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November 7, 1980


The opinion of the court was delivered by: Moran, District Judge.


Plaintiff, an inmate at Stateville Correctional Center, moves for a protective order pursuant to this court's power over the discovery process under FRCP 26(c).*fn1 He seeks to prevent prison officials from conducting an anal cavity search before and after a law student visit to prepare his deposition and before and after his appearance within the prison at his deposition. For the reasons stated below, the plaintiff's motion is granted.

Factual Background

In 1977, Plaintiff Sims and Mary Cummins, who regularly visited Sims at Stateville, brought a civil rights suit against prison officials alleging that the requirement that Cummins submit to either a strip search or "spread leg" search prior to her entry at Stateville violated their constitutional rights. Several of the counts survived a motion to dismiss and the parties proceeded to discovery. The defendant's attorney scheduled the plaintiff Sims' deposition for March 28, 1979. A senior law student at the University of Chicago's Mandel Legal Aid Clinic planned to visit Sims prior to that time to prepare for the deposition. Sims was required to undergo an anal cavity search before he could meet with counsel. Prison regulations specify that searches are allowed at any time*fn2 and residents are routinely searched after contact with all visitors including attorneys.

Sims informed his attorney that he could not see him nor could he appear for his deposition since he did not wish to submit to a body cavity search. Sims had suffered a loss of one month's credit for good time for refusal to submit to such searches. After several requests by plaintiff's counsel, the defendants refused to waive the body cavity search and this motion was filed.

The plaintiff urges that the defendants' actions constitute interference with the judicial process and are not justified by the state's generalized interest in maintaining security within the institution. The defendants argue that the body cavity search policies were upheld by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and thus are constitutionally permissible here. They also maintain that plaintiffs have failed to meet the good cause requirement necessary to obtain a protective order under FRCP 26(c).

To resolve this issue, the court is required to consider the plaintiff's right of access to the court, his privacy interests under the fourth amendment, the court's role as manager of the discovery process and the defendants' legitimate concerns with security at Stateville.

In a series of decisions, both the Supreme Court and circuit courts have recognized that prisoners have a constitutional right of access to the courts which must be "adequate, effective and meaningful." Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). See also Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1973); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976); Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973).

  Regulations and practices which unjustifiably
  obstruct . . . the right of access to the courts are
  invalid . . . The extent to which that right is
  burdened by a particular regulation or practice must
  be weighed against the legitimate interests of penal
  administration and the proper regard that judges
  should give to the expertise and discretionary
  authority of correctional officials. Procunier v.
  Martinez, 416 U.S. 396, 419-20, 94 S.Ct. 1800,
  1814-1815, 40 L.Ed.2d 224.*fn3

There can be no doubt that requiring a body cavity search places an obstacle to plaintiff's access to the court. The state has conditioned access upon his submission to a procedure which the plaintiff believes to be unconstitutional. He can neither avail himself of legal services nor participate in discovery which would hasten the disposition of his litigation without it.

In Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973), prison officials required that attorneys and inmates confer by telephone in a visiting room divided by a soundproof glass barrier. Any materials transmitted between attorney and prisoner had to go through the prison guard. The court invalidated the restrictions emphasizing the nature of the right being considered:

  Citation of authority is hardly needed for the
  proposition that an inmate's right of unfettered
  access to the courts is as fundamental a right as any
  other he may hold . . . All other rights of an inmate
  are illusory without it, being entirely dependent for
  their existence on the whim or caprice of the
  warden . . . To justify impairment of communication
  between attorneys and inmates in the name of
  security, a prison warden must come forward with
  facts which tend to support a reasonable suspicion
  not only that the contraband is being smuggled to
  inmates in the face of established preventive
  measures, but that their attorneys are engaged in the
  smuggling. Id. at 630-31.
  The court's decision requires the state to assert more than a mere generalized security interest. Rather, the state must tailor its restrictions on access to the courts to the specific security risk that is involved. If the state cannot show such a particularized risk, it cannot interfere with the plaintiff's rights.

Judge Wisdom echoed the Seventh Circuit's concern in his decision in Taylor v. Sterrett, supra. In that case, inmates complained of prisoner interference with inmate correspondence to attorneys. The court concluded that outgoing mail to courts, prosecuting attorneys, parole or probation officers and identifiable attorneys could not damage the security interest of the jail "except upon the most speculative theory." Id. at 474. The court suggested a procedure whereby prison officials could check to make sure that a "supposed" attorney was in fact a licensed attorney recognizing that "supposed" attorneys could pose a higher security risk. The court stressed that "before procedures that impede a prisoner's access to the courts may be constitutionally validated, [it] must be clear that the state's substantial interest cannot be protected by ...

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