Tuft v. The State Of Texas et al

Filing 108

ORDER GRANTING 95 Motion for Summary Judgment; and GRANTING IN PART and DENYING AS MOOT in part 106 Motion to Strike. Any and all other pending motions DENIED AS MOOT.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

T u f t v. The State Of Texas et al

Do c. 108

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION R OBERT ALEXANDER TUFT, P l a i n t i ff , v. B RENDA CHANEY, ET AL., D e fen d a n ts. § § § § § § § § §

C IVIL ACTION NO. H-06-2529

MEMORANDUM OPINION AND ORDER
P la in tif f , a state inmate proceeding pro se, filed this section 1983 lawsuit complaining o f violations of his civil rights by Texas Department of Criminal Justice ("TDCJ") em p loyee s Doug Dretke, Brenda Chaney, Richard Leal, and Kathren Gonzalez. The Court g ra n te d partial summary judgment in favor of defendant prison officials, and ordered d e f e n d a n ts to file an amended dispositive motion as to plaintiff's remaining two claims. Pending before the Court are defendants' amended motion for (final) summary ju d g m e n t (Docket Entry No. 95) and plaintiff's response in opposition (Docket Entry No. 1 0 2 ). Also pending is defendants' motion to strike affidavits (Docket Entry No. 106), to w h ic h plaintiff filed a response (Docket Entry No. 107). After carefully reviewing the motions and responses, the record, and the applicable law , the Court GRANTS the amended motion for (final) summary judgment, GRANTS in

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p a rt and DENIES AS MOOT in part the motion to strike affidavits, and DISMISSES this c a s e for the reasons that follow. B a c k g ro u n d and Claims O n February 17, 2009, the Court dismissed by summary judgment all of plaintiff's claim s in this lawsuit except his Fourth Amendment claim regarding a female officer's p a rtic ip a tio n in his 2005 strip search and his challenge to the constitutionality of TDCJ AD 0 3 .2 2 regarding strip searches. He seeks declaratory and injunctive relief with recovery of n o m in a l and punitive damages. Stated succinctly, plaintiff claims that the strip search was u n re a so n a b le ; that the prison policy governing the strip search is unconstitutionally vague; a n d that TDCJ should be ordered to rewrite the prison strip search policy. By defendants' pending amended motion for (final) summary judgment, defendants s e e k summary judgment dismissing plaintiff's two remaining claims. Summary Judgment Standard of Review S u m m a r y judgment is proper if the pleadings, depositions, answers to interrogatories, a n d admissions on file, together with any affidavits filed in support of the motion, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to ju d g m e n t as a matter of law. FED. R. CIV. P. 56(C). A factual dispute will preclude a grant o f summary judgment if the evidence is such that a reasonable jury could return a verdict for th e nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The tria l court may not weigh the evidence or make credibility determinations. Id. Conclusory

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alleg atio n s, speculation, improbable inferences, or a mere scintilla of evidence, however, are in s u f f ic ie n t to defeat a summary judgment motion. See Michaels v. Avitech, Inc., 202 F.3d 7 4 6 , 754-55 (5th Cir. 2000). The Supreme Court recognizes that facts must be viewed in the lig h t most favorable to the nonmoving party at the summary judgment stage only if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). F a c tu a l Analysis P la in tif f complains that, on February 26, 2005, he was strip searched in the presence o f a female prison officer, defendant Kathren Gonzalez, who "participated in a visual cavity s e a rc h of Plaintiff with no extraordinary circumstances present." (Docket Entry No. 21, p. 1 1 .) Specifically, plaintiff states that he and six other offenders were asked by Gonzalez to s trip , open their mouths, lift their genitals, and expose their anuses 1 in the presence of G o n z a le z and three male officers. Id. He claims that Gonzalez's participation in the strip s e a rc h violated his Fourth Amendment right to be free from unreasonable searches, and sues G o n z a le z in her individual capacity. According to plaintiff's pleadings and summary judgment evidence, on February 25, 2 0 0 5 , the day before the strip search, unknown offenders were unlawfully smoking cigarettes in plaintiff's prison dormitory. Prison officers discovered the security and safety breach, and im m e d ia te ly undertook an investigation. Cells were searched, offenders strip searched, and

As plaintiff performed a manual manipulation of his own body as instructed by a prison officer, and he makes no claim that any officer physically touched him, the body cavity search falls under the category of a "visual body cavity search." 3

