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Marvin Mcclinton v. Officer Mcneely

January 27, 2012

MARVIN MCCLINTON, PLAINTIFF,
v.
OFFICER MCNEELY, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Friday, 27 January, 2012 04:09:57 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se and recently paroled, challenges a strip search conducted by Defendant McNeely on July 11, 2009, in Western Illinois Correctional Center. On May 17, 2011, Judge Baker denied Plaintiff's first attempt at summary judgment because there was no affidavit from Defendant and no evidence about the standard procedures for cell searches. Judge Baker directed Defendant to file a supplemental summary judgment motion. The case was subsequently transferred to this Court.

Now before the Court is Defendant's supplemental summary judgment motion. At the summary judgment stage, evidence is viewed in the light most favorable to the non-movant, with material factual disputes resolved in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the non-movant. Id.

FACTS

The material facts show that shift commanders at Western Illinois Correctional Center regularly order "compliance checks" of prisoners' cells. Compliance checks are visual checks of the cell to ensure that the inmates are complying with the prison's property rules. (Kuntz Aff., ¶¶ 2-3, d/e 49). The shift commander decides the location of the compliance checks and the staff assigned to them. Id at para. 3.

During a compliance check, staff "visually inspects the offender's cell to ensure that the offender's property is stored within the property box as required and only property authorized to be outside the property box remains out in the cell." (Kuntz Aff., ¶ 5, d/e 49). "The compliance check allows security staff to notice offenders accumulating excess property and prevents property from becoming a visual impairment that may threaten security. Further, the compliance check ensures no fire hazards are created by offender property." Id. at ¶ 6.

Defendant McNeely is a correctional officer at Western Illinois Correctional Center. He avers that, "[i]n the performance of a compliance check an officer may determine a shakedown is necessary for purposes of discovering contraband. All committed persons and their clothing, property, housing, and work assignments are subject to a search at any time." (McNeely Aff., ¶ 7, d/e 49).

On July 11, 2009, Defendant conducted a compliance check of Plaintiff's cell. Defendant avers that, "[d]uring the compliance check I determined it necessary to conduct a more [invasive]*fn1 shakedown of the cell along with a strip search of the Plaintiff." (McNeely's Aff., ¶ 7, d/e 49). Plaintiff's cellmate was also strip searched. Defendant avers that he "do[es] not specifically recall the trigger that prompted me to conduct a shakedown of the cell along with the strip search. However, it is my experience that an offender's demeanor or unwillingness to comply with a simple compliance check will inform an officer that contraband may be hidden within the offender's property or on their person." Id., ¶ 8. Defendant avers that the shakedown and strip search were not conducted to harass Plaintiff, but to search for contraband.

Defendant also avers that:

When doing strip searches, I have been trained to have the inmate take his clothes off, and then I will check the inmate and the clothes for contraband. I will check the inmate's hands, have them lift his arms, and look at his armpits, and have him open his mouth, and look in his mouth. I have the inmate run his fingers through his hair, and have the inmate lift his testicles, and look underneath. I have the inmate lift his feet, and I inspect the bottom of his feet. I have the inmate bend over and spread his buttocks, and I inspect in between his buttocks. I use a flashlight to look in the inmate's mouth and in between his buttocks if there is a flashlight available. (McNeely Aff., ¶ 10). McNeely avers that he did not use a flashlight to strip search Plaintiff, but Plaintiff disputes this. Plaintiff testified in his deposition that McNeely "touched" the flashlight to Plaintiff's anus when Plaintiff was bent over with his buttocks spread. (Plaintiff's Dep., p. 30).*fn2 Plaintiff stated in his deposition that he felt that this touch challenged his "manhood" and that he "can't even take my clothes off, sleep in my boxers around other people now because of this dude, ...


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