1 United States Court of Appeals,

Fifth Circuit.

No. 92-3759.

Keith David ELLIOTT, Plaintiff-Appellant,

v.

Bruce N. LYNN, Secretary, Louisiana Department of Corrections,

Defendant-Appellee.

Nov. 17, 1994.

Appeal from the United States District Court for the Middle

District of Louisiana.

Before GARWOOD, JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from an institution-wide "shakedown" of the

Louisi ana State Penitentiary, ordered by the defendant Bruce N.

Lynn, secretary of the Louisiana Department of Corrections, because

of an increasing number of murders, suicides, stabbin gs, and

cuttings among the inmate population. Under Lynn's order, the

plaintiff, David Keith Ellio tt, along with all other prisoners,

submitted to a visual body cavity search at the prison. The search

was conducted in the general presence o f other inmates, several

guards, and three other bystanders. Following this search, Elliott

filed suit pursuant to 42 U.S.C. § 1983 against Lynn. The United

States District Court for the Middle District of Louisiana granted

Lynn's motion for summary judgment and dismissed Elliott's

complaint. The court held that the search did not violate

Elliott's Fourth Amendment right to be free from unreasonable

search and seizure, nor did it deprive Elliott of a state created1 Lynn included in his motion for summary judgment a claim of

qualified immunity. Although the district court did not consider

qualified immunity in its judgment, the parties include this

issue for review on appeal.

2 liberty interest without due process of law.

Elliott appeals the dismissal of his complaint, contending

that the search violated his Fourth and Fourteenth Amendment rights

under the United States Constitution. He also contends that Lynn

is not entitled to the protection provided by qualified immunity. 1

I

During the period immediately preceding June 9, 1989, an

extraordinary number of murders, suicides, stabbings, and cuttings

occurred within the Louisiana Sta te Penitentiary. These

circumstances created an emergency situation, and the defendant

Lynn ordered an institution-wide shakedown on June 9, 1989. All

3,164 prisoners, including Elliott, were subjected to a visual body

cavity se arch over a period of two and one-half days. To

facilitate this massive search effort, Lynn brought in additional

correctional officers.

Elliott, along with all the members of his prison camp, were

gathered for inspection in one area of the camp's dormitory. The

prisoners were searched in groups of five or six with one officer

visually searching each inmate, while the other fifty-five members

of the camp were present and awaited their inspections. Several

non-searching officers also were present in the ro om for safety

purposes, along with the defendant Lynn. Two news media personnel

and the airplane pilot for Lynn stood in a wide walkway-hall that2 The district court referred the motions to a magistrate

judge who issued a report recommending that summary judgment be

granted in favor of Lynn. The district court granted Lynn's

motion for the reasons set forth in the magistrate judge's

report. Accordingly, we will refer to the district court's

opinion in this case, as the recommendation of the magistrate

judge.

3 opened into the large room and, if interested, could have observed

the strip search.

Ten days following this institution-wide shakedown, a district

court judge declared the Louisiana St ate Penitentiary a state of

emergency relying on facts submitted to the judge prior to the

strip search.

Elliott filed this suit against Lynn in the United States

District Court for the Middle District of Louisiana pursuant to 42

U.S.C. § 1983. After considering the parties' motion and

cross-motion for summary judgment , the district court denied

Elliott's motion, granted Lynn's motion and dismissed the complaint

with prejudice. 2 The court held that the search did not violate

Elliott's Fourth Amendment rights because the institution-wide

search was a legitimate means to regain control, discipline, and

security within the prison. The court further determined that

although the search c ould have been conducted with more privacy,

the correctio nal officers were not required to use the least

re strictive means in performing the search. Finally, the court

f ound that although the regulation defining a visual body cavity

search created a protected liberty in terest under the Fourteenth

Amendment, Elliott was not deprived of liberty without due process

of law because adequate post-deprivation remedies were available to4

protect Elliott's rights of due process.

On appeal, Elliott argues that (1) the search was conducted in

s uch a place and manner that his privacy rights under the Fourth

Amendment were violated; (2) state prison regulations created a

liberty interest that restricted body cav ity searches and this

search deprived him of his protected liberty interest without due

process in violation of the Fourteenth Amendment; and (3) Lynn is

not entitled to the protection provided by qualified immunity.

II

We review a grant of summary judgment de novo, applying the

same standard used by the district court. C alpetco 1981 v.

Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993).

Under Rule 56(c) of the Federal Rules of Civil Procedure, we

examine evidence presented to determine that there is "no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed.R.Civ.P. 56(c). Once a

properly supported motion for summary judgment is present ed, the

burden shifts to the non-moving party to set forth specific facts

showing that there is a genuine issue for trial. A nde rson v.

Liberty Lobby, Inc., 477 U.S. 242, 24 9, 106 S.Ct. 2505, 2511, 91

L.Ed.2d 202 (1986); B rothers v. Klevenhagen, 28 F.3d 452, 455 (5th

Cir.1994). We must review "the facts drawing all inferences most

favorable to the party opposing the motion." Matagorda County v.

Russell Law, 19 F.3d 215, 217 (5th Cir.1994).

