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X-Ray Searches of Prisoners Found Unlawful
X-Ray Searches Of Prisoners Found Unlawful
A claim that a x-ray search was ordered by prison security officials without medical authorization was not frivolous. The failure to inquire into the plaintiff's medical history to consider the possible cumulative effect of x-rays, to get a doctor's order, to have medical personnel present, and to record the x-ray in his medical chart evidenced deliberate indifference.
The court also held that the search may have violated the Fourth Amendment. A "generalized penological interest in searching inmates for contraband" is not sufficient justification; reasonable suspicion that a prisoner is secreting contraband is required, and prison officials must show that less intrusive means would not detect the contraband. The manner of search is also important. Here, the x-ray was performed by a prisoner technician with no medical staff present and no medical history taken. See: Nitcher vs. Cline, 899 F.2d 1543 (8th Cir. 1990)
A claim that a x-ray search was ordered by prison security officials without medical authorization was not frivolous. The failure to inquire into the plaintiff's medical history to consider the possible cumulative effect of x-rays, to get a doctor's order, to have medical personnel present, and to record the x-ray in his medical chart evidenced deliberate indifference.
The court also held that the search may have violated the Fourth Amendment. A "generalized penological interest in searching inmates for contraband" is not sufficient justification; reasonable suspicion that a prisoner is secreting contraband is required, and prison officials must show that less intrusive means would not detect the contraband. The manner of search is also important. Here, the x-ray was performed by a prisoner technician with no medical staff present and no medical history taken. See: Nitcher vs. Cline, 899 F.2d 1543 (8th Cir. 1990)
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Related legal case
Nitcher v. Cline
| Year | 1990 |
|---|---|
| Cite | 899 F.2d 1543 (8th Cir. 1990) |
| Level | Court of Appeals |
Nitcher v. Cline, 899 F.2d 1543 (8th Cir. 04/05/1990)
[1] UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[2] No. 88-2816
[3] 1990, 899 F.2d 1543
[4] filed: April 5, 1990.
[5] RORY D. NITCHER, APPELLANT,
v.
DONALD CLINE; DR. RICHARD BOWERS; SGT. DODSON; JOHN DOE, APPELLEE
[6] Appeal from the United States District Court for the Western District of Missouri, Scott O. Wright, Judge.
[7] COUNSEL
[8] Counsel who represented the appellant was Marilyn R. Gaeth, Columbia, Missouri.
[9] Counsel who represented the appellee was Jeffrey P. Dix, Jackson, Missouri.
[10] John R. Gibson, Circuit Judge, Heaney, Senior Circuit Judge, and Wollman, Circuit Judge.
[11] Author: Heaney
[12] John R. Gibson, Circuit Judge, Heaney, Senior Circuit Judge, and Wollman, Circuit Judge.
[13] HEANEY, Senior Circuit Judge.
[14] Rory D. Nitcher, an inmate at the Missouri State Penitentiary (MSP), appeals from the order of the district court adopting the recommendation of the magistrate to dismiss as frivolous his complaint filed pursuant to 42 U.S.C. § 1983 (1982). This appeal follows an order of remand. Nitcher v. Cline, 845 F.2d 1026 (8th Cir. 1988) (administrative panel matter). For the reasons discussed below, we reverse and remand.
[15] Background
[16] On August 25, 1987, Nitcher filed a complaint against Donald Cline, the then-associate warden of MSP, Dr. Richard Bowers, medical supervisor of MSP, and identified and unidentified corrections officers. Nitcher alleged that an x-ray search of his abdomen without a doctor's or court order violated his fourth, fifth, and eighth amendment rights, and Missouri state law. He requested damages and declaratory and injunctive relief. The district court adopted the magistrate's recommendation that the complaint be dismissed as frivolous before service of process pursuant to 28 U.S.C. § 1915(d) (1982).
[17] Nitcher appealed, and on January 25, 1988, this court remanded the case to the district court with directions to appoint counsel and conduct an evidentiary hearing "on the question of whether x-ray searches of the petitioner's body cavities are in violation of his Fourth and Eighth amendment rights."
[18] On June 30, 1988, the magistrate conducted an evidentiary hearing. Nitcher testified that at approximately 8:00 a.m. on April 8, 1986, two corrections officers came to his cell and told him he was going to the Fulton Medical Center, but that first he had to have an x-ray search of his abdomen. The officers took Nitcher to the radiology department of MSP hospital. The officers ordered Nitcher to remove his trousers and lie on the x-ray table. Nitcher asked why he needed an x-ray and the officers responded that Cline had ordered it. The officers told Nitcher that if he refused the x-ray, he would be subjected to a digital body cavity search and a conduct violation. Nitcher testified that he had undergone a visual strip search every time he left MSP, but that he had never had a digital body cavity search. Nitcher further testified that no one took his medical history before performing the x-ray and that neither medical personnel nor his medical chart were present. He stated that an inmate technician took the x-ray. No medical record was made of the x-ray. Nitcher also testified that before the x-ray, he had had approximately twenty-five x-ray examinations.
