Marshall King v. Robert McCarty , 781 F.3d 889 ( 2015 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 13-1769
    MARSHALL KING,
    Plaintiff-Appellant,
    v.
    ROBERT MCCARTY, et al.,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court for the
    Central District of Illinois.
    No. 11-cv-1126—Joe Billy McDade, Judge.
    ____________________
    ARGUED APRIL 18, 2014 — DECIDED MARCH 27, 2015
    ____________________
    Before BAUER, EASTERBROOK, and HAMILTON, Circuit
    Judges.
    PER CURIAM. Marshall King, the plaintiff in this civil
    rights lawsuit, complains that he was forced to wear a see-
    through jumpsuit that exposed his genitals and buttocks
    while he was transported from a county jail to state prison.
    He contends that this amounted to an unjustified and humil-
    iating strip-search that violated his rights under the Fourth
    2                                                  No. 13-1769
    and Eighth Amendments to the federal Constitution. The
    district court reviewed King’s complaint as required by the
    Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915A. The
    court determined that King had not stated a viable claim
    under the Eighth Amendment for cruel and unusual pun-
    ishment but allowed him to proceed on his Fourth Amend-
    ment theory of an unreasonable search. The district court
    later granted summary judgment for the defendants on the
    Fourth Amendment claim on the ground that King had
    failed to comply with the Prison Litigation Reform Act’s re-
    quirement that he exhaust the jail’s available administrative
    remedies before suing. See 42 U.S.C. § 1997e(a). King has
    appealed.
    We reverse and remand for further proceedings. King’s
    transfer to the state prison facility made it impossible for
    him to comply with the jail’s specified grievance procedures,
    so there were no available remedies to exhaust. We also re-
    verse the court’s dismissal of King’s Eighth Amendment
    claim. He has alleged a plausible Eighth Amendment claim
    that the use of the unusual jumpsuit had no legitimate cor-
    rectional purpose but was instead used to humiliate and in-
    flict psychological pain. See Calhoun v. DeTella, 
    319 F.3d 936
    ,
    939 (7th Cir. 2003) (reversing dismissal of Eighth Amend-
    ment claim based on strip-search). We also conclude, how-
    ever, that, as a convicted prisoner, King is not entitled to
    proceed on remand with his theory that requiring him to
    wear the jumpsuit subjected him to an unreasonable search
    in violation of the Fourth Amendment.
    I. Factual and Procedural Background
    King was convicted of violating Illinois’s armed habitual
    criminal statute. See 720 Ill. Comp. Stat. 5/24-1.7. After sen-
    No. 13-1769                                                   3
    tencing, he was transferred from the Livingston County Jail
    to an intake facility run by the Illinois Department of Correc-
    tions. Pursuant to jail policy, King was strip-searched before
    departure and told to change into a jumpsuit. The parties
    dispute the exact characteristics of this garment. King de-
    scribes it as “a see-through jumpsuit that visually expose[d]
    his genitals and buttocks,” and he says the guards refused to
    give him undergarments to cover himself. Defendants (the
    county sheriff and two guards at the jail) deny that the
    jumpsuit was transparent but concede it was “less than
    opaque.” And while insisting the jumpsuit was not see-
    through, they defend the policy on the ground that see-
    through garments are crucial to ensure security and safety
    during transfer. The jumpsuit’s actual appearance remains a
    mystery at this point because the defendants have so far re-
    sisted King’s discovery requests.
    Whatever the outfit’s opacity, King says that he com-
    plained about it to the guards. According to his account,
    they responded by laughing at him and telling him to be
    grateful he was not being transferred in winter. After chang-
    ing into the jumpsuit, King was shackled together with other
    prisoners and driven to the state intake facility. Upon arrival,
    he and the other transferees waited for several hours in the
    presence of male and female guards before being processed
    and strip-searched again. King noticed that inmates from
    other jails were not similarly clad. He says his hours-long
    exposure in front of male and female guards and other male
    inmates caused him pain and humiliation and had no valid
    justification, especially in light of the fact that he had been
    strip-searched already and remained shackled and under
    surveillance throughout the transfer.
    4                                                   No. 13-1769
    II. Exhaustion of Administrative Remedies
    We begin our analysis with the district court’s grant of
    summary judgment for the defendants based on King’s fail-
    ure to exhaust as required by 42 U.S.C. § 1997e(a). That pro-
    vision bars lawsuits challenging prison conditions unless the
    prisoner has first exhausted “such administrative remedies
    as are available.” See generally Porter v. Nussle, 
    534 U.S. 516
    ,
    524–25 (2002) (explaining details and purpose of exhaustion
    rule). The exhaustion requirement is strict. A prisoner must
    comply with the specific procedures and deadlines estab-
    lished by the prison’s policy. Woodford v. Ngo, 
    548 U.S. 81
    , 93
    (2006). The prisoner must do so even if he expects the pro-
    cess will ultimately be futile, Booth v. Churner, 
    532 U.S. 731
    ,
    741 (2001); Perez v. Wisconsin Dep’t of Corrections, 
    182 F.3d 532
    , 536 (7th Cir. 1999).
    At the same time, the statute requires exhaustion only of
    remedies that are “available.” Prison authorities cannot im-
    munize themselves from suit by establishing procedures that
    in practice are not available because they are impossible to
    comply with or simply do not exist. See Lewis v. Washington,
    
