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BONO v. SAXBE

December 24, 1980

VICTOR BONO ET AL, PLAINTIFFS,
v.
WILLIAM E. SAXBE ET AL, DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

This matter is before the Court on remand from the United States Court of Appeals for the Seventh Circuit in Bono v. Saxbe, 620 F.2d 609 (7th Cir. 1980). Proceedings in this Court prior to appeal are recorded at 450 F. Supp. 934 (E.D.Ill. 1978) and 462 F. Supp. 146 (E.D.Ill. 1978).*fn1 As the Court of Appeals stated in its order, "[w]e affirm with respect to most of the matters treated in the District Court's two opinions but remand for further proceedings involving two matters as set forth herein." 620 F.2d at 611 (emphasis added). Those two matters concern strip searches of Control Unit (or H-Unit) inmates before and after non-contact visits with family and friends, and the adequacy of lighting in the H-Unit cells. This Court was ordered to hear evidence and make a determination whether these two conditions imposed upon inmates in H-Unit are reasonably related to the need for institutional security at the United States Penitentiary, Marion, Illinois, and thus comport with the mandate of substantive due process. At the opening of the proceedings, plaintiffs' counsel urged upon this Court that the Court of Appeals' opinion was intended to open the issues on remand beyond the two specifically mentioned. Plaintiffs' Motion for Additional Relief on Remand is currently pending in this matter. The Court cannot accept plaintiffs' interpretation of the order of the Court of Appeals and hereby DENIES plaintiffs' motion. The opening language of the appellate opinion is clear that the scope of the remand is restricted to two matters. Thus, the Court will proceed to those two issues.

A. Lighting in H-Unit Cells.

At the hearing held in this matter on November 3 and 4, 1980, inside Marion Penitentiary, plaintiffs argued that this Court should categorically order that every cell in H-Unit be equipped with a 100 watt light bulb so that inmates may see better in their cells. Prison officials offered uncontradicted testimony that inmates complain often that the naked light bulbs of even lesser wattage in their cells are too bright. The Court actually visited in H-Unit and observed makeshift devices inmates had devised to diffuse and filter the bright light. It appears to the Court that the matter is better settled by the prison officials' offer to furnish either a 40, 60 or 100 watt light bulb upon request of an individual inmate. In this case, service of individual preference undercuts the constitutional dimension of the complaint. Thus, the prison officials should develop a reasonable procedure for giving to an inmate either a 40, 60 or 100 watt light bulb for his cell immediately.

B. Visual Body (Strip) Searches.

The Court of Appeals was particularly concerned with strip searches of inmates before and after non-contact visits with family and friends. The Court of Appeals did not believe that the rationale announced in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) justified the strip searches. Addressing this issue, the Court stated:

  The Supreme Court in Wolfish relied on the
  possibility of contraband being brought into the
  prison during contact visits to justify the use of
  strip searches. Those contact visits were not closely
  supervised by guards. Wolfish should not be extended
  to the facts of this case without a showing that
  there is some risk that contraband will be smuggled
  into Marion during non-contact supervised visits, or
  that some other risk within the prison will be
  presented.

Bono, 620 F.2d at 617. The Court of Appeals also expressed concern in a footnote that the evidence in the proceeding below indicated that strip searches are not required in connection with inmates' contact visits with their counsel, but are required when they visit family and friends. Bono v. Saxbe, 450 F. Supp. 934, 939 (E.D.Ill. 1978) (Findings of Fact Nos. 40 and 41). With the issue before the Court so framed, and based on the hearings at Marion November 3 and 4, 1980, and the personal inspection of the visiting area and H-Unit by the Court at that time, the following findings of fact are made.

FINDINGS OF FACT

1. An H-Unit inmate must submit to a visual body search, commonly referred to as a strip search, each time he leaves H-Unit for a visit.

2. An H-Unit inmate must submit to a strip search whether his visit is a non-contact visit with family or friends or a contact visit with an attorney.

3. Upon completion of either a non-contact or contact visit, each H-Unit inmate must submit to another strip search, which in most instances, is administered by correctional officers in an area adjacent to the visiting room area.

5. During non-contact visits, H-Unit inmates use "controlled visiting booths" in which the inmate is separated by a plexiglass partition from his visitor. The inmate ...


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