A

E lliott contends that the strip search violated his rights3 We have noted in Valencia v. Wiggins, 981 F.2d 1440, 1443-

44 (5th Cir.1993) and Brothers, 28 F.3d at 457, that the Fourth

Amendment's application in the prison context has been

significantly limited by the Supreme Court in Hudson v. Palmer,

468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984).

Hudson held only that prisoners have no justified expectation of

privacy in their prison cells. Hudson, 468 U.S. at 526, 104

5 under the Fourth Amendment to be free from unreasonable searches.

However, Elliott substantially narrows our review by conceding that

the scope and justification for the search were not unreasonable.

Consequently, the focus of our inquiry is whether the manner and

the place of the strip search were unreasonable under Fourth

Amendment standards. In essence, Elliott argues that there were

three areas—a gameroom, a bathroom, and a television room—a few

feet from the location of the actual search where individual

searches could have been conducted with substantially more privacy

and minimal inconvenience. Thus, he contends that the search was

constitutionally unreasonable because it was unnecessarily

conducted en mass in a non-private area and in the presence of

non-essential personnel.

B

A pr isoner's rights are diminished by the needs and

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

loses those rights that are necessarily sacrificed to leg itimate

penological needs. U nited States v. Lilly, 576 F.2d 1240, 1244

(5th Cir.1978). The Fourth Amendment, however, requires that

"searches or seizures conducted on prisoners must be reasonable

under all the facts and circumstances in which t hey are

performed." 3 L illy, 576 F.2d at 1244. Because a prisonS.Ct. at 3200. Furthermore, Brothers simply held that the Fourth

Amendment does not apply to the seizure of prisoners through an

official's use of excessive force. Brothers, 28 F.3d at 457. No

Supreme Court case has overruled the holding of Lilly that the

Fourth Amendment applies to body cavity searches of prisoners.

Thus, Lilly

is still the law of this circuit concerning the

Fourth Amendment's application to visual body cavity searches in

the prison setting. See also Albright v. Oliver, --- U.S. ----,

114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (suggesting Fourth

Amendment has some applicability in prison context).

6 adm inistrator's decisions and actions in the prison context are

entitled to great deference from the courts, the burden of proving

reasonableness is a light burden. Id. at 1245.

Under appropriate circumstances, visual body cavity searches

of prisoners can be constitutionally reasonable. S ee Bel l v.

Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 44 7

(1979).

The test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application. In

each case it requires a balancing of the need for the

particular search against the invasion of personal rights that

the search entails. Courts 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, 99 S.Ct. at 1884. We have interpreted this

statement of reasonableness as striking a balance "in favor of

deference to prison authorities' views of institutional safety

requirements against the admittedly legitimate claims of inmates

not to be searched in a humiliating and degrading manner." W att v.

City of Richardson Police Dep't., 849 F.2d 195, 196 (5th Cir.1988).

We are required, as a matter of both common sense and law, to

accord prison administrato rs great deference and flexibility in

car rying out their responsibilities to the public and to the7

inmates under their control, including deference to the

authorities' determination of the "reasonableness of the scope, the

manner, the place and the justification for a particular policy."

Hay v. Waldron, 834 F.2d 481, 486 (5th Cir.1987). Furthermore, we

have foun d that when evaluating the security policies adopted by

the prison administrators, the court is not required to apply a

"least restrictive means" test. Hay, 834 F.2d at 485.

We now turn to consider the conditions at the Louisiana State

Penitentiary on June 9, 1989.

C

The emergency situation created by an i ncreasing number of

prison murders, suicides, stabbings, and cuttings clearly

jus tified, as conceded by Elliott, an immediate search of the

inmates to seize the weapons of this violen ce, as well as other

contraband, in or der to restore and maintain security. Because

this crisis required immediate action and because of the large

number of inmates involved in the institution-wide shakedown, Lynn

was fully justified in conducting the strip search in the most

time-efficient place and manner available. Lynn decided that under

these emergen cy circumstances the search must be conducted on a

collective, as opposed to an individual basis. Elliott argues that

Lynn overlooked alternative methods and places to conduct the

search that would have been less intrusive on his privacy rights.

He argues that individual searches in nearby, smaller, more private

areas would have protected the privacy and personal dignity of the

prisoners. These considerations, he argues, were completely8

ignored by the authorities conducting the search. As Lynn

explained, however, individual searches of the prisoners in private

areas in the dormitory, with one guard performing the search plus

one additional guard present for security purposes, would have been

extremely time consuming, especially considering the additional

time needed for the inmate to undress and red ress. This lengthy

process, when app lied to more than 3,000 individuals, would have

defeated the purpose of the swift institution-wide sh akedown, by

allowing the inmates a greater opportunity to hide or dispose of

weapons and contraband and by prolonging the violence.

Furthermo re, the presence of additional guards was clearly

appropriate because of the metho d of the search, the expediency

demanded by the circumstances, and the urgency of safety concerns.

Although the record reflects that Lynn's pilot and the two news

media personnel c ould have observed the search from the walkway

that opened into the large room, the record does not reflect that

they demonstrated any interest in viewing the searches.

