Note: The District Court opinion refers to “laser guns” – which in fact were early versions of the present day Taser. Both the trial court and appellate panel upheld the use of Tasers for extrication of obstinate inmates from their prison cells.


 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

Robert Michenfelder, 

Plaintiff-Appellant,

v.

George Sumner et al.,

Defendants-Appellees

 

No. 86-1549

 860 F.2d 328

1988 U.S. App. Lexis 14453

 

December 15, 1987, Argued;

October 21, 1988, Submitted 

October 26, 1988, Filed

[*329]

Fletcher, Circuit Judge:

 

   Robert Michenfelder, a maximum security prisoner, appeals an adverse judgment in his § 1983 action against Nevada state prison officials for conducting strip searches and otherwise exposing unclothed male inmates to view by female guards in the course of their duties in violation of the [*330] fourth and eighth amendments. The district court found the searches reasonable, given the prison’s legitimate security concerns and female prison employees’ rights to equal employment opportunities. It also found that the prison’s taser gun policy did not violate the Eighth Amendment. We affirm.

 

BACKGROUND

 

   When this action commenced Michenfelder was an inmate in the Nevada State Prison’s (NSP) Unit 7, the maximum security unit for the state’s 40 most dangerous prisoners.  Defendant Sumner was then warden of the NSP and is now Director of the Nevada Department of Prisons. Other named defendants are correctional officers and prison administrators at NSP.

 

   Strip searches are conducted every time a Unit Seven inmate leaves or returns to the unit, as well as after movement under escort within the unit, such as for sick call, recreation, disciplinary hearings, and visits. The strip searches complained of here include visual body cavity searches, but not physical contact searches. They are conducted at the end of the tier’s hallway, in front of a barred gate behind which the guards conducting the searches stand (in an area known as the “sally port”). The searches are visible to the tier’s other prisoners whose cell doors open onto the corridor, and, through a small window, to guards controlling the cell doors from the “lock box” located in the main corridor outside the tier. The searches also can be observed indirectly by officers in the “control bubble”, a room with video screens for monitoring activity on the tiers by means of video cameras located at either end of the hallways. Female officers are permitted to work in the control bubble, at the lock box,  and any other position available to a correctional officer (including shower duty). They do not conduct strip searches except in severe emergencies.

 

   Prison regulations allow officers at NSP to carry “taser” guns. The taser operates by firing a tiny dart, attached to the gun with wires, into the prisoner, and by administering a low amperage, high voltage electrical shock which temporarily incapacitates the prisoner. See People v. Heffner, 70 Cal.App.3d 643, 647, 139 Cal.Rptr. 45, 46 (1977). NSP officers have threatened and in some instances actually fired tasers to enforce compliance with the strip searches and have also used the tasers in other disciplinary situations in the prison.

 

PROCEEDINGS BELOW

 

   Michenfelder commenced this § 1983 action on July 5, 1984. The complaint seeks a declaratory judgment that the frequent searches, conducted where other inmates and female correctional officers could observe him naked and subject to threatened use of the taser, violated Michenfelder’s constitutional rights. He simultaneously filed a separate motion for a preliminary injunction prohibiting prison officials from strip searching him in view of female officers and other inmates, from conducting searches before and after transport to certain activities within Unit Seven when he would be under escort at all times, and from using the taser at any time.

 

   The magistrate consolidated the hearing of the preliminary injunction motion with the trial of the action by minute order dated August 27, 1984. Over Michenfelder’s objections the district court affirmed the consolidation by order filed September 19, 1984. The trial was held on October 3 and October 24, 1984. On March 29, 1985 the magistrate recommended denial of the injunction and grant of judgment for the defendants. She found that the location and frequency of the searches was a reasonable response to a legitimate security interest within the prison, and that using female correctional officers for tasks that offer occasional views of nude prisoners is a good faith attempt to comply with the officers’ equal employment opportunities. The magistrate further found that use of tasers was a reasonable method of ensuring compliance with the strip search policy, and thus was not cruel and unusual punishment. See Michenfelder v. Sumner, 624 F. Supp. 457, 459-60 (D. Nev. 1985). Over Michenfelder’s timely objections, the district  court accepted the magistrate’s report [*331]and recommendations in their entirety.  Id. at 464. This appeal followed. We have jurisdiction under 28 U.S.C. § 1291.

 

STANDARD OF REVIEW

 

     We review the trial court’s findings of fact for clear error.  United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir. 1984). We will affirm the trial court’s determinations unless we are left with a definite and firm conviction that a mistake has been committed.  Pullman-Standard v. Swint, 456 U.S. 273, 284-85, 72 L. Ed. 2d 66, 102 S. Ct. 1781 n. 14 (1982). Conclusions of law are reviewed de novo, McConney, 728 F.2d at 1201, as are most mixed questions of law and fact, especially those implicating constitutional rights. Id. at 1203.

 

DISCUSSION

 

   “Convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). However, “the limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives -- including deterrence of crime, rehabilitation of prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 2404, 96 L. Ed. 2d 282 (1987). Recently, the Supreme Court emphatically set forth the standard for reviewing alleged infringements of prisoners’ constitutional rights. In Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 2260-61, 96 L. Ed. 2d 64 (1987), the Court rejected a standard of heightened scrutiny in favor of the following rational relationship test:   when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” See also O’Lone, 107 S. Ct. at 2404. The Court provided four factors to guide reviewing courts in applying this test: 1) the existence of a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; 2) the existence of alternative means of exercising the right that remain open to prison inmates; 3) the impact that accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and 4) the absence of ready alternatives as evidence of the reasonableness of the regulation (the presence of obvious easy alternatives may evidence the opposite).  Turner 107 S. Ct. at 2262. n1

 

   In applying the Turner v. Safley test we must accord great deference to prison officials’ assessments of their interests: “Prison administration is . . . a task that has been committed to the responsibility of [the legislative and executive branches], and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), additional reason to accord deference to the appropriate prison authorities.” 107 S. Ct. at 2259. The Court reasoned, “In our view, such a standard is necessary if ‘prison administrators . . ., and not the courts, [are] to make the difficult judgments concerning institutional operations.’“ Id. at 2262 (quoting Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 128, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977)).