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s o m e contraband cigarettes were found. The investigation continued into the next day, when a ll of the dorm cells were again searched and offenders questioned and strip searched. Prior to being called in for strip searches, they were told that "if [they] did not give names and in f o rm a tio n on who was smoking in the back of [the] dorm, [they] could be expecting to be s u b je c t to this type of treatment until [they] cooperate." (Docket Entry No. 102, Exhibit A.) P la in tif f and five other offender residents of the dorm were called into the a d m in i str a tio n office as a group for a strip search. According to two offender affidavits s u b m itte d by plaintiff, the strip search episode unfolded as follows: L t. Gonzales (sic) told us to get out of our clothes. This is a fairly small office f o r eleven people to be standing in. [She] went behind a small desk and sat d o w n . She was only a few feet from us and was looking directly at us. She to ld us again to `get out of 'em.' [Plaintiff] and [another inmate] started to a rg u e with her but she said that if we continued to hold out on who was sm o k in g that we could expect this on a regular basis. We would `ride the heat' f o r the smokers. [Plaintiff] said something about constitutional rights and Abu G h raib e , but [she] said to get out of them or go to [lock-up]. L t. Gonzales (sic) directed us on what to do. When we got undressed ­ strip p ed naked ­ she was telling us to open our mouths, lift our genitals, turn a ro u n d and spread our buttock cheeks, and show the bottom of our feet. She c o u ld have reached out and touched us. I felt coerced into doing what she said a n d felt I had no choice. (Docket Entry No. 102, Exhibit B.) Lt. Gonzalas (sic) was sitting at a desk about four or five feet from me [.] Lt. G o n z a la s (sic) was in clear line of sight of all inmates. The other four inmates w e re about six to eight feet away on the other side of the small office. [Two o th e r officers] were conducting the search. Lt. Peterson was providing security a n d Lt. Gonzalas (sic) did not assist directly in the search of our clothing, but

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d id assist in the visual cavity search of our rectums and mouths. She was lo o k in g directly at us and was instructing us on what to do next[.] Id ., Exhibit A. Plaintiff asserts that his Fourth Amendment rights were violated by female o f f ic e r Gonzalez's participation in what was a non-emergency strip search. Defendants disagree with plaintiff's version of the events. In her own affidavit s u b m itte d in support of the amended summary judgment motion, TDCJ Lieutenant of C o r re c tio n a l Officers defendant Kathren Gonzalez testified, in relevant part, as follows: T o the best of my recollection, I was alone in the Lieutenant Supervisor's O f f ic e filling out routine paperwork on or about February 26, 2005. The office in which I was working is fairly large, possibly 20 by 20 feet or larger. The o f f ic e contains a couple of desks, several filing cabinets and at least two c o m p u t e r terminals for use by supervisory staff. Although it usually remains o p e n , the room has a door that may be closed for privacy if necessary. M y recollection is that I was seated at one of the desks working on one of the c o m p u t e r terminals when Lt. Levi Peterson unexpectedly came through the d o o r leading a group of inmates and two correctional officers. I recall that Lt. P e te rs o n said something to the offenders or the correctional officers about b e in g strip-searched and that he ordered the two correctional officers to c o n d u c t strip-searches. Since I had not ordered the strip-search searches, I s i m p l y continued my paperwork. My recollection is that Lt. Peterson may h a v e left the room briefly and returned. I did not participate in any way in the in sp e c tio n of the offenders' shoes, socks, clothing, or bodies. I do not recall s p e a k in g to the offenders or even observing them before Lt. Peterson stepped o u t of the room or afterward. It was only after I was served with [plaintiff's] c o m p lain t that I learned the offenders apparently were being strip-searched to try to locate contraband cigarettes. I cannot recall any interaction with [ p la in tif f ], or with any of the offenders for that matter, either during this strips e a rc h or at any other time. I understand from [plaintiff's] complaint that he claims I told him and the o th e r offenders that they could expect to be strip-searched again if they did not p ro v id e me with information about the contraband. I never made any such 5

c o m m e n t. Since I had not ordered the search, I had no reason to say anything a t all to any of the offenders, and to the best of my recollection I did not say a n yth in g to them. I was nothing more than a bystander to the strip-search a p p a re n tly ordered by Lt. Peterson. But even if I had told this or any other o f f e n d e r that he might be strip-searched again if I were unable to find the c o n tra b a n d I suspected him of possessing, that would have been consistent w ith my duties and obligations to ensure the safety and security of offenders, s ta f f, and the institution, as well as with TDCJ policy regarding offender se a rc h e s, AD-03.22. In fact, based on my experience and training, I would e x p e ct to be disciplined or even terminated if I did not continue to search for th e suspected contraband until it was found. [Plaintiff] also claims that I had no probable cause to believe he possessed the in f o rm a tio n about the contraband. This assertion is mistaken, since it assumed I ordered a search of [him] on the date in question. In addition, even if I had o rd e re d a strip-search of this or any other offender, I am not required to have `p ro b a b le cause' but only `reasonable cause' to believe the offender is in p o ss e ss io n of contraband. In addition, it would be fully within my authority a s a supervisor to order the strip search of any offender whenever I have r e a s o n a b le cause ­ in my opinion ­ to believe he was in possession of c o n t ra b a n d . Prison inmates are not permitted to decide whether I have p ro b a b le cause or reasonable cause or any other kind of cause to conduct a s e a rc h . My duty is to the facility, the offender housed there and to the men and w o m e n who work in the facility to make sure they are as safe as possible in all o f the circumstances. In discussing the strip-search policy, Officer Gonzalez further testified that, T h e policy permits female officers to provide security during any strip-search, a n d the policy also permits female supervisors such as myself not only to order a strip-search, but to actually conduct a strip-search in extraordinary c irc u m s ta n c es . Based on my training and experience, the possibility that one o r more inmates is in possession of contraband always amounts to e x tra o rd in a ry circumstances, and when in doubt I will always err on the side o f caution. Although I did not order or participate in the strip search [plaintiff] is complaining about in this lawsuit, I would have been fully within my rights a n d duties as a supervisor, and as a female supervisor, to order and to conduct th e strip-search of any offender I reasonably believed might be in possession o f contraband. 6