Furthermore, the room in which the search was conducted was the

only one large enough to conduct the co llective search. As the

commanding officer, the justification of Lynn's presence cannot be

questioned. Thus, on the record before us, we defer to Lynn's

sound judgment regarding all aspects of the search and will not

apply the benefit of hindsight to question the secondary details of

this search. Indeed, even with the benefit of hindsight, his

decisions seem appropriate under the exigent circumstances that

faced him. Although it is certainly true that the privacy of the4 Elliott argues that Louisiana Department of Public Safety

and Corrections Regulation 30-25 creates a protected liberty

interest relating to limitations on body cavity searches because

it contains an exclusive listing of the situations when such

searches may be conducted. Because a search pursuant to

emergency circumstances, such as the one in this case, is not

contained in this exclusive list, Elliott contends that the

search deprived him of liberty without due process of law.

Despite Elliott's argument to be free from such a search, we need

not decide whether the language of the regulation is sufficiently

mandatory to create a protected liberty interest. See Kentucky

Dep't. of Corrections v. Thompson, 490 U.S. 454, 464 n. 4, 109

S.Ct. 1904, 1910 n. 4, 104 L.Ed.2d 506 (1989) (finding protected

liberty interest exists if statute contains mandatory language

requiring application of certain substantive predicates before

reaching desired result). Elliott concedes that Lynn had a right

to suspend the regulation in an emergency, which includes the

alleged mandatory language contained in the regulation that

Elliott relies upon for creation of his liberty interest. We

hold that because Lynn effectively suspended the regulation prior

to the search, any liberty interest that might have otherwise

existed is not implicated.

Finally, disposing of this case on the merits renders

moot any further issues concerning qualified immunity.

9 prisoners was compromised, we hold that the search was

constitutionally reasonable in the conte xt of prisoner's rights

under the Fourth Amendment. 4

III

In sum, we AFFIRM the district court's judgment finding that

the institution-wide visual body cavity search in the place and

manner conducted did not violate the Fourth or Fourteenth

Amendments to the United States Constitution. For the foregoing

reasons, the judgment of the district court dismissing Elliott's

complaint is

AFFIRMED.

GARWOOD, Circuit Judge, concurring specially:

I would hold that the Eighth Amendment, not the Fourth10

Amendment, is the standard by which a prison inmate's pro tection

against searches by prison authorities is to be measured. In

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393

(1984), the Court stated:

"A right of privacy in traditional Fourth Amendment terms is

fundamentally incompatible with the close and continual

surveil lance of inmates and their cells required to ensure

institutional security and internal order." Id. at 527, 104

S.Ct. at 3201 (footnote omitted).

"Our holding that respondent does not have a reasonable

expectation of privacy enabling him to invoke the protections

of the Fourth Ame ndment does not mean that he is without a

remedy for calculated harassment unrelated to prison needs....

T he Eighth Amendment always stands as a protection against

"cruel and unusual punishments.' " Id. at 529, 104 S.Ct. at

3202.

The majority would restrict Hudson to searches of prison

cell s. That was the setting in which H udson arose, but its

language is not so limited. Nor is it logical to fracture the

Fourth Amendment in this bizarre manner, so that convicted inmates'

protection against certain prison searches is measured by the

Fourth Amendment while their protection against other such searches

is measured by the Eighth Amendment. See also Whitley v. Albers,

475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (Eighth

Amendment applied to inmate shot in quelling of prison riot);

Brothers v. Klevenhagen, 28 F.3d 452, 457 (5th Cir.1984) (Fourth

Amendment inapplicable t o seizure claim of pre-trial detainee);

Valencia v. Wiggins, 981 F. 2d 1440, 1443-45 (5th Cir.), c ert.

denied,

--- U.S. ----, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993)

(same).

I recognize that our decision in United States v. Lilly, 5761 The majority also cites Bell v. Wolfish, 441 U.S. 520, 99

S.Ct. 1861, 60 L.Ed.2d 447 (1979), and Albright v. Oliver,

--- U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). As pointed out

in Brothers at 456 n. 3, 457, neither decision supports

application of the Fourth Amendment here. Fourth Amendment

applicability was expressly assumed arguendo only in Bell. Id.

at 557, 99 S.Ct. at 1884. The dicta in the Albright plurality

opinion merely says "The Framers considered the matter of

pretrial deprivations of liberty and drafted the Fourth Amendment

to address it." Id. at ----, 114 S.Ct. at 813 (emphasis added).

Albright does not address conduct in jail after booking, much

less in prison after conviction.

2 I join in the majority's discussion and resolution of the

procedural due process claim.

11 F.2d 1240 (5th Cir.1978), held that the Fourth Amendment constrains

prison officials in their body cavity searches of inmates. L illy,

however, has been superseded by Hudson, which locates the

constraint on prison inmate searches within the Eighth Amendment. 1

For reasons not significantly different from those given by

the majority in upholding this search under the Fourth Amendment,

I conclude that it did not violate Elliott's rights under the

Eighth Amendment.

Accordingly, I join in the judgment of affirmance, but would

rest that determination on the Eighth Amendment, not the Fourth. 2