   [*332]

I.  FREQUENCY AND MANNER OF CONDUCTING STRIP SEARCHES

 

   Michenfelder contends that NSP’s strip search policy, which calls for visual body cavity searches whenever an inmate leaves or returns to the unit, as well as when he travels under escort within the unit -- including when leaving to or returning from sick call, recreation, disciplinary hearings, and visits -- is constitutionally infirm. The district court deferred to the prison officials’ judgment regarding the searches’ necessity, finding Michenfelder failed to show the searches were an exaggerated or excessive means of providing needed security.  Michenfelder, 624 F. Supp. at 462.

 

   The fourth amendment guarantees “the right of the people to be secure . . . against unreasonable searches and seizures.” This right extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context. In Bell v. Wolfish, 441 U.S. 520, 558, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Supreme Court set forth a balancing test for determining a search’s reasonableness:

 

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”

 

Id. at 559 (emphasis added). The Court obviously recognized that not all strip search procedures will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any legitimate penological interest. Thus our task is to consider carefully the reasonableness of NSP’s strip search policies in Unit Seven.

 

   Scope and manner. The searches are conducted on convicted prisoners in NSP’s most restrictive unit, and are visual only, involving no touching. See Rickman v. Avaniti, 854 F.2d 327, slip op. at 9680 (9th Cir. 1988); contrast with Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (contact body cavity searches of female inmates conducted by police officers, without medical personnel, in non-hygienic manner and in presence of male officers not reasonable). Visual body cavity searches conducted after contact visits as a means of preventing prisoners’ possession of weapons and contraband, even absent probable cause, have been found reasonable by the Supreme Court.  Bell v. Wolfish, 441 U.S. 520, 558-60, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). While the Court has not yet ruled on the constitutionality of routine searches such as are conducted in Unit Seven, we and other circuit courts have found them reasonable. In Rickman v. Avaniti, 854 F.2d 327, we approved  strip searches that were conducted every time prisoners in administrative segregation left their cells for any purpose. As here, Rickman’s custody status was the most restrictive available. Elevated security precautions are justified for prisoners placed in maximum security settings usually because of a history of maladaptive behavior within prison. See also Hay v. Waldron, 834 F.2d 481, 486 (5th Cir. 1987) (visual body cavity search each time an administrative segregation inmate enters or leaves his cell reasonable); Goff v. Nix, 803 F.2d 358, 364-65 (8th Cir. 1986) (strip searches and visual body cavity searches every time an inmate leaves the maximum security unit reasonable), cert. denied 484 U.S. 835, 108 S. Ct. 115, 98 L. Ed. 2d 73 (1987); Campbell v. Miller, 787 F.2d 217, 228 (7th Cir.) (routine visual body cavity searches before and after library visits reasonable), cert. denied 479 U.S. 1019, 107 S. Ct. 673, 93 L. Ed. 2d 724 (1986); Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983) (upheld routine visual body cavity searches of maximum security inmates when leaving or returning from law library, infirmary, and visits).

 

   The frequency of strip searches in Unit Seven appears, from this record, to be very high. Prisoners  are searched both coming and leaving their cells, even when traveling only within the unit while under escort and in chains at all times. However, so long as [*333] a prisoner is presented with the opportunity to obtain contraband or a weapon while outside of his cell, a visual strip search has a legitimate penological purpose.  Turner v. Safley, 107 S. Ct. at 2261. Michenfelder, who bears the burden of showing NSP officials intentionally used exaggerated or excessive means to enforce security, see Soto v. Dickey, 744 F.2d 1260, 1271 (7th Cir. 1984); Bell v. Wolfish, 441 U.S. at 561-62, has failed to demonstrate that the searches at issue here were conducted in the absence of such opportunities.

 

   Justification. The fact that Unit 7 houses the state’s most difficult prisoners gives rise to a legitimate governmental security interest in procedures that might be unreasonable elsewhere. In addition, testimony and physical evidence before the district court substantiated several incidents in which contraband and homemade weapons were confiscated from Unit Seven inmates. Though Shift Lieutenant Koon testified that no strip search in Unit Seven had produced a hidden weapon, he also  testified that the policy was “the only thing that has prevented that from happening.”

 

   Place. Michenfelder argues that strip searches should be conducted within the privacy of prisoners’ cells rather than out in the hallway, and says the practice’s irrationality is highlighted by the fact that visual strip searches in other units -- and sometimes within Unit Seven -- are still conducted through closed cell doors. The district court was persuaded by the State’s position that officers are placed at a “dangerous disadvantage” when required to conduct the search through the solid cell door or enter a cell to enforce compliance, and that alternative sites are unavailable outside the cells that were more private than the hallway. Michenfelder, 624 F. Supp. at 460.

 

   Michenfelder’s argument is not meritless. In Rickman the fact that visual strip searches are conducted in the inmate’s cell was a factor in determining their reasonableness. 854 F.2d 327, [slip op. at 9681]. However, Turner v. Safley’s fourth factor -- the presence or absence of ready alternatives -- must be considered here. It is unfortunate that Unit Seven’s layout appears to present only two alternative locations -- the  hallway or the prisoner’s cell. NSP guards testified that conducting searches through the food slot in the cell’s solid door was problematic. While we encourage NSP to opt for less public searches when security considerations allow, we will not question its judgment that conditions in Unit Seven reasonably require searches outside the prisoners’ cells in order to protect the safety of the officers conducting them. Furthermore, the third Turner v. Safley factor -- impact on prison personnel and the allocation of prison resources generally, 107 S. Ct. at 2262 -- also bears consideration. The magistrate considered evidence that conducting searches in cells would require additional officers, as would transporting inmates to less public locations elsewhere in the prison. Remodeling the facility to prevent other inmates from observing the searches through their cell doors could also be costly.

