Arruda v. Fair
PAULO ARRUDA, PLAINTIFF, APPELLANT,
MICHAEL V. FAIR, ETC., ET AL., DEFENDANTS, APPELLEES
710 F.2d 886 
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Coffin, Chief Judge, Breyer, Circuit Judge, and Maletz
June 29, 1983.
History: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, U.S. District Judge].
Counsel: David S. Godkin, Robert D. Keefe, Merriann M. Paneralla, Hale and
Dorr, for Appellant.
Michael C. Donahue, Special Assistant Attorney General, Sheridan, Garrahan
and Lander, for Appellees
BREYER, Circuit Judge.
The appellant, Paulo Arruda, is an inmate in a special maximum security unit
within MCI-Walpole, a Massachusetts maximum security prison. He challenges the
prison's policy of strip-searching inmates of the security unit in two particular
instances: when they enter or leave the unit on their way to or from the prison
law library and infirmary, and after they receive visitors in the unit's visiting
rooms. After conducting an extensive hearing where the conditions at the prison
were explored in detail, the district court held that the searches in question
did not violate the Fourth or Eighth Amendments and did not deprive Arruda of
his constitutionally protected access to the courts. We find no error.
The Supreme Court's opinion in Bell v. Wolfish,
441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), governs our approach
to this appeal. In Wolfish, the Supreme Court
assumed -- and we have held, see United States
v. Chamorro, 687 F.2d 1, 4 (1st Cir.), cert.
denied, 459 U.S. 1043, 103 S. Ct. 462, 74 L. Ed. 2d 613 (1982) -- that prison
inmates retain some measure of Fourth Amendment rights. The Court stated that
the ultimate Fourth Amendment question is whether a prison search policy is
"reasonable" under the circumstances. The Court wrote that to answer this question
requires a balancing of interests; courts "must consider the scope of the particular
intrusion, the manner in which it was conducted, the justification for initiating
it, and the place in which it was conducted." 441 U.S. at 559. The Court indicated
that a court engaged in this balancing must evaluate " prison practice . . .
in light of the central objective of prison administration, safeguarding institutional
security," and that "prison administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain
institutional security." Id. at 547. The Court specifically upheld as constitutional
a prison strip search policy that required all inmates "to expose their body
cavities for visual inspection . . . after every contact visit with a person
from outside the institution." Id. at 558. In so doing, it reversed decisions
by a federal district court and a court of appeals to the contrary. Since Wolfish,
most lower courts have also upheld the validity of prison strip searches, see,
e.g., United States v. York,
578 F.2d 1036 (5th Cir.), cert. denied, 439 U.S. 1005, 99 S. Ct. 619, 58 L.
Ed. 2d 682 (1978); United States v.
Lilly, 576 F.2d 1240 (5th Cir. 1978); Brown
v. Hilton, 492 F. Supp. 771 (D.N.J. 1980); Lee
v. Downs, 470 F. Supp. 188 (E.D. Va. 1979), although
a few have not, see Frazier v. Ward,
528 F. Supp. 80 (N.D.N.Y. 1982); Sims v. Brierton,
500 F. Supp. 813 (N.D. Ill. 1980); Hodges v.
Klein, 412 F. Supp. 896 (D.N.J. 1976).
We recognize, as have all courts that have considered the issue, the severe
if not gross interference with a person's privacy that occurs when guards conduct
a visual inspection of body cavities. This practice "instinctively" gave the
Supreme Court "the most pause" in Wolfish, 441 U.S. at 558, and understandably
so. However, there is nothing in the record here that indicates that the strip
searches were conducted in a more intrusive or demeaning fashion than those
in Wolfish. If there are any constitutionally significant differences between
this case and Wolfish, they lie on the other side of the balance, in the relative
security needs of the institutions. And it is here that Wolfish cautions us
to be most hesitant to overturn prison administrators' good faith judgments.
Admittedly, there are characteristics of this case that reasonably allow Arruda
to argue that we should distinguish it from Wolfish in terms of security needs.
