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HURLEY v. WARD

September 29, 1982

MICHAEL X. HURLEY, etc., et al., Plaintiffs, and KHALIL A. RAHMAN, etc., et al., Plaintiffs-Intervenors, against BENJAMIN WARD, et al., Defendants, and NEW YORK STATE INSPECTION, SECURITY, and LAW ENFORCEMENT EMPLOYEES, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, etc., Defendants-Intervenors; ISMA'IL ABDUR RAHIM, Plaintiff, against THOMAS A. COUGHLIN, III, et al., Defendants.


The opinion of the court was delivered by: CARTER

CARTER, District Judge

The Proceedings

 In 77 Civ. 3847, plaintiff Michael Hurley initially sued pro se, pursuant to 42 U.S.C. § 1983, seeking preliminarily to enjoin state prison authorities from subjecting him to strip frisk (body cavity, genital and anal) searches and requesting damages for injuries inflicted by prison guards in the excessive use of force. The motion for preliminary injunction was granted. Although class relief had not been sought, the injunction issued barred strip frisk searches throughout the state prison system except on probable cause. On appeal the injunction as to Hurley was upheld, but the general prohibition was overturned as clearly erroneous. Hurley v. Ward, 448 F. Supp. 1227 (S.D.N.Y.) (Carter, J.), aff'd in part and rev'd in part, 584 F.2d 609 (2d Cir. 1978). On November 9, 1979, the court's injunction was amended so that it no longer applied to strip frisk searches after contact visits and, at the same time, the court certified the matter as a class action on behalf of all prisoners in state custody challenging the Department of Correctional Services' strip frisk policies.

 Kahlil A. Rahman intervened on behalf of all Muslim inmates who challenged the state strip frisk search practices on religious grounds. The Muslim inmates were certified as a subclass who contested the constitutionality of the strip frisk searches as applied to Muslim inmates on grounds that the practice was at variance with the religious tenets of the subclass.

 Isma'il Abdur Rahim filed 78 Civ. 5382 in which he challenged the strip frisk search practices as violative of the fourth, eighth and fourteenth amendments and 42 U.S.C. § 1983. Plaintiff is suffering from glaucoma and because of his refusal, for religious reasons, to submit to strip frisk searches he has had to forego visits to treating physicians and facilities outside the prison where his condition can be treated adequately.

 Defendants in both cases are the Commissioner of the Department of Correctional Services, currently Thomas A. Coughlin, III, and Joseph A. Keenan, Director of Special Housing. In September, 1978, New York State Inspection, Security and Law Enforcement Employees, District Council 82, a union of state correctional officials, were allowed to intervene in 77 Civ. 3847 as a defendant class.

 The two cases were consolidated and jointly tried from May 26, 1981 to June 23, 1981, and except for testimony concerning Hurley's damage claim and Rahim's medical needs, the trial was devoted solely to evidentiary proof concerning the strip frisk issue with particularized testimony in respect of its impact on the Muslim subclass.

 The Testimony At Trial

 There were several types of testimony heard during the course of the proceeding. State officials, e.g., Thomas A. Coughlin, III and William Gard, Deputy Commissioner of Correctional Services, explained that the state strip search practices and procedures were enforced to prevent the introduction of contraband into the prisons. While the definition of contraband in a prison environment covers any forbidden item, it was agreed that for the purposes of these proceedings contraband meant money and drugs. State officials articulated the serious problems which those forms of contraband created when introduced inside prisons.

 It was conceded that strip frisk searches were distasteful. The procedures were reviewed in January, 1981, and the review resulted in Directive #4910 dated January 20, 1981, which supplemented directives #4901 dated October 13, 1978, and #4906 dated March 13, 1975. Gard testified that when the policy was reviewed in January, 1981, prison authorities decided to effectuate a policy of performing strip frisk searches affording maximum privacy and physical comfort to the inmate. The purpose of the new directive was to allow the superintendents of each prison discretion in carrying out strip search procedures. Superintendent Wilson Walters of Sing Sing, however, testified that it was his policy to enforce strip searches routinely in all situations.

 A large number of inmates testified about their strip search experiences. All found the procedure distasteful. They testified about being forced to submit to strip frisk searches before other inmates and several correction officers, of being strip searched in unheated areas, and of being subjected to ribald comments from correction officers about the size of their genitals and in some cases of being forced to submit to several searches in quick succession. A female inmate testified about being strip searched in a room into which male correction officers could look at will.

 One inmate, Abdullah Muhtaqim testified that on his transfer from the Westchester County Jail to Ossining, he was strip frisk searched on leaving the jail and on arrival at Ossining. After being housed for the night in the special housing unit, he was taken to the receiving room and strip frisk searched. He returned to his cell in special housing, and after ten minutes was taken to the receiving room and again strip frisk searched in preparation for transfer to Clinton the next day. He was returned to special housing and the next morning strip frisk searched prior to being put on the bus for transfer to Clinton. On arrival at Clinton he was again strip frisk searched (1130-1132). *fn1"

 Radwan Omar had a similar experience. On leaving Great Meadow prior to transfer to Downstate, he was strip frisk searched. On arrival at his destination, he was strip frisk searched at the receiving area, then immediately escorted to special housing where he was again strip frisk searched (773-79). He also testified that while at Downstate he saw his attorney at 5:00 P.M. in the visiting room which at the time was closed and empty of inmates. He was strip frisk searched prior to leaving special housing, and was escorted to the visiting area with his hands handcuffed behind his back by the officer who strip frisk searched him. That officer, along with two others, observed the entire visit and the escorting guard strip frisk searched him after the visit and again on his reentry in special housing. (781-87). Miriam Acevedo was subjected to three immediately successive strip frisk searches involving vaginal and rectal digital intrusion on her return to prison from court (177-182).