 

   In sum, evidence in the record supports the district court’s finding that NSP’s strip search policy was reasonably related to legitimate penological interests.

 

   II.  INFRINGEMENT OF PRISONERS’ PRIVACY RIGHTS

 

   Michenfelder also alleges that the routine strip searches are unconstitutional because female correctional officers and visitors can observe their occurrence. In the same vein, he contests the prison’s practice of sometimes employing female officers for shower duty.

 

   We recognize that incarcerated prisoners retain a limited right to bodily privacy. Shielding one’s unclothed figure from the view of strangers, particularly strangers of the opposite sex is impelled by elementary self-respect and personal dignity. n2 Grummett v. Rushen, 779 F.2d 491, 494 (9th [*334] Cir. 1985); see also Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (“Although the inmates’ right to privacy must yield to the penal institution’s need to maintain security, it does not vanish altogether.”). Thus we analyze this claim, too, by using Turner v. Safley’s rational relationship test to determine whether NSP’s impingement on inmates’ right to privacy by employing females is “reasonably related to legitimate penological interests.” 107 S. Ct. at 2260-61. We recognize as legitimate both the interest in providing equal employment opportunities and the security interest in deploying available staff effectively. Our circuit’s law respects an incarcerated prisoner’s right to bodily privacy, but has found that assigned positions of female guards that require only infrequent and casual observation, or observation at distance, and that are reasonably related to prison needs are not so degrading as to warrant court interference.  Grummett v. Rushen, 779 F.2d at 494-95. See also Bagley v. Watson, 579 F. Supp. 1099, 1103 (D.Or. 1983); Smith v. Chrans, 629 F. Supp. 606 (C.D. Ill. 1986). In Grummett, prisoners in San Quentin prison challenged the constitutionality of the prison’s search and surveillance activities when performed by members of the opposite gender. There, female officers were assigned to positions from which their observations of nude male prisoners were infrequent and casual, or from a distance. The court found that, given the restricted duties of female officers, the prisoners’ privacy rights were not unreasonably infringed by the prison’s policies and practices. n3

 

   Therefore, the issue here, therefore, is whether NSP’s female officers regularly or frequently observe unclothed inmates without a legitimate reason for doing so. As in Grummett, female officers at NSP are not routinely present for strip searches. The record fails to show that Officer Jenae Holmes’s alleged presence at a search involving Michenfelder was anything but an isolated incident, nor could the witnesses testify with certainty that she was actually observing the search from her position at the lock box in the main corridor. The record does support the magistrate’s finding that the control bubble’s video monitors would provide at most an indistinct, limited view should female officers, contrary to prison policy, closely watch the searches rather than simply monitor all the screens for unusual activity. Evidence of female officers’ role in shower duty likewise did not establish an inappropriate amount of contact with disrobed prisoners.

 

   The third Turner v. Safley factor has special relevance here. Prohibiting female employees from working in the control bubble, or requiring them to be replaced by males for the duration of strip searches, would displace officers throughout the prison. The prison’s current allocation of responsibilities among male and female employees already represents a reasonable attempt to accommodate prisoners’ privacy concerns consistent with internal security needs and equal employment concerns. See Grummett v. Rushen, 779 F.2d at 496.

 

   With regard to visitors’ opportunities to view the searches on the video monitors, the evidence supports the magistrate’s finding that opaque screens covering the windows of the control bubble prevent visitors and attorneys from discerning anything other than “some movement” on the screens.

 

   III.  EIGHTH AMENDMENT CLAIM REGARDING USE OF A TASER GUN

 

   Michenfelder also contends that the prison’s policy of allowing its guards to carry taser guns and to use them to enforce compliance with orders constitutes cruel and unusual punishment in violation of the eighth amendment. This is a question of first impression in our circuit, and, as best we can tell, for other circuits as well.

 

   Michenfelder was threatened with a taser when he refused to submit to a strip [*335] search outside his cell upon returning from recreation. Guards informed Michenfelder that the inmate taken inside immediately before him, upon insisting he be strip searched in his cell, was shot twice with the taser before complying. Michenfelder himself, however, was not actually shot with one. The district court found NSP’s use of tasers constitutional. Presented with a slim record regarding the taser’s adverse effects on humans, the court concluded, “It seems safe to assume that the [Nevada State Board of Prison Commissioners] received input from persons with experience and expertise before prescribing the Regulation.” n4 Michenfelder, 624 F. Supp. at 463-64. It also found acceptable the threatened use in this particular instance, but erroneously assumed Michenfelder was threatened for refusing to leave his cell, rather than for requesting to be taken to his cell.

 

   “Whatever rights one may lose at the prison gates, . . . the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes.” Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979) (citation omitted). Punishments “repugnant to the Eighth Amendment [are those] incompatible with ‘the evolving standards of decency that mark the progress of a maturing society,’ or which ‘involve the unnecessary and wanton infliction of pain.’“ Estelle v. Gamble, 429 U.S. 97, 102-03, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (citations omitted). “Among ‘unnecessary and wanton’ inflictions of pain are those that are ‘totally without penological justification.’“ Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) (citations omitted).

 

   The Supreme Court has said that administering electric shocks to prisoners as punishment for misconduct was “unusual”.  Hutto v. Finney, 437 U.S. 678, 682, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). There, guards in an Arkansas prison used the “Tucker telephone”, a hand-cranked device, to administer electrical shocks to various sensitive parts of an inmate’s body. Id. From the record before us, NSP’s use of tasers is distinguishable. The taser was used to enforce compliance with a search that had a reasonable security purpose, not as punishment. The legitimate intended result of a shooting is incapacitation of a dangerous person, not the infliction of pain.

