UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-40840

JIMMY RAY MOORE,

Plaintiff - Appellant,

VERSUS

BARBARA CARWELL, Commanding Officer III, Beto I Individually and in

official capacity; DWAYNE DEW BERRY, Captain, Beto I Individually

and in official ca pacity; JEFFERY RICHARDSON, Lieutenant, Beto I

Individually and in official capaci ty; JAMES CARVE, Lieutenant,

Beto I Individually and in official capacity,

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

March 5, 1999

Before JOLLY, DUHÉ, AND EMILIO M. GARZA, Circuit Judges

JOHN M. DUHÉ, JR., Circuit Judge:

Jimmy Ray Moore (“Moore”), an inmate of the Texas Department

of Criminal Justice, filed this civil rights lawsuit in forma

pauperis under 42 U.S.C.A. § 1983 (West Supp. 1999) against prison

officials alleging that multiple strip and body cavity searches

performed by a female officer violated his First Amendment right to2

free exercise of religion, Fourth Amendment right to be free from

unreasonable searches and seizures, and his Eighth Amendment right

to be free from cruel and unusual punishment.

After a United States Magistr ate Judge held an evidentiary

hearing pursuant to Spears v. McCotter

, 766 F2d 179 (5th Cir.

1985), overruled on other grounds, N eitzke v. Williams

, 490 U.S.

319, 324, (1989), she dismissed Moore’s case as frivolous on the

following grounds: (1) Moore failed to show the searches were a

substantial bur den upon his exercise of free religion; (2) Moore

failed to show that his objection to a female performing the

searches was a central tenet of his religion; (3) the searches

served the co mpelling state interest of ensuring security within

the state prison and were the least restrictive means of furthering

that interest; and (4) the law at the time of the searches clearly

established that the search was constitutionally permissible,

entitling the Defendants to qualified immunity. The magistrate

judge treated Moore’s pre-order Motion to Amend his complaint by

adding a request for injunctive relief as a Req uest to Alter or

Amend the Judgment under Fed. R. Civ. Pro. 59. The magistrate

judge rejected his request, and the Plaintiff appeals.

We hold that Moore’s Fourth Amendment claim is not frivolous;

that the Fourth Amendment, rather than the Ei ghth Amendment,

applies to this type of prisoner search; and that the magistrate

judge decided Moore’s First Amendment claim under the now defunct

Religious Freedom and Restoration Act (RFRA) standard. Therefore,3

we affirm the dismissal of Mo ore’s Eighth Amendment claim and

reverse and remand to the magistrate judge for further proceedings

on Moore’s remaining claims.

BACKGROUND

In 1996, Moore alleges that Barbara Carwell, a prison officer,

subjected Moore to strip and body cavity searches in the presence

and under the direction of prison officers Dwayne Dewberry, Jeffrey

Richardson and James Carve. Moore asserts that there were no

emergency circumstances justi f ying the searches and that male

guards were available to conduct the searches. He argues that the

sole purpose of the searches was to harass and intimidate him.

Moore contends that the searches violated his First Amendment

right to free exercise of religion because he is a Baptist. He

argues that the Baptist faith requires modesty and prohibits him

from being viewed naked by a female other than his wife. Moore

also argues that the searches violated his limited Fourth Amendment

right as a prisoner to be free from unreasonable searches and

seizures and that the magistrate erred by failing to weigh his

expectation of privacy against the government’s interests.

Finally, Moore asserts that the searches constituted cr uel and

unusual punishment in violation of the Eighth Amendment.

Before the magistrate judge’s ruling, Moore filed a Request To

Amend his complaint adding two Defendants to the lawsuit and adding

a request f or injunctive relief. The magistrate judge construed4

this as a Motion to Alter or Amend the Judgement under Fed. R. Civ.

P. Rule 59 and denied his request. Plaintiff appeals.

DISCUSSION

The magistrate judge dismissed Moor e’s claims as frivolous

under 28 U.S.C.A. § 1915(e)(2)(B)(I) & (ii) (West Supp. 1999).

“The Prison Litigation Reform Act (PRLA) amended § 1915 to require

the district court to dismiss a prisoner’s in forma pauperis (IFP)

civil rights suit if the court determines that the action is

frivolous or malicious or does not state a claim upon which relief

may be granted.” B radley v. Puckett

, 157 F.3d 1022, 1025 (5th Cir.