 Michael Hurley testified concerning his strip frisk search experiences and as to facts which form the basis of his claim for damages for injuries inflicted on him by correction officers in the excessive use of force.

 The Muslim inmates testified that being required to expose their genitals during strip frisk searches was in violation of their religious beliefs. Isma'il Abdur Rahim, a chaplain who advises Muslim inmates concerning their religious responsibilities, testified that he counsels Muslim inmates that strip searches violate the Muslim tenets and should be resisted. *fn2" Dr. Akbar Muhamad, Associate Professor of Islamic and African History and chairman of the Department of Afro-American and African Studies at the State University of New York at Binghamton, an expert on the tenets of the Muslim faith, testified that strip frisk searches were in violation of the Muslim faith which prohibited exposure of the genital area of the body to strangers.

 Joseph G. Cannon, formerly Commissioner of Corrections of Maryland, Deputy Commissioner of Corrections of Minnesota and Superintendent, Illinois State Penitentiary, now Associate Professor at the University of Missouri, testified that routine strip frisk searches were irrational and that searches should take place only on probable cause. Kenneth Schoen, formerly Deputy Commissioner of Corrections of Minnesota and former consultant to the New York City Department of Correction, testified that routine strip frisk searches were irrational and offered alternative procedures deemed adequate for security.George Sullivan, Superintendent of Oregon State Correctional Facility, testified that routine strip searches were unacceptable and unnecessary, that such searches need only be made for cause. Dr. Frank L. Randle, M.D., formerly chief psychiatrist at Soledad Prison, California, testified that strip frisk searches caused psychological harm to the official performing them and the inmate subjected to them. Don Sloan, M.D., an obstetrician and gynecologist, testified that secreting matter in the rectal area caused discomfort, that objects placed beyond the sphincter muscle could not be seen on anal inspection and could be detected only if something protruded.

 Charles E. Fenton, Jr., formerly warden of Lewisburg Federal Penitentiary and now correctional consultant, testified that routine strip frisk searches are necessary to prevent the introduction of contraband into the prison. Robert Martin, Northeast Regional Administrator, Federal Bureau of Prisons, supported strip frisk searches. Edward McSweeney, supervisor of Inmate Grievance Programs, testified that he had received 32 grievances about strip frisk searches and that each grievance had been rejected.

 Donald Newman, Dean, School of Criminal Justice, State University of New York at Albany, testified about the security problems created by uses of contraband. Raymond Procunier, former director of California Department of Correction, supported strip searches but would require strip frisk searches routinely of only the most dangerous inmates, roughly 10%. Others would be strip searched on probable cause.

 Ann Elizabeth Mayer, Assistant Professor of Legal Studies, University of Pennsylvania School of Law and authority on Islamic law testified concerning the obligation of modesty imposed and stated that one required against his will to transgress the Islamic tenets would not be in actual violation. Several correction officers, Joseph Brendise, Howard Cohen, Justo Fernandez and Roger Passino, testified about discovering contraband during strip frisk searches and about having altercations with Hurley.

 State officials conceded that no alternative procedures had been studied or canvassed. State officials and all the experts testified that the contraband came into the prison largely by means other than by being hidden in the anal and genital areas of the inmates and that if the contraband were secreted past the sphincter muscle with no protrusion, it would not be detected by strip frisk in any event. Those favoring the practice supported it largely as a deterrent. It was agreed that the most likely source of contraband for inmates is through contact visits. Some defense witnesses testified that if strip frisk searches were abolished all inmates who left on work release would be under pressure from other inmates to bring contraband into the prison.

 Dr. Ernest Porter, an ophthalmologist who specializes in treating glaucoma, testified that Rahim, in 78 Civ. 5382, suffered from a chronic simple glaucoma in one eye and a cataract and recessed angle in the other which could be the result of a recession angle glaucoma. Glaucoma requires frequent treatment, and unless a patient should be seen every six weeks, irreversible damage might occur. Rahim, while in custody, missed undergoing treatment for periods of seven, seven and a half, nine, ten and twenty months. It was necessary for Rahim to be treated outside prison since the prison lacked the necessary facilities. The treatment provided by defendants for Rahim was described by Dr. Porter as inadequate and dangerously sloppy.

 Findings of Fact

 The following constitute the court's factual findings. Many of the findings have been stipulated to even though they are part of the evidentiary proof.Some, although not agreed to by stipulation, are not in dispute, and thus only a few of the facts found can be categorized as contested.

 I

 The plaintiff class are inmates in the custody of the New York State Department of Correctional Services (hereafter "department"). They are persons who have been convicted of one or more felonies. With the exception of plaintiff Hurley, all members of the plaintiff class are subject to strip frisk searches conducted in accordance with department directives #4910, #4906 and #4901.

 A strip frisk, as defined in Directive #4910, is a search of an inmate's clothes and body, including body cavities. For a male inmate this involves opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his armpits, spreading his fingers to expose the areas between his fingers, lifting his feet, lifting his testicles to expose the area behind the testicles and bending over approximately 90 degrees and spreading the cheeks of his buttocks to expose his anus to the frisking officer. For females the procedures are similar except females must squat to expose the vagina.

 Strip frisks of inmates are performed routinely and without any requirement of cause to believe that the inmate has secreted contraband in his anal or genital area on their leaving a visiting area in a maximum or medium facility, going to or coming from a psychiatric observation unit, returning from work release programs, being transferred to or received from another facility or jurisdiction, going to or returning from court, hospital, outside medical care or consultation, funeral, sick leave (also known as deathbed visit); upon reception in a Special Housing Unit ("SHU"), before leaving ...


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