 

   In Spain v. Procunier, 600 F.2d 189, in which we found that limited use of a demonstrably dangerous and painful substance, tear gas, did not violate the eighth amendment when used to contain disturbances that threatened an equal or greater harm.  Id. at 195. Implicit in the court’s holding is the requirement that the instrumentality not be used for punishment and be used in furtherance of a legitimate prison interest only when absolutely necessary:

 

Use of the substance in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required. . . . The infliction of pain and the danger of serious bodily harm may be necessary if there is a threat of an equal or greater harm to others . . . Id. at 195.

 

   Nevada’s Department of Prison Regulation 405 specifies that tasers are for controlling potentially dangerous situations, not for punishment: “When situations arise, such as an inmate who refuses to leave his cell, in which physical handling is inadequate and in which the use of batons would be inappropriate, the use of tasers or stun guns may be employed.” NSP authorities believe the taser is the preferred [*336] method for controlling prisoners because it is the “least confrontational” when compared to the use of physical restraint, billy clubs, mace, or stun guns. n5 By disabling the inmate, it prevents further violence.

 

   Apparently, long-term effects of tasers are currently unknown. While the record regarding the risk of tasers is sketchy at best, Michenfelder has not cast doubt on the State’s evidence of safe use and low risk of long term adverse effects. The evidence before the district court included the manufacturer’s literature regarding testing on animals, which the court credited. Also, when contrasted to alternative methods for physically controlling inmates, some of which can have serious after effects, the taser compared favorably. At trial the only evidence of the taser’s harmful effects was anecdotal. Michenfelder’s witnesses said they felt only nausea, slight headaches, and “long-term anger.” No one has been hospitalized at NSP as a result of a taser shot. Though Michenfelder argues that the court should have postponed trial on the merits so he could line up evidence of long term effects, and though such an endeavor might have produced useful results, Michenfelder’s failure to pursue evidence diligently before and during trial precludes him from claiming prejudicial error. We do not lightly find abuses of discretion in decisions to limit discovery or to consolidate hearings. See Section IV.A., infra. Our affirmance of the district court is not, however, to be taken as holding that use of a device whose long-term effects are unknown would never violate the eighth amendment, nor that research could not uncover evidence of adverse long-term effects that would call into question the use of tasers. We simply find that Michenfelder has failed to meet his burden. See infra note 3.

 

   A finding that the taser gun is not per se unconstitutional would not validate its unrestricted use. “The appropriateness of the use must be determined by the facts and circumstances of the case.” Soto v. Dickey, 744 F.2d at 1270. A legitimate prison policy of carrying tasers to enforce discipline and security would not warrant their use when unnecessary or “for the sole purpose of punishment or the infliction of pain.” Id. at 1270. Overall, the evidence does not establish “unwarranted use of this painful and dangerous [device] as a matter of practice.” See Spain v. Procunier, 600 F.2d at 195. With regard to the incident involving Michenfelder, the legitimate penological purpose of strip searches -- to discover hidden weapons and contraband -- justifies using force necessary to induce compliance by difficult inmates. Employing the alternative suggested by Michenfelder -- allowing prisoners who refused to be strip searched to be restrained, taken to their cells and searched there -- could have a ripple effect throughout the prison, necessitating the use of additional prison staff if other prisoners joined in the passive resistance. Furthermore, the evidence in this case does not support finding an unconstitutional use of the taser gun against Michenfelder himself, who has complained only of its threatened use in the course of a strip search, nor does it support a finding that the taser’s use violated state prison regulations. Evidence adduced at trial that the taser was fired at others, was not sufficient to establish that Michenfelder would, himself, be a target in unwarranted circumstances.

 

   IV.  ALLEGED PROCEDURAL VIOLATIONS

 

   Michenfelder’s brief on appeal raises several procedural issues, including the magistrate’s limitation of pretrial discovery of prison procedures and the warden’s schedule, consolidation of the preliminary injunction hearing with the trial on the merits, failure to appoint lay counsel, inadequate access to library facilities, and the magistrate’s failure to view personally the prison setup. The State, on its part, has moved to strike portions of Michenfelder’s brief on appeal. We have carefully considered each contention in turn and find them meritless; only the consolidation issue and motion to strike warrant elaboration.

   [*337]

A.  Consolidation of Hearing on Preliminary Injunction and Trial on the Merits

 

   The magistrate consolidated the hearing on Michenfelder’s preliminary injunction with the trial on the merits, as permitted by Fed. R. Civ.  P. 65(a)(2). The district court approved the order.

 

   Rule 65(a)(2) provides that “before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.” Fed. R. Civ. P. 65(a)(2). Before a consolidation order may issue, the court must give the parties “clear and unambiguous notice [of the court’s intent to consolidate the trial and the hearing] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.” University of Texas v. Camenisch , 451 U.S. 390, 395, 68 L. Ed. 2d 175, 101 S. Ct. 1830 (1981) (quoting Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972)). What constitutes adequate notice depends upon the facts of the case. However, the district court’s discretion to consolidate is very broad and will not be overturned on appeal “absent a showing of substantial prejudice in the sense that a party was not allowed to present material evidence.” Abraham Zion Corp. v. Lebow, 761 F.2d 93, 101 (2d Cir. 1985).