In conclusion, I wish to state unequivocally that I did not participate in any s trip -s e a rc h of [plaintiff] on or about Feb[ruary] 26, 2005. (D o c k e t Entry No. 96, Exhibit C.) In his affidavit submitted in support of summary judgment, Officer Levi Peterson te s tif ie d in relevant part as follows: In my almost 25 years' experience with TDCJ, I have conducted many, many s trip -s e a rc h e s of prison inmates. As a supervisor, I have ordered that strips e a rc h e s to be (sic) conducted pursuant to agency policy whenever I have had re a so n a b le cause to believe that an offender might be in possession of c o n tr a b a n d . Although I cannot recall every detail of the events in question. my best r e c o lle c tio n of the events in this lawsuit is as follows: I took a group of offenders six or seven (sic) to the supervisor's office at the Je ste r III unit in February 2005 to undergo a strip search. I cannot recall at this tim e specifically why the decision was made to strip-search these offenders, w h e th e r I ordered that the strip-search be conducted or if another supervisor o rd e re d it or what contraband was being sought. I do recall that I led two c o rre c tio n a l officers and the small group of offenders to the supervisor's o f f ic e , which privacy (sic) for strip-searches. When I entered the room, I f o u n d [Officer Gonzalez] working on the computer at one of the two or three d e sk s located in the office. My best recollection of the layout of that office is th a t she would have had to have been facing the computer screen or the wall b e h in d it and away from the offenders I'd brought into the office. I cannot recall what, if anything, I said to [Gonzalez] about the strip-search. T h e re was nothing unusual about [her] being in the supervisor's office and th e r e was nothing unusual about strip-searches in that office or in [Gonzalez's] p re se n c e. TDCJ does not prohibit female officers, who probably are the m a jo rity, from being present during strip-searches. It also wasn't unusual for o f f e n d e r s to be strip-searched, since most of them are strip-searched almost e v e ry day as they return to their housing from jobs, from recreation, from s c h o o l and so on. In fact, the trusty groundskeepers I supervise are strips e a rc h e d several times a day: when they leave the trusty camp to go to work, 7

w h e n they go to chow in the building and when they come back to the trusty c a m p in the evening. Strip searches are simply a routine part of being a Texas p ris o n inmate, and they are very important to institutional security and safety, s in c e the introduction of contraband ­ drugs, knives, tobacco, cell phones, etc. ­ can be very disruptive and sometimes very dangerous to prison security. I am certain that the strip-search was conducted by the two correctional o f f ic e rs I brought with me to the supervisor's office, and that I never asked [ G o n z a le z ] for any help. I am certain that she did not participate in any way, s in c e her assistance was not requested and not needed. The COs ­ it may have b e e n Gonzales 2 and Agumagu ­ would have had the inmates strip down to th e ir shorts while they waited to be searched. Their uniforms, shoes and socks w o u ld be checked. Then they would be ordered to show the bottoms of their fe et, open their mouths and run their hands across their heads to show there w a s nothing hidden in their hair. They also would be required to open their m o u th s to show there was nothing hidden inside. Then the inmates would be o rd e re d to drop their boxers, raise their testicles and turn around and spread the c h e e k s of their buttocks. The entire process usually takes well under two m in u te s per offender. The total time they might be fully exposed is a few s e c o n d s at most. If [Gonzalez] saw any of the inmates naked, it was incidental to her being in that office at that time. I do not recall [her] speaking to any of the offenders a t any time. I am certain that she could not have ordered the strip searches, s in c e she obviously was working in the supervisor's office before I left for the o f f ic e with the [officers] and the offenders, and I would not have taken them to be searched unless either I had made a determination that they needed to be s e a rc h e d or I was ordered to do so by another supervisor. (Docket Entry No. 96, Exhibit E.) As is apparent, the parties disagree as to whether defendant Gonzalez actually p a rtic ip a te d in the subject strip search. However, as shown below, this dispute raises no