    300 F.3d 829
    , 833 (7th Cir. 2002) (“we refuse to interpret the
    PLRA so narrowly as to permit prison officials to exploit the
    exhaustion requirement through indefinite delay”) (internal
    formatting omitted); Johnson v. Litscher, 
    260 F.3d 826
    , 829 (7th
    Cir. 2001) (“For the exhaustion requirement to apply, there
    must be some administrative remedy to exhaust.”). Failure
    to exhaust is an affirmative defense that a defendant has the
    burden of proving. Westefer v. Snyder, 
    422 F.3d 570
    , 577 (7th
    Cir. 2005); Massey v. Helman, 
    196 F.3d 727
    , 735 (7th Cir. 1999).
    King stayed at the state intake facility for approximately
    one week before he was moved to the state prison. For the
    No. 13-1769                                                   5
    first time since his transfer, he then had access to writing ma-
    terials. He says that he wrote to the Livingston County Jail to
    complain about the jumpsuit and to request the proper form
    to pursue the grievance process. He received no response.
    After trying to pursue administrative remedies with the state
    Department of Corrections, whose officials told King they
    had no authority over the county jail’s decisions about cloth-
    ing, King filed this suit under 42 U.S.C. § 1983 seeking dam-
    ages and any other appropriate relief. See Calhoun v. DeTella,
    
    319 F.3d 936
    , 941–43 (7th Cir. 2003) (explaining availability of
    nominal and punitive damages in prisoner suits alleging
    constitutional harm without physical injury); see also Smith
    v. Peters, 
    631 F.3d 418
    , 421 (7th Cir. 2011) (collecting similar
    cases from other circuits).
    Because King was transferred between facilities, each
    with its own grievance procedure, a preliminary question is
    which process he was required to pursue. The administrative
    remedies a prisoner must exhaust are established and de-
    fined by state law. Pozo v. McCaughtry, 
    286 F.3d 1022
    , 1023
    (7th Cir. 2002). Illinois has no rule directly addressed to
    transferees in King’s position, but the grievance procedure
    established by the state board of corrections says that it
    “shall not be utilized for complaints regarding decisions that
    are outside the authority of the Department.” Ill. Admin.
    Code. § 504.810. The county jail’s jumpsuit policy seems to
    fall outside the state agency’s authority, meaning that King
    had to take his complaint to the county jail and not the state
    prison.
    In the absence of state law provisions to the contrary,
    prisoners such as King must direct their grievances to the
    entity allegedly responsible for the conditions they wish to
    6                                                    No. 13-1769
    challenge. See Ortiz v. Forbes, No. 11 C 4145, 
    2012 WL 5389708
    , at *2 (N.D. Ill. Oct. 30, 2012) (in case alleging consti-
    tutional violation in jail before transfer to state prison, “the
    analytical starting point is the transferor jail’s regulations”);
    Cunningham v. Grozik, No. 01 C 6657, 
    2002 WL 1777278
    , at *5
    (N.D. Ill. Aug. 1, 2002) (rejecting as “frivolous” defendants’
    argument that prisoner moved from county jail to state pris-
    on had to exhaust state prison’s grievance procedure for
    claim regarding inadequate medical care in jail before trans-
    fer). This rule is consistent with the regulation quoted above,
    and it should promote efficiency and allow the relevant au-
    thorities a chance to remedy their own errors before being
    haled into court—the two purposes the Supreme Court has
    identified behind the exhaustion requirement. See 
    Woodford, 548 U.S. at 89
    . We therefore agree with the parties and the
    district court that § 1997e(a) required King to exhaust availa-
    ble remedies established by the county jail.
    The Livingston County Jail details its grievance proce-
    dure in a handbook given to all detainees upon arrival. A de-
    tainee must first attempt to resolve a dispute informally be-
    fore filing an official complaint. If the informal attempt fails,
    a detainee is supposed to be able to obtain an official griev-
    ance form from certain guards at the jail. The official form
    must be submitted within five days of the incident that
    prompted the complaint. The superintendent of the jail then
    designates a “grievance officer” to investigate the reported
    incident. The detainee can appeal the resulting decision to
    the superintendent.
    The defendants contend that King did nothing to pursue
    the jail’s administrative remedy. Their only evidence is an
    affidavit from the former superintendent of the jail stating
    No. 13-1769                                                     7
    that the jail never received a request from King about the
    grievance procedure. If it had, the superintendent says, the
    request would have been sent to a grievance officer.
    King has responded with a number of affidavits and
    sworn pleadings stating that: (1) he tried to resolve his com-
    plaint informally by complaining to the guards on the day of
    his transfer; (2) he lacked access to writing materials with
    which to request the grievance form until more than a week
    after his transfer; and (3) he wrote to the jail as soon as he
    could, explaining his complaint and requesting the proper
    paperwork, but never received a response.
    Summary judgment is appropriate only where the mov-
    ing parties can show there is no genuine dispute of material
    fact and that they are entitled to judgment as a matter of law.
    Fed. R. Civ. P. 56(a). We view the evidence in the light most
    favorable to the non-moving party and draw all reasonable
    inferences in that party’s favor. Anderson v. Liberty Lobby, Inc.,
    