 

   The district court’s consolidation order issued five weeks before trial and seven weeks after filing of the complaint. We have on occasion upheld a district court’s failure to give any notice whatsoever before finally determining the merits after only a preliminary injunction hearing, where the complaining party has failed to show how additional evidence could have altered the outcome.  Rosenthal v. Carr, 614 F.2d 1219, 1220 (9th Cir. 1980); Brotherhood of Railway Carmen v. Pacific Fruit Express Co., 651 F.2d 651, 653 (9th Cir. 1981). See also Abraham Zion Corp. v. Lebow, 761 F.2d at 101 (13 day notice sufficient for presentation of additional evidence following hearing). The district court here rightly rejected any suggestion that Wright and Miller’s recommended 10 day notice would be adequate for incarcerated in forma pauperis plaintiffs to locate, obtain court appointment of, and consult with an expert witness.  Michenfelder, 624 F. Supp. at 461 (citing 11 Wright & Miller, Federal Practice and Procedure § 2950 at 488 (1973)). Five weeks could also constitute inadequate notice in a complicated case. However, the sufficiency of notice must be evaluated in light of whether the plaintiff would have used the additional time productively. Not until June 18, 1985, seven months after the close of the trial, did Michenfelder indicate that he had contacted an expert in psychiatry willing to discuss the case with him.

 

   Michenfelder argues that the consolidation prevented him from obtaining expert witnesses on the psychological harm caused by strip searches and the long term adverse effects of tasers. We must consider this latter allegation carefully. “Eighth Amendment judgments ‘should neither be nor appear to be entirely the subjective views of judges,’ but such ‘judgments should be informed by objective factors to the maximum possible extent.’“ Soto v. Dickey, 744 F.2d at 1269-70 (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981)). As discussed in Section III above, the record does not contain objective factors that would support a finding that the taser is unusually cruel or dangerous, when compared to alternative means of controlling prisoners that have demonstrable adverse effects (e.g., mace, billy clubs, stun guns, physical force). (See Magistrate’s Recommendations, CR 43 at 18-20). Even documented adverse health impacts would have to be balanced against the threatened physical harm presented in situations where taser use is authorized. Michenfelder has not convinced us that giving him additional time to prepare for trial would have produced expert witnesses with material evidence that could have disproved the State’s case. We thus conclude that Michenfelder has not shown substantial prejudice that would warrant reversal.

[*338] B.  Motion to Strike

 

    The State filed a Motion to Strike portions of Michenfelder’s brief on appeal; specifically, it moved to strike two diagrams purporting to depict the layout of Unit Seven and the location of the strip searches on an individual tier, and copies of correspondence between Michenfelder and various doctors.

 

   The diagrams are simply a visual depiction of verbal testimony at trial describing Unit Seven’s layout and where the searches were conducted. The State does not argue that the diagrams are inaccurate or misleading. In light of the latitude we prefer to allow pro se plaintiffs, we decline to strike the relevant diagrams. We grant the motion to strike the correspondence. It was never made a part of the district court record and does not appear to bear on the merits of this appeal.

 

CONCLUSION

 

   The Supreme Court requires us, when ascertaining whether a regulation that impinges on inmates’ constitutional rights is reasonably related to legitimate penological interests, to accord great deference to prison authorities’ judgments regarding the necessity of the regulation. We accordingly affirm the district court’s finding that the routine strip search procedures at the Nevada State Prison, even when conducted outside the inmates’ cells by officers carrying taser guns and where female employees might occasionally view them, did not violate Michenfelder’s fourth and eighth amendment rights. Consolidation of the preliminary injunction hearing with trial on the merits was not so prejudicial to the plaintiff as to constitute reversible error.

 

   The judgment of the district court is AFFIRMED.

 

Notes:

 

1. Not all four factors will be relevant to each case. For example, the second Turner factor -- availability of other avenues for exercising the right infringed upon -- is much more meaningful in the first amendment context than the fourth or eighth, where the right is to be free from a particular wrong.

 

   Though all our prior decisions employing the Turner O’Lone analysis have involved infringements of inmates’ first amendment rights, Reimers v. Oregon, 846 F.2d 561 (9th Cir. 1988) (free exercise); McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (same); Standing Deer v. Carlson, 831 F.2d 1525, 1528-29 (9th Cir. 1987) (same); McCabe v. Arave, 827 F.2d 634, 637-38 (9th Cir. 1987) (free exercise and speech); Allen v. Toombs, 827 F.2d 563, 567-68 (9th Cir. 1987) (free exercise), as were both Turner v. Safley and O’Lone v. Estate of Shabazz, we believe that Turner v. Safley’s suggested factors can be instructive in the context of other prisoners’ rights cases, and have considered them here where applicable.

 

2. This case involves the asserted privacy interest of a prisoner from being viewed while nude by a person of the opposite sex.

 

3. The State correctly points out that Grummett used a least intrusive means test that has since been rejected in Turner v. Safley. See also Kent v. Johnson, 821 F.2d 1220, 1230 (6th Cir. 1987) (rejecting Grummett’s least intrusive means test in wake of Turner v. Safley). Grummett’s outcome, however, would be the same under either test.

 

4. Such assumptions can never be made safely. Cf.  People v. Sullivan, 116 A.D.2d 101, 500 N.Y.S. 2d 644, 647 (1986)(In discussing police officers’ alternatives for subduing/controlling dangerous persons, court noted “although the [taser] was introduced in 1971, there has been great concern about the impact on people with heart problems and its use has been outlawed in this State.”); McCranie v. State, 172 Ga. App. 188, 322 S.E. 2d 360, 361 n. 1 (1984)(“Apparently, at the time of the incident at issue, taser guns were not considered by prison officials to constitute deadly force. They have, however, since been classified as such at the [Georgia State] prison.”). Nonetheless Michenfelder’s failure to carry his burden defeats him.

 

5. “Stun gun” as used by NSP witnesses refers to a device that shoots a “bean bag” projectile that will stun the target. In many places, however, “stun gun” is a synonym for taser.

 


 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

 

Robert  Michenfelder, 

Plaintiff,

v.