In absence of any clear evidence to the contrary, the Court will assume that plaintiff and his offender witnesses have not confused defendant female officer "Gonzalez" with non-defendant female officer "Gonzales." The Court's granting of summary judgment in the instant case is based on the absence of a Fourth Amendment violation, not misidentification of prison personnel. 8

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g e n u in e issue of material fact precluding summary judgment in this case because, even assu m ing it was defendant Gonzalez, not non-defendant officer Gonzales, who participated in the subject strip search, no Fourth Amendment violation is shown. Eleventh Amendment Immunity D e f e n d a n ts move for summary judgment on plaintiff's claims against them in their o f f icia l capacity on grounds that they are immune from such relief under the Eleventh A m e n d m e n t. Plaintiff's claims for monetary damages against all of the defendants in their o f f icia l capacities as employees of the State of Texas are barred by the Eleventh Amendment, a n d these claims are dismissed. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1 9 8 9 ); Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). H o w e v e r, Eleventh Amendment immunity does not end the inquiry in the instant case. In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court carved out an exception to E le v e n th Amendment immunity. The Court held that enforcement of an unconstitutional law is not an official act because a state can not confer authority on its officers to violate the C o n s titu tio n or federal law. See American Bank & Trust Co. of Opelousas v. Dent, 982 F.2d 9 1 7 , 920-21 (5th Cir. 1993). To meet the Young exception, plaintiff here must allege a v io la tio n of federal law against individual persons in their official capacities as agents of the s ta te , and seek declaratory or injunctive relief that is prospective in nature and effect. See A g u ila r v. Tex. Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998); see also M a y fie ld v. Tex. Dep't of Criminal Justice, 529 F.3d 599, 604-05 (5th Cir. 2008).

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A c c o rd in g ly, plaintiff's claims against defendants for declarative and injunctive relief a re not barred under the Eleventh Amendment. Vicarious Liability It is well established that section 1983 does not create vicarious or respondeat s u p e r io r liability. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); E v e tt v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003). Plaintiff's claims against defendants D retke , Chaney, and Leal for vicarious or respondeat superior liability are dismissed for f a ilu re to state a claim. As plaintiff also fails to establish any factual basis for personal in v o lv e m e n t on the part of these defendants regarding the subject strip search, his claims a g a in s t them in their individual capacity are dismissed. See Thompson v. Steele, 709 F.2d 3 8 1 , 382 (5th Cir. 1983) (holding that personal involvement is an essential element of a claim b ro u g h t pursuant to section 1983). Qualified Immunity O n e or more of the defendants claim entitlement to qualified immunity against p la in tif f 's claims for monetary damages in this case. Plaintiff acknowledges that he is not seeking monetary damages in this lawsuit. (D o c k e t Entry No. 102, p. 15.) Accordingly, the issue of qualified immunity need not be a d d re ss e d . Plaintiff's entitlement to declaratory and injunctive relief, however, remains e x ta n t and is addressed below. See Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007).

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C la im for Declaratory Relief P lain tiff claims that the 2005 strip search was unreasonable and violated his Fourth A m e n d m e n t protections.3 An offender may recover nominal and punitive damages, despite lac k of a physical injury, if he can successfully prove that prison officials violated his Fourth A m e n d m e n t rights. Hutchins v. McDaniels, 512 F.3d 193, 198 (5th Cir. 2007). A state offender's Fourth Amendment protections are greatly limited in context of p ris o n situations. "A prisoner's rights are diminished by the needs and exigencies of the in stitu tio n in which he is incarcerated. He thus loses those rights that are necessarily s a c rif ic e d to legitimate penological needs." Moore v. Carwell, 168 F.3d. 234, 236-37 (5th C ir. 1999) (citations omitted). However, the Fourth Amendment protects prisoners from s e a rc h e s and seizures that go beyond legitimate penological interests. Id. Searches of o f f en d e rs must be conducted in a manner that is reasonable under the facts and circumstances in which they are performed. Id. at 237. As recognized by the Supreme Court, The test of reasonableness under the Fourth Amendment is not capable of p r e c is e definition or mechanical application. In each case it requires a b a la n c in g of the need for the particular search against the invasion of personal rig h ts that the search entails. Courts must consider the scope of the particular in tru s io n , the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 559 (1979); Moore, 168 F.3d at 237.