[19] Nitcher presented the testimony of John Kahl, supervisor of the MSP radiology department, and appellee Cline. Kahl testified that exposure to x-rays over time can cause cancer and injury to reproductive organs. Kahl further testified that x-rays at MSP are performed only on a doctor's order. He explained that if an x-ray request originated from prison security personnel, he always contacted a physician and obtained his consent before performing the x-ray.
[20] Cline testified that he ordered only that an inmate be taken to the MSP hospital for an x-ray, but that a doctor must order the x-ray. He stated that it was a "rather routine thing" for a doctor to approve an x-ray request in escape-risk situations. On cross-examination, Cline testified that he could not recall why he requested an x-ray of Nitcher on this occasion, but that he had considered Nitcher a security risk.
[21] Appellees presented the testimony of Dr. Myron Watts, a certified radiologist, who stated that based on his review of Nitcher's medical history and on the prior x-rays Nitcher had had at MSP, the April 1986 abdominal x-ray did not pose a health hazard. On cross-examination, Dr. Watts stated that the purpose of a doctor's order for an x-ray examination was to protect the patient from needless exposure to x-rays and that there was "some medical danger" from x-ray exposure.
[22] On August 23, 1988, the magistrate again dismissed the complaint as frivolous, noting that Nitcher's chance of success on the merits was slight. The magistrate found that the x-ray search did not violate the eighth amendment because it did not cause pain or constitute a health hazard, and did not violate the fourth amendment because it was reasonable under the circumstances. In concluding that the search was reasonable, the magistrate noted the compelling interest of prison officials to search inmates for contraband and that Nitcher had been subjected to visual strip searches before leaving MSP. In this instance, the magistrate found that the additional intrusion by an x-ray that did not impose a health hazard on a prisoner who had been convicted of escape and armed criminal action*fn1 was de minimis. The magistrate, however, "did not condone the procedure apparently used to order [Nitcher's] x-ray search."
[23] Analysis
[24] A district court may dismiss a complaint in forma pauperis as frivolous only if the court is satisfied that the plaintiff can prove no set of facts that would entitle him to relief. 28 U.S.C. 1915(d) (1982); Nash v. Black, 781 F.2d 665, 668 (8th Cir. 1986). Our standard of review of such dismissals is whether the district court abused its discretion. Id. If the plaintiff can prove any set of facts that would entitle him to relief, a dismissal under § 1915(d) is an abuse of discretion. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984); Nash, 781 F.2d at 668.
[25] I.
[26] "In order to state a cognizable claim [under the eighth amendment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Intentional, involuntary exposure to a known risk of a significant health hazard can violate the eighth amendment. See, e.g., Hoptowit v. Spellman, 753 F.2d 779, 783-84 (9th Cir. 1985).
[27] Exposure to radiation can cause damage to the reproductive organs or sterility in humans, genetic mutation in offspring, and a variety of cancers. See Gregg, Effects of Ionizing Radiations on Humans, in 2 Handbook of Medical Physics 375, 396-97, 400 (R. Waggener ed. 1984). A single medical x-ray can reduce one's life expectancy by an average of six out of twenty-five thousand days. Id. at 404. Moreover, the effects of repeated exposures to medical x-rays are linear, and the risk of cancer does not diminish over time. Id. at 402. Thus, ten exposures over a ten-year period have the same probability of inducing cancer after the last exposure as ten exposures given in the same week. Id.
[28] Radiologists agree that although the health risk of a single diagnostic x-ray is relatively small, no x-ray should be taken unless the diagnostic or treatment value of the information obtained outweighs the hazard to the patient. See E. Hall, Radiation & Life 179-80 (1976). As a general rule, no amount of x-ray exposure is justified unless it is likely to produce a clear and tangible benefit to the patient. Id. at 180-81; see also J. Whalen & S. Balter, Radiation Risks in Medical Imaging 92 (1984) (noting that "a major public health effort is directed toward minimizing the unnecessary exposure of the population to imaging radiation").