George  Sumner,  et al.,

Defendants

 

No. CV-R-84-279-ECR

624 F. Supp. 457

1985 U.S. Dist. Lexis 12330

 

December 26, 1985

 

Reed, D.J.

[*459]

ORDER

 

   This civil rights action was commenced by Plaintiff, an inmate of the Nevada State Prison, by the filing of a complaint on July 5, 1984. He complained of repeatedly being strip searched on the tier outside of his cell where female correctional officers and other inmates could observe him naked. He also complained of being threatened with a laser gun if he didn’t cooperate as to the strip searches. The strip search procedure is degrading and dehumanizing, according to Plaintiff, whereas the use of a laser gun is too forceful a means to employ against an inmate, such as himself, who is merely resisting peacefully a degrading strip search. The prayer of the complaint requests a declaratory judgment establishing that the defendants’ conduct is violative of Plaintiff’s constitutional rights. Injunctive relief also is prayed for prohibiting the defendants from: (1) strip searching Plaintiff when he can be observed by female correctional officers and the other inmates; (2) using a laser gun at any time; and (3) searching Plaintiff at all when he is on his way to sick call, recreation or classification, or under escort anywhere in Unit Seven, where he is housed. Compensatory and punitive damages also are demanded.

 

   A separate motion for a preliminary injunction was filed at the same time. In it, Plaintiff contended that the strip search procedure and the threatened use of a laser gun caused psychological distress. By minute order dated August 27, 1984, U.S. Magistrate Phyllis Halsey Atkins, to whom the case had been referred, consolidated the hearing of the motion for a preliminary injunction with the trial of the action, and advanced the trial date to October 3, 1984. Plaintiff objected to the consolidation, asserting that the safety of laser guns is a matter for experts. He claimed that an extended discovery period would be needed to obtain technical information concerning laser guns. In addition, time would be needed to consult with an expert on such guns and have him appointed by the Court to testify for Plaintiff, who is proceeding pro se in forma pauperis. This Court affirmed the Magistrate’s consolidation ruling by order filed September 19,  1984, in which it was explained that the Magistrate’s ruling was neither clearly erroneous nor contrary to law.

 

   Trial commenced October 3, 1984. It then was continued until October 24, 1984, when it was completed. Magistrate Atkins filed her Report and Recommendation on March 29, 1985. She noted that Unit Seven is the most secure housing in the Prison, which is a maximum security facility. The forty inmates whose cells are in Unit Seven are considered the most dangerous and escape-prone in the Nevada prison system. An inmate must go through a classification process before being assigned to the Unit. Unless the inmate has caused trouble in prison or is an escape risk, he is not housed in Unit Seven. Conversely, a Unit Seven inmate may be reclassified to less secure housing after a classification procedure.

 

   The Magistrate found that the strip search policy has the objective of preventing the Unit Seven inmates from obtaining or possessing contraband that could be used to injure correctional officers or other inmates. She held that the policy is not an [*460] exaggerated response to a legitimate security interest. Further, Magistrate Atkins felt that proper deference should be given the expertise and informed discretion of the prison authorities in such matters. She found no violation of Plaintiff’s Fourteenth Amendment rights by reason of his being strip searched routinely, no matter where he is going or coming from.

 

   As to the searches being conducted outside Plaintiff’s cell, the Magistrate found that a correctional officer is placed at a dangerous disadvantage when he must search an inmate in the latter’s cell. Thus, the outside searches are reasonably related to the governmental interest in security within the Prison. Further, she found that there is not available any more private site for searches that would not present unreasonable security risks.

 

    The Magistrate found that the use of female correctional officers where they occasionally can observe Plaintiff in the nude is a good faith attempt to comply with the law requiring that equal prison employment opportunities be afforded women. She emphasized that female correctional officers may not actually conduct strip searches of male prisoners except in case of emergency. The Magistrate concluded that the Prison policy is a reasonable accommodation of the inmates’ right to privacy and the female correctional officers’ right to equal employment opportunity.

 

   The Report of Magistrate Atkins acknowledged that an inmate disabled by a laser gun could be injured if he fell against something pointed or hard. However, she noted that the inmates who have been subjected to hits from laser guns reported only slight headaches and some nausea after the immediate pain from the laser darts had ceased. Other than “sustained long-term anger,” no psychological effects appear to have been suffered by the targets of the laser guns. Further, the Magistrate commented that the use of fists or clubs by correctional officers, as an alternative to laser guns, would result in confrontations where someone likely would be hurt. Stun guns were labeled ineffective, because the inmate can shield himself from the bean bag that is expelled by such a gun. The disadvantages of tear gas as an alternative were considered obvious.  Magistrate Atkins held that the use of laser guns is a reasonable method of ensuring compliance with the strip search policy, so that the use on an inmate does not constitute cruel and unusual punishment in an Eighth Amendment sense.

 

   In conclusion, the Magistrate summarized that the Prison policies do not violate Plaintiff’s constitutional rights. Nor did Plaintiff introduce any evidence that would support a damages award, she indicated. Magistrate Atkins recommended that Plaintiff’s motion for a preliminary injunction be denied and that judgment be entered in favor of the defendants and against Plaintiff.

 

   Timely objections to the Magistrate’s Report and Recommendation have been filed by Plaintiff. He contends that strip searches can, and in this case do, invade personal rights protected by the Constitution. This is especially so because Unit Seven prisoners are transported or escorted while handcuffed and manacled. Plaintiff urges that the strip search policy is unreasonable in that light. He also reargues the feasibility of conducting strip searches in the cells, rather than out on the tier. Testimony was given that in-cell searches have been, and still are, conducted in the Prison without any violence. In addition, Plaintiff contends that female correctional officers could be employed in the Prison without being assigned to posts where they routinely may observe male prisoners in the nude.