Plaintiff's ancillary issue ­ that his strip search violated the administrative directive ­ need not be addressed, as the violation of a prison policy, standing alone, does not give rise to a federal constitutional issue. See Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009). 11

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The burden of proving reasonableness in the instant case, however, is a light burden b e c a u se an administrator's decisions and actions in the prison or jail context are entitled to g re a t deference. Elliott v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994). With respect to any p o ten tial Fourth Amendment claim, offenders do not have a right to be free from strip s e a rc h e s, which can be conducted by prison officials without probable cause provided that the search is conducted in a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 558-59 (1 9 7 9 ). The Fifth Circuit has ruled that a male inmate being strip searched by a female officer w h e n a male officer is unavailable does not violate the inmate's constitutional rights, as it re la te s to a legitimate penological interest in safety and security. Oliver v. Scott, 276 F.3d 7 3 6 , 745 (5th Cir. 2002). The Fifth Circuit also recognizes that strip searches of a male o f f e n d e r in the presence of a female officer does not raise a constitutional issue. Letcher v. T u r n e r , 968 F.2d 508, 510 (5th Cir. 1992). However, the Fifth Circuit noted in Moore that s trip and body cavity searches of male offenders, carried out in non-emergency situations by f e m a le officers when male officers are available, can give rise to Fourth Amendment c o n c ern s . 168 F.3d at 235-37. Thus, according to this Fifth Circuit precedent, a strip and v is u a l body cavity search of plaintiff by a female officer without exigent circumstances and w i t h the availability of male officers could, but not necessarily does, constitute an u n re a so n a b le search under the Fourth Amendment.

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A lth o u g h the probative evidence submitted by the parties raises a fact issue as to w h e th e r defendant Gonzalez actually participated in plaintiff's strip and visual body cavity s e a rc h , plaintiff presents no probative summary judgment evidence that the search by a f e m a le officer was performed under non-emergency circumstances. Defendants, to the c o n tra ry, have submitted probative summary judgment establishing that the factual c irc u m s ta n c es asserted by plaintiff constitute "extraordinary circumstances." 4 As testified b y defendant Officer Gonzalez, I was nothing more than a bystander to the strip-search apparently ordered by L t. Peterson. But even if I had told this or any other offender that he might be s trip -s e a rc h e d again if I were unable to find the contraband I suspected him of p o ss e ss in g , that would have been consistent with my duties and obligations to e n su re the safety and security of offenders, staff, and the institution, as well as w i th TDCJ policy regarding offender searches, AD-03.22. In fact, based on m y experience and training, I would expect to be disciplined or even ter m in a ted if I did not continue to search for the suspected contraband until it w a s found. * * * *

T h e policy permits female officers to provide security during any strip-search, a n d the policy also permits female supervisors such as myself not only to order a strip-search, but to actually conduct a strip-search in extraordinary c irc u m s ta n c es . Based on my training and experience, the possibility that one o r more inmates is in possession of contraband always amounts to e x tr a o r d in a r y circumstances, and when in doubt I will always err on the side o f caution. Although I did not order or participate in the strip search [plaintiff] is complaining about in this lawsuit, I would have been fully within my rights a n d duties as a supervisor, and as a female supervisor, to order and to conduct

This Court does not read Moore to preclude "non-extraordinary circumstances" as a functional equivalent of "non-emergency" situations for purposes of Fourth Amendment claims regarding cross-gender strip-searches. 13

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th e strip-search of any offender I reasonably believed might be in possession o f contraband. (Docket Entry No. 96, Exhibit C, emphasis added.) F u rth e r, Brenda Chaney, senior warden at the Jester III Unit, testified in her affidavit th a t, [B]ased on my 22 years of experience and training, the possible presence of c o n tra b a n d would always present circumstances justifying the strip-search of o f f e n d e rs believed to be in possession of such contraband. (Docket Entry No. 96, Affidavit of Brenda Chaney.) Plaintiff himself states that the basis for his strip-search was prison officials' efforts to locate the known contraband cigarettes and identify the offenders involved in the security a n d safety breach. In other words, plaintiff does not controvert that the complained-of strip sea rch was directly related to a particular prison security and safety breach. Plaintiff's sp ec ific dispute lies with his disagreement that the contraband issue constituted extraordinary c irc u m s ta n c es justifying his search by a female officer when male officers were available. H o w e v e r , plaintiff is a prisoner; his conclusory allegations and opinions of what constitutes, o r does not constitute, non-extraordinary or non-emergency circumstances regarding prison s e c u rity and safety do not rise to the level of probative summary judgment. Nor does p la in tif f 's self-proclaimed extensive base of experience as a "career prisoner" afford him any s p e c ia l expertise regarding this issue. To the contrary, this Court must afford great deference to the prison officials' determinations and opinions that the factual circumstances asserted

