McKenzie v. Johnson ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-21115
No. H-98-CV-2009
Summary Calendar
_______________________
FREDDIE LEE MCKENZIE,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
MORRIS JONES, M. HUNT, Officer; OFFICER NESS;
G. WILSON, Lieutenant; J. S. FERNALD;
KENT RAMSEY; T. R. CARTER,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 14, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.*
PER CURIAM:
As the district court correctly put it, appellant
McKenzie contends that strip searches in the presence of female
guards violate his constitutional rights, i.e. those amendments
that embody his right to privacy. The court dismissed his case as
frivolous, citing a decision in which this court held that strip
searches of male inmates in the presence of female guards do not
under certain circumstances violate the Constitution. Letcher v.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Turner, 968 F.2d 508, 510 (5th Cir. 1992). We affirm on a narrower
ground.
McKenzie’s complaint and supporting documentation make
clear that his privacy was not violated by a strip search in the
presence of the female guard on June 12, 1997. Although ordered to
strip, he refused to do so except in private, and his refusal
persisted long enough that the female guard was no longer present
when the search was finally conducted. Instead, McKenzie was
subjected to prison discipline for not complying with the guards’
order promptly.
McKenzie’s complaint thus can not urge a specific
violation of his privacy rights. Instead, it challenges the prison
policy that, he says, always permits strip searches to be conducted
in the presence of female guards.1
Whether or not McKenzie’s interpretation of the
regulation is correct, he has no standing to pursue this issue.
First, as noted, his eventual strip search was not carried out in
the presence of a female officer. Second, at the conclusion of his
grievance proceeding, prison officials concluded that McKenzie
refused the order to strip even after the female officer had left
the area. His discipline was therefore based on refusal to obey
the order whether or not a female officer was present. He was not
directly injured by the prison’s strip search policy, and he cannot
state a claim for relief against that policy here.
1
McKenzie’s case is obviously distinguishable from Moore v. Carwell,
168 F.3d 234, 235 (5th Cir. 1999), in which we held that Fourth Amendment rights
might be violated if a female unnecessarily strip-searched him.
2
For these reasons, the district court judgment is
AFFIRMED.
3