 

   Plaintiff has renewed his objection to the Magistrate’s consolidation of the hearing on his motion for a preliminary injunction with the trial itself. He insists that a psychiatrist would have helped him prove that strip searches leave long-lasting psychological effects on inmates.

 

   In objecting to the Magistrate’s Report re the use of laser guns, Plaintiff emphasizes that he and other prisoners are willing to be strip searched in their own cells. [*461] It is the humiliation they incur before the eyes of others, when searched out on the tier, about which he complains. Less drastic alternatives than the use of laser guns should be used to overcome peaceful resistance, he insists. Damages should be awarded him for being threatened unnecessarily with a laser gun, in Plaintiff’s estimation.

 

   The defendants have filed a response to Plaintiff’s objections. In it they emphasize how regularly Unit Seven inmates have been found in possession of deadly weapons and have attacked others. They conclude that the Unit Seven strip search procedures are reasonably designed to thwart such illegal and dangerous conduct. The defendants further point out that Plaintiff made no serious attempt to obtain a psychiatrist as an expert witness until some eleven months after the filing of the complaint. This is in answer to his objections to the consolidation of the preliminary injunction hearing with the trial. Also, they argue that no psychiatrist’s testimony could change the fact that the safety of correctional officers would be jeopardized by any alternatives to the existing strip search and laser gun policies exercised in Unit Seven.

 

Consolidation

 

   The propriety of Magistrate Atkins’ consolidation of the hearing on Plaintiff’s motion for a preliminary injunction with the trial of the action already has been considered by this Court. There is nothing in the Magistrate’s Report and Recommendation that could serve as a basis for Plaintiff’s renewed objection to the consolidation.   Objection is permitted only to specific portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

 

   Nevertheless, the Court has reconsidered the matter because it involves the fundamental fairness of the consolidated hearing and trial.   Where such consolidation is ordered, sufficient notice is required to permit the parties to develop their cases fully.  Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 418 (5th Cir. 1981). “Although each case will depend on its own circumstances, the ten-day notice requirement of Rule 56 for summary judgment motions might be taken as suggestive of the minimum amount of time necessary to permit a litigant to prepare a showing upon which the final outcome of the case may depend.” 11 Wright & Miller, Fed. Prac. and Proc. (1973) § 2950, at p. 488. Certainly ten days would be insufficient where, as here, an in forma pauperis prisoner would have to locate an expert witness, obtain court appointment of that witness, and consult with him. However, more than seven weeks had elapsed between the filing of the complaint and the order of consolidation herein, and there is no indication that Plaintiff acted at all in this regard during that time. Also, there was a five-week interval between the order and the date set therein for commencement of trial, and Plaintiff didn’t make any effort during that time. Further, an additional three weeks passed between the first day of trial and the second (and last) day, and Plaintiff did nothing to avail himself of an expert witness. It wasn’t until June 18, 1985, some seven months after the close of the trial, that Plaintiff first indicated that he had contacted a psychiatry expert who had indicated a willingness to discuss the case with him. Under such circumstances, Plaintiff’s renewed objection to the consolidation must be overruled.

 

Routine Strip Searches

 

   Plaintiff objects to being subjected to strip searches when he is on his way to sick call, recreation or classification, as well as when he is proceeding under escort anywhere within Unit Seven.   It is clear that strip searches are not per se unconstitutional.  Bagley v. Watson, 579 F. Supp. 1099, 1103 (D. Or. 1983). Nor are prison officials required to employ the least restrictive means available when responding to a legitimate security concern.  Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 3233-34, 82 L. Ed. 2d 438 (1984). Keeping contraband away from Unit Seven prisoners is, without doubt, a critical prerequisite to preserving internal order and maintaining [*462] institutional security.   Strip searches are reasonably related to these objectives, therefore judicial inquiry into their propriety should end. Id. at 3232 and 3234. It was Plaintiff’s burden to show that the defendant Prison officials intentionally used exaggerated or excessive means to provide the needed security.  Soto v. Dickey, 744 F.2d 1260, 1271 (7th Cir. 1984); Bell v. Wolfish, 441 U.S. 520, 561-62, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Where, as here, there is an absence of substantial evidence in the record to indicate that the Prison officials have overreacted in their response to security considerations, a court should defer to their expert judgment.  Block v. Rutherford, supra 104 S. Ct. at 3232; Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 128, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977).

 

Female Correctional Officers’ Observation of Strip Searches

 

     Prisoners do not enjoy the same right of privacy as do ordinary citizens.  Robbins v. South, 595 F. Supp. 785, 790 (D. Mont. 1984). Such a right would be incompatible with the close and continual surveillance required to ensure institutional security and internal order.  Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 3201, 82 L. Ed. 2d 393 (1984). In addition, the prisoner’s reduced right of privacy must give way to the right of women to equal job opportunities in the prison setting.  Bagley v. Watson, supra at 579 F. Supp. 1104-05; Robbins v. South, supra at 790. A prohibition against female correctional officers being assigned to posts where they may view naked male prisoners not only would lessen the chance for women to be hired for prison work, but also would dampen their chances for advancement if they were hired. The evidence in this case indicates a proper sensitivity to this delicate matter on the part of the defendants.

 

Conducting Strip Searches Outside of Cell

 

   The physical layout of Unit Seven is such that there is no place close to the cells where strip searches can be conducted in a more secluded setting.  If an inmate, such as Plaintiff, had a constitutional right not to be strip searched where other persons might observe, then the nonavailability of a more private place would not excuse or justify the present practice of conducting the searches on the tiers. However, there is no such constitutional right. The evidence is convincing that the correctional officers’ safety would be jeopardized if they were to be forced to enter a cell in order to search the prisoner within. Only prisoners who already have caused trouble or tried to escape are assigned to the Unit. Even walking them to a place where they might enjoy more privacy while being searched would entail unacceptable risk. It would be naive to believe that one or more of the prisoners wouldn’t figure out a way to abuse such a practice. See Hudson v. Palmer, supra 104 S. Ct. at 3201.