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b y plaintiff constituted extraordinary circumstances. See Elliott v. Lynn, 38 F.3d 188, 191 (5 th Cir. 1994). Thus, a prison official's opinion that unidentified prisoners smoking c o n tra b a n d cigarettes in the prison dorm would constitute extraordinary circumstances, does sta n d as probative evidence of such for this Court. Accordingly, Plaintiff fails to meet his b u rd e n of proving that his strip search was carried out under non-emergency or none x tra o rd in a ry circumstances by a female officer when a male officer was available. Consequently, even assuming defendant Gonzalez participated in the subject search, n o Fourth Amendment violation is shown. Defendants are entitled to summary judgment d is m is s in g plaintiff's Fourth Amendment claim. C o n s titu tio n a l Challenge to AD 03.22 P la in tif f prefaces his arguments by stating that he does not "contest the legitimacy of [ T D C J 's ] interest in security matters such as keeping various types of contraband out of the p r i s o n s . Nor does [he] even contest the need for strip-searches in special extreme and/or ex trao rdin a ry circumstances." (Docket Entry No. 102, p. 16.) Plaintiff does, however, sp e c if ica lly argue that the prison regulation regarding cross-gender strip searches is u n c o n stitu tio n a l because the conditions under which such searches may be performed ­ i.e., u n d e r "extraordinary circumstances" ­ are unduly vague. Id., p. 19. In his response to the motion for summary judgment, plaintiff directs the Court's a tt e n t i o n to a list of multi-state authorities, purportedly setting forth cases holding as u n c o n stitu tio n a l prison strip-search policies similar to AD-03.22. (Docket Entry No. 102,

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p . 25) These cases afford him no legal support, as in none of these cases was a prison strips e a rc h policy such as AD-03.22 found unconstitutional, nor did any of these dozen or so c a s e s involve the "extraordinary circumstances" language challenged here by plaintiff. The parties agree that the applicable prison regulation regarding inmate strip searches a p p e a r s in Administrative Directive (AD) 03.22, which provides as follows: II. S trip Searches A t times it may be necessary to strip search offenders to ensure the s a f ety of offenders and staff and to detect the presence of contraband. S trip -se a rc h e s are to be used only when directed by specific unit/facility p o s t orders, or unit/facility departmental policy or when a supervisor b e lie v e s there is reasonable cause to warrant such a search. The search s h a ll be performed in a professional manner. Staff of the same gender s h a ll conduct the search. Gender specific requirements are as follows: A. F e m a le offenders shall not be strip-searched by, or in the visual p r e s e n c e of, male officers. F o r male offenders, if circumstances dictate that the search m u s t be conducted by staff of the opposite gender, such searches a r e authorized under this policy only in extraordinary c ir c u m s ta n c e s and when approved by a supervisor. If, under o r d in a r y circumstances, a female officer is present in the v icin ity of a male offender being strip-searched, the officer's d u ty is solely to provide security for the searching officer. The f e m a le officer shall not actively participate in the strip-search. (E m p h a s is added.)

B.

In evaluating prison regulations that allegedly infringe on inmates' constitutional rig h ts, the Supreme Court holds that a regulation is valid if it is reasonably related to le g itim a te penological interests. Turner v. Safely, 482 U.S. 78, 89 (1987). Defendants have

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p r e s e n te d probative summary judgment evidence that AD 03.22 is reasonably related to legitim ate penological interests. In her affidavit submitted in support of the summary ju d g m e n t motion, Brenda Chaney, senior warden at the Jester III Unit, testified in relevant p a r t as follows: B e c au s e this lawsuit centers on strip-searches, it is important to note that the p u rp o s e of strip-searches in prisons is to ascertain the presence of contraband o n prisoners['] bodies so as to diminish as much as possible security issues that in v a ri a b ly arise when contraband is introduced into prison units. While it is r o u tin e for offenders to hide contraband in virtually any imaginable space a c c e s s ib l e to them and within their personal living space, prisoners also f re q u e n tly hide all kinds of contraband ­ homemade knives, razors and w e a p o n s of all kinds; narcotics; alcohol; gambling slips; tobacco; p o rn o g ra p h y; cell phones; SIM cards, money, and a wide variety of other p roh ib ited items ­ under their clothing, in their mouths and hidden elsewhere o n their bodies. * * * *

B e c au s e this case involves a strip-search conducted in connection with the s u s p e c te d possession of cigarettes, I would also note that cigarettes have been p ro h ib ite d in TDCJ units since at least the mid-1990s. Because the possession o f money by Texas offenders is strictly prohibited, contraband cigarettes and to b a c co products are an easily transported, easily concealed and easily traded c a sh equivalent used by inmates to buy narcotics, marijuana, alcohol, sexual f a v o rs , to obtain extra food and personal items, to secure physical protection a n d to settle wagers, among other things. . . . The black-market prison trade in to b a c c o is often controlled by prison gangs who employ inmates with access to the areas around prisons to smuggle cigarettes into prison units, and who p a y corrupt correctional officers to smuggle contraband into prison units or to lo o k the other way when inmates smuggle in contraband. Prison gangs also e n f o rc e the settlement of tobacco-related debts through other inmates involved in their smuggling enterprises, often with violence. In my experience, it is not uncommon for contraband, including tobacco p ro d u c ts and cigarettes, to be found at the center of many offender disputes 17

