Grant v. Wisener et al
MEMORANDUM ADOPTING 20 Report and Recommendations of the US Magistrate Judge on Defendants' 17 Motion to Dismiss. It is ORDERED that the Defendants' 17 Motion to Dismiss for Failure to State a Claim is GRANTED as to Defendants Cheryl Lawson and Dan Gannon, and DENIED as to Defendant John Wisener. Cheryl Lawson and Dan Gannon are DISMISSED as parties to this lawsuit and the claims against them are dismissed with prejudice. Signed by Judge Michael H. Schneider on 3/30/2012. (leh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JOHN WISENER, ET AL.
CIVIL ACTION NO. 6:11cv372
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANTS’ MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM
The Plaintiff Timothy Grant, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights in the Texas Department of
Criminal Justice, Correctional Institutions Division. This Court ordered that the case be referred to
the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order
for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Grant complains of a strip search which took place on July 14, 2009. The Defendants
Wisener, Lawson, and Gannon have filed a motion to dismiss for failure to state a claim upon which
relief may be granted. The Magistrate Judge issued a Report recommending that Lawson, an
assistant regional grievance coordinator, and Gannon, the law library supervisor, be dismissed, but
that Wisener’s motion to dismiss be denied. Grant filed objections to the Magistrate Judge’s Report,
taking issue with the recommendation to dismiss Gannon.
Grant’s pleadings show that Gannon was present, observing two other officers pat searching
all of the inmates leaving the law library. Lt. Taliaferro came in and asked Gannon what the other
officers were doing, and Gannon told him. Taliaferro stated that he wanted all of the inmates strip
searched in the main hallway in the building. Grant spoke up, saying that this was not TDCJ policy,
but Gannon said nothing and allowed the strip search to continue.
The Magistrate Judge stated that TDCJ policy provided for random strip searches and so
Grant failed to show that Gannon knew or could have known that the search violated Grant’s
constitutional rights. In addition, the Magistrate Judge stated that Taliaferro outranked Gannon and
so Gannon lacked the authority to countermand Taliaferro’s orders.
In his objections, Grant says that Gannon was actually a lieutenant as well, but was in civilian
clothes because he was law library supervisor. Thus, Grant argues that Taliaferro did not outrank
Grant also argues that although TDCJ policy calls for “random” strip searches, the word
“random” is not synonymous with “en masse.” He says that a strip search of all of the inmates
leaving the law library is not “random.” Grant quotes the TDCJ policy as saying that strip searches
are to be used only when directed by specific post orders, unit department policy, or when a
supervisor believes that there is reasonable cause to conduct such a search. He also says that under
TDCJ access to court policies, inmates cannot be strip searched as a condition of entering or leaving
the law library unless there is reasonable cause to believe that the inmate is in possession of
contraband. Grant concedes that Gannon may not have “known” that the search was unlawful, but
argues that he should have known, saying that “the unlawfulness of the action was apparent in the
light of existing law.”
The Fifth Circuit has generally upheld the TDCJ strip search policies. See, e.g., Oliver v.
Scott, 276 F.3d 736, 746 (5th Cir. 2002); Barnett v. Collins, 940 F.2d 1530 (5th Cir., July 31, 1991)
(referred to in Oliver as “unpublished but precedential”). In Bell v. Wolfish, 441 U.S. 520 (1979),
the Metropolitan Correctional Center, a Federal Bureau of Prisons institution in New York City,
required all inmates to expose their body cavities for visual inspection as a part of a strip search
conducted after every contact visit with a person from outside the institution. The corrections
officers testified that visual cavity searches were necessary not only to discover but also to deter the
smuggling of weapons, drugs, and other contraband into the institution. In holding this policy
proper, the Supreme Court observed as follows:
A detention facility is a unique place fraught with serious security dangers.
Smuggling of money, drugs, weapons, and other contraband is all too common an
occurrence. And inmate attempts to secrete these items into the facility by
concealing them in body cavities are documented in this record. [citations omitted]
That there has been only one instance where an MCC inmate was discovered
attempting to smuggle contraband into the institution on his person may be more a
testament to the effectiveness of this search technique as a deterrent than to any lack
of interest on the part of inmates to secrete and import such items when the
Bell, 441 U.S. at 559.
See also Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir. 1988) (upholding strip
searches carried out every time an inmate entered or left the maximum security section in the prison);
Goff v. Nix, 803 F.2d 358, 366 (8th Cir. 1986) (upholding a policy of visual body cavity searches
which were done any time that inmates moved outside of their living unit or being taken outside of
the confines of the penitentiary).
Consequently, Grant has failed to show that Gannon “knew or should have known” that the
strip search carried out was a violation of Grant’s constitutional rights, whether or not it may have
violated TDCJ rules and regulations. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996);
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (violation of prison rules alone is not
sufficient to rise to the standards of a constitutional claim). Thus, he has not shown that Gannon had
a constitutional duty to intervene and countermand Taliaferro’s orders even if he had the authority
to do so, a dubious premise in light of the fact that Taliaferro was a uniformed security officer and
Gannon was a plainclothes law library officer. See Hicks v. Page, civil action no. H-08-2486. 2010
WL 793864 (S.D.Tex., March 4, 2010), citing Randall v. Prince George’s County, Maryland, 302
F.3d 188, 203-04 (4th Cir. 2002) (bystander liability requires that officer know that a fellow officer
is violating an inmate’s constitutional rights, has a reasonable opportunity to prevent harm, and
chooses not to act). Grant’s objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Defendants’ motion to dismiss, the Report of the Magistrate Judge, and the Plaintiff’s objections
thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge
is correct and that the Plaintiff’s objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 20) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendants’ motion to dismiss for failure to state a claim (docket no. 17)
is hereby GRANTED as to the Defendants Cheryl Lawson and Dan Gannon, and DENIED as to the
Defendant John Wisener. It is further
ORDERED that Cheryl Lawson and Dan Gannon are hereby DISMISSED as parties to this
lawsuit and the claims against them are hereby dismissed with prejudice.
It is SO ORDERED.
SIGNED this 30th day of March, 2012.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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