[29] Absolutely no medical reason existed for the x-ray of Nitcher's abdomen. The x-ray was both intentional and involuntary. See Hoptowit v. Spellman, 753 F.2d at 783-84. The health hazards of radiation are well-documented; all radiation is presumed for public health purposes to be hazardous. J. Whalen & S. Balter, supra, at 92. Repeated exposure to x-rays increases the harm, yet MSP officials made no inquiry into Nitcher's medical history before performing the x-ray search. Consequently, they failed to consider the possible cumulative effect the x-ray search might produce in combination with the previous twenty-five x-rays Nitcher had undergone. MSP officials' failure to take Nitcher's medical history, to get a doctor's order for the x-ray, to have medical personnel perform or at least be present during the x-ray, or even to record in Nitcher's medical record that the x-ray was performed "evidence deliberate indifference to serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Moreover, then-Associate Warden Cline, who ordered Nitcher's x-ray, stated that this procedure was a "rather routine thing" at MSP. On these facts and authorities, Nitcher has stated a cognizable eighth amendment claim sufficient to preclude dismissal of his complaint as frivolous prior to service of process. Consequently, further proceedings are warranted and the magistrate erred in recommending that Nitcher's complaint be dismissed under 28 U.S.C. § 1915(d).
[30] II.
[31] Even if the April 8th x-ray to which Nitcher was exposed did not constitute a significant health hazard, the health risk involved is only one factor to be balanced among several in determining whether a search is reasonable under the circumstances for fourth amendment purposes. See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1872-73, 104 L. Ed. 2d 443 (1989) (stating that fourth and eighth amendment analyses differ).
[32] In Franklin v. Lockhart, 883 F.2d 654 (8th Cir. 1989), this court set forth the factors to be applied in determining whether visual body cavity (VBC) searches of inmates violated the fourth amendment. The court noted that in Bell v. Wolfish, 441 U.S. 520, 558, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Supreme Court in reviewing VBC searches "balanced 'the need for the particular search against the invasion of personal rights that the search [entailed]' with regard to the following factors: (1) the justification for initiating the search; and (2) the scope, manner, and place of the search." 883 F.2d at 656. In Franklin, this court held that although the intrusiveness of VBC searches was significant, security concerns justified the searches and that the manner and place of the searches did not violate the fourth amendment. Id.
[33] In United States v. Oyekan, 786 F.2d 832 (8th Cir. 1986), this court reviewed the reasonableness of an x-ray search of a suspect at a border. The court first had to determine "what level of suspicion [was] required to justify" the search. Id. at 837. "[As] medical danger increases because of a search procedure, so must the reasons for conducting the procedure." United States v. Vega-Barvo, 729 F.2d 1341, 1348 (11th Cir.), cert. denied, 469 U.S. 1088, 105 S. Ct. 597, 83 L. Ed. 2d 706 (1984). Acknowledging that "exposure to x-rays may pose significant health problems," Oyekan, 786 F.2d at 837 n. 10, the court balanced the government's interest in securing the borders against the intrusiveness of the x-ray search and concluded that reasonable suspicion that a suspect is an alimentary canal smuggler must support an involuntary x-ray examination. Id. at 837. The court noted that its holding was "predicated on the assumption that the x-ray is administered in a hospital by trained medical personnel, and that an appropriate medical history is taken from the patient." Id. at 837 n. 10; see also United States v. Vega-Barvo, 729 F.2d at 1348-49 (x-ray conducted by physician at hospital is no more intrusive than strip search; court, however, recognized dangerousness of improperly performed x-ray); United States v. Mejia, 720 F.2d 1378, 1382 (5th Cir. 1983) (x-ray search was not intrusive when performed by hospital personnel after suspect was questioned about medical history and prior x-ray exposure). But see United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982) ("X-ray search, although perhaps not so humiliating as a strip search, nevertheless is more intrusive since the search is potentially harmful to the health of the suspect.")
[34] We find that the magistrate's fourth amendment analysis did not properly take into account the justification for and the manner of the search.*fn2 The magistrate found that a generalized penological interest in searching inmates for contraband justified the x-ray search. As stated in Oyekan, however, and not refuted on this record, "exposure to x-rays may pose significant health problems." 786 F.2d at 837 n. 10. We therefore hold that a reasonable suspicion that an inmate is secreting contraband must support an involuntary x-ray search. See id. at 837. In addition, prison officials must prove that less invasive means cannot detect the contraband. See Franklin, 883 F.2d at 656-57 (place of search was reasonable because less public means of conducting a VBC search would compromise security). Although it appears that appellees did not have a reasonable suspicion that appellant was secreting contraband, because the court dismissed the complaint before appellees answered, the record is undeveloped as to appellees' justification.
[35] In addition, the magistrate did not balance the manner in which the x-ray was performed in his fourth amendment analysis. As discussed above, the manner in which a search is performed is crucial to a fourth amendment reasonableness analysis. See Vaughan v. Ricketts, 859 F.2d 736, 740 (9th Cir. 1988) (in context of qualified immunity claim to digital search, search was unreasonable where, among other things, no inspection of medical records was conducted to determine if search was medically appropriate), cert. denied, 490 U.S. 1012, 109 S. Ct. 1655, 104 L. Ed. 2d 169 (1989); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (digital search conducted in nonhygenic manner was unreasonable), overruled on other grounds, Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir. 1988). In Nitcher's case, not only was the x-ray performed by an inmate technician, but no medical personnel were present and no medical history was taken. Consequently, no consideration was given to Nitcher's previous twenty-five x-ray exposures, and no record was made of the x-ray search so that it might be considered before future such searches were ordered. Additionally, appellee Cline could articulate only a vague suspicion that Nitcher was an escape risk, rather than any reasonable suspicion that Nitcher was secreting contraband.
