Jordan

986 F.2d 1521 61 USLW 2612 Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz; Yvonne Wood, Plaintiffs-Appellees, v. Booth GARDNER; Chase Riveland; Lawrence Kincheloe, Warden; Eldon Vail; Richard Alfresio, Defendants-Appellants, and Washington State Corrections Employees Association, Defendant-Intervenor. Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz; Yvonne Wood, Plaintiffs-Appellees, v. Booth GARDNER; Chase Riveland; Lawrence Kincheloe, Warden; Eldon Vail, Defendants-Appellants, and Washington State Corrections Employees Association, Defendant-Intervenor. Nos. 90-35307, 90-35552. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 27, 1992. Decided Feb. 25, 1993. Kathleen D. Mix, Asst. Atty. Gen., Olympia, WA, for defendants-appellants. Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, for plaintiffs-appellees. Appeal from the United States District Court for the Western District of Washington. Before: WALLACE, Chief Judge, POOLE, CANBY, REINHARDT, HALL, WIGGINS, NOONAN, O'SCANNLAIN, LEAVY, TROTT, and KLEINFELD, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 The Governor of Washington and officials of the Washington Corrections Center…

The Governor of Washington and officials of the Washington Corrections Center for Women (“WCCW”) appeal from the district court’s order enjoining them from implementing a policy that requires male guards to conduct random, non-emergency, suspicionless clothed body 1 searches on female prisoners. The district court found that such policy violates the female prisoners’ First, Fourth, and Eighth Amendment rights. We vacate our earlier three-judge panel decision, Jordan v. Gardner, 953 F.2d 1137 , reh’g en banc granted, 968 F.2d 984 (9th Cir.1992), which reversed the district court. Sitting en banc, we now affirm the district court on Eighth Amend *1523 ment grounds and do not reach the inmates’ other constitutional claims.

I

The WCCW is an all-female prison which, in December of 1989, housed approximately 270 convicted felons. The inmates are classified at the minimum, medium, and maximum security levels. Since its opening in 1971, both male and female guards have staffed the institution. Before mid-1989, routine, suspicionless searches of inmates were performed only at fixed checkpoints by female guards. Male guards were permitted to search inmates only in emergency…

with whom CANBY, Circuit Judge, joins, concurring:

Eldon Vail is the superintendent of the Washington Corrections Center for Women. The prison employs both male and female guards. 1 Superintendent Vail has authorized the male guards (as well as the females) to search the clothed bodies of the female inmates randomly and routinely, using a “grab-type motion” to “rub,” “strokfe], squeez[e],” and “knead[j” the women’s exteriors, including their covered breasts, buttocks, inner thighs, and crotches. The guards are told to “push inward and upward” when searching the women’s upper thighs and crotches and to check the crease in their buttocks with a downward motion of the edge of the hand. There is no dispute that the searches are necessary; the question is whether, under the Constitution, male guards may perform them.

Prison regulations prohibit male guards from conducting strip searches and body cavity searches. However, Superintendent Vail contends that the prison’s security will be compromised if male guards are prohibited from conducting the clothed body searches as well. He also contends that the rights of both the male and female guards to equal employment opportunities and to…

with whom WIGGINS and KLEINFELD, Circuit Judges, join, and with whom WALLACE, Chief Judge, joins in part, dissenting:

I begin with some information about prisons. This information is helpful to a complete understanding of this case.

Hudson v. Palmer, 468 U.S. 517, 526-27 , 104 S.Ct. 3194, 3200 , 82 L.Ed.2d 393 (1984) (emphasis added).

I

The Supreme Court tells us that "[t]o be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety." Whitley v. Albers, 475 U.S. 312, 319 , 106 S.Ct. 1078, 1084 , 89 L.Ed.2d 251 (1986) (emphasis added). The "more" that it must involve is a state of mind on the part of the antagonist that is "wanton." Id. at 320 , 106 S.Ct. at 1084 . "The source of [this] intent requirement is not the predilections of this Court, but the Eighth Amendment itself, which bans only cruel and unusual punishment." Wilson v. Seiter, — U.S. —, —, 111 S.Ct. 2321, 2325 , 115 L.Ed.2d 271 (1991) (emphasis in original).

Whitley’s subjective requirement was reiterated in Wilson with considerable emphasis:

Id. — U.S. at —, 111 S.Ct. at 2324 (quoting Whitley, 475…

dissenting:

It would, in my judgment, be far better not to permit cross-gender searches on men or women prisoners which involve physical contact or unclothed prisoner viewing. I believe this policy is misguided and hope it will be changed. Nevertheless, this determination is for the political branches. Our role, as a separate and independent branch, is to proscribe such actions only when violative of the Constitution. That is not the case here. Judge Trott’s detailed exposition of the record only confirms the panel majority’s conclusion: the inmates cannot establish that the prison officials acted with the wantonness necessary to sustain an Eighth Amendment claim. See Jordan v. Gardner, 953 F.2d 1137 , 1142-44 & n. 3 (9th Cir.1992).

I would merely join in Judge Trott’s dissent, but for his tacit acceptance of Judge Reinhardt’s analysis of the Fourth Amendment question. That I cannot do and write separately to explain why.

Judge Reinhardt purports to apply the four factor analysis set forth in Turner v. Safley, 482 U.S. 78, 89-91 , 107 S.Ct. 2254, 2261-62 , 96 L.Ed.2d 64 (1987) {Turner). Yet he consistently adopts a balancing test approach: weighing the strength of the prison…

concurring:

I concur in Judge O’Scannlain’s opinion and add: The prison warden has not ordered his male guards to conduct cavity searches of his women prisoners. Why? It is surely no less deprivation of an employment opportunity for the men. It is surely no less an extra duty for the female officers. It would surely improve security for such searches to be conducted by both sexes. As Judge Trott has observed, prisoners are adept at concealment in their private parts. But common sense, or rather, common decency has told the warden that no one could stomach such gross sexual contacts between male guards and women prisoners. Naked genitalia of one gender cannot be routinely inspected by guards of the other gender. Indecency of this kind is beyond our expectation as a society and beyond what the Constitution countenances.

The plain fact is that the searches at issue here are not essentially different. They are searches of women’s genitalia, breasts and buttocks by men—inspections not conducted by consent with a therapeutic purpose, but police operations carried out on persons powerless to object and not only commanded to cooperate by unbuttoning their blouses, removing their belts,…