    477 U.S. 242
    , 255 (1986); McGee v. Adams, 
    721 F.3d 474
    , 480
    (7th Cir. 2013). The undisputed material facts do not show
    that the defendants are entitled to judgment as a matter of
    law on the defense of failure to exhaust administrative rem-
    edies.
    First, the defendants have offered no evidence suggesting
    that King failed to exhaust the policy’s informal-resolution
    requirement. They deny King’s sworn account that he ex-
    plained his problem with the jumpsuit to the guards at the
    time of his transfer. But the defendants failed even to cite
    any support in the record for their version of the story, as re-
    quired by Rule 56(c)(1), let alone meet the summary judg-
    ment burden of showing that the material facts are undis-
    puted in their favor. See Adickes v. S. H. Kress & Co., 
    398 U.S. 8
                                                    No. 13-1769
    144, 157 (1970) (reversing summary judgment where moving
    party’s submission was not adequate). Nor did they present
    any evidence showing how a transferee could informally re-
    solve a complaint about conditions at the jail while confined
    in a different facility.
    Second, nothing in the record shows beyond reasonable
    dispute that the grievance form, which King had to file with-
    in five days of his transfer to satisfy the jail’s policy, re-
    mained available to him. The parties disagree about whether
    King ever wrote asking for the form—a dispute of fact that
    could not be resolved against him on summary judgment—
    but we think that question is ultimately beside the point.
    Even if King had been able to write on the same day he was
    transferred, it is not plausible that he could have asked for
    the form, received a response, and mailed back the complet-
    ed paperwork before the five-day deadline had passed. The
    jail has imposed a timetable that makes it practically impos-
    sible for transferred prisoners to pursue their grievances
    about the transfer process. The form was not available to
    King, so he was not required to submit it before suing. See
    Dale v. Lappin, 
    376 F.3d 652
    , 656 (7th Cir. 2004) (because
    guards refused to provide specific form required to file
    grievance, defendants could not show failure to exhaust).
    The defendants cannot avoid this conclusion by relying
    on the superintendent’s statement that any letter from a
    transferred prisoner would have been given to a grievance
    officer. The district court interpreted that statement to mean
    the jail would have considered King’s grievance on the mer-
    its even if he did not use the proper form or submit his com-
    plaint on time. The court concluded on that basis that the
    remedy remained available.
    No. 13-1769                                                   9
    The first problem with this conclusion is that it does not
    follow from what the superintendent actually said. Her affi-
    davit said only that any letter from King would have been
    given to a grievance officer. Such a letter would still have
    failed to conform to the procedural requirements of the jail’s
    policy and could have been thrown out on that basis. In ef-
    fect, the district court reversed the summary judgment
    standard by viewing the superintendent’s statement in the
    light least favorable to the non-moving party.
    But even if the affidavit had actually said that a late
    grievance from King would have been considered on the
    merits, there is a still more fundamental problem with the
    defendants’ argument. The jail detailed its grievance policy
    in the detainee handbook. To the extent the policy was avail-
    able to King, he was required to follow its specific proce-
    dures. 
    Woodford, 548 U.S. at 93
    . Now that a prisoner has sued
    them, though, the defendants cannot defeat the suit by ret-
    roactively amending the policy with a new rule or policy
    that says, in effect, “we would have been reasonable.” Noth-
    ing in the record suggests, but more important, nothing in
    the jail’s stated policy shows beyond reasonable dispute, that
    the jail would have or could have accepted a late submission
    or otherwise relaxed its stated rules. See 
    Dale, 376 F.3d at 656
    (vacating summary judgment; defendants could not argue
    that they would have accepted prisoner grievance even if not
    filed on the specific form required by administrative policy).
    Prisoners are required to exhaust grievance procedures
    they have been told about, but not procedures they have not
    been told about. See Pavey v. Conley, 
    663 F.3d 899
    , 906 (7th
    Cir. 2011); Curtis v. Timberlake, 
    436 F.3d 709
    , 712 (7th Cir.
    2005); Carroll v. Yates, 
    362 F.3d 984
    , 985 (7th Cir. 2004). They
    10                                                No. 13-1769
    are not required to divine the availability of other proce-
    dures. If authorities could change their grievance rules once
    litigation began or simply keep prisoners in the dark about
    the real rules, they could always defeat prisoner suits by an-
    nouncing impossible procedural hurdles beforehand and
    then, when they are sued, explaining that they would have
    waived the requirements for the plaintiff. See Kaba v. Stepp,
    
    458 F.3d 678
    , 686 (7th Cir. 2006) (reversing summary judg-
    ment for defendants; where prison officials argued they
    would have permitted late grievance after transfer, it was
    unknown both whether late grievance would be considered
    and whether prisoner had way to know a late grievance might be
    considered); 
    Dale, 376 F.3d at 656
    (vacating summary judg-
    ment for defendants; prisoner offered evidence that prison
    officials refused his request for required grievance form; of-
    ficials argued on appeal that prisoner was not required to
    use specified form but pointed to no regulation that would
    excuse failure to use required form). The Prison Litigation
    Reform Act was not meant to impose the rule of “heads we
    win, tails you lose” on prisoner suits. See 
    Kaba, 458 F.3d at 684
    (“Prison officials may not take unfair advantage of the
    exhaustion requirement”), quoting Dole v. Chandler, 
    438 F.3d 804
    , 809 (7th Cir. 2006).
    In short, the defendants did not show that they were enti-
    tled to summary judgment as a matter of law. In fact, the
    record at this point demonstrates the contrary. The jail’s ad-
    ministrative remedy was simply not available to transferred
    prisoners challenging their treatment during the transfer.
    The exhaustion requirement in 42 U.S.C. § 1997e(a) is not a
    barrier to King’s claims.
    No. 13-1769                                                   11
    III. The Eighth Amendment Claim
    The district court screened King’s complaint for cogniza-
    ble claims as required by the Prison Litigation Reform Act.
    28 U.S.C. § 1915A. The court concluded that King could pro-
    ceed on his claim under 42 U.S.C. § 1983 that being forced to
    wear a transparent jumpsuit during his transfer violated the
    Fourth Amendment. But the court dismissed King’s parallel
    claim under the Eighth Amendment, relying on our decision
    in Johnson v. Phelan, 
    69 F.3d 144
    (7th Cir. 1995). Johnson held
    that female guards’ routine monitoring of naked male in-
    mates in a jail’s showers, toilets, and cells did not involve the
    sort of unnecessary infliction of pain or discomfort that is
    required to state a claim for cruel and unusual punishment.
    The district court also concluded that because the jumpsuits
    were part of the jail’s usual transfer policy, it was implausible
    that they were meant for harassment rather than for a legit-
    imate penological purpose.
    Claims such as King’s require that we consider the larger
    tension between the privacy and dignity of prisoners and the
    pressing institutional needs for security and safety. Courts
    give wardens substantial deference in pursuing the latter
    ends, but that deference is not complete. The Supreme Court
    made this point in Brown v. Plata, 563 U.S. —, 
    131 S. Ct. 1910
    ,
    1928–29 (2011), when it emphasized that courts “may not al-
    low constitutional violations to continue simply because a
    remedy would involve intrusion into the realm of prison
    administration.” Although prisoners are deprived of many
    rights during their incarceration, they “retain the essence of
    human dignity inherent in all persons.” 
    Id. at 1928.
      King should be allowed to pursue his Eighth Amend-
    ment claim beyond the pleadings. Johnson does not foreclose
    12                                                  No. 13-1769
    at the pleading stage King’s allegation that being unneces-
    sarily paraded in a see-through jumpsuit was cruel and unu-
    sual punishment. Nor should the district court have decided
    on the pleadings that the jumpsuit was justified simply be-
    cause the jail imposed it on all transferred detainees.
    A strip-search in jail or prison can be cruel and unusual
    punishment. See Mays v. Springborn, 
    575 F.3d 643
    , 649 (7th
    Cir. 2009); Peckham v. Wisconsin Dep't of Corrections, 
    141 F.3d 694
    , 697 (7th Cir. 1998). A prisoner states a claim under the
    Eighth Amendment when he plausibly alleges that the strip-
    search in question was motivated by a desire to harass or
    humiliate rather than by a legitimate justification, such as the
    need for order and security in prisons. See Calhoun v. DeTella,
    