For one thing, the prisoners in Wolfish were searched on their return from a
visitors' room where prisoners and visitors, although observed by a guard throughout
the visit, were not separated by a screen. Here, the visiting rooms are divided
by a wire security screen. For another thing, unlike Wolfish, the prisoners
here are searched on their way from their cells to the prison library and infirmary,
as well as on their return, despite the fact that guards accompany them on these
visits. There are other, less important distinctions as well.
Nonetheless, there are other facts about this case that suggest that these
searches are more, not less, reasonable than those in Wolfish. First, MCI-Walpole
itself is a maximum security facility, the only such institution in Massachusetts,
designed to hold those inmates who pose the greatest risks to society and to
each other. In 1982, 76 percent of its inmates were confined for crimes against
the person; 55 percent had six or more prior charges for such crimes; and 83
percent were serving maximum sentences of more than 10 years. The New York prison
in Wolfish was not such a place. Second, the special security area, known as
the DSU or Block 10, is a "prison within a prison," designed to hold the most
dangerous inmates -- those " whose continued retention in the general institution
population is detrimental to the program of the institution." Mass. Gen. Laws
ch. 127, [s] 39. Arruda was confined to the DSU for assaulting a prisoner. The
strip searches in Wolfish were not restricted to particularly dangerous prisoners;
they were made of ordinary inmates, including pretrial detainees -- persons
who had not yet even been convicted of a crime. Third, the record here bears
out a lengthy history of prison contraband problems, including prisoner possession
of both drugs and weapons. Arruda testified that while he was a member of the
general prison population, he himself possessed drugs and a weapon. Fourth,
the record suggests that in at least eight instances, guards themselves were
found to have been involved in smuggling contraband, including drugs, to prisoners.
Those who were caught were dismissed, but the contraband problem continues.
The opinions of the several courts in Wolfish are silent on this score.
Finally, unlike the Supreme Court in Wolfish, we have before us a lower court
decision, made after a hearing, in which the court found that the strip search
policy was reasonable under the circumstances. Having reviewed the record we
find the district court within its rights in concluding the following. First,
the prison administrators could reasonably believe that without strip searches
they would face a risk of more contraband in the hands of their most dangerous
prisoners. Despite screens in the visiting rooms, contraband could still be
passed through the screens; despite the presence of guards, a prisoner might
obtain contraband from another person at the library or in the infirmary. The
closest question in our minds is whether there is a need to search the prisoners
when they leave their cells on the way to the library or infirmary. Yet, given
the problem of prison employee involvement with contraband, the district court's
conclusion is not unreasonable: Despite the prisoner's relative isolation, someone,
such as an untrustworthy prison employee, might place contraband in a cell at
night for the prisoner to pass to others on his next library or infirmary visit.
Second, while alternative methods of dealing with the contraband problem may
exist, such as totally screening off visitors, more thoroughly searching the
visitors themselves, and further restricting trips by prisoners to areas outside
the DSU, each such alternative has significant costs of its own in terms of
both privacy and other significant interests. And, the record reveals that the
prison authorities took alternatives and their costs into account.
Under these circumstances, we do not believe that the factual distinctions
to which Arruda points are sufficient to allow us to depart from the Supreme
Court's result. The injury to privacy interests is virtually identical; the
"security needs" justification, in our view, is equally plausible. We have reviewed
the record recognizing our obligation to overturn factually based conclusions
only when "clearly erroneous," Fed. R. Civ. P. 52(a), and our obligation to
apply the precedent of Wolfish and the principles it sets forth. Applying these
standards, we find no basis for reversal on the Fourth Amendment claim. And
the standards imposed by the Eighth Amendment ("cruel and unusual punishment")
are no more lenient. The record does not reveal any separate or sufficient basis
for overturning the district court's rejection of the " right of judicial access"
claim. The decision of the district court is therefore
MALETZ, Senior Judge, concurring in part and
dissenting in part:
To the extent the majority find routine strip searches permissible after visits
with persons from outside the prison community, I agree. See Bell
v. Wolfish, 441 U.S. 520, 558-60, 60 L. Ed. 2d
447, 99 S. Ct. 1861 (1979). At the same time, however, I find strip searches
routinely conducted before and after intraprison transfers constitutionally
impermissible. I must, therefore, dissent from that portion of the majority's
The most troubling aspect of this case is routine strip searches conducted
before and after trips to the prison hospital and library. The bottom line rationale
for strip searches in those instances appears to be based on the facility's
seeming inability to adequately control its own staff. Frankly, I am hard-pressed
to see why this situation should inure to the detriment of the prisoner. Such
a justification for routine strip searches leaves prison authorities with virtually
unlimited discretion in this field. It is a mere makeweight for explaining away
any intrusion into a prisoner's privacy interests, concededly limited though
they may be.