a n d fights. I am aware of instances in which inmates have been seriously b e a te n over cigarettes, over tobacco products or over debts related to tobacco p rod u cts or debts payable in tobacco products. As such, my primary re sp o n sib ilities in providing security and safety for offenders and staff is to en su re that tobacco products are found and confiscated wherever they are s u s p e c te d top exist, to learn how the contraband made its way onto the prison u n it and to do whatever I can to stop the flow of illegal tobacco products into m y unit. T o help curb the introduction and circulation of contraband items in prison u n its , including cigarettes and other tobacco products, TDCJ has adopted an a d m i n is tra tiv e directive, AD-3.22, which covers offender searches. It provides th re e levels of searches: (1) a visual and pat-down search, (2) a strip search a n d (3) a body-cavity search. T h e administrative directive provides that if a strip search must be conducted b y a staff member of the opposite sex, it may only be conducted in (1) e x tra o rd in a ry circumstances and (2) when approved by a supervisor. All of my s u p e rv is o rs , male or female, are authorized to approve and to actually conduct s trip searches when extraordinary circumstances exist. The policy does not expressly define what constitutes `extraordinary c irc u m s ta n c es ,' but based on my experience and training, the reported in tro d u c tio n of contraband into a prison unit ­ including but not limited to ciga rettes and other tobacco products ­ can amount to extraordinary c irc u m s ta n c e s sufficient to conduct a non-routine strip search. * * * *

W ith regard to this particular strip-search, I was unaware it had occurred until I learned of the complaint in this lawsuit. I would not normally be advised of a strip-search for contraband as described in the Plaintiff's complaint. If a f e m a le supervisor ordered and conducted a strip-search, it would not violate T D C J policy as described above so long as extraordinary circumstances were p rese n t. Nor would policy be violated if a female officer or supervisor were s im p ly present in the room where a strip-search was being conducted. (Indeed, to exclude a female correctional officer or supervisor from an area in which a s trip -s e a rc h is being conducted would constitute a violation of agency EEO p o lic y.) In addition, the strip search of six or seven offenders, as alleged by 18

P lain tiff , of approximately 110 inmates housed in the 11 and 12 dorms would n o t be an extraordinarily large number and strongly suggests that the in v e stig a tio n was focused on those offenders most likely to have been in p o ss es sio n of contraband. The strip-search of offenders in the supervisor's o f f ic e , which provides some measure of privacy, would also be appropriate. A s noted above, based on my 22 years of experience and training, the possible p re se n c e of contraband would always present circumstances justifying the s trip -s e a rc h of offenders believed to be in possession of such contraband. (Docket Entry No. 96, Affidavit of Brenda Chaney.) Plaintiff does not controvert the legitimate penological interests supporting AD 03.22; r a t h e r , he asserts that, because the term "extraordinary circumstances" is not defined, the w ritten policy is unconstitutionally vague. (Docket Entry No. 102, p. 19.) The provisions of AD 03.22 draw a distinction between cross-gender searches in " o rd in a ry circumstances" and "extraordinary circumstances," and only in the latter instance m a y a female officer strip search a male offender and only then with supervisory approval. In Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002), the Fifth Circuit found that the strip-search p o lic y "narrowly cabins the scope of cross-gender strip searches and delegates the decision to the warden," and concluded that the regulation was reasonably related to legitimate p e n o l o g ic a l objectives.5 Id. at 743. Thus, the regulation delegates the decision to the prison w ard en to determine whether or not a particular situation involves "extraordinary

The Oliver Court held as constitutional the previous version of AD-03.22, which vested the unit warden with authority to order strip-searches. The current version, at issue here, permits a supervisor to authorize the strip-search. 19

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c irc u m s ta n c es ," a regulatory scheme which the Fifth Circuit found constitutional pursuant to Turner. Plaintiff provides the Court with no relevant legal authority supporting his claim that A D 03.22 is unconstitutionally vague. "Because legalistic wrangling over the meaning of p ris o n rules may visibly undermine the [prison] administration's position of total authority, f e d e r a l courts have deferred to the interpretation of those rules by prison authorities `unless f a ir notice was clearly lacking." Adams v. Gunnell, 729 F.3d 362, 369 (5th Cir. 1984) (in ter n a l citations and quotations omitted). Accordingly, this Court finds that plaintiff fails to demonstrate that AD 03.22 is unconstitutionally vague in its failure to definite " e x tra o rd in a ry circumstances." The strip search regulation before this Court provides the flexibility necessary for p riso n officials to investigate security and safety breaches and to determine, in their d is c re tio n , that "extraordinary circumstances" exist. It further affords a significant degree o f protection to the Fourth Amendment rights of male offenders regarding strip searches and v is u a l body cavity searches by female officers outside of extraordinary circumstances. The C o u rt declines to accept plaintiff's argument that a "bright line" definition of "extraordinary c irc u m sta n c e s" must be implemented in order to render the regulation constitutional. F u rth e r, and for the same reasons set forth by this Court for denying plaintiff's Fourth A m e n d m e n t claim, the regulation was not unconstitutional as applied to plaintiff. D e f en d a n ts are entitled to summary judgment dismissing plaintiff's claims on this issue. 20

