Opinion · Court of Appeals for the Second Circuit

Hurley v. Ward

Hurley v. Ward, 584 F.2d 609 (2d Cir. 1978)

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1978-10-06
Topic
litigation

How later courts describe this case

  • explaining that Galvan is inapposite where the “State . . . has made no concession that the issues presented by [application of the practice to] all prisoners . . . are identical to those raised by [application of the practice to named Plaintiff]”
  • routine strip search of inmate who was “heavily shackled and under close and constant guard during the few excursions from his segregated cell” was unnecessary and unjustified
  • class certification held necessary where state did not concede that same legal question was posed by the application of the challenged practice to all those within the purported class
  • reversing portion of injunction prohibiting strip searches of prison inmates
  • “gross violation of personal privacy”

Citator

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Cited by
41 opinions
HURLEY v. WARD,584 F.2d 609(2nd Cir. 1978)
MICHAEL X. HURLEY, APPELLEE, v. BENJAMIN J. WARD, COMMISSIONER OF THE
DEPARTMENT OF CORRECTIONAL SERVICES, AND JOSEPH KEENAN, DIRECTOR OF SPECIAL
HOUSING UNITS (PUNITIVE SEGREGATION), INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITIES, APPELLANTS.
No. 75, Docket 78-2060.
United States Court of Appeals, Second Circuit.
Argued September 1, 1978.
Decided October 6, 1978.
Page 610
Claudia Angelos, New York City (Prisoners' Legal Services of New York, Daniel J. Steinbock, New York City), for appellee.

Paul E. Dahlman, Deputy Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for appellants.
Appeal from the United States District Court for the Southern District of New York.
Before KAUFMAN, Chief Judge, and LUMBARD and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
[1] Appellants, the Commissioner of the New York State Department of Correctional Services and the former Director of the Department of Corrections Special Housing Units (punitive segregated prisoner facilities), appeal from an order of May 5, 1978 by the United States District Court for the Southern District of New York, Hon. Robert L. Carter, Judge, granting a preliminary injunction enjoining the appellants from conducting visual searches of the anal and genital areas of all convicted inmates of the State correctional system without probable cause to believe that contraband is present, pending final determination of this action brought by a single inmate of that system, Michael X. Hurley, pursuant to42 U.S.C. § 1983.

[2] Hurley is a convicted felon, presently serving a term of 25 years to life in the New York State correctional system. He is also under indictment in New York State Supreme Court, Washington County, for assaulting a prison guard. His conduct in prison has been so offensive that he has been confined in the special housing unit (SHU) at three correctional facilities in which he has been incarcerated: Auburn, Attica and Great Meadow. SHU inmates are restricted to their cells for 23 hours a day in a cell block segregated from the general prison population. Among the strict security measures taken in the case of SHU inmates are routine "strip frisks"1of these prisoners before they leave the SHU if they are leaving the correctional facility for any reason and, in all cases, upon their return to the unit. 7 N.Y.C.R.R. § 1020.25(2)(b), (c). Moreover, an inmate such as Hurley, who has a history of assaults or possession of dangerous contraband, is strip frisked upon leaving the SHU to go anywhere within the correctional facility. 7 N.Y.C.R.R. § 1020.25(2).

[3] In this action Hurley challenged the constitutionality of that portion of the strip frisk procedure requiring him to lift his testicles, bend over, and spread his buttocks to display his anus to the correctional officers.

[4] Before issuing the preliminary injunction which is the subject of this appeal, Judge Carter held hearings on five days during which the appellee and two other SHU inmates at the Great Meadow correctional facility testified. Hurley also presented video tape recordings of strip searches to which he was subjected and the testimony of an expert witness who questioned the utility of the anal and genital portions of the strip frisk. In support of the efficacy of the anal and genital search the State offered the testimony of two correctional officers assigned to a facility in which HurleyPage 611had not been incarcerated. Judge Carter's opinion discussing the evidence adduced at these hearings is fully set forth in a reported opinion at 448 F.Supp. 1227 (1978) and need not be reiterated here. Suffice it to say that the record amply supports the finding that Hurley was strip frisked without probable cause frequently, unnecessarily and abusively.

[5] We have recently had occasion to uphold a prohibition on anal and genital searches without probable cause of convicted inmates and pre-trial detainees in the federal Metropolitan Correction Center.Wolfish v. Levi,573 F.2d 118, 131 (2d Cir. 1978), application for cert. filed June 23, 1978, ___ U.S. ___, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978). SeeFrazier v. Ward,426 F.Supp. 1354 (N.D.N.Y. 1977) (prohibiting anal and genital searches without probable cause of SHU inmates at New York State's Clinton Correctional Facility). In neitherWolfishnorFrazierwas significant evidence offered in support of the claim that the challenged searches were justified to prevent the introduction of contraband into the facility. Also, in both cases due to other security precautions employed at the facility the anal and genital searches were of little, if any demonstrated security value. Without reviewing all the evidence set forth in Judge Carter's opinion below in the instant case, it is clear to us that here also the gross violation of personal privacy involved in the anal/genital searches of Hurley — especially in view of the physical and verbal abuse incident to the procedure — far outweighed the evidence adduced by the State at the preliminary hearing to justify the searches as a prison security measure.