[36] Because appellant has presented an "arguably meritorious legal theory" and facts in support of his fourth and eighth amendment claims, the district court erred in dismissing his claim as frivolous. See Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989) (case is not subject to dismissal as frivolous prior to service of process if legal theories and factual allegations are arguable on merits).
[37] On remand, the defendants must answer the complaint and present their justification for the x-ray search. The district court will be free to review all the evidence in the light of this opinion and to determine whether, under all the circumstances, x-ray searches to determine whether Nitcher concealed contraband in his body cavities violated his fourth and eighth amendment rights.
[38] Accordingly, the judgment is reversed and remanded for further proceedings consistent with this opinion.
[39] JOHN R. GIBSON, Circuit Judge, dissenting.
[40] I respectfully dissent.
[41] The court today ignores findings of fact which it directed the trial court to make, namely that x-rays did not have a harmful effect on Nitcher. It substitutes its own contrary finding based on medical textbooks which the Federal Rules of Evidence would not admit under the circumstances of this case. The court then dismisses the role those findings played in the district court's analysis of the Fourth and Eighth Amendment claims asserted by Nitcher. I would conclude that the district court's finding that the x-rays were not harmful was not clearly erroneous and, based upon those findings, that the district court did not err in determining that the use of x-rays was reasonable under the circumstances, precluding the Fourth Amendment claim, and that there was no infliction of pain so as to implicate Eighth Amendment concerns.
[42] In our earlier order, we remanded this case to the district court with directions to "conduct an evidentiary hearing on the question of whether x-ray searches of the petitioner's body cavities are in violation of his Fourth and Eighth Amendment rights," and we specifically stated that "[t]he only issue upon which proof should be accepted is the question as to whether the x-ray search constitutes a health hazard." Order of January 25, 1988, at 1. We also directed that counsel be appointed to represent Nitcher.
[43] At a hearing held by the magistrate, Dr. Myron Watts testified that a single x-ray would have resulted in two or possibly three milliroentgens of exposure to Nitcher, (Tr. 51-60), and that an exposure of up to 5,000 milliroentgens in a year is considered "safe," (Tr. 61). Dr. Watts also testified that there was nothing in Nitcher's medical history that would lead to the conclusion that an x-ray would pose a health threat to Nitcher. (Tr. 51). The record contains nothing to contradict Dr. Watts' testimony. Based upon this evidence, the district court adopted the magistrate's finding that the x-ray did not threaten Nitcher's health.
[44] The court today blatantly abandons its duty to review this factual issue under the clearly erroneous standard of Federal Rule of Civil Procedure 52, as interpreted in Anderson v. Bessemer City, 470 U.S. 564, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985). Indeed, the district court's finding that the x-ray presented no medical hazard to Nitcher is not even acknowledged, much less shown the deference due it under the clearly erroneous standard.
[45] In ignoring the limitations contained in Rule 52 and Bessemer City, the court oversteps the bounds of its duty by "undertak[ing] to duplicate the role of the lower court." 470 U.S. at 573. Not only has it relegated the evidentiary hearing before the magistrate to a "tryout on the road," but it has made its own view of the facts the "main event." Id. at 575 (quoting Wainwright v. Sykes, 443 U.S. 72, 90 (1977)). This flies squarely in the face of the Supreme Court's mandates in Bessemer City.
[46] Even more astoundingly, the court, in its analysis which underlies both Fourth and Eighth Amendment considerations, makes its own factual findings based upon medical texts. Under the Federal Rules of Evidence, texts are admissible only to the extent called to the attention of an expert witness. See Fed. R. Evid. 803(18). Such did not occur in this case, and an appellate court should not create its own evidentiary record. In spite of these limitations on evidence a trial court may consider, our court today accepts medical texts as establishing the hazard to Nitcher, ignoring the testimony in the record before the trial court. This is error compounded.
[47] The district court, adopting the recommendation of the magistrate that there was no evidence of health hazard to Nitcher, reasoned that under the Fourth Amendment prison officials had a right to search Nitcher for contraband before transporting him outside the institution, that there was a compelling interest to do so, and that the additional intrusion by an x-ray on one occasion was a de minimis health risk to an individual who was incarcerated for aiding a prisoner to escape.*fn1 The lack of evidence of a health hazard to Nitcher or that the x-ray caused pain defeats the Eighth Amendment claim.