    319 F.3d 936
    , 939 (7th Cir. 2003); Meriwether v. Faulkner, 
    821 F.2d 408
    , 418 (7th Cir. 1987); see also Hudson v. Palmer, 
    468 U.S. 517
    , 530 (1984) (Eighth Amendment protects against
    “calculated harassment unrelated to prison needs”). Even
    where prison authorities are able to identify a valid correc-
    tional justification for the search, it may still violate the
    Eighth Amendment if “conducted in a harassing manner in-
    tended to humiliate and cause psychological pain.” 
    Mays, 575 F.3d at 649
    (reversing summary judgment for defend-
    ants). In short, where there is no legitimate reason for the
    challenged strip-search or the manner in which it was con-
    ducted, the search may “involve the unnecessary and wan-
    ton infliction of pain” in violation of the Eighth Amendment.
    Rhodes v. Chapman, 
    452 U.S. 337
    , 346 (1981), quoting Gregg v.
    Georgia, 
    428 U.S. 153
    , 173 (1976).
    These decisions under the Eighth Amendment do not
    conflict with the Supreme Court’s more recent decision in
    Florence v. Board of Chosen Freeholders, 566 U.S. —, 132 S. Ct.
    No. 13-1769                                                   13
    1510 (2012), which held that a county jail did not violate de-
    tainees’ Fourth Amendment rights by applying its policy of
    strip- and body cavity searches for all detainees entering the
    jail’s general population. See 
    id. at 1523
    (Roberts, C.J., con-
    curring); 
    id. at 1524
    (Alito, J., concurring). The majority opin-
    ion retained a standard of reasonableness—“correctional of-
    ficials must be permitted to devise reasonable search policies
    to detect and deter the possession of contraband”—while
    recognizing that courts should ordinarily defer to correc-
    tional officials’ judgments about the reasonableness of such a
    policy. 
    Id. at 1517.
    Florence did not address, however, issues
    presented by correctional officers “engaging in intentional
    humiliation and other abusive practices.” 
    Id. at 1523
    (plurali-
    ty).
    King has stated a viable claim that he was subjected to
    cruel and unusual punishment in violation of the Eighth
    Amendment. He complains that he was degraded and hu-
    miliated by being transported in a see-through jumpsuit that
    left him exposed in front of other inmates as well as guards
    of both sexes. Such compelled and prolonged nudity seems
    to be, for present purposes, analogous to a lengthy strip-
    search. King asserts that there was no legitimate reason for
    this policy, a point he supports with specific factual allega-
    tions. Detainees arriving at the intake facility from other jails
    were not wearing similar garments, which at least tends to
    suggest that such clothing is not necessary for safe and se-
    cure penal transfers. Moreover, King was strip-searched be-
    fore and after his transfer, and he remained shackled and
    under surveillance throughout. These facts tend to suggest
    there was no security reason for keeping transferees in a
    state of semi-nudity. Moreover, King’s allegation that he was
    mocked when he objected to the jumpsuit is enough at this
    14                                                  No. 13-1769
    stage to raise at least the possibility that the policy was driv-
    en by a desire to humiliate or harass. See, e.g., 
    Calhoun, 319 F.3d at 939
    (reversing dismissal where prisoner alleged he
    was subjected to strip searches conducted in deliberately
    harassing and humiliating way).
    Our decision in Johnson v. Phelan is not to the contrary.
    That case involved female guards monitoring male prisoners
    in their bathrooms, showers, and cells, where the inmates
    were sometimes by necessity in varying states of undress.
    The plaintiff objected to being exposed in front of guards of
    the opposite sex. We affirmed dismissal of the complaint,
    holding that the policy of cross-sex monitoring was not
    meant to cause pain or humiliation but instead served sever-
    al valid institutional goals. One was to avoid Title VII or
    equal protection problems by removing a basis on which the
    jail would have to distinguish between its male and female
    employees. The plaintiff in Johnson did not claim he was
    forced to disrobe for no reason, only that he and other pris-
    oners were monitored by female guards in the shower or toi-
    let, when they would already be naked.
    King challenges a much different policy of compelled,
    continuing, and public undress without any obvious justifi-
    cation for the treatment. Like the plaintiff in Johnson, King
    objects to the presence of female guards, but that is not the
    basis of his complaint. He has described instead a broader
    constitutional problem, one that does not depend solely on
    the sex of the guards. (For this reason, the Title VII and equal
    protection concerns in Johnson for women employed as
    guards do not seem relevant to King’s claims.) The unusual
    practice alleged here, if supported by the facts, looks more
    No. 13-1769                                                  15
    like an unjustified effort to humiliate prisoners than did the
    routine supervision of prisoners in Johnson.
    Johnson also undermines the district court’s reasoning
    that because the jumpsuits were part of the jail’s standard
    transfer policy, they could not have been intended to harass
    or humiliate. The monitoring in Johnson was done pursuant
    to regular policy, but we did not and could not resolve the
    plaintiff’s claim on that basis. 
    See 69 F.3d at 145
    ; cf. Whitman
    v. Nesic, 
    368 F.3d 931
    , 934 (7th Cir. 2004) (prison’s drug-
    testing program did not violate Eighth Amendment because
    its specific procedures were required to ensure accurate test-
    ing). A jail cannot shield a cruel and unusual punishment
    from legal challenge simply by imposing it on everyone
    equally. That would serve only to magnify the constitutional
    problem.
    IV. The Fourth Amendment Claim
    In reviewing King’s complaint, the district court conclud-
    ed that he stated a potentially viable claim for violation of
    his Fourth Amendment rights, which requires that searches
    be conducted in a reasonable manner. On this point, we dis-
    agree with the district court. In the end, it was correct to
    dismiss King’s Fourth Amendment claim, but it should have
    been on the merits rather than for failure to exhaust adminis-
    trative remedies. On remand, the district court should not
    allow King to pursue a Fourth Amendment theory for relief.
    As noted, King argues that he was subjected to an unu-
    sual and unreasonable form of prolonged strip-search. See
    