C la im for Injunctive Relief P la in tif f requests prospective permanent injunctive relief ordering TDCJ to revise AD 0 3 .2 2 in a manner similar to California state law; i.e., that all prisoner searches "be conducted in a professional manner which avoids embarrassment to the prisoner. Whenever possible, u n c lo th e d body inspections of prisoners shall be conducted outside the view of others." This C o u rt notes that the analogous TDCJ policy, AD 03.22, already provides that strip-searches " sh a ll be performed in a professional manner. Staff of the same gender shall conduct the s e a rc h ." Petitioner ignores the additional California state law that states that, "Correctional e m p lo ye e s, other than qualified medical staff, shall not conduct unclothed body inspections o f inmates of the opposite sex except under emergency conditions with life or death c o n se q u e n ce s." CAL. ADMIN. CODE tit. 15, § 3287 (emphasis added). As with the Texas p ro v is io n regarding "extraordinary circumstances," this California provision does not define " e m e rg e n c y conditions with life or death consequences." As stated previously, defendants are not entitled to dismissal of this claim based on q u a lif ie d immunity, as qualified immunity does not protect them from requests for injunctive re lie f . See Williams v. Ballard, 466 F.3d 330, 334 (5th Cir. 2006); Orellana v. Kyle, 65 F.3d 2 9 , 33 (5th Cir. 1995). Accordingly, the Court must consider whether defendants are entitled to summary judgment dismissing plaintiff's request for injunctive relief. T o prevail on his claim, plaintiff must prove a deprivation of his constitutional rights p u rsu a n t to an official state policy in order to obtain injunctive relief from the state or state

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e m p lo ye e s acting in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1 9 8 5 ); Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th Cir. 1985). Here, the Court has a lr e a d y determined that plaintiff failed to prove a violation of his Fourth Amendment rights. T h u s , he is not entitled to prospective injunctive relief in this case. M o tio n to Strike Affidavits Plaintiff attached affidavits of three offenders ­ Paul D. Durham, Thomas McAlister, an d Eugene Ray Cezeaux ­ to a supplemental response to the amended motion for summary ju d g m e n t. (Docket Entry No. 104.) Defendants move to strike these affidavits because the o f f en d e r affiants were not present at the strip search made the basis of this lawsuit, and b e c au s e their affidavits set forth conclusory allegations, personal opinions, and improper p u rpo rted expert witness opinion. (Docket Entry No. 106.) The Court agrees that these affiants' recollections of events occurring after the incid en t made the basis of this lawsuit have no relevance to the pending motion for summary ju d g m e n t. The Court further agrees that the affidavits contain improper and inadmissible c o n c lu s o ry allegations, conjecture, and personal or legal opinions. None of the offender affiants has sufficient knowledge, skill, experience, training, or e d u c atio n to qualify as an expert in prison security or policy under Federal Rules of Evidence R u le 702. Their opinions and conjecture regarding the need for certain security measures o r the propriety of inmate strip searches are patently inadmissible, and these portions of their a f f id a v its are ORDERED STRICKEN. The Court will not strike those portions of the 22

a f f id a v its which set forth the personal experiences of the affiants, but the Court notes that their testimony presents no useful factual allegations, provides no probative summary ju d g m e n t evidence giving rise to a genuine issue of material fact in this case, and forms no b a s is for this Court's dispositive ruling in the instant case. See Akin v. Q-L Investments, Inc., 9 5 9 F.2d 521, 531 (5th Cir. 1992) ("On a motion for summary judgment the district court s h o u ld disregard only those portions of an affidavit that are inadequate and consider the r e s t ." ) . A c c o rd in g ly, the motion to strike the affidavits (Docket Entry No. 106) is GRANTED IN PART and DENIED AS MOOT in part. Conclusion T h e amended motion for (final) summary judgment (Docket Entry No. 95) is G R A N T E D and this lawsuit is DISMISSED WITH PREJUDICE. The motion to strike a f f id a v its (Docket Entry No. 106) is DENIED AS MOOT. Any and all other pending m o tio n s are DENIED AS MOOT. T h e Clerk will provide copies of this order to the parties. S ig n e d at Houston, Texas, on January 29, 2010.

Gray H. Miller U n ite d States District Judge

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