I am mindful of the Supreme Court's admonition in Wolfish
that reviewing courts not "second-guess" prison administrators. Our sole inquiry
is, rather, whether the practice or condition violates the Constitution. For
there must be some limits to the level of deference a court is to accord prison
administrators. Otherwise their discretion in this area would be nothing short
of unbridled and we would be, at the same time, abnegating our supervisory responsibility.
On this score, we are reminded that "convicted persons do not forfeit all constitutional
protections by reason of their conviction and confinement in prison," including
the limited protection of the fourth amendment's prohibition against unreasonable
searches. Wolfish, 441 U.S. at 545, 558; United
States v. Chamorro, 687 F.2d 1, 4 (1st
Cir.), cert. denied, 459 U.S. 1043, 103 S. Ct. 462, 74 L. Ed. 2d 613 (1982).
In determining the lawfulness of a strip search -- a practice which, as the
majority correctly point out, "instinctively" gave the Supreme Court the "most
pause" in Wolfish, 441 U.S. at 558 -- the need for the particular search must
be balanced against the invasion of personal rights that the search entails.
To this end, "courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for it, and the place in
which it is conducted." Wolfish, 441 U.S. at 559.
First, as to the scope of the particular intrusion here, each and every time
appellant leaves and returns to his cell, whether it be to see a visitor, to
use the prison library, to exercise, or to visit the prison hospital -- regardless
of whether there is even a suspicion that he is concealing contraband -- he
is submitted to a visual strip search. Appellant is accompanied by two guards
on each of these trips and is shackled both to and from his cell. As a Departmental
Segregation Unit (DSU) resident appellant is not permitted to come into contact
with other inmates. Only one DSU resident is released from his cell to the cell
corridor at any one time.
The strip search is not conducted in private, but provided appellant cooperates
by following the strip search procedures, there is no physical contact between
appellant and the guards during the course of the strip search.
The justification for the strip search appears to be premised in large part
on the place in which it is conducted. Given that the MCI-Walpole facility has
a violent prisoner population, and that the DSU houses the most violent of these
prisoners, the state submits that security considerations necessitate the strip
search policy employed here. While conceding that inmates housed in the DSU
are under the tightest security, the state contends that opportunities for receipt
of contraband still exist through the guards. The facility apparently has had
a history of being unable to control them in this regard.
I do not dispute that MCI-Walpole has had a history of violence, and that
the introduction of contraband has been a major problem. Nevertheless, the district
court found that visitors are the major source of contraband at MCI-Walpole.
While this finding would support routine strip searches in the visitor context,
it totally fails to answer the question why routine strip searches should be
tolerated in other settings. Therefore, to the extent that the state cites its
incorrigible guards as the justification for all other strip searches, this
seems no rationale at all here. Hurley v. Ward,
549 F. Supp. 174, 186 (S.D.N.Y. 1982). (ENDNOTE 1)
Against this background, balancing the security interests of the institution
in conducting routine visual strip searches of appellant against the serious
intrusion on his privacy interests occasioned by such a search, I am constrained
to conclude that routine visual strip searches before and after visits to the
prison library and prison hospital are unreasonable, absent some level of cause,
such as reasonable suspicion, see Wolfish, 441
U.S. at 563 (Powell, J., dissenting), or a "clear indication" that contraband
is being secreted on an inmate's person. See Schmerber
v. California, 384 U.S. 757, 769-70, 16 L. Ed.
2d 908, 86 S. Ct. 1826 (1966).
In this regard I feel that the majority's opinion in Wolfish is distinguishable.