    Johnson, 69 F.3d at 145
    (“Observation is a form of search, and
    the initial question therefore is whether monitoring is ‘un-
    reasonable’ under the fourth amendment.”). At the time of
    16                                                  No. 13-1769
    the alleged search, however, King was a convicted offender
    in custody for purposes of punishment. The Supreme Court
    has never applied the Fourth Amendment to such a claim
    based on the treatment of a convicted prisoner in prison.
    In Hudson v. Palmer, 
    468 U.S. 517
    (1984), the Supreme
    Court adopted a bright-line rule and held that a prison in-
    mate had simply no reasonable expectation of privacy in his
    prison cell that would protect him under the Fourth
    Amendment from unreasonable searches and seizures of his
    property. The Hudson opinion also said, more broadly, that a
    “right of privacy in traditional Fourth Amendment terms is
    fundamentally incompatible with the close and continual
    surveillance of inmates and their cells required to ensure in-
    stitutional security and internal order.” 
    Id. at 527–28.
        After Hudson, the lower federal courts have considered
    whether its holding extends from searches of prisoners’
    property to searches of their bodies. A key difference be-
    tween the Fourth and Eighth Amendments is relevant. For
    reasons we explained above, King’s claim under the Eighth
    Amendment survives at least at the pleading stage, but that
    claim will require him to prove that the defendants acted
    without a legitimate correctional purpose and for the pur-
    pose of humiliating him and/or subjecting him to gratuitous
    psychological injury. See, e.g., Whitley v. Albers, 
    475 U.S. 312
    ,
    319 (1986) (for conduct that “does not purport to be punish-
    ment at all,” it is “obduracy and wantonness, not inadvert-
    ence or error in good faith” that characterizes actions prohib-
    ited by the Eighth Amendment). In other words, the defend-
    ants’ subjective purposes and states of mind are part of the
    relevant considerations (even if they might be the subject of
    objective, circumstantial evidence).
    No. 13-1769                                                   17
    The Fourth Amendment imposes, by contrast, an objec-
    tive standard of reasonableness, so King argues he can pre-
    vail under the Fourth Amendment without necessarily hav-
    ing to prove the defendants acted with bad intent. Even un-
    der the Fourth Amendment’s objective standard, courts give
    considerable deference to judgments of prison officials about
    matters of institutional safety and security, but the deference
    is not complete. See, e.g., Conyers v. Abitz, 
    416 F.3d 580
    , 584
    (7th Cir. 2005), citing Bell v. Wolfish, 
    441 U.S. 520
    , 547–48
    (1979).
    In Johnson, we considered the difference between the
    Fourth and Eighth Amendments in the context of the jail pol-
    icies that exposed naked male prisoners to view by female
    guards. Johnson lost under the Fourth Amendment because
    we held that he had no protected privacy interest. He lost
    under the Eighth Amendment because there were legitimate
    correctional purposes for subjecting male prisoners to view
    of female guards: more efficient use of staff and greater em-
    ployment opportunities for 
    women. 69 F.3d at 147
    –48; see
    also Sparks v. Stutler, 
    71 F.3d 259
    , 260–61 (7th Cir. 1995) (dis-
    tinguishing between Fourth and Eighth Amendment claims
    based on involuntary catherization of prisoner to extract
    urine for drug test; reversing Fourth Amendment judgment
    for plaintiff based on defense of qualified immunity).
    Even in prison, case law indicates that the Fourth
    Amendment protects, to some degree, prisoners’ bodily in-
    tegrity against unreasonable intrusions into their bodies. See
    
    Sparks, 71 F.3d at 260
    –61 (insertion of catheter into prisoner’s
    bladder was subject to Fourth Amendment, but defendant
    physician was entitled to qualified immunity); Peckham v.
    Wisconsin Dep’t of Corrections, 
    141 F.3d 694
    , 699 (7th Cir. 1998)
    18                                                  No. 13-1769
    (Easterbrook, J., concurring in judgment) (Fourth Amend-
    ment protects prisoners from unreasonable bodily intrusions
    but not inspections of appearance of their bodies); see also
    Sanchez v. Pereira-Castillo, 
    590 F.3d 31
    , 44–48 (1st Cir. 2009)
    (vacating dismissal of prisoner’s Fourth Amendment claim
    based on abdominal surgery used to search for evidence).
    We said broadly in Johnson v. Phelan that Hudson held that
    prisoners retain no right of privacy under the Fourth
    
