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.