There, the Court noted that the searches were conducted after contact visits
that apparently were not closely monitored by prison officials. The searches
were thus, in the Court's judgment, necessary to check the introduction of contraband
into the MCC. Id. at 559. The Wolfish holding is therefore not controlling with
respect to internal prison searches that serve only to detect the circulation
of contraband that has already been introduced into the facility. Moreover,
Wolfish did not foreclose possible constitutional limitations on the power of
prison officials to conduct body searches.
I believe that the border search cases provide a useful analytical framework
for prison searches. The sliding scale of reasonableness adopted in the border
search area shows that there exists a middle ground between, on the one hand,
saddling the government with an unrealistically high standard of proof, such
as probable cause, and, on the other, allowing officials unfettered discretion
to conduct this type of surveillance. Like prison searches, customs inspections
implicate very powerful government interests in the detection of contraband
and may entail significant intrusion into the privacy rights of the individual
searched. While there are, of course, differences between the two situations
that preclude a wholesale transposition of standards, it is at least possible
to look to border search cases for guidance in evaluating prison searches. See
Note, Constitutional Limitations on Body Searches in Prison, 82 Colum. L. Rev.
1033, 1048-49 (1982).
Instructive in this connection is Hodges v.
Klein, 412 F. Supp. 896 (D.N.J. 1976). While
upholding strip searches following visits with friends and relatives in order
to prevent the introduction of contraband into the prison community, the court
found unreasonable routine strip searches following the movement of an inmate
within the institution:
To the extent that the state's interest in controlling intra-prison transfer
of contraband justifies an anal examination . . ., the court concludes that
the residuum of Fourth Amendment protection through which a prisoner retains
an interest in privacy prevents the imposition of this degrading and humiliating
search . . . .
Id. at 902. Analogizing the role of the prison guard with that of the customs
officer, the court in Hodges, relying on border
search cases, concluded that the state cannot conduct a visual anal search of
an inmate "unless there is a reasonably clear indication or suggestion that
the inmate is concealing something in his anal cavity." Id. at 903.
In analyzing the adequacy of the state's justification for strip searches
here, the state's interest in preventing the influx of contraband in prison
cannot be gainsaid. On this score strip searches following visits with friends,
relatives or attorneys are justified on balance. Government security interests
are strongest with respect to those searches aimed at preventing contraband
from getting into the prison. See Hurley v. Ward,
584 F.2d 609, 611 (2d Cir. 1978). (ENDNOTE 2) Contraband that is successfully
smuggled past the prison threshold may be used or consumed almost immediately
thereafter. The point-of-entry search may thus offer officials their only opportunity
to detect certain contraband and prevent its use.
By contrast, internal searches conducted to curtail the circulation of contraband
within a prison implicate far less compelling security interests than do point-of-entry
searches. With internal searches, prison authorities do not block the introduction
of contraband -- they merely deter and detect its circulation. When one of the
primary justifications for strip searches in these circumstances rests on the
institution's inability to control its own staff the scales tip decidedly in
favor of the inmate. Given the extremely tight security placed around a DSU
inmate generally and especially during his visits to and from the prison library
and hospital, routine strip searches in those two situations would appear to
violate the fourth amendment, absent some individualizing indicia of suspicion.
Hurley v. Ward,
584 F.2d at 611 (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); Hodges
v. Klein, supra. See also Logan
v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert.
denied, 455 U.S. 942, 102 S. CT. 1435, 71 L. Ed. 2d 653 (1982); Tinetti
v. Wittke, 620 F.2d 160 (7th Cir. 1980).
Accordingly, I concur in the majority's opinion to the extent it upholds the
practice of routine strip searches of DSU inmates following visits with persons
from outside the facility. In all other respects, I respectfully dissent.
Judges Footnotes [para29] (ENDNOTE) * Of the United States Court of International
Trade, sitting by designation.
Dissent Footnotes [para31] (ENDNOTE 1) The district court found that some
contraband had been brought into the institution by staff. Significantly, however,
strip searches of DSU inmates are not required after they have had staff contacts.
[para32] (ENDNOTE 2) This assumes, of course, that prison staff are not the
source of contraband, an institutional problem which, as previously indicated,
cannot be proffered as an acceptable justification for routinely subjecting
inmates to strip searches.