    Amendment. 69 F.3d at 146
    . We have also said in other cases,
    however, that the Fourth Amendment continues to protect
    some degree of privacy for convicted prisoners, at least
    when it comes to bodily searches, even if that protection is
    significantly lessened by punitive purposes of prison and the
    very real threats to safety and security of prisoners, correc-
    tional staff, and visitors. See 
    Peckham, 141 F.3d at 697
    (stating
    in dictum regarding strip-searches that prisoners retain
    some protection “under the Fourth Amendment against un-
    reasonable searches and seizures”). And in Canedy v. Board-
    man, 
    16 F.3d 183
    (7th Cir. 1994), we reversed dismissal of a
    prisoner’s claim that his rights were violated by routine ob-
    servation and even strip-searches by opposite-sex guards,
    though in the similar Johnson case, we interpreted the Canedy
    discussion of “privacy” as an invocation of the Eighth
    Amendment prohibition on cruel and unusual punishments
    and cautioned against reading Canedy too 
    broadly. 69 F.3d at 147
    –48.
    King has not alleged any intrusion into his body like
    those at issue in Sparks and Sanchez, so even if we assume
    such treatment of a convicted prisoner is subject to the
    Fourth Amendment, he has failed to state a viable claim. We
    draw support for the line we draw from the Supreme Court’s
    No. 13-1769                                                  19
    decision in Florence, where the issue was whether routine
    visual strip-searches of pretrial detainees, without individu-
    alized suspicion that a detainee was concealing contraband,
    were reasonable under the Fourth Amendment. The Court
    allowed such searches but made clear that its opinion did
    not address searches in which detainees would be touched
    as part of the searches. 
    See 132 S. Ct. at 1515
    , 1523. King, who
    was at the time of his transfer no longer a pretrial detainee
    but a convicted prisoner, alleges only a form of prolonged
    visual search in which he was not touched.
    The Supreme Court has adhered to the importance of the
    subjective element of Eighth Amendment claims by convict-
    ed prisoners like King, and the Court has never extended
    Fourth Amendment protection to a prisoner’s claim like
    King’s. In light of those facts, we do not believe we should
    expand the scope of Fourth Amendment protection to strip-
    searches of convicted prisoners to create an Eighth-
    Amendment-light standard in which the subjective purposes
    of prison officials would not be relevant. We conclude that
    King has failed to state a claim upon which relief may be
    granted under the Fourth Amendment.
    The decisions of the district court dismissing King’s
    Eighth Amendment claim and granting summary judgment
    for the defendants on the defense of failure to exhaust ad-
    ministrative remedies are REVERSED and the case is
    REMANDED for further proceedings consistent with this
    opinion.
    20                                                   No. 13-1769
    HAMILTON, Circuit Judge, concurring in part and concur-
    ring in the judgment. I concur in the judgment reversing and
    remanding this case to the district court, and I join Parts I, II,
    and III of the court’s opinion, which hold that defendants are
    not entitled to summary judgment on the defense of failure
    to exhaust administrative remedies and that King has al-
    leged a viable claim for cruel and unusual punishment un-
    der the Eighth Amendment. The court’s opinion provides
    helpful clarification of the PLRA’s requirement to exhaust
    administrative remedies, particularly where circumstances
    make it impossible for a prisoner to comply with express re-
    quirements of a jail’s grievance procedure. I respectfully dis-
    agree, however, with Part IV, which rejects King’s Fourth
    Amendment claim on the pleadings and instructs the district
    court not to consider it on remand.
    I do not believe the boundary for the protections provid-
    ed by the Fourth Amendment to a convicted prisoner is the
    surface of the prisoner’s skin, as my colleagues suggest
    (though they leave open the possibility that no Fourth
    Amendment protection at all is available to a convicted pris-
    oner). In fact the majority’s Fourth Amendment reasoning
    goes further than the Supreme Court itself and other circuits
    have gone. The Fourth Amendment requires law enforce-
    ment officials to act in a reasonable manner when they sub-
    ject people to searches of their person or property. It is well
    established that observation of a nude detainee is a search
    for purposes of the Fourth Amendment. See, e.g., Florence v.
    Board of Chosen Freeholders of County of Burlington, 566 U.S. —
    
    132 S. Ct. 1510
    (2012); 
    Johnson, 69 F.3d at 145
    (“Observation is
    a form of search, and the initial question therefore is whether
    monitoring [of naked male prisoners by female guards] is
    ‘unreasonable’ under the fourth amendment.”).
    No. 13-1769                                                  21
    To be sure, those who are detained in connection with
    proven or suspected criminal activity have sharply dimin-
    ished expectations of privacy—none when it comes to their
    property and only very limited rights when it comes to their
    bodies. Moreover, courts give deference to the judgment of
    jail or prison staff in determining what searches are reasona-
    ble. See 
    Florence, 132 S. Ct. at 1517
    ; Bell v. Wolfish, 
    441 U.S. 520
    , 547–48 (1979).
    But I do not believe that convicted prisoners have utterly
    no Fourth Amendment rights, at least when it comes to
    rights of bodily integrity. Consider, for example, the intru-
    sions into an inmate’s body in Winston v. Lee, 
    470 U.S. 753
    (1985), which barred surgery on a pretrial detainee to recov-
    er evidence, and in Sparks v. Stutler, 
    71 F.3d 259
    , 260–61 (7th
    Cir. 1995), where the convicted prisoner was subjected to in-
    voluntary catheterization of his bladder. King’s allegations
    describe an unusual form of prolonged search that he alleges
    was unreasonable.
    The Supreme Court has not held that prisoners have no
    Fourth Amendment right to bodily privacy. In Bell v. Wolfish,
    