 

     Although there is no constitutional right protecting a prisoner from being subjected to a strip search, a state may create a constitutionally protected liberty interest by promulgating a prison regulation that imposes substantive limitations on the exercise of official discretion.  Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). In order for a protected interest to be created, the regulation must provide objective and defined criteria that the officials are required to respect. Id.    Nevada Department of Prisons Administrative Regulation No. 422 covers search procedure. It authorizes strip searches as a routine requirement for inmate movement into and out of high security areas. The Regulation states that routine searches may be conducted as a preventative measure.  There is nothing there that would create a constitutionally protected interest against strip searching on the tiers of Unit Seven.

 

   The Magistrate correctly noted that visitors looking into the control booth from outside are unable to see the tier television monitors clearly because of an opaque plastic [*463] on the windows of the booth. Only movement can be discerned on the monitors from outside the booth. Since strip searches per se are permissible, the opportunity of female correctional officers to observe the searches does not violate the inmates’ constitutional rights, and any outside visitors cannot see clear images on the monitors, what is left to resolve is the constitutionality of the strip searches being conducted where the other inmates housed in the tier can observe them. There are ten cells on each tier, so that a maximum of nine other male inmates could view a search of Plaintiff. This situation is no more offensive than the usual nudity found in a locker room in a school or YMCA.

 

Use of Taser Guns

 

   Plaintiff has objected to any use of a laser gun on an inmate. What precipitated the objection was its threatened use against him if he refused to step out of his cell in order to be strip searched on the tier.

 

     The Eighth Amendment’s proscription against the infliction of cruel and unusual punishments prohibits the wanton and unnecessary infliction of pain on a prisoner. Spain v. Procunier, 600 F.2d 189, 196 (9th Cir. 1979); Albers v. Whitley, 743 F.2d 1372, 1375 (9th Cir. 1984), app. pdg. Albers teaches that an actual intent to punish is not required. Any unjustified striking or infliction of bodily harm by or with the authorization of state officials may be sufficient to violate the Eighth Amendment. Id. at 1374. The evidence indicates that the laser darts draw blood and cause pain when they hit the target person. Therefore, the question is whether the infliction is justified for the purpose of getting a prisoner out of his cell in order to be strip searched. The Ninth Circuit has declared that   a proper standard deems the Amendment to have been violated when the force used is so unreasonable or excessive as to be clearly disproportionate to the need reasonably perceived by prison officials at the time.  Id. at 1375. This requires that a prisoner’s Eighth Amendment claim be proved by conduct more egregious than that adequate to support a common law tort, such as battery.  Williams v. Mussomelli, 722 F.2d 1130, 1133 (3rd Cir. 1983). Federal courts may not interfere with decisions made by state prison officials, absent a constitutional violation. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). The Civil Rights Act, e.g., 42 U.S.C. § 1983, imposes liability for violation of rights protected by the Constitution, not for violation of duties arising out of tort law.  King v. Blankenship, 636 F.2d 70, 73 (4th Cir. 1980).

 

   Where the defendants’ conduct, although harsh, cannot be said to have been cruel and unusual under contemporary standards, it was not unconstitutional. Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984). A court’s judgment as to what the contemporary standards are should look to objective indicia of what the general public would consider decent.  Toussaint v. McCarthy, 597 F. Supp. 1388, 1392 (N.D. Cal. 1984). Such indicia include expert opinions and professional standards. Id. at n.3.  The record before the Court indicates that a laser gun causes involuntary muscle contractions, with resulting loss of balance by the target. The guns were first used (on animals) in 1968, so that they have been in use long enough for any severe side effects or after effects to have manifested themselves. Nevertheless, neither side has cited any case involving the use of a laser gun on a human being. The Court’s own research did not uncover such a case either. However,   Nevada Department of Prisons Administrative Regulation No. 405(V)(B)(4)(a) states: “When situations arise, such as an inmate who refuses to leave his cell, in which physical handling is inadequate and in which the use of batons would be inappropriate, the use of laser or stun guns may be employed.” Prison regulations are promulgated by the Board of State Prison Commissioners, pursuant to authority granted in NRS 209.111(3). It [*464] seems safe to assume that the Board received input from persons with experience and expertise before prescribing the Regulation. As discussed above, physical handling or the use of batons would require the correctional officers to enter the prisoner’s cell and use physical force on him there. Someone very likely would be hurt. The use of a laser gun on a prisoner who refuses to leave his cell under the circumstances of this case, therefore, is authorized by Nevada law. The Court notes that verbal warnings were given the prisoner in each instance that a laser gun would be used on him if he continued to refuse to obey the order to step out of his cell for a strip search. This is considered to have some significance. See Spain v. Procunier, supra at 600 F.2d 189; Albers v. Whitley, supra at 743 F.2d 1376; Soto v. Dickey, supra at 744 F.2d 1270. In Spain, the Ninth Circuit upheld the use of tear gas in small amounts as a necessary prison technique if a prisoner, after warning, refuses to move from his cell. 600 F.2d at 195. Where tear gas is used, other prisoners in the vicinity often incur discomfort even though they did nothing to provoke its use. The Seventh Circuit has held that the use of mace on a prisoner who had refused to obey a direct order was a reasonable response to a legitimate security concern.  Soto v. Dickey, supra at 1271. The Court agrees with Magistrate Atkins that the use and threatened use of laser guns, under the circumstances as established by the evidence in this case, did not violate Plaintiff’s Eighth Amendment rights.

 

Conclusion

 

   After reviewing the entire record, the Court accepts in whole the recommendations of Magistrate Atkins.

 

   IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s motions for preliminary injunctive relief be denied.

 

   IT IS FURTHER ORDERED that judgment be entered in favor of the defendants and against Plaintiff.