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United States District Court, Northern District of Illinois, E.D

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 less restrictive means." Id. at 472. Thus, the Fifth Circuit underscored the proposition that the prison's security interests must give way to inmates' rights unless a particularized security problem is demonstrated.

The value that the Supreme Court, the Seventh Circuit and other federal courts have placed on prisoners' access to the courts for vindication of their rights is substantial. The Illinois state statutory law is equally solicitous. Ill.Rev.Stat., Ch. 38, § 1003-7-2(e) provides that:

  Clergy, religious chaplain and attorney visiting
  privileges shall be as broad as the security of the
  institution or facility will allow.

The statutory provision contemplates a liberal interpretation of a prisoner's access to the judicial process. Once again, the simple assertion of a general security problem appears contrary to the statutory intent.

The defendants lightly dismiss these concerns and rely instead on the Supreme Court's recent decision in Bell v. Wolfish, supra. In Wolfish, Justice Rehnquist emphasized that the court should give deference to prison policies designed to maintain institutional security unless there is "substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations." Id. 441 U.S. at 548, 99 S.Ct. at 1879. If they have, the practice amounts to punishment and is unconstitutional. See also Jordan v. Wolke, 615 F.2d 749 (7th Cir. 1979). The Court considered the constitutionality of a prison-wide policy allowing body cavity searches. In reversing an injunction prohibiting all such searches, Justice Rehnquist stated that "admittedly this practice instinctively gives us the most pause."

The Court balanced the security interests of the institution against the privacy interests of the inmates in determining whether body cavity searches were constitutional. Its decision was carefully worded. Justice Rehnquist limited the issue decided:

  We deal here with the question whether visual body
  cavity inspections as contemplated by the MCC rules
  can ever be conducted on less than probable cause.
  Balancing the significant and legitimate security
  interests of the institution against the privacy
  interests of the inmates, we conclude that they can.
  Id. 441 U.S. at 560, 99 S.Ct. at 1885.

The Court did not state that all such searches were constitutional without probable cause in all circumstances. Rather, the Court invited individual determinations of whether a search was reasonable. The Court noted that the determination of reasonableness is not a mechanical process but rather one which requires balancing and is dependant upon the individual circumstances of the case. Id. at 559, 99 S.Ct. at 1884. See United States v. Lilly, 576 F.2d 1240, 1245 (5th Cir. 1978). If the search is determined reasonable, it is constitutional; if unreasonable it will not stand.

Contrary to the defendant's position, the situation here is not conclusively controlled by the ruling in Wolfish. The Court did not consider the particular burden that those searches place upon attorney visits or upon the plaintiff's access to the judicial process. Nor did it specifically discuss anal searches, the most intrusive and humiliating of the searches common to both sexes.

Unlike the Wolfish case, the plaintiff here is not seeking prison-wide relief which would unduly involve court intervention in prison administration. Rather, the plaintiff seeks individual relief in the court's capacity as manager of the discovery process. A protective order assures plaintiff access to the court to litigate his action without undue interference with the prison administration.

In evaluating whether the anal cavity search requirement is reasonable, this court must look at the security interest asserted by the state. The defendant has attached an affidavit (Exhibit E) listing 12 instances of contraband found "on residents and in their body cavities (sic)". The affidavit does not specify the time period during which the contraband was found nor does it specify whether such discoveries were ever made before or after an attorney's visit or before or after a plaintiff appeared for a deposition. There has been no showing in this case that either these specific attorneys or attorneys generally pose a security problem necessitating body cavity searches in this specific situation. The state's failure to do so indicates to this court that its security concerns are excessive in response to this particular situation.

Access to the courts conditioned on submission to a degrading and unnecessary search is unduly restrictive. Absent a showing of any security problem resulting from inmate attorney visits, a protective order is well within the discretion of the federal court. For that reason, the plaintiff's motion for a protective order under F.R.C.P. 26(c) is granted. The prison may not require him to submit to a body cavity search before or after his deposition or before or after an attorney visit in preparation for the deposition.

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