    441 U.S. 520
    , 558 (1979), the Court assumed but did not de-
    cide that the Fourth Amendment protected convicted in-
    mates against unreasonable strip-searches, including visual
    inspection of bodily cavities. And as Chief Justice Burger
    wrote: “Inmates in jails, prisons, or mental institutions retain
    certain fundamental rights of privacy; they are not like ani-
    mals in a zoo to be filmed and photographed at will by the
    public or by media reporters, however ‘educational’ the pro-
    cess may be for others.” Houchins v. KQED, Inc., 
    438 U.S. 1
    , 5
    n.2 (1978) (plurality opinion of Burger, C.J.) (news media did
    22                                                  No. 13-1769
    not have constitutional right of access to secure portions of
    jail for purpose of gathering news).
    The Supreme Court later held in Hudson v. Palmer that the
    Fourth Amendment does not apply to searches of prison
    cells because prisoners have no legitimate expectation of
    privacy in their property or surroundings. The Hudson opin-
    ion said in its broadest statement that a “right of privacy in
    traditional Fourth Amendment terms is fundamentally in-
    compatible with the close and continual surveillance of in-
    mates and their cells required to ensure institutional security
    and internal 
    order.” 468 U.S. at 527
    –28.
    Despite that broad language, the holding of Hudson was
    expressly limited to searches of prisoners’ cells and belong-
    ings, not their bodies. See 
    id. at 536
    (“We hold that the
    Fourth Amendment has no applicability to a prison cell.”).
    The narrow scope of the decision was reflected in Justice
    O’Connor’s concurrence, which reiterated that the Court was
    addressing inmates’ “privacy and possessory interests in
    personal effects” and “searches and seizures of the contents
    of an inmate’s cell.” 
    Id. at 536–40.
    We recognized that limit in
    Sparks, which presented a Fourth Amendment claim based
    on involuntary catherization of a prisoner to obtain a urine
    sample for drug testing. 
    See 71 F.3d at 261
    (“Hudson did not
    require the Court to decide what interests prisoners retain in
    their bodies, as opposed to their surroundings. … Certainly
    Hudson does not establish that the interior of one’s body is as
    open to invasion as the interior of one’s cell.”).
    Hudson was a case about prisoners’ privacy interest in
    their property and surroundings, and its reference to the
    surveillance of inmates means simply that: observing pris-
    oners in their cells. So while Hudson helped guide our deci-
    No. 13-1769                                                 23
    sion in Johnson, where inmates were routinely monitored
    while in their cells and showers, it did not foreclose Fourth
    Amendment challenges to more intrusive and/or less justifi-
    able bodily searches like the one King has alleged. See, e.g.,
    Sanchez v. Pereira-Castillo, 
    590 F.3d 31
    , 44–48 (1st Cir. 2009)
    (reversing dismissal of convicted prisoner’s Fourth Amend-
    ment claim for unreasonable search in the form of explorato-
    ry surgery to search for contraband, even though search had
    legitimate correctional goal).
    Our court has on occasion used broad language that de-
    nies prisoners essentially any legitimate expectation of pri-
    vacy, even with respect to their own bodies. See 
    Johnson, 69 F.3d at 146
    (reading Hudson v. Palmer as holding that prison-
    ers do not retain any right of privacy under the Fourth
    Amendment); Green v. Berge, 
    354 F.3d 675
    , 679 (7th Cir. 2004)
    (Easterbrook, J., concurring) (prisoners’ privacy interests
    “are extinguished by judgments placing them in custody”).
    But Johnson is the outlier on this issue.
    In other cases, both before and after Johnson, we have
    recognized that the Fourth Amendment continues to protect
    some very limited degree of privacy in prisons, at least when
    it comes to strip-searches, even if that protection is signifi-
    cantly lessened by the very real dangers of incarceration. See
    