[48] I am satisfied that the finding that there is not a health hazard to Nitcher is supported by the testimony before the magistrate and is not clearly erroneous. When the finding of lack of medical hazard is accepted as not clearly erroneous, the district court's analyses as to both Fourth Amendment and Eighth Amendment considerations are not in error. I would affirm the dismissal.
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Opinion Footnotes
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[49] *fn1 There is no record evidence of appellant's convictions.
[50] *fn2 The language of the remand order perhaps misled the magistrate into believing that the absence of medical harm would be dispositive of appellant's fourth amendment claim.
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Dissent Footnotes
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[51] *fn1 The court today reasons that x-rays were routinely administered to inmates, but Cline, the prison official authorizing the x-ray on this one occasion, testified that his suspicion that Nitcher was an escape risk was rooted in the fact that Nitcher had previously assisted another prisoner to escape from jail, (Tr. 37), and, indeed, Nitcher had admitted that he had been convicted of "[a]iding a prisoner to escape." (Tr. 11)
[1] UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[2] No. 88-2816
[3] 1990, 899 F.2d 1543
[4] filed: April 5, 1990.
[5] RORY D. NITCHER, APPELLANT,
v.
DONALD CLINE; DR. RICHARD BOWERS; SGT. DODSON; JOHN DOE, APPELLEE
[6] Appeal from the United States District Court for the Western District of Missouri, Scott O. Wright, Judge.
[7] COUNSEL
[8] Counsel who represented the appellant was Marilyn R. Gaeth, Columbia, Missouri.
[9] Counsel who represented the appellee was Jeffrey P. Dix, Jackson, Missouri.
[10] John R. Gibson, Circuit Judge, Heaney, Senior Circuit Judge, and Wollman, Circuit Judge.
[11] Author: Heaney
[12] John R. Gibson, Circuit Judge, Heaney, Senior Circuit Judge, and Wollman, Circuit Judge.
[13] HEANEY, Senior Circuit Judge.
[14] Rory D. Nitcher, an inmate at the Missouri State Penitentiary (MSP), appeals from the order of the district court adopting the recommendation of the magistrate to dismiss as frivolous his complaint filed pursuant to 42 U.S.C. § 1983 (1982). This appeal follows an order of remand. Nitcher v. Cline, 845 F.2d 1026 (8th Cir. 1988) (administrative panel matter). For the reasons discussed below, we reverse and remand.
[15] Background
[16] On August 25, 1987, Nitcher filed a complaint against Donald Cline, the then-associate warden of MSP, Dr. Richard Bowers, medical supervisor of MSP, and identified and unidentified corrections officers. Nitcher alleged that an x-ray search of his abdomen without a doctor's or court order violated his fourth, fifth, and eighth amendment rights, and Missouri state law. He requested damages and declaratory and injunctive relief. The district court adopted the magistrate's recommendation that the complaint be dismissed as frivolous before service of process pursuant to 28 U.S.C. § 1915(d) (1982).
[17] Nitcher appealed, and on January 25, 1988, this court remanded the case to the district court with directions to appoint counsel and conduct an evidentiary hearing "on the question of whether x-ray searches of the petitioner's body cavities are in violation of his Fourth and Eighth amendment rights."
[18] On June 30, 1988, the magistrate conducted an evidentiary hearing. Nitcher testified that at approximately 8:00 a.m. on April 8, 1986, two corrections officers came to his cell and told him he was going to the Fulton Medical Center, but that first he had to have an x-ray search of his abdomen. The officers took Nitcher to the radiology department of MSP hospital. The officers ordered Nitcher to remove his trousers and lie on the x-ray table. Nitcher asked why he needed an x-ray and the officers responded that Cline had ordered it. The officers told Nitcher that if he refused the x-ray, he would be subjected to a digital body cavity search and a conduct violation. Nitcher testified that he had undergone a visual strip search every time he left MSP, but that he had never had a digital body cavity search. Nitcher further testified that no one took his medical history before performing the x-ray and that neither medical personnel nor his medical chart were present. He stated that an inmate technician took the x-ray. No medical record was made of the x-ray. Nitcher also testified that before the x-ray, he had had approximately twenty-five x-ray examinations.
[19] Nitcher presented the testimony of John Kahl, supervisor of the MSP radiology department, and appellee Cline. Kahl testified that exposure to x-rays over time can cause cancer and injury to reproductive organs. Kahl further testified that x-rays at MSP are performed only on a doctor's order. He explained that if an x-ray request originated from prison security personnel, he always contacted a physician and obtained his consent before performing the x-ray.
[20] Cline testified that he ordered only that an inmate be taken to the MSP hospital for an x-ray, but that a doctor must order the x-ray. He stated that it was a "rather routine thing" for a doctor to approve an x-ray request in escape-risk situations. On cross-examination, Cline testified that he could not recall why he requested an x-ray of Nitcher on this occasion, but that he had considered Nitcher a security risk.
