soles of his feet. The inmate must then bend over and spread his buttocks to reveal his anus to the guard. It is this latter portion of the strip search which is in issue here.
As to the circumstances under which the strip search with anal examination is required, the testimony indicates that it is performed whenever any inmate leaves or enters the institution, after a contact visit with his friends or relatives, and when entering or temporarily leaving disciplinary segregation/solitary confinement
or administrative segregation
for any reason (i. e. appearance at Adjustment or Classification Committee hearings, prison hospital, etc.). Such a search will also be performed on any occasion where there is "probable cause"
to believe that the inmate is concealing contraband or a weapon. It should be noted, however, that testimony from both the prison warden, defendant Hoffman, and the Director of Corrections and Parole, defendant Fauver, indicated that for some time the anal inspection portion of the strip search had not been a regular part of that search under all of the above circumstances. In any event, it is clear that the anal examination was reinstituted as a regular part of the strip search after a January 19, 1976 disturbance.
The M.C.U. inmates are subject to the same procedures as outlined above, and, since they are in a lock-up condition not unlike administrative segregation, they have been required to submit to a strip search with anal inspection whenever they leave and return to the Unit for any reason regardless of whether they were escorted or unescorted. Prior to the Court's restraining order, M.C.U. inmates had to submit to a strip search with anal examination before and after use of their segregated exercise yard. This was so despite the fact that these inmates were under continuous lock-up with little or no contract with any other inmates.
The testimony also revealed that the anal inspection aspect of the strip search was used in a manner which would result in disciplinary charges against the M.C.U. inmates. If an inmate refused to submit to the anal inspection portion of the search he forfeited his opportunity to leave the Unit for whatever reason. In addition, however, he was given a disciplinary charge for refusing a direct order to submit to an anal inspection. This ultimately resulted in the inmate doing time in the "hole" -- solitary confinement.
For an M.C.U. inmate to be transferred from his lock-up cell in the Unit to a solitary confinement cell, there is relatively little movement required. Since the solitary cells are located in the same maximum security wing of the prison, the inmate is escorted off his tier and down a few flights of stairs which are adjacent to the entrance of each tier in the wing. When he reaches ground level, he is escorted to a solitary confinement cell located on the lowest tier in that wing. The testimony revealed that before an M.C.U. inmate was permitted to enter his solitary cell, he was strip searched, as he was a few tiers above, and was ordered to submit to an anal examination. If he refused to submit, a forcible anal examination was conducted by prison guards. The testimony further revealed that these anal search orders and the forcible anal searches performed by guards, were done because it was a "rule". One guard stated that he ordered a forcible anal search even though he had no reason to believe that the inmate was secreting contraband in his anal cavity. These unfortunate confrontations occurred both before and after the Court's restraining order, and resulted in additional disciplinary charges.
Finally, the testimony of various inmates indicates that they view the anal inspection portions of the strip search as degrading, dehumanizing and abusive. The testimony of prison officials indicates their concern for stopping the flow of contraband into and within the prison, such contraband including everything from messages to narcotics to bullets. It is significant to note that wide-spread occurrences of narcotics, bullets or similar contraband being secreted in the anus or rectal cavity were not indicated.
CONCLUSIONS OF LAW
Federal courts are reluctant to interfere with the operation of state prisons, Procunier v. Martinez, 416 U.S. 396, 404, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224, 235 (1974), and will do so only when inmate claims are of constitutional dimensions. The law is already clear that, ". . . [there] is no iron curtain drawn between the Constitution and prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555, 556, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935, 950 (1974). Whether prisoners enjoy any Fourth and Fourteenth Amendment rights has never been decided by the United States Supreme Court, but has been considered by other courts. In Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975) an opinion by now Supreme Court Justice Stevens faced the question of ". . . whether the Fourth Amendment provides any protection at all to a person incarcerated as a result of conviction of a serious crime." Id., at 1315. The court, considering the limited expectation of privacy a prisoner could claim and the need for surveillance and control in a prison society, concluded:
". . . that the possible application of some measure of Fourth Amendment protection within a prison context may not be summarily rejected."
Id. Most significantly, the court, after noting that an inmate is not a mere slave, said:
"Respect for the dignity of the individual compels a comparable conclusion with respect to his interest in privacy. Unquestionably, entry into a controlled environment entails a dramatic loss of privacy. Moreover, the justifiable reasons for invading an inmate's privacy are both obvious and easily established. We are persuaded, however, that the surrender of privacy is not total and that some residuum meriting the protection of the Fourth Amendment survives the transfer into custody."