[6] We recognize that the Supreme Court has cautioned that we must pay particular deference to the exercise of informed judgment by prison officials in their administration of state penal institutions.E. g., Procunier v. Martinez,416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Nevertheless, on the record before us we find no abuse of discretion in the issuance of that aspect of the preliminary injunction prohibiting the anal and genital searches without probable cause of appellee Hurley.Doran v. Salem Inn, Inc.,422 U.S. 922, 931-32, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975);Triebwasser Katz v. American TelephoneTelegraph Co.,535 F.2d 1356, 1358 (2d Cir. 1976). The grant of preliminary injunctive relief from these searches to all inmates of New York State correctional facilities, however, constitutes an abuse of discretion which requires reversalprotanto.This case was brought initiallypro seby Hurley as an individual action. Even after the Prisoners' Legal Services of the State of New York entered the suit as counsel for Hurley, no class certification was sought. The evidence adduced for the appellee at the hearing in the district court principally demonstrated the abuse to which Hurley was personally subjected during these searches. The testimony also demonstrated that in the case of a SHU inmate like Hurley, who was heavily shackled and under close and constant guard during the few restricted excursions from his segregated cell, the routine searches were unnecessary and unjustified. But the record casts little, if any, light on the necessity for — or abuse during — anal and genital searches of prisoners held in less restrictive confinement.

[7] Appellee's argument that class action certification was not essential to the broad preliminary relief granted below rests upon our decision inGalvan v. Levine,490 F.2d 1255 (2d Cir. 1973), cert. denied,417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). However, that case is clearly inapposite. InGalvanand in other similar decisions,2the constitutionality of a statute or administrative practice was in issue and the State conceded that the same legal question was posed by the application of the challenged statute or practice to all those within the purported class. Since it is ordinarily assumed that state officials will abide by the court's judgment, where the State has admittedPage 612the identity of issues as to all potential class litigants class certification is indeed unnecessary. But the State here has made no concession that the issues presented by routine anal and genital searches of all prisoners in the New York State penal system are identical to those raised by the searches of Hurley. The record in this case, as we have pointed out, focused upon Hurley and not the general prison population.

[8] Finally, at this preliminary stage it is particularly inappropriate that an injunction in such sweeping terms should issue since it represents a serious intrusion upon the exercise of informed judgment by those officials charged with the "complex and difficult" task of operating state penal institutions.Jonesv. North Carolina Prisoners' Union,433 U.S. 119, 126, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); accord,Pell v. Procunier,417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974);Procunierv. Martinez, supra.

[9] Accordingly, we reverse that portion of the district court's order granting preliminary relief from anal and genital searches without probable cause for all inmates of the New York State correctional system and restrict application of the injunction to appellee, Michael X. Hurley.

[10] Affirmed in part; reversed in part and remanded.
[11] LUMBARD, Circuit Judge (concurring):
[12] Although I concur in my brothers' opinion, I think it is important to note that other federal courts have refused to interfere with state prison officials' use of routine strip search procedures.1In light, however, of the district court's preliminary findings regarding the circumstances of Hurley's confinement, the absence of a convincing demonstration as to the need for strip searches with body cavity inspection, and the abuse to which Hurley has been subjected while being strip searched, I believe that those decisions are clearly distinguishable from the instant case.
  1. The term "strip frisk" is defined in 7 N.Y.C.R.R. § 1020.5(b) as follows:
    Astrip friskmeans a search of an inmate's person and his clothes after the inmate has removed all his clothing. The search includes a thorough inspection of the clothing and a close visual inspection of the inmate's person, including body cavities. If there is reasonable cause to believe contraband has been concealed in a body cavity, the inmate shall be immediately examined and/or x-rayed by a facility health staff member.


    (Emphasis in original). ↩
  2. E. g.,Finnerty v. Cowen,508 F.2d 979, 986 n. 20 (2d Cir. 1976);Feld v. Berger,424 F.Supp. 1356, 1363 (S.D.N.Y. 1976);Spirt v. Teachers Insurance and AnnuityAssociation,416 F.Supp. 1019, 1024 (S.D.N.Y. 1976). ↩
  3. Hodges v. Klein,412 F.Supp. 896 (D.N.J. 1976);Giampetruzzi v. Malcolm,406 F.Supp. 836 (S.D.N.Y. 1975);Penn-El v. Riddle,399 F.Supp. 1059 (E.D.Va. 1975); cf.Gettleman v. Werner,377 F.Supp. 445 (W.D.Pa. 1974). Routine strip searches in federal prisons have also been approved.Daughtery v. Harris,476 F.2d 292(10th Cir. 1973), cert. denied,414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973);Bijeolv. Benson,404 F.Supp. 595 (S.D.Ind. 1975), rev'd and remanded without opinion, 556 F.2d 584 (7th Cir. 1977). As to whether the cases involving federal prisons can be squared with our recent decision inWolfish v. Levi,573 F.2d 118(1978), cert. granted sub nom.Bell v. Wolfish,___ U.S. ___, 99 S.Ct. 76, 58 L.Ed.2d 107, 1978, I offer no opinion. ↩