was based upon a legitimate penological purpose.

You are instructed that the plaintiff is entitled to recover from the defendants unless the defendants establish by a preponderance of the evidence their affirmative defense that the digital rectal probe of Mr. Wetmore was performed for a legitimate penological purpose, that being the prevention of the smuggling of contraband into the I.M.U. building. The burden is upon the defendant(s) to establish this affirmative defense by a preponderance of the evidence.

Ct.Rec. 52, No. 7. The defendants' concerns are two-fold. First, they maintain that the instruction impermissibly shifts the burden of proof to the defendants without any initial showing on the plaintiff's part that he was deprived a right of constitutional magnitude. Secondly, they contend that the instruction is formulated in such a way that the jury must apply a heightened standard of scrutiny — something more substantial than a "reasonable relationship" test. The court disagrees.

In Tribble v. Gardner, 860 F.2d 321 (9th Cir.1988), the Ninth Circuit recognized that if the digital rectal probes were conducted for purposes unrelated to security considerations, such procedures would violate the fourth amendment as a matter of law. Id. at 325 n. 6. The court acknowledged that the rectal probes burden fundamental rights. The Tribble court stated: "As noted above, when a prison regulation burdens fundamental rights the government must show that the regulation is reasonably related to a legitimate penological goal." Id. (emphasis supplied).

The defendants correctly note that prison administrators are accorded wide-ranging deference in the adoption and execution of policies that are thought necessary to preserve institutional order. See Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Equally as correct,...