    Peckham, 141 F.3d at 697
    (prisoners retain some protection
    “under the Fourth Amendment against unreasonable
    searches and seizures”); Canedy v. Boardman, 
    16 F.3d 183
    , 185
    (7th Cir. 1994) (“those who are convicted of criminal offenses
    do not surrender all of their constitutional rights”). That’s
    why we have allowed prisoners to proceed on Fourth
    Amendment challenges to bodily searches instead of dis-
    missing their claims. See May v. Trancoso, 412 F. App’x 899,
    24                                                          No. 13-1769
    904 (7th Cir. 2011) (non-precedential order) (affirming sum-
    mary judgment for defendants; prisoner drug test was not
    unreasonable); Forbes v. Trigg, 
    976 F.2d 308
    , 312 (7th Cir.
    1992) (affirming summary judgment for defendants in case
    challenging requirement that prisoner produce urine for
    drug test, but noting that “inmates retain protected privacy
    rights in their bodies”). While I do not find persuasive the
    Johnson majority’s effort to distinguish Canedy (by saying it
    must have been limited to the Eighth Amendment), a single
    panel obviously cannot resolve this tension in our circuit’s
    case law. 1
    All of the other courts of appeals except the Federal Cir-
    cuit (which would rarely if ever have occasion to consider
    the question) have said that prisoners retain some diminished
    degree of protection against unreasonable bodily searches
    and/or have allowed such challenges to go forward. As best I
    can tell, no other circuit applies the categorical rule that my
    colleagues apply, finding no Fourth Amendment protection
    against strip-searches or nudity. See, e.g., Sanchez v. Pereira-
    Castillo, 
    590 F.3d 31
    , 44–48 (1st Cir. 2009) (vacating dismissal
    of prisoner’s Fourth Amendment claim based on abdominal
    surgery to obtain evidence); Nicholas v. Goord, 
    430 F.3d 652
    ,
    658 (2d Cir. 2005) (“prisoners retain a right to bodily priva-
    cy,” but DNA testing did not violate Fourth Amendment);
    Russell v. City of Philadelphia, 428 F. App’x 174, 178 (3d Cir.
    1In Johnson, which is very difficult to reconcile with Canedy on this
    point, a petition for rehearing en banc was denied by a vote of five to
    four, with two judges not participating. 
    See 69 F.3d at 144
    n*. Peckham
    did not draw a petition for rehearing en banc, perhaps because the judg-
    es who disagreed on the general legal issue agreed on the judgment af-
    firming summary judgment for the defendants. 
    See 141 F.3d at 697
    .
    No. 13-1769                                                   25
    2011) (prisoner stated claim challenging strip-search under
    Fourth Amendment but failed to exhaust administrative
    remedies); Bushee v. Angelone, 7 F. App’x 182, 184 (4th Cir.
    2001) (vacating dismissal of prisoner’s challenge to reasona-
    bleness of strip-search); Hutchins v. McDaniels, 
    512 F.3d 193
    ,
    196 (5th Cir. 2007) (reversing dismissal of prisoner’s Fourth
    Amendment claim based on strip-search); Stoudemire v. Mich-
    igan Dep’t of Corrections, 
    705 F.3d 560
    , 575 (6th Cir. 2013) (af-
    firming denial of qualified immunity against prisoner’s
    Fourth Amendment claim challenging strip-search); Seltzer-
    Bey v. Delo, 
    66 F.3d 961
    , 963 (8th Cir. 1995) (reversing sum-
    mary judgment and remanding prisoner’s Fourth Amend-
    ment claim challenging strip-search); Nunez v. Duncan, 
    591 F.3d 1217
    , 1226–28 (9th Cir. 2010) (affirming summary judg-
    ment for defendants on merits of prisoner’s Fourth Amend-
    ment claim; he presented no evidence that strip-search was
    unreasonable); Farmer v. Perrill, 
    288 F.3d 1254
    , 1260 (10th Cir.
    2002) (affirming denial of qualified immunity against pris-
    oner’s challenge to strip-search); Moton v. Walker, 545 F.
    App’x 856, 860 (11th Cir. 2013) (affirming grant of qualified
    immunity while noting that prisoners “retain a constitution-
    al right to bodily privacy”); Kaemmerling v. Lappin, 
    553 F.3d 669
    , 686 (D.C. Cir. 2008) (affirming dismissal of prisoner’s
    challenge to DNA testing because past case established its
    reasonableness).
    With only the pleadings before us on this claim, I believe
    it is a mistake to attempt now to draw precise boundaries
    under the Fourth Amendment. In Florence the Supreme
    Court took care to limit its decision and to leave room for
    future modification and 
    exceptions. 132 S. Ct. at 1522
    –23; see
    also 
    id. at 1523
    (Roberts, C.J., concurring) (“The Court is
    nonetheless wise to leave open the possibility of exceptions,
    26                                                  No. 13-1769
    to ensure that we not ‘embarrass the future.’”); 
    id. at 1524
    –25
    (Alito, J., concurring) (praising limits on Court’s opinion).
    We should exercise similar caution here. At this preliminary
    stage of this case, we should recognize that the Fourth
    Amendment’s focus on objective reasonableness may pre-
    serve some outer limit on the actions of even well-meaning
    prison administrators where such bodily searches are in-
    volved, while it also requires courts to give substantial—but
    not complete—deference to the warden’s judgment. The un-
    certain scope of the law might well allow individual defend-
    ants to rely on qualified immunity to avoid damages liabil-
    ity, of course, but Armstrong has also asserted a practice or
    policy claim against the sheriff in his official capacity under
    Monell v. Department of Social Services, 
    436 U.S. 658
    (1978). We
    should allow further factual development on this claim in
    the district court on remand.
    

Document Info

Docket Number: 13-1769

Citation Numbers: 781 F.3d 889

Judges: PerCuriam

Filed Date: 3/27/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (40)

Sanchez v. Pereira-Castillo , 590 F.3d 31 ( 2009 )

Farmer v. Perrill , 288 F.3d 1254 ( 2002 )

jason-b-nicholas-john-lewis-philip-rabenbauer-frank-solimine-robert , 430 F.3d 652 ( 2005 )

Hutchins v. McDaniels , 512 F.3d 193 ( 2007 )

Smith v. Peters , 631 F.3d 418 ( 2011 )

Curtis L. Dale v. Harley G. Lappin , 376 F.3d 652 ( 2004 )

Rodosvaldo Pozo v. Gary McCaughtry Randall Gerritson, and ... , 286 F.3d 1022 ( 2002 )

Mays v. Springborn , 575 F.3d 643 ( 2009 )

Jane Peckham v. Wisconsin Department of Corrections, ... , 141 F.3d 694 ( 1998 )

Ronnie W. Carroll v. Dale R. Yates , 362 F.3d 984 ( 2004 )

Karamo B. Kaba v. E.A. Stepp, Mickal E. Laird, Dave Benson, ... , 458 F.3d 678 ( 2006 )

Lavarita D. Meriwether v. Gordon H. Faulkner , 821 F.2d 408 ( 1987 )

cedric-r-johnson-v-jon-e-litscher-secretary-of-the-wisconsin-department , 260 F.3d 826 ( 2001 )

Robert Westefer, Mark Vonperbandt, Allejandro Villazana v. ... , 422 F.3d 570 ( 2005 )

Blake Conyers v. Tom Abitz , 416 F.3d 580 ( 2005 )

Tyrone Calhoun v. George E. Detella , 319 F.3d 936 ( 2003 )

Norman C. Green, Jr., Donald Lee, Glenn Turner, and Dennis ... , 354 F.3d 675 ( 2004 )

Jeffrey Whitman v. Veroljub Nesic and Christopher Ellerd , 368 F.3d 931 ( 2004 )

Pavey v. Conley , 663 F.3d 899 ( 2011 )

joseph-dole-v-correctional-officer-chandler-sergeant-butler , 438 F.3d 804 ( 2006 )

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