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Henry v. Hulett

United States Court of Appeals, Seventh Circuit

July 16, 2019

Delores Henry, et al., on behalf of a class, Plaintiffs-Appellants,
Melody Hulett, former Warden of Lincoln Correctional Center, et al., Defendants-Appellees.

          Argued November 30, 2017

          Appeal from the United States District Court for the Central District of Illinois. No. 12-CV-3087 - Richard Mills, Judge.

          Before Easterbrook and Manion, Circuit Judges, and John Z. Lee, District Judge. [*]

          Easterbrook, Circuit Judge.

         Members of a certified class contend that during 2011 female inmates at an Illinois prison were strip-searched as part of a training exercise for cadet guards. The district court summarized the allegations this way:

[Plaintiffs] were required to stand naked, nearly shoulder to shoulder with 8-10 other inmates in a room where they could be seen by others not conducting the searches, including male officers. Menstruating inmates had to remove their tampons and sanitary pads in front of others, were not given replacements, and many got blood on their bodies and clothing and blood on the floor. The naked inmates had to stand barefoot on a floor dirty with menstrual blood and raise their breasts, lift their hair, turn around, bend over, spread their buttocks and vaginas, and cough.

2016 U.S. Dist. Lexis 194393 at *6 (CD. 111. Apr. 14, 2016). Plaintiffs maintained that such an inspection-unnecessary for security and conducted in an offensive manner-violated their rights under both the Fourth Amendment and the Eighth Amendment, applied to the states by the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. §1983.

         The district court awarded summary judgment to defendants on the Fourth Amendment theory, because Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), and King v. McCarty, 781 F.3d 889 (7th Cir. 2015), hold that a visual inspection of a convicted prisoner is not subject to analysis under that amendment, though a claim properly lies under the Eighth Amendment if an unnecessary or demeaning inspection amounts to punishment. The Eighth Amendment claim went to trial, and a jury returned a verdict for the defendants. Plaintiffs do not contest the verdict but ask us to reinstate their Fourth Amendment theory. Because analysis under the Fourth Amendment is objective, see Graham v. Connor, 490 U.S. 386 (1989), while a successful claim under the Eighth Amendment depends on proof of a culpable mental state, see Whitley v. Albers, 475 U.S. 312 (1986), plaintiffs believe that they could succeed on a Fourth Amendment theory despite the jury's verdict.

         The Fourth Amendment applies only to the extent that prisoners retain a legitimate expectation of privacy. Johnson and King rely on Hudson v. Palmer, 468 U.S. 517, 524-30 (1984), which holds that prisoners lack privacy interests in their cells and implies that they lack any legitimate expectation of privacy inside prison walls. The judgments of conviction allow wardens to control and monitor their charges' lives, extinguishing the rights of secrecy and seclusion that free people possess. But Hudson did not consider whether convicted prisoners have some residual privacy interest in their persons, as opposed to their possessions and surroundings. The Justices have not returned to that subject in later decisions. Decisions in this circuit look in both directions on that topic. Compare King with, e.g., Peckham v. Wisconsin Department of Corrections, 141 F.3d 694 (7th Cir. 1998).

         King reconciles the circuit's competing strands of thought this way: the Fourth Amendment does not apply to visual inspections of convicted prisoners but does apply to procedures that entail intrusions within prisoners' bodies. 781 F.3d at 899-901. That approach is justified not only by the holding of Hudson but also by the need to maintain the subjective component of Eighth Amendment analysis. In decisions such as Whitley the Justices stressed that guards will take many steps that offend and even injure prisoners, yet contribute to prison management and security. Only those steps that are unnecessary and intended to produce injury, the Court explained, should be actionable.

         An appropriate balance of prisoners' interests against the needs of prison management is achieved through normal Eighth Amendment analysis, which has both objective and subjective elements. See also, e.g., Helling v. McKinney, 509 U.S. 25 (1993); Farmer v. Brennan, 511 U.S. 825 (1994). Applying the Fourth Amendment to all unwelcome observations of prisoners would eliminate the subjective component and create a sort of Eighth Amendment lite, defeating the objectives that the Justices sought to achieve by limiting liability in Whitley and similar decisions. See King, 781 F.3d at 900-01.

         Even when the Fourth Amendment or the Due Process Clause applies, as one or the other will before conviction, strip searches often are reasonable and thus permissible. See Florence v. Board of Freeholders, 566 U.S. 318 (2012); Bell v. Wolfish, 441 U.S. 520, 558-60 (1979). But the absence of a subjective component in determining what is reasonable under the Fourth Amendment would produce outcomes that depart from the approach required by Whitley for prisoners after conviction. It would effectively equate the rights of convicted prisoners with those of arrestees or pretrial detainees. Many decisions hold that convicts' rights are more limited.

         King obliged the district judge to resolve this case as he did. Plaintiffs allege a visual inspection, not a physical intrusion. They maintain that each inmate had to manipulate her own body but do not contend that the prison's staff touched any inmate. A prisoner's need to touch her own body does not differentiate this situation from that of Florence, which concluded that a visual inspection (visual on the guards' part) is reasonable even with respect to pretrial detainees.

         Plaintiffs ask us to overrule Johnson and King to the extent that they deem the Fourth Amendment inapplicable to visual ...

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