1998). We review dismissal under § 1915 de novo, applying the same

standard used to review a dismissal pursuant to Fed. R. Civ. P.

Rule 12(b)(6). S ee id. In determining whether dismissal was

proper, we must assume that all of the plaintiff’s factual

allegations are true. See Ashe v. Corley , 992 F.2d 540, 544 (5th

Cir. 1993). We may uphold the magistrate judge’s dismissal of

Moore’s claims “only if it appears that no relief could be granted

under any set of facts that could be proven consisten t with the

allegations.” M cGrew v. Texas Bd. of Pardons & Paroles

, 47 F.3d

158, 160 (5th Cir. 1995).

The magistrate judge relied on C ollins v. Scott

, 961 F.Supp.

1009, 1016 (E.D. Tex. 1997), holding that Moore’s First Amendment

claim was frivolous. C ollins was dec ided under the standard

outlined in the RFRA. The district court ruled one day after the1 We remand rather than apply the Smith standard ourselves because

t he record does not contain sufficient information for t h e

appropriate analysis.

5 Supreme Court held in City of Boerne v. Flores

, 521 U.S. 507 (1997)

that RFRA was unconstitutional as to the states. As a result, we

remand Moore’s Firs t Amendment claim to the magistrate judge for

review under the standard set forth in Employment Div., Dept. of

Human Resources of Oregon v. Smith

, 494 U.S. 872 (1990) (holding

that neutral, generally applicable laws may be applied to religious

practices even when not supported b y a compelling governmental

interest). 1

The magistrate judge dismissed Moore’s Fourth Amendment claim

holding that the D efendants were entitled to qualified immunity

because the constitutionality of the searches was clearly

established under Letcher v. Turner

, 968 F.2d 508 (5th Cir. 1992).

In Letcher

, we held that the mere presence of female officers

during a strip search of prisoners during emergency circumstances

did not violate the Fourth Amendment. See id. at 510 (emphasis

added). Assuming, without deciding, that the magistrate judge

could raise the Defendants’ qualified immunity defense sua sponte,

we hold that the constitutionality of the searches of Appellant was

not clearly established at that time. The facts are markedly

different than in Letcher

.

“A prisoner’s rights are diminished by the needs and

exigencies of the institution in which he is incarcerated. He thus6

loses those rights that are necessarily sacrificed to legitimate

penological needs.“ E lliott v. Lynn

, 38 F.3d 188, 190-91 (5th Cir.

1994). However, “searches and seizures conducted of prisoners must

be reasonable under all the facts and circumstances in which they

are performed.” U nited States v. Lilly

, 576 F.2d 1240, 1244 (5th

Cir. 1978). We must balance the need for the particular search

against the invasion of the prisoner’s personal rights caus ed by

the search. See Elliott , 38 F.3d at 191 (citing Bell v. Wolfish

,

441 U.S. 520, 558 (1979)). We must consider the “scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is

conducted.” Bell , 441 U.S. at 559.

Moore alleges that Barb ara Carwell conducted these searches

despite the absence of emergency or extraordinary circumstances.

Additionally, Moore contends that the male Defendants were present

during the search, suggesting that male officers were available to

conduct the searches. Assuming Moore’s allegations are true, we

hold that this claim is not frivolous because the facts he alleges

could entitle him to relief for a Fourth Amendment violation.

The magistrate judge did not rule on Moore’s claim that the

Defendants violated his Eighth Amendment right to be free from

cruel and unusual punishment. While in E lliott Judge Garwo o d

argued eloquently that the Eighth Amendment should govern the

searc hes of prisoners, the majority relied on L illy holding that

the Fourth Amendment provides the correct analysis. See Elliott

,7

38 F.3d at 191 n.3 (“Thus, Lilly is still the law of this circuit

concerning the Fourth Amendment’s application to visual body cavity

searches in the prison setting.”) As a result, we affirm the

magistrate judge’s dismissal of Moore’s Eighth Amendment claim.

CONCLUSION

For the above reasons, we affirm in part and reverse and

remand in part to the trial court for further proceedings

consistent with this opinion.

AFFIRMED in part ; REVERSED AND REMANDED in part.