[21] Appellees presented the testimony of Dr. Myron Watts, a certified radiologist, who stated that based on his review of Nitcher's medical history and on the prior x-rays Nitcher had had at MSP, the April 1986 abdominal x-ray did not pose a health hazard. On cross-examination, Dr. Watts stated that the purpose of a doctor's order for an x-ray examination was to protect the patient from needless exposure to x-rays and that there was "some medical danger" from x-ray exposure.
[22] On August 23, 1988, the magistrate again dismissed the complaint as frivolous, noting that Nitcher's chance of success on the merits was slight. The magistrate found that the x-ray search did not violate the eighth amendment because it did not cause pain or constitute a health hazard, and did not violate the fourth amendment because it was reasonable under the circumstances. In concluding that the search was reasonable, the magistrate noted the compelling interest of prison officials to search inmates for contraband and that Nitcher had been subjected to visual strip searches before leaving MSP. In this instance, the magistrate found that the additional intrusion by an x-ray that did not impose a health hazard on a prisoner who had been convicted of escape and armed criminal action*fn1 was de minimis. The magistrate, however, "did not condone the procedure apparently used to order [Nitcher's] x-ray search."
[23] Analysis
[24] A district court may dismiss a complaint in forma pauperis as frivolous only if the court is satisfied that the plaintiff can prove no set of facts that would entitle him to relief. 28 U.S.C. 1915(d) (1982); Nash v. Black, 781 F.2d 665, 668 (8th Cir. 1986). Our standard of review of such dismissals is whether the district court abused its discretion. Id. If the plaintiff can prove any set of facts that would entitle him to relief, a dismissal under § 1915(d) is an abuse of discretion. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984); Nash, 781 F.2d at 668.
[25] I.
[26] "In order to state a cognizable claim [under the eighth amendment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Intentional, involuntary exposure to a known risk of a significant health hazard can violate the eighth amendment. See, e.g., Hoptowit v. Spellman, 753 F.2d 779, 783-84 (9th Cir. 1985).
[27] Exposure to radiation can cause damage to the reproductive organs or sterility in humans, genetic mutation in offspring, and a variety of cancers. See Gregg, Effects of Ionizing Radiations on Humans, in 2 Handbook of Medical Physics 375, 396-97, 400 (R. Waggener ed. 1984). A single medical x-ray can reduce one's life expectancy by an average of six out of twenty-five thousand days. Id. at 404. Moreover, the effects of repeated exposures to medical x-rays are linear, and the risk of cancer does not diminish over time. Id. at 402. Thus, ten exposures over a ten-year period have the same probability of inducing cancer after the last exposure as ten exposures given in the same week. Id.
[28] Radiologists agree that although the health risk of a single diagnostic x-ray is relatively small, no x-ray should be taken unless the diagnostic or treatment value of the information obtained outweighs the hazard to the patient. See E. Hall, Radiation & Life 179-80 (1976). As a general rule, no amount of x-ray exposure is justified unless it is likely to produce a clear and tangible benefit to the patient. Id. at 180-81; see also J. Whalen & S. Balter, Radiation Risks in Medical Imaging 92 (1984) (noting that "a major public health effort is directed toward minimizing the unnecessary exposure of the population to imaging radiation").
[29] Absolutely no medical reason existed for the x-ray of Nitcher's abdomen. The x-ray was both intentional and involuntary. See Hoptowit v. Spellman, 753 F.2d at 783-84. The health hazards of radiation are well-documented; all radiation is presumed for public health purposes to be hazardous. J. Whalen & S. Balter, supra, at 92. Repeated exposure to x-rays increases the harm, yet MSP officials made no inquiry into Nitcher's medical history before performing the x-ray search. Consequently, they failed to consider the possible cumulative effect the x-ray search might produce in combination with the previous twenty-five x-rays Nitcher had undergone. MSP officials' failure to take Nitcher's medical history, to get a doctor's order for the x-ray, to have medical personnel perform or at least be present during the x-ray, or even to record in Nitcher's medical record that the x-ray was performed "evidence deliberate indifference to serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Moreover, then-Associate Warden Cline, who ordered Nitcher's x-ray, stated that this procedure was a "rather routine thing" at MSP. On these facts and authorities, Nitcher has stated a cognizable eighth amendment claim sufficient to preclude dismissal of his complaint as frivolous prior to service of process. Consequently, further proceedings are warranted and the magistrate erred in recommending that Nitcher's complaint be dismissed under 28 U.S.C. § 1915(d).
[30] II.
[31] Even if the April 8th x-ray to which Nitcher was exposed did not constitute a significant health hazard, the health risk involved is only one factor to be balanced among several in determining whether a search is reasonable under the circumstances for fourth amendment purposes. See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1872-73, 104 L. Ed. 2d 443 (1989) (stating that fourth and eighth amendment analyses differ).
