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HURLEY v. WARD

April 12, 1978

MICHAEL X. HURLEY, Plaintiff,
v.
BENJAMIN J. WARD, Commissioner of the Department of Correctional Services, and JOSEPH KEENAN, Director of Special Housing Units (Punitive Segregation), Individually and in their official capacities, Defendants



The opinion of the court was delivered by: CARTER

CARTER, D.J.

 The Issue and Facts

 This is a motion for preliminary injunction brought by plaintiff Michael X. Hurley, an inmate in the New York State Correction System. The action is brought pursuant to 42 U.S.C. § 1983. Plaintiff seeks to enjoin state correctional officers from routinely subjecting him to a strip-frisk search in the absence of probable cause to believe that he has concealed contraband in his body. The strip-frisk search requires an inmate, after taking off all his clothes in the presence of the officers, to lift his testicles and bend over and spread his buttocks to show his anus to the officers; to open his mouth and stick out his tongue; and to hold up his feet while the inmate's back is turned to the officer. Plaintiff seeks, moreover, to enjoin the correctional officers from subjecting him to the kind of objectionable search indicated even where probable cause exists since there are alternative and less demeaning methods available for detecting contraband and because of past abuses inflicted upon plaintiff.

 The matter was heard on December 6, 7, and 8, 1977, and January 12, and 13, 1978. Plaintiff testified and described his own experiences. Two other inmates who had witnessed plaintiff being strip searched on several occasions also related what they had seen. Video tape recordings of the strip search procedures involving plaintiff being forceably strip searched at Great Meadows Correctional Facility on October 12 and October 26, 1977, were shown. Harvey Alter, the present Director of the City of New York Board of Correctional Institutional Compliance & Development Unit, testified as an expert witness on plaintiff's behalf. Finally, the state offered the testimony of two correctional officers assigned to its Arthur Kill Correctional Facility, Staten Island, New York.

 The strip-frisk search at issue here is defined in Title 7, New York Code, Rules & Regulations, Section 1020.5(b) as follows:

 
"A strip frisk means a search of an inmate's person and his clothes after the inmate has removed all his clothing. The search includes a thorough inspection of the clothing and a close visual inspection of the inmate's person, including body cavities. If there is reasonable cause to believe contraband has been concealed in a body cavity, the inmates shall be immediately examined and/or x-rayed by a facility health staff member."

 Sections 1020.25(b) and (c), then provide that an inmate in special housing is to be strip frisked upon leaving the special housing unit if he is to leave the facility for any reason, and is always to be strip frisked upon his return to the unit.

 Department of Correctional Services Directive 4910 (P-1) justifies this practice as sound correctional policy. That directive provides in pertinent part that:

 
"1. Searching an inmate's person is a sound correctional practice and a necessary element of contraband control. The employee conducting this type of search must assure its thoroughness and not offend the dignity of the inmate being searched.
 
2. The three types of searches of an inmate's person which are authorized are as follows:
 
. . .
 
c. A Strip Frisk may be made on inmates leaving a visiting area in a maximum or medium security facility, going to or coming from a psychiatric observation unit, returning from release programs, being transferred or received from another facility or jurisdiction, going to or returning from court, hospital, outside medical care or consultation, funeral and such leave, and whenever there are reasonable grounds to believe the inmate is in possession of contraband which may not be detected by a 'pat frisk.' The strip frisk is to be performed in a manner that is least degrading to all parties concerned."

 The procedure, as described by both inmates and correctional officers, was for the inmate to disrobe in front of the guards, spread his fingers, lift his arms, open his mouth and wag his tongue, lift his testicles and turn his back to the guards, raise his feet, bend over and spread the cheeks of his buttocks. The inmates say that when they raise their feet they have to wiggle their toes (the correctional officer testifying for the state said they merely had to raise their feet). The inmates state they have to run their hands through their hair, but the correctional officer says the guards do that. The inmates' version of toe wiggling seems more in keeping with this degrading pantomine, required in the name of security, as does requiring the inmate to run his hand through his hair.

 The video tape was most revealing. Plaintiff is shown after he has been led out of his cell, with shackles on his ankles and with his hands shackled to a bar around his waist. The shackles are removed for his strip-frisk search. Afterwards, he is permitted to dress, the shackles are locked in place around his ankles, and his hands are shackled to a bar at his waist, and he leaves the premises to go, in the instances shown, to court. The record does not disclose whether the shackles are removed in the courtroom, but I assume that they are. He is under the strict surveillance of the correctional officer during his time away from prison. When his courtroom appearance is over, again the record is unclear, but I assume the ankle chains and hand shackles are again fitted on the ...


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