[32] In Franklin v. Lockhart, 883 F.2d 654 (8th Cir. 1989), this court set forth the factors to be applied in determining whether visual body cavity (VBC) searches of inmates violated the fourth amendment. The court noted that in Bell v. Wolfish, 441 U.S. 520, 558, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Supreme Court in reviewing VBC searches "balanced 'the need for the particular search against the invasion of personal rights that the search [entailed]' with regard to the following factors: (1) the justification for initiating the search; and (2) the scope, manner, and place of the search." 883 F.2d at 656. In Franklin, this court held that although the intrusiveness of VBC searches was significant, security concerns justified the searches and that the manner and place of the searches did not violate the fourth amendment. Id.
[33] In United States v. Oyekan, 786 F.2d 832 (8th Cir. 1986), this court reviewed the reasonableness of an x-ray search of a suspect at a border. The court first had to determine "what level of suspicion [was] required to justify" the search. Id. at 837. "[As] medical danger increases because of a search procedure, so must the reasons for conducting the procedure." United States v. Vega-Barvo, 729 F.2d 1341, 1348 (11th Cir.), cert. denied, 469 U.S. 1088, 105 S. Ct. 597, 83 L. Ed. 2d 706 (1984). Acknowledging that "exposure to x-rays may pose significant health problems," Oyekan, 786 F.2d at 837 n. 10, the court balanced the government's interest in securing the borders against the intrusiveness of the x-ray search and concluded that reasonable suspicion that a suspect is an alimentary canal smuggler must support an involuntary x-ray examination. Id. at 837. The court noted that its holding was "predicated on the assumption that the x-ray is administered in a hospital by trained medical personnel, and that an appropriate medical history is taken from the patient." Id. at 837 n. 10; see also United States v. Vega-Barvo, 729 F.2d at 1348-49 (x-ray conducted by physician at hospital is no more intrusive than strip search; court, however, recognized dangerousness of improperly performed x-ray); United States v. Mejia, 720 F.2d 1378, 1382 (5th Cir. 1983) (x-ray search was not intrusive when performed by hospital personnel after suspect was questioned about medical history and prior x-ray exposure). But see United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982) ("X-ray search, although perhaps not so humiliating as a strip search, nevertheless is more intrusive since the search is potentially harmful to the health of the suspect.")
[34] We find that the magistrate's fourth amendment analysis did not properly take into account the justification for and the manner of the search.*fn2 The magistrate found that a generalized penological interest in searching inmates for contraband justified the x-ray search. As stated in Oyekan, however, and not refuted on this record, "exposure to x-rays may pose significant health problems." 786 F.2d at 837 n. 10. We therefore hold that a reasonable suspicion that an inmate is secreting contraband must support an involuntary x-ray search. See id. at 837. In addition, prison officials must prove that less invasive means cannot detect the contraband. See Franklin, 883 F.2d at 656-57 (place of search was reasonable because less public means of conducting a VBC search would compromise security). Although it appears that appellees did not have a reasonable suspicion that appellant was secreting contraband, because the court dismissed the complaint before appellees answered, the record is undeveloped as to appellees' justification.
[35] In addition, the magistrate did not balance the manner in which the x-ray was performed in his fourth amendment analysis. As discussed above, the manner in which a search is performed is crucial to a fourth amendment reasonableness analysis. See Vaughan v. Ricketts, 859 F.2d 736, 740 (9th Cir. 1988) (in context of qualified immunity claim to digital search, search was unreasonable where, among other things, no inspection of medical records was conducted to determine if search was medically appropriate), cert. denied, 490 U.S. 1012, 109 S. Ct. 1655, 104 L. Ed. 2d 169 (1989); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (digital search conducted in nonhygenic manner was unreasonable), overruled on other grounds, Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir. 1988). In Nitcher's case, not only was the x-ray performed by an inmate technician, but no medical personnel were present and no medical history was taken. Consequently, no consideration was given to Nitcher's previous twenty-five x-ray exposures, and no record was made of the x-ray search so that it might be considered before future such searches were ordered. Additionally, appellee Cline could articulate only a vague suspicion that Nitcher was an escape risk, rather than any reasonable suspicion that Nitcher was secreting contraband.
[36] Because appellant has presented an "arguably meritorious legal theory" and facts in support of his fourth and eighth amendment claims, the district court erred in dismissing his claim as frivolous. See Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989) (case is not subject to dismissal as frivolous prior to service of process if legal theories and factual allegations are arguable on merits).
[37] On remand, the defendants must answer the complaint and present their justification for the x-ray search. The district court will be free to review all the evidence in the light of this opinion and to determine whether, under all the circumstances, x-ray searches to determine whether Nitcher concealed contraband in his body cavities violated his fourth and eighth amendment rights.
[38] Accordingly, the judgment is reversed and remanded for further proceedings consistent with this opinion.
[39] JOHN R. GIBSON, Circuit Judge, dissenting.
[40] I respectfully dissent.
[41] The court today ignores findings of fact which it directed the trial court to make, namely that x-rays did not have a harmful effect on Nitcher. It substitutes its own contrary finding based on medical textbooks which the Federal Rules of Evidence would not admit under the circumstances of this case. The court then dismisses the role those findings played in the district court's analysis of the Fourth and Eighth Amendment claims asserted by Nitcher. I would conclude that the district court's finding that the x-rays were not harmful was not clearly erroneous and, based upon those findings, that the district court did not err in determining that the use of x-rays was reasonable under the circumstances, precluding the Fourth Amendment claim, and that there was no infliction of pain so as to implicate Eighth Amendment concerns.
[42] In our earlier order, we remanded this case to the district court with directions to "conduct an evidentiary hearing on the question of whether x-ray searches of the petitioner's body cavities are in violation of his Fourth and Eighth Amendment rights," and we specifically stated that "[t]he only issue upon which proof should be accepted is the question as to whether the x-ray search constitutes a health hazard." Order of January 25, 1988, at 1. We also directed that counsel be appointed to represent Nitcher.
[43] At a hearing held by the magistrate, Dr. Myron Watts testified that a single x-ray would have resulted in two or possibly three milliroentgens of exposure to Nitcher, (Tr. 51-60), and that an exposure of up to 5,000 milliroentgens in a year is considered "safe," (Tr. 61). Dr. Watts also testified that there was nothing in Nitcher's medical history that would lead to the conclusion that an x-ray would pose a health threat to Nitcher. (Tr. 51). The record contains nothing to contradict Dr. Watts' testimony. Based upon this evidence, the district court adopted the magistrate's finding that the x-ray did not threaten Nitcher's health.
[44] The court today blatantly abandons its duty to review this factual issue under the clearly erroneous standard of Federal Rule of Civil Procedure 52, as interpreted in Anderson v. Bessemer City, 470 U.S. 564, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985). Indeed, the district court's finding that the x-ray presented no medical hazard to Nitcher is not even acknowledged, much less shown the deference due it under the clearly erroneous standard.
[45] In ignoring the limitations contained in Rule 52 and Bessemer City, the court oversteps the bounds of its duty by "undertak[ing] to duplicate the role of the lower court." 470 U.S. at 573. Not only has it relegated the evidentiary hearing before the magistrate to a "tryout on the road," but it has made its own view of the facts the "main event." Id. at 575 (quoting Wainwright v. Sykes, 443 U.S. 72, 90 (1977)). This flies squarely in the face of the Supreme Court's mandates in Bessemer City.
[46] Even more astoundingly, the court, in its analysis which underlies both Fourth and Eighth Amendment considerations, makes its own factual findings based upon medical texts. Under the Federal Rules of Evidence, texts are admissible only to the extent called to the attention of an expert witness. See Fed. R. Evid. 803(18). Such did not occur in this case, and an appellate court should not create its own evidentiary record. In spite of these limitations on evidence a trial court may consider, our court today accepts medical texts as establishing the hazard to Nitcher, ignoring the testimony in the record before the trial court. This is error compounded.
[47] The district court, adopting the recommendation of the magistrate that there was no evidence of health hazard to Nitcher, reasoned that under the Fourth Amendment prison officials had a right to search Nitcher for contraband before transporting him outside the institution, that there was a compelling interest to do so, and that the additional intrusion by an x-ray on one occasion was a de minimis health risk to an individual who was incarcerated for aiding a prisoner to escape.*fn1 The lack of evidence of a health hazard to Nitcher or that the x-ray caused pain defeats the Eighth Amendment claim.
[48] I am satisfied that the finding that there is not a health hazard to Nitcher is supported by the testimony before the magistrate and is not clearly erroneous. When the finding of lack of medical hazard is accepted as not clearly erroneous, the district court's analyses as to both Fourth Amendment and Eighth Amendment considerations are not in error. I would affirm the dismissal.
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Opinion Footnotes
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[49] *fn1 There is no record evidence of appellant's convictions.
[50] *fn2 The language of the remand order perhaps misled the magistrate into believing that the absence of medical harm would be dispositive of appellant's fourth amendment claim.
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Dissent Footnotes
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[51] *fn1 The court today reasons that x-rays were routinely administered to inmates, but Cline, the prison official authorizing the x-ray on this one occasion, testified that his suspicion that Nitcher was an escape risk was rooted in the fact that Nitcher had previously assisted another prisoner to escape from jail, (Tr. 37), and, indeed, Nitcher had admitted that he had been convicted of "[a]iding a prisoner to escape." (Tr. 11)